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Equal Employment Opportunity Commission v. First Wireless Group

February 20, 2007


The opinion of the court was delivered by: Seybert, District Judge



Pending before the Court are two motions brought by First Wireless Group, Inc., ("Defendant"). Defendant moves to set aside Magistrate Judge Arlene R. Lindsay's Orders, dated June 22, 2006 ("June 2006 Order") and August 10, 2006 ("August 2006 Order"). Defendant claims that the Magistrate's Orders are erroneous and contrary to law. For the reasons below, the Court DENIES Defendant's motions.


Certain Hispanic employees, who later intervened as Plaintiffs in this case ("Plaintiff-Interveners") filed a timely charge of discrimination with the Suffolk County Commission of Human Rights. On August 19, 2002, this case was transferred to the Equal Employment Opportunity Commission ("EEOC"). On September 30, 2003, the EEOC brought a civil action pursuant to Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 against the Defendant. On September 30, 2003, the EEOC filed a Complaint with this Court, claiming Defendant discriminated and retaliated against a group of Hispanics ("Claimants") that it employed. EEOC specifically alleged that Hispanic employees who worked the evening shift for Defendant were paid less than similarly situated Asian employees. (See Complaint ("Compl.") ¶ 7.)

EEOC also alleged that Defendant retaliated against the Hispanic employees in the following instances. First, Defendant fired shift manager, Dilber Jimenez, for complaining about wage disparity. Second, Defendant fired Rosa Garcia and Adrianna Torres for circulating a petition that protested the wage disparity. Third, Defendant pressured the Hispanic employees that signed the petition to recant their signatures, and fourth, Defendant ultimately terminated those employees. (Id.)

On July 13, 2005, the Plaintiff-Interveners filed an Amended Complaint. The Plaintiff-Interveners alleged essentially the same acts of discrimination and retaliation that the EEOC alleged. (Amended Complaint ¶¶ 17-41.)

In 2004, the parties commenced discovery, and on June 15, 2004, Magistrate Judge Arlene R. Lindsay issued a Protective Order ("Protective Order"). This Court upheld the Protective Order. See EEOC v. First Wireless Group, Inc., 03-CV-4990, 2004 U.S. Dist. LEXIS 24089, at *8-*9 (E.D.N.Y. Nov. 19, 2004).

During discovery in 2006, Defendant sought to compel Claimants to respond to certain deposition questions concerning the countries of their origin and the accuracy of the information contained in their employment application and their W-4. In the June 2006 Order, the Magistrate issued a ruling that Defendant could ask the Claimants where they were born, whether they filed tax returns, and whether Claimants had made false statements.

Claimants did not need to respond, however, to questions regarding the accuracy of the social security numbers provided in their employment applications. (Id. at 2.) Defendant moves to set aside this portion of the June 2006 Order.

In July 2006, Defendant sought independent psychological examinations of certain Claimants pursuant to Federal Rule 35(a). Defendant argues a Rule 35 examination is necessary because some of the Claimants alleged and testified to serious emotional damages. The Magistrate denied the request in the August 2006 Order, claiming that the damages were mere "garden variety" damages, not warranting a Rule 35 examination. Further, the EEOC was willing to stipulate to seek only "garden variety" damages on the emotional distress claims. Defendant moves to set aside the entire August 2006 Order.


Rule 72 provides in pertinent part the following: A magistrate judge to whom a pretrial matter not dispositive of a claim or defense of a party is referred to hear and determine shall promptly conduct such proceedings as are required and when appropriate enter into record a written order setting forth the disposition of the matter. Within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made. The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law.

Fed. R. Civ. P. 72(a).

This Court may set aside a portion of Magistrate Judge Lindsay's orders concerning non-dispositive matters if the order is "clearly erroneous or contrary to law." Id. An order is "clearly erroneous only when the reviewing court[, based] on the entire evidence[,] is left with the definite and firm conviction that a mistake has been committed." Weiss v. La Suisse, 161 F. Supp. 2d 305, 320-21 (S.D.N.Y. 2001). An order is ...

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