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JHIRAD v. TD SECURITIES USA

United States District Court, Southern District of New York


April 8, 2003

RAHEL JHIRAD, PLAINTIFF,
v.
TD SECURITIES USA, INC., DEFENDANT.

The opinion of the court was delivered by: Henry Pitman, United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff seeks reconsideration of certain aspects of my Order dated March 7, 2003 which resolved the parties' discovery disputes concerning plaintiff's document requests. For the reasons set forth below, plaintiff's application for reconsideration is granted, and upon reconsideration, I modify my rulings as set forth below.

This is an employment discrimination action. Plaintiff is a former employee of defendant TD Securities USA, Inc. ("TD USA"). She alleges that she was denied promotion and ultimately terminated in May 2002 on the basis of her sex, religion and national origin.*fn1 Defendant is a United States subsidiary of the Toronto Dominion Bank ("TDB"). TDB and its subsidiaries are known collectively as the TD Bank Financial Group (the "Group"). As of December 2001, the Group employed almost 44,000 individuals worldwide.

Although plaintiff's request for reconsideration does not specify the discovery requests in issue, it appears that plaintiff is seeking reconsideration of my rulings with respect to document requests 19, 36 and 37 (see Letter of G. Oliver Koppell, Esq., dated March 31, 2003, at 1-2). These requests seek the following:

Request No. 19. All documents and any form of communication showing discriminatory action to any individual on the part of Defendant and its affiliates worldwide.
Request No. 36. All documents showing or containing information on the number of times in 1998, 1999, 2000, 2001, 2002 individuals were eligible for promotion to Managing Director, firm-wide.
Request No. 37. All documents showing, or containing information on the number of Managing Directors promoted in 1998, 1999, 2000, 2001, 2002 and the dates of such promotions within the years 1998, 1999, 2000, 2001, 2002 firm-wide.
In my March 7, 2003 Order, I limited discovery to employment decisions made by plaintiff's supervisors, ruling on these requests as follows:

4. Defendant's obligation to produce documents in response to plaintiff's Document Request No. 19 is limited to all non-privileged documents concerning charges of discrimination by individuals other than plaintiff made against Messrs. Marks and Meijer for the period from 1996 through 2002 on the basis of gender, nationality or religion. This aspect of my Order is without prejudice to a renewed application from plaintiff for additional discovery supported by authority demonstrating that such additional discovery is appropriate.
5. Defendant's obligation to produce documents in response to plaintiff's Document Requests Nos. 36 and 37 is limited to documents concerning individuals who were supervised by Marks and Meijer between 1998 and 2002. This aspect of my Order is without prejudice to a renewed application from plaintiff for additional discovery supported by authority demonstrating that such additional discovery is appropriate.
Plaintiff now claims that she is entitled to documents responsive to these items from the entire Group. As articulated by plaintiff's counsel:

Since, the requests made by Plaintiff for the discovery of all statistical evidence relating to [the Group's] general and systematic employment practices is important in establishing its discriminatory practices and culture against Plaintiff's protected class status, your Honor should grant Plaintiff's discovery requests in all aspects. "Liberal" discovery of all statistical information as to all managers at [the Group] will enable Plaintiff to make out a prima facie showing of discriminatory intent under her individual disparate treatment claim. . . .
Accordingly, the law strongly supports Plaintiff's wish to look at company-wide statistics in order to determine whether there is a discriminatory culture and practice at [the Group]. In order to make such a determination, it is essential to look at statistics beyond statistics related to the relatively small number of employees who worked directly for Plaintiff's supervisors, Messrs. Marks and Meijer. Indeed deposition testimony indicated that individuals other than Marks and Meijer at [the Group] were consulted in connection with an [sic] had a role in Plaintiff's treatment by an [sic] employment opportunities at TD USA.
(Letter of G. Oliver Koppell, Esq., dated March 17, 2003, at 10).

Defendant contends that only discovery from TD USA is appropriate and that that discovery should be limited to employment decisions made by plaintiff's immediate supervisors.

There can be no serious dispute that in an individual employment discrimination case such as this one statistical evidence is relevant and admissible. Stanojev v. Ebasco Servs., Inc., 643 F.2d 914, 921 (2d Cir. 1981).

