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Abram v. City of Buffalo

December 7, 2008


The opinion of the court was delivered by: William M. Skretny United States District Judge



Presently, before this Court is Defendant's Motion to Dismiss Plaintiff's Complaint and for Sanctions pursuant to Rule 37(d) of the Federal Rules of Civil Procedure, (Docket No. 55), and Plaintiff's Motion for Leave to File an Amended Complaint. (Docket No. 68). For the reasons discussed below, both motions are denied. The case is referred back to the Honorable Hugh B. Scott, United States Magistrate Judge, for a new expedited Scheduling Order. Further, this Court warns Plaintiff that failure to comply with the new expedited Scheduling Order may result in dismissal.


A. Facts

Plaintiff is a black female who began working for the City of Buffalo as a police officer on January 28, 1985. (Docket No. 1, ¶ 4.) At some unspecified point, Plaintiff learned that her married female co-worker was having a sexual relationship with David Andrews, a City of Buffalo "Inspector." (Id., ¶ 19). In response to her co-worker's statements, Plaintiff stated to the co-worker that adultery is not only morally wrong, but that it also constitutes a misdemeanor under New York State Penal Law. (Id.). Plaintiff's co-worker became upset and indicated that she was going to discuss the matter with Defendant Andrews. (Id.). Plaintiff alleges that within a week or two, she "began to be brought up on many departmental charges by Inspector Andrews," as well as Defendants Guy Zagara and Chris Giradina, who are supervised by Andrews (Id.).

Plaintiff also alleges that she was denied medical benefits for a number of jobrelated injuries in violation of her due process rights.*fn1 Specifically, Plaintiff alleges that on or about July 1987, she broke her arm in the performance of her duties; that on or about July 4, 1989, she was in a car accident; and that on or about January 10, 1994, she suffered an injury while attempting to restrain a suspect. (Docket No. 68, ¶¶ 23-25). Further, Plaintiff alleges that in or about February 1999, she suffered a serious knee injury, (Id., ¶ 26), and was "force[d] to accept a disability retirement that was the result of Defendant's "animus towards Plaintiff because of her race and gender." (Id., ¶ 27). Plaintiff alleges that she suffered another injury, (Id., ¶ 29), and was re-assigned to a different location in 2001. (Id., ¶ 30). Plaintiff alleges that she suffered another serious injury in 2002, for which she was maliciously denied "injury on duty status," (Id., ¶ 31), and further alleges that she suffered a serious injury in 2003, for which she was denied a leave of absence while similarly situated white male officers were granted leaves of absence. (Id., ¶ 36). Plaintiff alleges she was suspended "because of her race, age, religion, and gender," on February 13, 2004, (Id., ¶ 38). Plaintiff was terminated on March 24, 2005, allegedly as the result of Defendant's efforts to "frustrate and humiliate Plaintiff's retirement plans and benefits and leaving Plaintiff without medical benefits during her retirement." (Id., ¶ 39).

B. Procedural History

On June 14, 2004, Plaintiff, Idella M. Abram, commenced this case, pro se, by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1). Plaintiff originally named the City of Buffalo, Lieutenant Guy Zagara, Inspector David Andrews, and Captain Christine Giradina as defendants. Plaintiff brings this action alleging discrimination on the basis of race, religion, and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 ("ADEA"), and the Americans with Disability Act of 1990, 42 U.S.C. §§ 12112-12117 ("ADA").

On September 28, 2004, the named Defendants filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docket No. 4). This Court granted the motion in part -- dismissing Plaintiff's ADA claim and terminating Zagara, Andrews, and Giradina -- and denied the motion in part -- allowing the Title VII and ADEA claims to remain. (Docket No. 16). Presently, the City of Buffalo is the sole defendant and the Title VII claim as well as the ADEA claim are the only remaining causes of action.

On April 11, 2006, counsel was appointed for Plaintiff. (Docket No. 27). However, appointed counsel withdrew from the case on January 30, 2007, at which time Plaintiff resumed her pro se status. (Docket No. 41).

On December 13, 2007, Defendant served Plaintiff with: (1) Defendant's First Request for Production and Inspection of Documents and Things to Plaintiff; (2) Defendant's First Set of Interrogatories to Plaintiff; and (3) Notice of Deposition. (Docket No. 54). Pursuant to the Federal Rules of Civil Procedure and Local Rule 7.1, the discovery requests were due January 14, 2008. Plaintiff did not comply with the deadline. In a letter dated January 22, 2008, Defendant informed Plaintiff that her responses were overdue and requested that Plaintiff contact Defendant immediately to make alternative arrangements. (Docket No. 55-2, ¶14). Plaintiff never responded to the letter. Defendant alleges it made numerous attempts to contact Plaintiff by phone, but Plaintiff never responded. (Id., ¶16). On January 31, 2008, Defendant filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 37(d) for Plaintiff's failure to attend her deposition and failure to serve answers to interrogatories. (Docket No. 55).

On May 30, 2008, Anthony L. Pendergrass, Esq. filed a notice of appearance on behalf of Plaintiff. (Docket No. 60). On August 16, 2008, more than four years after Plaintiff filed her original complaint, Plaintiff filed a Motion for Leave to Amend the Complaint. (Docket No. 68). Plaintiff's proposed, amended complaint adds twenty additional causes of action and five new Defendants. (Id.).

Plaintiff also commenced administrative actions, predicated on the same set of facts. For example, in May 2003, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination on the basis of race, sex, religion, and age, spanning from September 30, 2002 to May 1, 2003. (Docket No. 1). The EEOC dismissed Plaintiff's claim, noting that, "[t]he evidence fails to indicate that a violation of the law occurred and it is not likely that additional investigation will result in our finding a violation." (Id.) The EEOC further noted that, in regards to the religious discrimination claim, Plaintiff stated that she was not even aware of the religion of anyone else with whom Plaintiff worked. (Id.)

Plaintiff also initiated two actions in the New York State Division of Human Rights (NYSDHR) in 2004 and in 2006. On September 23, 2004, Plaintiff filed a Complaint alleging that she was denied her injury-on-duty status. (Docket No. 77-4). Lindy Korn, Esq. currently represents Plaintiff on the charge, which is still pending. Additionally, on March 6, 2006, Plaintiff filed a Complaint with the NYSDHR, alleging discrimination and retaliation for her prior charges and the denial of medical benefits and leave of absence. (Docket No. 77-5). On May 17, 2007, the NYSDHR found there was "NO PROBABLE CAUSE to believe that the respondent has engaged in or is engaging in the unlawful discriminatory practice complained of." (Docket No. 77-6). Lindy Korn also represented Plaintiff in the matter.


A. Defendant's Motion to Dismiss pursuant to ...

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