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Wanda Hammond v. Beth Israel Medical Center

November 30, 2011


The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge


Plaintiff Wanda Hammond brings this action against defendant Beth Israel Medical Center, alleging wrongful termination on the basis of her race and gender. Presently before us is defendant's motion to dismiss the complaint for failure to comply with court orders and the rules governing discovery.

For the reasons stated herein, defendant's motion is granted in part and denied in part.


Plaintiff was provisionally employed as a counselor in the Stuyvesant Square Outpatient Department at Beth Israel Medical Center from April 27, 2009 to July 22, 2009, when she was discharged. After exhausting her claims with the Equal Employment Opportunity Commission, plaintiff commenced this lawsuit pro se on November 19, 2009, alleging that she was treated unfairly as a result of her race and gender, which ultimately culminated in her termination.

The Court held an initial pretrial conference on April 1, 2010. Plaintiff and defendant spent the next three months negotiating a settlement, but plaintiff would not agree to a key precondition of payment. The Court held a teleconference on July 9, 2010 to assist the parties with their discussions, but plaintiff nonetheless decided against settling the case. On July 13, 2010 the Court ordered the parties to proceed with discovery, setting an end-date of November 12, 2010 for the completion of all discovery.

Defendant served plaintiff with a set of document requests and interrogatories on August 25, 2010. Two weeks later, defendant granted plaintiff an extension of time to respond from September 29, 2010 to October 4, 2010, explaining that a longer extension was infeasible because of the November cut-off for discovery. Plaintiff then requested an extension from the Court, which gave plaintiff until October 25, 2010 "to produce the documents requested," in anticipation of the parties' participation in mediation proceedings. (Decl. of Rory J. McEvoy ("McEvoy Decl."), Ex. 6.) In the meantime, the Court stayed all other discovery.

Despite this extension, plaintiff failed to produce any documents by the October 25, 2010 deadline, and the Court held another teleconference with the parties on November 2, 2010 to discuss the issues with discovery. During that conference, the Court stayed all discovery pending the close of the mediation, but it instructed plaintiff to gather all documents responsive to defendant's requests and prepare responses to the interrogatories in the event a settlement could not be reached. The Court also took the opportunity to warn plaintiff that her future cooperation was an essential piece of her responsibility as a litigant.

By the end of December, the parties had gained no ground in settling, and the Court lifted the discovery stay. By letter dated December 29, 2010, the Court instructed plaintiff "to respond to defendant's document requests and interrogatories by January 19, 2011," and it set March 15, 2011 as "a firm cut-off for all discovery in this case." (Id., Ex. 9.)

Plaintiff served her own interrogatories and document requests on defendant, as well as responses to defendant's discovery requests, on January 18, 2011. The responses were not organized in the manner specified by the discovery rules, and plaintiff did not respond to all of defendant's requests. Plaintiff also failed to verify her responses to defendant's interrogatories. Defendant requested that plaintiff, in order to remedy these defects, provide the following by February 11, 2011: a list of documents produced and the document request thereby responded to, any additional documents in plaintiff's possession, and a signed verification page which defendant had drafted for plaintiff. Plaintiff never complied with any part of this request.

On January 27, 2011, defendant also sent plaintiff authorizations for the release of her medical records and requested that they be returned by February 9, 2011. Plaintiff responded on January 28, 2011 that she would not sign the forms because they had already been filled out by defendant to authorize the release of her entire medical record rather than just "information related to [plaintiff] being treated for employment discrimination." (Id., Ex. 12.) Defendant replied to plaintiff on January 31, 2011, indicating that plaintiff had placed her mental state at issue by seeking damages for psychological treatment and that defendant was therefore entitled to review plaintiff's entire medical record. Later that same day, plaintiff sent defendant two e-mails reiterating that she would "not be signing an authorization for [her] entire medical records." (Id., Exs. 14, 15.)

On February 8, 2011, defendant requested that the Court order plaintiff to sign and produce the medical authorizations. The Court issued an order the next day directing plaintiff to "complete the requested HIPAA release forthwith and return it to defendant" within ten days and noting that failure to do so "will result in the dismissal of plaintiff's claim for monetary damages for alleged psychological injuries." (Id., Ex. 17.) Plaintiff still has not provided the ordered the authorization.

Cognizant of the March 15, 2011 discovery deadline, defendant wrote to plaintiff on February 11, 2011 and informed her that defendant's responses to her discovery requests would be provided on or before March 8, 2011. Defendant also sent plaintiff another letter that same day requesting to schedule plaintiff's deposition before the deadline. Plaintiff called defendant a week later and left a voicemail message in which she declared that she had "decided not to do any depositions with you on no dates. Just letting you know again I'm not doing any type of deposition. . . . So you call the Judge, tell him [sic] whatever you want. I don't care." (Id., Ex. 19.)

Plaintiff subsequently sent two letters to the Court, dated February 23, 2011 and March 1, 2011, complaining of defendant's failure to provide discovery. The Court responded on March 10, 2011, noting that plaintiff's compliance with the Federal Rules of Civil Procedure "is not contingent on whether the defendant complies or fails to comply with its own discovery obligations." (Reply Decl. of Rory J. McEvoy ("McEvoy Reply Decl."), Ex. 3 at 1.) The Court emphasized that "it is incumbent upon you to fully participate and cooperate in the discovery process" and warned plaintiff that "[i]f you are not ...

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