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Moll v. Telesector Resources Group

November 16, 2010

CINDY MOLL, PLAINTIFF,
v.
TELESECTOR RESOURCES GROUP, INC., DEFENDANT.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

This case was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b)(1)(A), for all pretrial matters, and for hearing and disposition of all non-dispositive motions or applications. Dkt. #15.

Currently before the Court is plaintiff's motion to compel or, in the alternative, precluding defendant from using any document sought by plaintiff in defense of this case for failure to disclose such document or, in the alternative, imposing an adverse inference upon defendant and requiring payment of reasonable expenses, including attorneys' fees relating to this motion. Dkt. #83. For the following reasons, plaintiff's motion to compel is granted in part and denied in part and the remainder of plaintiff's motion is denied.

BACKGROUND

Plaintiff commenced employment with defendant in 1990. Dkt. #57, ¶ 8. She was promoted to the position of Systems Analyst in 1997 and continued her employment without incident until sometime in 1998, when she alleges that a co-worker, Daniel Irving, began to sexually harass her. Dkt. #57, ¶¶ 9 & 17-20. Plaintiff also alleges that she was subject to disparate treatment during her pregnancy and denied promotion upon her return from maternity leave. Dkt. #57, ¶¶ 21-27. Daniel Irving allegedly continued his sexual harassment of plaintiff upon her return from maternity leave and following his promotion to Sales Engineer Manager, at which time he became plaintiff's direct supervisor. Dkt. #57, ¶¶ 28-32. Plaintiff alleges that male external candidates were hired over qualified internal candidates and afforded preferential compensation packages and that women were denied accommodations and opportunities that were afforded to male employees. Dkt. #1, ¶¶ 33, 35-44, 47, 50, 54-55, 59-61.

Plaintiff filed an Amended Complaint on April 17, 2008, alleging that subsequent to the commencement of this action, she was advised that the Buffalo Sales Engineers and the position of Project Manager held by Michael Finnegan were being transferred to Syracuse. Dkt. #57, ¶ 65. The Branch Sales Engineer Manager, Robert Dixon, was permitted to remain in Buffalo, even though there was no one for him to supervise in that office. Dkt. #57, ¶ 70. Plaintiff alleges that she was not permitted to work from home even though other Sales Engineers in the Syracuse office were permitted to do so and was subjected to different reporting requirements than other Sales Engineers in Syracuse. Dkt. #57, ¶¶ 72-75 & 80-81. Robert Dixon allegedly issued negative references for three internal positions to which plaintiff applied and ranked her "least desirable" among her co-workers. Dkt. #57, ¶¶ 76 & 79.

Plaintiff went out on disability leave in September of 2005, returning in March 2006 to the Buffalo office under the supervision of Sales Engineer Manager Mark Witte. Dkt #57, ¶¶ 82-85. She was assigned to the M&T Bank Project, one of the highest revenue accounts in the office. Dkt. #57, ¶¶ 85 & 96. M&T was so pleased with plaintiff's performance that they requested that plaintiff be assigned to their account full time. Dkt. #57, ¶ 86.

On February 9, 2007, plaintiff was advised that her position had been eliminated as part of a reduction in force. Dkt. #57, ¶ 97. Plaintiff alleges that she was the only Sales Engineer eliminated in the Buffalo, Rochester, Syracuse or Albany offices. Dkt. #57, ¶ 98. Plaintiff claims that her termination was based upon gender discrimination and retaliation for her complaints of discriminatory and retaliatory conduct. Dkt. #57, ¶ 99.

As limited by the Decision and Order of the Hon. William M. Skretny, plaintiff's complaint asserts claims for disparate treatment on the basis of sex and retaliation for the period between November 22, 2002 and her termination and violations of the Equal Pay Act for the period between October 4, 2001 and her termination. Dkt. #13. The parties have executed a confidentiality agreement.

DISCUSSION AND ANALYSIS

Fed. R. Civ. P. 26(b)(1) provides, in relevant part:

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. "The key phrase in this definition--'relevant to the subject matter involved in the pending action'-- has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

"However, pursuant to Rule 26(c), the court may limit discovery even if the information sought is relevant." Tisby v. Buffalo General Hosp., 157 F.R.D. 157, 170 (W.D.N.Y. 1994); Coyne v. Houss, 584 F. Supp. 1105, 1109 (E.D.N.Y. 1984). Fed. R. Civ. P. 26(c) provides, in relevant part, that the court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . ." Moreover, "[t]he management of discovery lies within the sound discretion of the district court, and the court's rulings on discovery will not be overturned on appeal absent an abuse of discretion." Grady v. Affiliated Cent., Inc., 130 F.3d 553, 561 (2d Cir. 1997), cert. denied, 525 U.S. 936 (1998); see Robertson v. National Basketball Ass'n, 622 F.2d 34, 35-36 (2d Cir. 1980) ("Protection against unnecessary discovery is discretionary with the trial court and will be reversed only on a clear showing of abuse of discretion.").

Third Request for Production of Documents - Request No. 1

Plaintiff seeks "all documents regarding the merger of MCI and Verizon . . . on or about January 2006 and business decisions as a result thereof which in any way relate to Plaintiff's job including but not limited to those related to her position, title, assignments, duties and responsibilities, customers, work location, reporting structure (large business and government/education) and compensation and/or benefits." Dkt. #85, p.7. Defendant argues that this demand is impermissibly broad and notes that it has "produced all documents related to the actual merger that in any way could be tied to Plaintiff." Dkt. #87, p.14. In reliance upon this representation, plaintiff's motion to compel is denied.

Third Request for Production of Documents - Request No. 2

Plaintiff seeks "all documents concerning the determination that Plaintiff be relocated, on or about February 2006, to the downtown Buffalo office, and direction that Plaintiff no longer be within the Robert Dixon, Mark Van Hoesen reporting structure." Dkt. #85, pp.7-8. Defendant responds that it "has performed a reasonable search and has already produced all responsive documents, or has in its possession no responsive documents" to this request. Dkt. #87, p.7. Specifically, defendant states that it has produced "an organizational chart reflecting the structure of Verizon Business following the merger that resulted in Ms. Moll's job (and the jobs of others) being placed at a former MCI office in Amherst." Dkt. #87, p.8.

Plaintiff argues that there must have been memorandums or directives regarding this relocation and some documentation regarding reporting structure. Dkt. #84-6, p.3. Defendant states that "there was no specific, individualized determination relating to Plaintiff's work location assignment following the company-wide restructuring of a combined 210,000 employees that followed the Verizon-MCI merger." Dkt. #87, p.8. In reliance upon this representation, plaintiff's motion to compel is denied.

Third Request for Production of Documents - Request No. 3

Plaintiff seeks "[a]ll documents of or concerning the assignment of Sales Engineers a/k/a Solutions Engineers in the Buffalo, Rochester and Syracuse sales offices to business segments (i.e. Government/Education) during the period January 2005 through the present." Dkt. #85, pp.8-9. Defendant responds that it "has performed a reasonable search and has already produced all responsive documents, or has in its possession no responsive documents" to this request. Dkt. #87, p.7. Specifically, defendant states that it "does not use documents to assign business segments ...


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