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Athanasius Onyemaobi, et al v. Covenant House

March 21, 2011


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:




Defendants Covenant House, Covenant House New York, and Covenant House Under 21 (collectively, "Covenant House") move to dismiss the complaint of Carlene Battiste-Downie ("Downie"), the sole remaining plaintiff in this lawsuit. The motion is based on Downie's willful violations of her discovery obligations and Court Orders. Downie asserts that she has produced all responsive documents in her possession.

Based on a record which demonstrates Downie's consistent and persistent disregard for her discovery obligations and the instructions of the Court, the Court grants the motion, with prejudice. Her deposition testimony makes clear that there are gaping holes in her discovery responses, and her vague assertions to the contrary do not remedy these deficiencies. After numerous attempts to resolve this dispute with warnings and deadlines, the Court now concludes that the only effective sanction is to dismiss the complaint with prejudice.


On March 17, 2009, Downie*fn2 brought this action alleging that Covenant House violated Title VII, the Age Discrimination in Employment Act, the Pregnancy Act, and New York State and City Human Rights Laws. Covenant House alleges that Downie was legitimately fired after numerous reprimands for being late or absent from work, due to her conflicting full-time work schedules. Covenant House served Downie with document demands and interrogatories requiring her to produce, inter alia, (1) information regarding her present employment with the Veterans Administration ("VA") in Georgia; (2) information and documents regarding her attempt to mitigate her damages by seeking employment from institutions or employers other than Covenant House; (3) documents and information regarding employment and attempts to obtain employment while working fulltime at Covenant House; and (4) documents and information regarding her communications with others about her allegations of discrimination and/or retaliations by Covenant House.

Despite being served with a First Request for Production of Documents on June 23, 2009, Downie did not produce the requested information and materials, and made only general objections to the demands. On August 10, 2009, counsel for Covenant House informed Downie's counsel of the specific requests that were unfulfilled and served a First Set of Interrogatories. On August 31, 2009 counsel for Covenant House called Downie's counsel and against requested the missing documents, to which Downie's counsel states that Downie had no such documents. That same day, counsel for Covenant House wrote to Downie's counsel memorializing that conversation.

On September 16, 2009, counsel for Covenant House informed the Court of these persistent discovery violations. Two days before the scheduled court appearance to discuss these issues, Downie answered the first interrogatory demands, providing information that later proved to be significantly incomplete. In addition, the interrogatory responses contained no affirmation or verification from Downie.*fn3 On September 24, 2009, counsel for the parties appeared before the Court. During questioning by the Court, Downie's counsel represented that his clients had perhaps a single computer among the four of them, were poor record keepers, and "simply don't have these documents in their possession," (Tr. 10:10-10:11, Sept. 24, 2009); following the conference, he informed counsel for Covenant House that the plaintiffs accessed the Internet using computers at Internet cafes. On October 6, 2009, Covenant House then served a targeted Second Set of Interrogatories, to which Downie responded with blanket objections, without verification.

On November 13, 2009, counsel for Covenant House deposed Downie and learned of significant gaps in the discovery produced. For example, Downie had failed to disclose two of her three previous employers, as well as her current employer. Contrary to her counsel's representations, she admitted to owning a personal computer and using numerous email addresses, from which she had sent emails relating to this case and her searches for employment. She also admitted to maintaining files that included a current resume, cover letters, and other documents relating to her actual employment and search for employment at other non-profit organizations. (See, e.g., Tr. 35-37, 39-43, 146). These admissions contrast the repeated representations that Downie does not have these documents in her possession. The documents were responsive to the June 2009 First Request for Document Production; but were never produced. She also admitted to having, but failing to produce, direct deposit slips from her employment at Covenant House, which related to her claim that her pay was reduced in retaliation for seeking maternity leave. In addition, she identified for the first time individuals allegedly familiar with her claims and allegations, and admitted that several of her responses to the First Set of Interrogatories included information about other plaintiffs, of which she had no personal knowledge despite her attesting to their truth.

On December 9, 2009, counsel for Covenant House wrote to the Court, specifying numerous discovery failures and seeking its intervention in the dispute. Downie's counsel responded with a general statement that the plaintiffs had either complied with or objected to all requests. At the Court's direction, counsel for Covenant House followed up with a letter on December 30, 2009, detailing twelve specific categories of documents and information to which they were entitled but which Downie had failed to produce. Downie's counsel responded with another vague assurance but never denied having these materials or explained the failure to produce them. (Rosenthal Decl. Ex. V).

On January 20, 2010, the Court held another conference to address this dispute. It ordered Downie to produce the documents and information responsive to the twelve categories of demands specified in the December 30, 2009 letter. The Court warned Downie that her failure to comply would result in dismissal. Downie responded by supplying an affidavit in which she swore that "I have concluded that I furnished all relevant documents . . . to the defendants in this action." (Rosenthal Decl. Ex. AA). On May 26, 2010, the Court held yet another conference to resolve this dispute, and warned Downie that if she did not produce all materials responsive to the twelve categories of demands by June 14, 2010, Covenant House would be permitted to move for dismissal of her complaint with prejudice. The Court also directed her to sign a consent form to permit Covenant House to access her employment record at the VA in Georgia.

To date, Downie has not complied with the Court's direction and she has failed to produce the requested documents and information. Neither Downie nor her counsel have refuted the compelling ...

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