Although neither parties' submissions cite the ruling, my own research has disclosed a decision from the Court of Appeals which appears to be dispositive of the dispute. In Hollander v. American Cyanamid Co., 895 F.2d 80 (2d Cir. 1990), plaintiff sued his former employer alleging, among other things, that he had been the victim of age discrimination. During discovery, plaintiff served an interrogatory seeking the identification of (1) each management level employee terminated by defendant after January 1, 1983 who was over the age of 40 at termination and (2) the reason for the termination. Defendant objected to this interrogatory on various grounds, including a claim of overbreadth based on plaintiff's failure to limit his request to the specific facility (the Davis & Geck facility) at which plaintiff had been employed. Both the Magistrate Judge who oversaw discovery and the District Judge sustained defendant's objections to this request. 895 F.2d at 84.

After discovery was completed, the District Court granted defendant's motion for summary judgment dismissing the age discrimination claim, finding that plaintiff had failed to sustain his burden at the third step of the familiar McDonnell Douglas analysis.

The Court of Appeals reversed the dismissal of plaintiff's age discrimination claim, finding that "the district court improperly restricted discovery and thereby prevented [plaintiff] from presenting evidence potentially helpful to his claim of discriminatory discharge." 895 F.2d at 82. The Court of Appeals held that company-wide demographic information might be relevant to show that defendant's non-discriminatory reasons for plaintiff's termination were pretextual. Because the Court of Appeals' decision is controlling here, I quote the relevant passage at length:

[W]e find the district court erred in refusing to compel American Cyanamid to answer Hollander's interrogatory. Hollander' s discovery request sought information regarding the termination of similarly situated persons, management personnel over forty years old, working for American Cyanamid. Although the request goes beyond the narrow confines of the Davis & Geck Danbury facility in which Hollander worked and pursues facts pertaining to American Cyanamid's employment practices more generally, it is relevant to Hollander's case.
It is well-settled that an individual disparate treatment plaintiff may use statistical evidence regarding an employer's general practices at the pretext stage to help rebut the employer's purported nondiscriminatory explanation. See, e.g., McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825-26; Lieberman v. Gant, 630 F.2d 60, 68-69 (2d Cir. 1980); Logan v. St. Luke's-Roosevelt Hosp. Center, 636 F. Supp. 226, 234 (S.D.N.Y.), aff'd, 805 F.2d 391 (2d Cir. 1986). Evidence relating to company-wide practices may reveal patterns of discrimination against a group of employees, increasing the likelihood that an employer's offered explanation for an employment decision regarding a particular individual masks a discriminatory motive. This case turns on the sincerity of American Cyanamid's claim that Hollander's abrasive personality justified his discharge, notwithstanding what Hollander depicts as American Cyanamid's prior fickle attitude towards this dimension of Hollander's job performance and the inability of a company supervisor to detail instances in which such problems impeded productivity. it is possible that Hollander's discovery request might uncover a pattern of older management employees leaving American Cyanamid under unexplained circumstances, which might help prove his claim that American Cyanamid's explanation for his discharge was pretextual.
Because employers rarely leave a paper trail — or "smoking gun" — attesting to a discriminatory intent, See Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-65 (2d Cir. 1989) (citing cases); Dister v. Continental Group, Inc., 859 F.2d 1108, 1112 (2d Cir. 1988), disparate treatment plaintiffs often must build their cases from pieces of circumstantial evidence which cumulatively undercut the credibility of the various explanations offered by the employer. Such determinations are, generally speaking, most competently and appropriately made by the trier of fact. So long as the plaintiff can present "solid circumstantial evidence" supporting his case, see Clements v. County of Nassau, 835 F.2d 1000, 1005 (2d Cir. 1987), he should have the opportunity to prove his case at trial. The district court's refusal to compel an answer from American Cyanamid deprived Hollander of evidence potentially helpful to his attempt to assemble such a quantum of circumstantial evidence supporting his argument of pretext. Accordingly, we reverse the district court's denial of Hollander's motion to compel and vacate summary judgment on the discriminatory discharge claim. See Cedillo v. International Ass'n of Bridge & Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 12 (7th Cir. 1979) (holding summary judgment improper in disparate treatment case when district court limited plaintiff's ability to discover information relevant to employer's motivation); see also Diaz v. American Telephone & Telegraph, 752 F.2d 1356, 1362-63 (9th Cir. 1985) (holding summary judgment "patently inappropriate" when district court restricts plaintiff's ability to discover evidence necessary to establish disparate treatment prima facie case). . . .
895 F.2d at 84-85.

