The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
This case was referred to the undersigned for all pretrial matters by Order of Hon. Richard J. Arcara dated September 14, 2010 (Doc. No. 31) and is presently before the court on Plaintiff's motion for leave to amend the complaint, to amend the Scheduling Order (Doc. No. 16), for additional time to conduct an oral deposition, and to disqualify Defendant's counsel, filed August 27, 2010 (Doc. No. 20).
On August 27, 2010, Plaintiff filed the instant motion (Doc. No. 20) ("Plaintiff's motion") requesting leave to file an amended complaint, to amend the Amended Scheduling Order filed on June 8, 2010 (Doc. No. 16), for additional time to exceed seven hours to complete an oral deposition pursuant to Fed.R.Civ.P. 30(d)(1), and to disqualify counsel to Defendant. In support, Plaintiff filed on August 27, 2010, the Affidavit of Carolyn Nugent Gorczynski, Esq. (Doc. No. 21) ("Gorczynski Affidavit"), along with Exhibits A - V ("Plaintiff's Exh.(s) ___"), the Affidavit of William M. George (Doc. No. 23) ("George Affidavit"), and, on August 31, 2010, a Memorandum of Law in Support of Plaintiff's motion (Doc. No. 28) ("Plaintiff's Memorandum").
On October 8, 2010, Defendant filed its Cross-Motion for Sanctions pursuant to Fed.R.Civ.P. 11 (Doc. No. 33) ("Defendant's cross-motion") along with its Memorandum of Law in Opposition to Plaintiff's Motion for Leave to Amend, Disqualify Counsel, and Additional Deposition Time and in Support of Cross Motion for Sanctions (Doc. No. 33) ("Defendant's Memorandum"), the Declaration of Michael B. Risman, Esq. (Doc. No. 34) ("Risman Declaration") along with Exhibits A - B ("Defendant's Exh.(s) ___"). On October 22, 2010, Plaintiff filed the Reply Affidavit of Carolyn Nugent Gorczynski, Esq. in further support of Plaintiff's motion ("Gorczysnki Reply Affidavit") attaching Exhibits 1 - 5 ("Plaintiff's Reply Exh.(s) ___"), and a Reply Memorandum of Law (Doc. No. 38) ("Plaintiff's Reply"). On the same day, Plaintiff also filed the Response Affidavit of Carolyn Nugent Gorczynski, Esq. in Opposition to Defendant's Cross-Motion for Attorneys Fees, Costs and Sanctions (Doc. No. 40) ("Gorczynski Response Affidavit") together with Exhibits 1 -5 ("Plaintiff's Response Exh.(s) ___"),*fn1 and a Response Memorandum of Law in Opposition to Defendant City of Buffalo's Cross-Motion for Costs, Attorneys Fees and Appropriate Sanctions ("Plaintiff's Response"). On October 28, 2010, Defendant filed its Reply Memorandum of Law in Further Support of the City's Cross-Motion for Sanctions (Doc. No. 44) ("Defendant's Reply"). Oral argument on Plaintiff's motion and Defendant's cross-motion was conducted on November 22, 2010 (Doc. No. 46). At oral argument, Defendant withdrew Defendant's cross-motion for sanctions (Doc. No. 46).
With the court's permission, on November 29, 2010, Plaintiff filed a Supplemental Memorandum of Law (Doc. No. 47) ("Plaintiff's Supplemental Memorandum") and the Affidavit of Dean M. Drew, Esq. attaching Exhibits A - G (Doc. No. 49) ("Plaintiff's Supplemental Exh.(s) ___"). On December 2, 2010, Defendant filed a Memorandum of Law in Response to Plaintiff's Supplemental Memorandum of Law (Doc. No. 51) ("Defendant's Supplemental Memorandum"). Further oral argument was deemed unnecessary.
