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Bellinger v. Astrue

August 13, 2009

CELIA BELLINGER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gold, S., U. S. Magistrate Judge

MEMORANDUM AND ORDER

Introduction

Plaintiff brings this lawsuit pursuant to Title VII of the Civil Rights Act claiming she was discriminated against because of her gender. Plaintiff's complaint asserts two causes of action, one contending that plaintiff was denied a promotion and a second alleging she received unequal pay. Compl. ¶¶ 90-112; Tr. of 1/26/09, Docket Entry 73, at 11.

Plaintiff has moved to compel answers to interrogatories she served on December 30, 2008 and for sanctions. I heard argument on the motion on July 20, 2009, and reserved decision. For the reasons stated below, plaintiff's motion to compel answers to her interrogatories and for sanctions is denied.

Facts

Plaintiff Celia Bellinger has been employed by the Social Security Administration ("SSA") for more than 25 years. Compl. ¶ 11; Plaintiff's Memorandum of Law in Support of Her Motion to Compel ("Pl.'s Mem."), Docket Entry 78, at 2. In 1998, Bellinger applied for and obtained a position as a management analyst on the Field Services and Planning Team in the Facilities Management Section ("FMS"). Compl. ¶ 13. The position was designated as a temporary Grade GS-12. Id. ¶ 14; Tr. of 1/26/09 at 4. Plaintiff asserts that her direct supervisor was Eric Schlesinger, the Chief of FMS, and that Schlesinger's supervisor was John McGinley. Compl. ¶ 16. McGinley was the Director of the Center for Material Resources (the "CMR"), a component of the SSA's New York Regional Office ("NYRO"). Defendant's Memorandum of Law in Opposition to Plaintiff's Motion to Compel and for Sanctions (" Def. Mem. of Law"), Docket Entry 85, at 4. According to plaintiff, and as Schlesinger himself has conceded, Schlesinger made a series of disparaging and discriminatory remarks to plaintiff and to other women co-workers. Compl. ¶¶ 16-24; Tr. of 1/26/09 at 4; Affirmation of Elizabeth A. Mason in Support of Motion to Compel and for Sanctions ("Mason Aff."), Docket Entry 79, ¶¶ 27-32.

Plaintiff held the temporary Grade 12 position for more than six years. Compl. ¶ 35. Whenever she sought a permanent position, Schlesinger and McGinley told plaintiff -- falsely, according to the complaint -- that none were available. Id. ¶¶ 36-37, 45. In December 2004, though, plaintiff learned of two vacancies for a permanent Support Services Specialist, a Grade GS-13 position. Id. ¶ 51. Plaintiff applied, as did another woman, Renee Watson, who reported to McGinley. Id. ¶ 53; Tr. of 1/26/09 at 9-10. Plaintiff and two other men, Ken Schmidt and Steven Chung, were selected as finalists. Compl. ¶ 55. Although plaintiff alleges that she was the most qualified candidate, the positions were awarded to the two male applicants. Id. ¶ 57. The decision to promote Schmidt and Chung and not plaintiff was made by John McGinley and Irene Corva, who was at that time the new Director of CMR. Id. ¶ 56; Def. Mem. of Law at 5. Count One of the complaint, plaintiff's failure-to-promote claim, is based on the appointment of the two male candidates to the GS-13 Support Services Specialist positions by McGinley and Corva.

Plaintiff also alleges in her complaint that Schlesinger assigned her tasks commensurate with the job responsibilities of a Grade GS-13 employee, even though plaintiff held a GS-12 position at lower pay. Compl. ¶¶ 25-28; Tr. of 1/26/09 at 5-6. Count Two of the complaint, plaintiff's claim of unequal pay, is based on these assignments, and more specifically upon what Bellinger contends is the similarity between the responsibilities Schlesinger gave to her and those he assigned to Steve Hunchik, a male GS-13 management analyst. Compl. ¶¶ 30-31; Tr. of 1/26/09 at 6.

Discussion

The interrogatories in dispute fall into two discrete categories. Interrogatories 1-11 seek information about various SSA employees working in the NYRO. Interrogatories 13-22 and 24 ask for details regarding the manner in which defendant searched for electronically stored information when responding to plaintiff's document demands and the litigation hold defendant put in place to preserve documents and electronically stored data. I address each group of interrogatories in turn below.

A. Interrogatories 1-11

Interrogatories 1 through 11 largely seek detailed information about the job status and career histories of various categories of SSA employees.*fn1 For example, Interrogatory 4 reads as follows:

Identify every person including their sex, age and race who held a temporary position in the New York Regional Office ("NYRO") during the period of January 1, 1998 to present stating: a) their position description, grade, and step prior to entering the temporary position; b) their position description, grade and step upon entering the temporary position; c) their department and can [common accounting number] number while in the temporary position d) the date they entered the temporary position; e) the number of days they were in the temporary position; f) the date they left the temporary position; and g) the reason they left the temporary position (e.g. transfer; permanent; promotion, etc.); h) their position, grade and step after leaving the temporary position; i) their first and second line supervisors while in the temporary position.