Admittedly, Hollander is not the Circuit's last word on the use of "other-act" or statistical evidence in discrimination cases, and the Circuit has noted on several occasions that the comparisons underlying claims of disparate treatment must be carefully drawn. For example, in Smith v. Xerox Corp., 196 F.3d 358 (2d Cir. 1999), upon which defendant here relies, the Court of Appeals affirmed the dismissal of the plaintiffs' disparate treatment claims, finding that evidence concerning employment decisions made by individuals who were not involved in the decisions in issue was irrelevant: "Because intent is the critical issue, only a comparison between persons evaluated by the same decision-maker is probative of discrimination." 196 F.3d at 370-71. Similarly, in Shumway v. United Parcel Serv., Inc., 118 F.3d 60 (2d Cir. 1997), the Court of Appeals affirmed summary judgment in favor of the employer, where, among other things, plaintiff failed to demonstrate that the proffered comparators were similarly situated and engaged in similar forms of misconduct.

However, in another case, the Court of Appeals overturned a grant of summary judgment because the Magistrate Judge had erroneously required the proffered comparator to be situated identically to plaintiff. McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001) ("The magistrate judge interpreted Shumway to mean that another employee cannot be similarly situated to a plaintiff unless the other employee had the same supervisor, worked under the same standards, and engaged in the same conduct. This was a misreading of Shumway.") In addition, earlier this year, the Court of Appeals acknowledged that evidence of an employer's allegedly anti-Semitic "culture" could be considered in determining whether plaintiff had established the elements of a McDonnell Douglas prima facie case, even where at least some of the proffered examples of the alleged "culture" were not attributable to the decision maker in issue and related to individuals other than plaintiff. Mandell v. County of Suffolk, 316 F.3d 368, 378-79 (2d Cir. 2003) Nevertheless, although evidence of other employment decisions or actions is sometimes admissible, "the courts have consistently emphasized that the ultimate issue [in an individual disparate treatment case] is the reasons for the individual plaintiff's treatment, not the relative treatment of different groups within the workplace." Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (emphasis in original).

Given the continuing recognition within the Circuit of the need to resort to circumstantial evidence to assess a claim of discriminatory intent, the Circuit's consistent teaching that evidence of employment decisions other than the decisions challenged by plaintiff can be helpful in evaluating intent and its close factual similarity to the issue raised by plaintiff here, I conclude that Hollander continues to be consistent with the case law in this Circuit and constitutes binding authority in this case. Accordingly, I conclude that plaintiff is entitled to responses to Items 19, 36 and 37 for all of TD USA.

With respect to plaintiff's contention that she is entitled to discovery concerning employment statistics and practices not just for TD USA but for the entire Group, defendant's objection is sustained. Although there are circumstances under which a parent corporation may be found to be the employer of the subsidiary's employees, see generally Parker v. Columbia Pictures Indus., 204 F.3d 326, 341 (2d Cir. 2000); Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 (2d Cir. 1995), the complaint here does not name the Group as a defendant nor does it allege facts that would sustain a finding that the Group was plaintiff's employer. In addition, plaintiff does not offer any facts disclosed in discovery that would sustain a finding that the Group was plaintiff's *fn2 In short, it appears that plaintiff is attempting to take discovery concerning a matter which is not in issue in the case.

Accordingly, for all the forgoing reasons, my rulings with respect to plaintiff's document requests are modified as follows: (1) Defendant's obligation to produce documents in response to plaintiff's Document Request No. 19 is limited to all non-privileged documents concerning charges of discrimination on the basis of gender, religion or national origin, made by individuals other than plaintiff, against TD USA for the period from 1998 through 2002; (2) Defendant's obligation to produce documents in response to plaintiff's Document Requests Nos. 36 and 37 is limited to documents concerning individuals who were employed by TD USA from 1998 through 2002.

SO ORDERED


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