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Salvatore J. Giarrizzo v. Eric H. Holder

March 5, 2012

SALVATORE J. GIARRIZZO, PLAINTIFF,
v.
ERIC H. HOLDER, UNITED STATES ATTORNEY GENERAL, DEFENDANT.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Plaintiff brings this action, pro se, pursuant to 42 U.S.C. § 2000e et seq. ("Title VII") based on the gender discrimination he claims to have suffered during his employment with the Federal Bureau of Investigation ("FBI"). Presently before the Court is plaintiff's renewed motion for sanctions pursuant to Federal Rules of Civil Procedure 26 and 37. (Dkt. No. 137). This motion has been the subject of several Court Orders. Most recently, this Court discussed plaintiff's motion for sanctions in a Memorandum-Decision and Order dated January 5, 2012 (Dkt. No. 177). The Court held:

Having reviewed the record and the contentious history regarding discovery, the Court finds that an evidentiary hearing is necessary to resolve plaintiff's request for sanctions (and possibly a spoliation charge) pursuant to Rule 37 and any other arguably relevant sanctions pursuant to Rule 26. Accordingly, the Court reserves decision on the motion for sanctions pending an evidentiary hearing.

On February 3, 2012, the parties appeared for a status conference. At the conclusion of the conference, the Court issued an Order with respect to the outstanding discovery issues and plaintiff's motion for sanctions:

Defendant is directed to provide the Court and plaintiff with an Affidavit from a Custodian(s) of Records for the relevant time periods. The affidavit should address the following:

(1) Whether a file exists regarding the documents presented by plaintiff at the appellate level;

(2) Why plaintiff was advised that 152 male permanent medical hardship files existed yet 155 files were disclosed;

(3) Why plaintiff was advised that 29 female permanent medical hardship files existed yet only 28 were disclosed;

(4) Whether there are documents missing from the files that were disclosed.

Defendant is to provide the Court and plaintiff with the aforementioned affidavit on or before February 21, 2012. The Court will hold plaintiff's motion for sanctions and request for an evidentiary hearing in abeyance pending the receipt and review of the affidavit(s). (Dkt. No. 179).

On February 21, 2012, defendant provided three declarations executed by FBI employees: Sybrina R. Beanum, Nitonja Dacus and Bill L. Lewis. Ms. Beanum avers that the Transfer Unit provided, "a number of medical hardship transfer files to the Civil Discovery Review Unit ("CDRU")". The files were "unsorted" and Ms. Beanum asserts that the files were not altered nor were documents removed. The files were provided as they were maintained.

Ms. Dacus was a paralegal in the CDRU and received the files from the Transfer Unit. She was responsible for, "processing the files for release to the plaintiff". Ms. Dacus personally reviewed the files which spanned a ten year time period, 1998 through 2008 and stated that there was approximately 4000 pages of documentation. Ms. Dacus sorted the files by agent name and redacted the documents to protect the identities of the agents. Ms. Dacus avers that she did not remove or alter any documents in the file. Ms. Dacus provided defense counsel with a total of 155 male special agent transfer files and 28 female special agent transfer files.*fn1 Ms. Dacus stated that each agent was assigned a tracking number. From her review, Ms. Dacus asserts that the files for two male agents were contained in two separate records and were unintentionally produced twice. Ms. Dacus also asserts that she reviewed the transfer files from 2007 and 2008 to determine if additional documents had been added to the files. She determined that some documents were missing from the files for agents referred to as Tracking Nos. M99, M117 and M120. Those documents were annexed to Ms. Dacus' affidavit.

At the relevant time, Bill Lewis was the Unit Chief of the Transfer Unit. Mr. Lewis provided the Hardship Transfer Review Board ("HTRB") with plaintiff's medical hardship request documentation. After the HTRB recommended upholding the Transfer Unit's original decision, in accordance with his usual practice, Mr. Lewis believes that he placed all documentation back in the Transfer Unit file. Mr. Lewis avers that his staff has been unable to locate some documents relating to plaintiff's appeal including: (a) plaintiff's wife's hospital emergency room records; (b) ...


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