Plaintiff alleges age discrimination based on Defendant's failure to promote Plaintiff to the permanent civil service position of Laborer II, specifically as a lifter in Defendant's Department of Public Works, Parks and Streets ("the Department"), in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et. seq. ("ADEA"). Complaint ¶¶ 28, 31 ("Plaintiff's First Claim"). Plaintiff also asserts a similar claim under New York Executive Law § 296 ("Plaintiff's Second Claim"). In particular, Plaintiff alleges he has, since March 2001, worked for Defendant in the Department, specifically Streets Division, as a seasonal (garbage collection) lifter, Laborer II, Complaint ¶ 14, a non-competitive position under the New York State Civil Service System. Plaintiff's Exh. F at 3 (Defendant's Answer to Plaintiff's First Set of Interrogatories Nos. 6-10) (a Laborer II position "is a non-competitive civil service position" -- "vacant positions in the non-competitive classification [need not] be posted."). According to Plaintiff, he has performed satisfactorily in this position but has not been promoted to a permanent Laborer II position by Defendant because of his age. Complaint ¶¶ 14-17. Plaintiff claims that Defendant has informed him that a "merit system" for appointments and promotions is maintained by Defendant under which Plaintiff would be considered for promotion to a permanent position that would entitle Plaintiff to better compensation and, importantly, benefits. Complaint ¶¶ 19-23. Plaintiff alleges that despite assurances of promotion and commendations of Plaintiff's performance by his supervisors, Plaintiff has not been considered for nor received such promotion, and that younger similarly situated employees have been appointed or promoted to the permanent Laborer II positions which become open, but are not posted to enable Plaintiff to formally apply for promotion. Complaint ¶¶ 21-25, 28. Despite these allegations, Plaintiff believed at the time this suit was commenced, but was without evidence to support such belief, that Defendant refused to promote Plaintiff because of Plaintiff's lack of political support for the present Mayor of Buffalo, Byron W. Brown. George Affidavit ¶¶ 5-7. Plaintiff also declined to change Plaintiff's political party affiliation as suggested in an off-duty conversation, by Defendant's Deputy Public Works, Parks and Streets Commissioner, Paul Sullivan ("Sullivan"), during Mayor Brown's fall 2009 re-election campaign. Id. ¶ 8.
In his proposed amended complaint, Plaintiff's Reply Exh. 5, Plaintiff seeks to add a Third Claim for Relief based on Plaintiff's allegations that despite Plaintiff's satisfactory service since his initial appointment in 2001 as a seasonal (without benefits) Laborer II employee, Plaintiff has been unable to secure promotion to a permanent Laborer II employee because Plaintiff failed to change his political party affiliation, Plaintiff's Reply Exh. 5 ¶¶ 32-33, 35, and actively support Mayor Brown's election campaign. Id. ¶¶ 15, 23, 24-25. According to Plaintiff, in the previous city administration such appointments and promotions were upon a non-political merit-based system, id. ¶ 28, but that under the present mayoral administration such appointments are given to younger persons "who have provided political support to Mayor Brown." Id. ¶ 29. Plaintiff also alleges that openings for permanent Laborer II positions are not posted, to enable Plaintiff to make formal application, and are filled by Defendant as openings occur. Id. ¶ 30.
Pursuant to the Scheduling Order filed July 23, 2009 (Doc. No. 11), Plaintiff participated in the court's ADR program and continued settlement discussions for several months when, after mediation proved unfruitful, Plaintiff served on January 19, and February 1, 2010 his First Set of Interrogatories ("Plaintiff's Interrogatories") and Document Requests ("Plaintiff's Document Requests") on Defendant. Gorczynski Affidavit ¶¶ 8-11. The Scheduling Order required motions to amend be filed not later than August 31, 2009; an Amended Scheduling Order, filed June 8, 2010, (Doc. No. 16), required discovery be concluded by December 31, 2010, but did not include additional time for moving to amend.
Plaintiff's Interrogatories 9, 10 and 12, served January 19, 2010, requested information regarding Defendant's procedure for selecting persons for appointment to the permanent Laborer II position in the Department, including protections against bias employed by Defendant in the selection process. Gorczynski Affidavit ¶ 15. On February 19, 2010, Defendant answered Plaintiff's Interrogatories 9, 10 and 12 by stating that Defendant had no contractual obligation to post openings for non-competitive positions including the permanent Laborer II positions at issue in this case, and that such positions were filled by persons recommended by the Defendant's Mayor's office. Plaintiff's Exh. F at 3-4. Defendant's answers to Plaintiff's Interrogatories were sworn to by Charles A. Masi, Administrator for Defendant's Department of Public Works, Parks and Streets, with 32 years of experience, ("Masi"). Id. at 3, 6. Despite Plaintiff's repeated requests, Defendant declined to provide more detailed answers to Plaintiff's Interrogatories 9, 10 and 12 or to identify fact witnesses for deposition. Gorczynski Affidavit ¶¶ 20-21; Gorczynski Response Affidavit ¶¶ 51-54; 65. In its supplemental answers to Plaintiff's interrogatories, Defendant designated Olivia Licata ("Licata"), a director in Defendant's Human Resources Department, and Steven Stepniak ("Stepniak"), Commissioner of the Department as its Rule 30(b)(6) representatives; however, upon conducting these depositions, it became apparent that neither Licata nor Stepniak were suitable Rule 30(b)(6) witnesses. Gorczynski Reply Affidavit ¶¶ 31-34.
