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Celia Bellinger v. Michael J. Astrue

September 28, 2011


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



After years of contentious pretrial litigation, discovery in this employment discrimination case is finally nearing an end. The only depositions potentially remaining are those plaintiff seeks to take pursuant to a Rule 30(b)(6) notice directed to the Social Security Agency ("SSA"). See Order dated August 11, 2011, Docket Entry 175. Plaintiff served the Rule 30(b)(6) deposition notice in December of 2008. The notice seeks testimony with respect to 11 enumerated subjects. Def.'s Letter dated July 28, 2011, Docket Entry ("DE") 168, Ex. A. Defendant objects to producing witnesses to answer questions about 4 of the 11 subjects, largely on the ground that the subjects are of little or no relevance to the parties' claims and defenses. Plaintiff urges that the subject areas are relevant, and contends in addition that defendant's objections are untimely. In addition, and as has become routine practice in this case, plaintiff moves for sanctions based on defendant's refusal to produce witnesses with respect to the four subject areas in dispute.

The parties have presented these issues to the Court in a somewhat informal manner. Although plaintiff has submitted her application for sanctions by way of letter motion, DE 176, the parties' dispute over the proper scope of any 30(b)(6) depositions is before the Court as a result of a series of letters that were not filed as motions. Nevertheless, I will construe defendant's letter dated July 28, 2011, DE 168, as a motion for protective order; plaintiff's letter dated August 12, 2011, DE 176, as her opposition to the motion; and defendant's letter dated August 31, 2011, DE 181, as having been submitted in reply.

Timeliness of Defendant's Objection and Plaintiff's Motion for Sanctions

As noted above, plaintiff served the disputed notice of deposition in December of 2008. The notice called for the deposition to be held on January 29, 2009. Defendant did not raise an objection at or about that time. As defendant points out, however, plaintiff never made a serious effort to schedule the deposition. Rather, according to defendant, plaintiff deferred taking any depositions at all pending receipt of certain documents and responses to interrogatories. DE 168 at 2. Plaintiff does not contradict defendant's assertion. Moreover, during the more than two years that elapsed after the notice of deposition was served, plaintiff never moved to compel defendant to produce a witness pursuant to it. To the contrary, the dispute over the notice was first raised with the Court only in June of 2011 when, in response to a direction from the Court, plaintiff submitted a letter identifying all remaining discovery she sought to conduct. See DE 158. Defendant raised his objections shortly thereafter and, under these circumstances, in a timely manner.

Plaintiff's motion for sanctions, DE 176, is based on her assertion that defendant failed to comply with an Order I issued on July 5, 2011. Plaintiff contends that the Order directed defendant to produce witnesses for all topics identified in plaintiff's 30(b)(6) notice. See DE 161. Plaintiff mischaracterizes the substance of the Order, which merely extended the time for completing discovery, limited the remaining depositions to those identified by plaintiff, and directed counsel to confer on a schedule for conducting each of the remaining depositions. I did not address the merits of defendant's objections to plaintiff's Rule 30(b)(6) notice, which were first put before me for decision only after the Order was entered. Accordingly, plaintiff's motion for sanctions is denied.

The Subject Areas in Dispute

Generally, "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). The rule has been broadly construed. See, e.g., Sasikumar v. Brooklyn Hosp. Center, 2011 WL 1642585 (E.D.N.Y. May 2, 2011). However, either on motion or even on its own, a court "must limit the frequency or extent of discovery otherwise allowed" if the discovery sought is unreasonably cumulative or duplicative, the party seeking the discovery has had ample opportunity to obtain the information, or the burden or expense involved in taking the proposed discovery "outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C).

The claims and underlying facts in this case have been set forth in prior rulings. See, e.g., DE 103. I repeat them in summary form here for ease of reference.

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, DE 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. Defendant's Memorandum of Law in Opposition to Plaintiff's Motion to Compel and for Sanctions ("Def. Mem. of Law"), DE 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."), DE 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 of 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.

With these legal principles and the nature of plaintiff's claims in mind, I turn to the specific subject areas in ...

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