Interrogatory 2 seeks similar information for all persons who participated in the same career enhancement program as plaintiff. Interrogatory 3 seeks similar information for all persons supervised by Eric Schlesinger. Interrogatories 5 and 6 seek similar information for employees who worked in the Center where McGinley was the Director. Plaintiff also seeks similarly detailed information with respect to all NYRO employees who received a grade increase or promotion without competition above a GS-8 level for any reason (Interrogatory 7), all positions created or filled in the Center directed by McGinley from 1998 through 2005 (Interrogatory 8), all NYRO employees who received a Quality Step Increase from 2000 through 2006 (Interrogatory 9), all NYRO employees promoted from GS-12 to GS-13 from 2000 through 2006 (Interrogatory 10), and all NYRO emloyees who received a grade increase for any reason from 2000 through 2005 (Interrogatory 11). Defendant objects to the broad scope of these interrogatories, arguing that they seek irrelevant information about employees who are not similarly situated to plaintiff.

Plaintiff has already obtained substantial discovery. First, plaintiff has been provided with the official personnel files of Schmidt and Chung, the two men who obtained the GS-13 Support Services Specialist positions plaintiff claims she was unlawfully denied; Hunchik, the GS-13 employee who, according to plaintiff, received the same type of work assignments she was given as a GS-12; all others who, like plaintiff, held a GS-12 title and worked under Schlesinger's supervision; a manager who reported directly to Schlesinger; and three employees directly supervised by Schlesinger but who held titles lower than GS-12. See, e.g., Declaration of Kathleen A. Mahoney in Support of Defendant's Opposition to Plaintiff's Motion to Compel and for Sanctions ("Mahoney Decl."), Ex. 27 at 7; Tr. of 7/20/09, Docket Entry 96, at 19-20.

Defendant has also produced three charts in response to plaintiff's interrogatories. These charts include one listing all NYRO employees who have held temporary positions since 1998 by name (from which gender may be inferred), effective date and grade; a second identifying all NYRO employees who were promoted from a GS-12 position to a GS-13 position from 2000 through 2006 by name, date, and work location; and a third listing all CMR employees who were promoted from a GS-12 position to a GS-13 position from 2000 through 2006, by name, date and title. Mahoney Decl. Exs. 77, 78 and 79. I have also permitted plaintiff to select twenty individual employees of NYRO other than those whose personnel files were produced and obtain information about their grade, seniority, and pay over a three-year period, Tr. of 1/26/09 at 20, but it is not clear that plaintiff has availed herself of this opportunity.

In addition to the information about various employees described above, defendant has produced documents reflecting all complaints of discrimination lodged by any SSA employee against Schlesinger, McGinley, Corva and their supervisor, Julio N. Infiesta, the Assistant Regional Commissioner for Management and Operations. Defendant has also searched for and produced all readily accessible emails (those that may be found without restoring old back-up tapes) to or from plaintiff, or that refer to plaintiff, that were sent or received by Infiesta, Corva, McGinley and Schlesinger. Tr. of 1/30/09, Docket Entry 74, at 7.*fn2 I have also granted plaintiff substantial additional electronic discovery, including e-mails on specified subjects that were: exchanged by Schlesinger and McGinley over a period of three years; sent or received by any three co-workers identified by plaintiff over a one-year period; and sent or received by Steve Hunchik over a one-year period. Id. at 11, 23, 26-49.*fn3 Finally, plaintiff has deposed Schlesinger, McGinley, Corva and Infiesta. Tr. of 7/20/09 at 5.

Rule 26(b)(2)(C) of the Federal Rules of Civil Procedure provides as follows:

On motion or on its own, the court must limit the frequency or extent of discovery . . . if it determines that: (iii) the burden or expense of the proposed discovery outweighs its likely benefit.

The burden of complying with the discovery sought by plaintiff in interrogatories 2 through 11 would be substantial. NYRO had more than 200 employees during the period relevant to plaintiff's demands, Declaration of Julio N. Infiesta, Docket Entry 88, ¶ 4, and the charts described above (Mahoney Decl. Exs. 77-79) list a large number of employees. Moreover, some of the information requested by plaintiff's interrogatories is not available, and some may be obtained only by reviewing individual hard copy personnel files for each employee. Id. ¶¶ 5-7. Finally, the interrogatories seek detailed information about the careers of non-parties, and production would therefore intrude upon the privacy of many individuals who have nothing to do with the events involved in this case.

The likely benefit of the discovery, on the other hand, is slight or non-existent, particularly in light of the narrow scope of plaintiff's claims and the broad range of discovery that has already been produced.*fn4 Although plaintiff's interrogatories seek information about a large number of employees working in various positions under different supervisors, plaintiff does not allege an agency or office-wide pattern or practice of gender discrimination. To the contrary, plaintiff asserts that she "has been employed by the SSA for more than 25 years," but that "[h]er problems began when she was temporarily promoted to a department supervised by Eric Schlesinger." Pl.'s Mem. at 2 (emphasis added). When asked at oral argument on the pending motion, plaintiff could not point to any basis for alleging a pattern of gender discrimination at the SSA or at NYRO. Tr. of 7/20/09 at 20-23. Each of plaintiff's contentions -- that she was subjected to sexually disparaging remarks, that she received work assignments comparable to those given to more highly paid men and that she was denied permanent status and promotion to a GS-13 position -- involve a particular supervisor and a specific chain of command. Substantial discovery with respect to that supervisor and chain of command has been provided. I have, for example, permitted discovery with respect to Corva and Infiesta, even though plaintiff does not allege that either discriminated against her, because of their supervisory positions with respect to McGinley and Schlesinger. Some general office-wide data, such as that reflected in the charts described above, has been provided as well. Even after having received extensive discovery, however, the only direct evidence of ...


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