Following Defendant's belated agreement to produce Masi, Plaintiff's Response Exh. 4 at 16, Plaintiff conducted Masi's oral deposition on June 9, 2010. Gorczynski Affidavit at 24. In response to Plaintiff's questions asked as to how Defendant filled Laborer II positions in the Department, Masi explained that he was not involved in the process by which individuals were selected for appointment to Laborer II permanent positions in the Department and, after conferring with Assistant Corporation Counsel, Robert E. Quinn ("Quinn"), who appeared for Defendant at Masi's deposition, declined to answer Plaintiff's question seeking to ascertain whether such appointments were the result of politically motivated recommendations made by the Mayor's office, Gorczynski Affidavit ¶¶ 28-32. Specifically, in response to Plaintiff's question at the deposition regarding Masi's knowledge and involvement with appointment of persons not recommended by the Mayor's office, Masi stated his reluctance to answer because of his fear of possible "self-incrimination" and "retaliation." Plaintiff's Exh. M at 102-03. Masi similarly declined to answer Plaintiff's questions as to why the Mayor's office appoints persons to positions in the Department's Streets Division. Id. at 106-07. Following Masi's consultation with Quinn, which according to Plaintiff was for the purpose of considering whether Masi should continue to refuse to answer Plaintiff's questions on Fifth Amendment self-incrimination grounds, Gorczynski Affidavit ¶¶ 32-33, Masi testified that it was his opinion that some city employees believe such candidates for Laborer II appointments were selected by the Mayor's office for political reasons. Id. ¶ 34; Plaintiff's Exh. M at 109. Masi's deposition was terminated, Plaintiff's Exh. M at 127, before Plaintiff's attorney completed his questioning of Masi, Gorczynski Affidavit ¶ 35, and has not been rescheduled because Plaintiff asserted Quinn's consultation with Masi and continued representation of Defendant has created a disqualifying conflict of interest. Id. ¶¶ 36-37. Masi's deposition was conducted for approximately 3.5 hours before it was adjourned at 3:00 p.m. because of Masi's required appearance elsewhere at that time. Id. ¶¶ 81-82.
Thereafter, on June 12, 2010, Plaintiff was notified that Hodgson Russ, LLP ("Hodgson Russ") would appear as Defendant's attorney, Gorczynski Affidavit ¶ 38, and was subsequently informed that one of its members, Michael B. Risman ("Risman"), had interviewed Masi regarding Masi's deposition and his assertions of any Fifth Amendment grounds to decline answering Plaintiff's questions concerning filling of promotional vacancies for permanent Laborer II positions in the Department and the involvement of the Mayor's office in such appointments. Id. ¶ 51. On July 13, 2010, Risman advised Plaintiff that he perceived no reason that the Defendant's Corporation Counsel's office, based on Quinn's representation of Defendant and his consultation with Masi at the deposition, would be required to withdraw based on a disqualifying conflict of interest arising from Masi's expressed desire to assert a Fifth Amendment self-incrimination privilege and fear of possible retaliation in response to Plaintiff's further deposition questioning of Masi. Id. ¶¶50-51. On July 28, 2010, Risman indicated to Plaintiff that as Masi had retired from Defendant's employment, Defendant's Corporation Counsel's Office could continue to represent Defendant without any disqualifying conflict and would do so. Id. ¶ 54. Plaintiff disagreed with Risman's opinion and in response stated that based on Risman's conversations with Masi, Risman and by imputation Hodgson Russ were also disqualified from representing Defendant. Id. ¶ 55. Risman agreed to reschedule the completion of Masi's deposition but refused to agree to enlarge the time limit imposed by Fed.R.Civ.P. 30(d)(1) (limit of one-day of 7 hours unless otherwise stipulated or as provided by court order). Id. ¶ 58. According to Plaintiff, Plaintiff did not, prior to filing the Complaint, advise his attorneys of his belief that his failure to obtain a permanent Laborer II position resulted from political preferences of candidates by the Mayor's office, sufficient to predicate a claim for violation of Plaintiff's First Amendment rights, but that as a result of information Plaintiff received during the Mayor's fall 2009 re-election campaign and Masi's deposition testimony, Plaintiff believes he now has such ground. Gorczynski Affidavit ¶¶ 59-61.
Plaintiff contends that because conversations occurred between Masi and Hodgson Russ attorneys regarding Masi's assertions of a Fifth Amendment privilege and fear of retaliation by the Defendant's Mayor's office on account of his answers to Plaintiff's deposition questions, both Defendant's Corporation Counsel's office and Hodgson Russ should be required to withdraw because of an actual conflict of interest. Gorczynski Affidavit ¶¶ 78-79. Plaintiff also requests additional time to complete Masi's deposition beyond the remaining 3 1/2 hours, a modification of the Scheduling Order on the ground that discovery could not be completed after the issue of potential disqualification of Defendant's attorneys was presented, id. ¶¶ 80-85, ...