The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Siragusa, J. This case is before the Court on Defendants' motion for summary judgment, filed on March 29, 2012, ECF No. 25, seeking either entry of a final judgment, or, in the alternative, an order granting Defendants leave to amend their Answer to assert an affirmative defense ("that the plaintiff has failed to mitigate her damages"). On June 11, 2012, Plaintiff filed a cross-motion, ECF No. 31, seeking an Order striking the Affidavit of witness Jennifer M. Sommers, Esq. ("Sommers"), counsel to the Sheriff, pursuant to Federal Rules of Civil Procedure(26)(a)(1)(A) and 37(c)(1). For the reasons stated below, Plaintiff's cross-motion to strike is denied, Defendants' motion for summary judgment is granted, and Attorney Christina A. Agola is directed to show cause why sanctions should not be imposed against her as discussed below.
On April 16, 2009, Plaintiff Stephanie Kleehammer, a Deputy Sheriff Jailor, brought a sex discrimination claim against Monroe County and Patrick O'Flynn, Monroe County Sheriff, in his official and individual capacities. The portions of the complaint relevant to the pending motion are as follows:
10. Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). On January 26th, 2009, the U.S. Department of Justice issued a Notice of Right to Sue with regard to Plaintiff's claims. Less than 90 days have elapsed since the Plaintiff's receipt of her Notice of Right to Sue, and her subsequent filing of the original complaint in this matter.
11. Plaintiff is an individual woman who was at all times relevant herein an employee of defendant Monroe County, and a resident of the County of Monroe, State of New York.
* * * 14. Plaintiff has been employed by the defendant since February 1998 as a "Deputy Sheriff Jailor."
15. Plaintiff maintained a stellar work record during her entire tenure. 16. In or about December 27, 2007, Plaintiff was subject to graphic live sex in the workplace when a female visitor masturbated in front of a male inmate in violation of well established jail policies.
17. Plaintiff was compelled to watch as there was no supervisor present and was told by male co-workers to "just sit there."
18. While Plaintiff "sat there," she was subject to lewd comments by her co-workers who stated, inter alia, "wow, she must have her whole fist up there" and "wonder if she has any female hygiene problems."
19. That Plaintiff's co-workers failed to follow the chain of command in response to Plaintiff's requests to contact a supervisor.
20. The entire incident was preserved by video tape, and by filing her charge of discrimination with the EEOC, Plaintiff duly requested that the video tape be preserved.
21. Plaintiff engaged in protected activity on January 14, 2008 when she complained to management about the events of December 27, 2007, and her co-worker's comments, which she believed in good faith constituted a hostile work environment.
22. Management failed to take any remedial action with regard to Plaintiff's good faith complaints.
23. The Plaintiff went on a compensable Worker's Compensation injury (major depression, anxiety disorder and NOS) which the Board determined was the result of Plaintiff's exposure to a hostile environment.
24. Thereafter, Plaintiff was subject to a continuous pattern of retaliation, including denial of work related leave ("Z time"), and has been compelled to return to work under the threat of discipline, despite her condition.
Compl. ¶¶ 10--11, 14--24.
On April 7, 2010, Defendants filed a motion seeking judgment on the pleadings. On September 8, 2010, the Court dismissed Plaintiff's 42 U.S.C. §1983 claims and hostile work environment claims while allowing Plaintiff's retaliation claims under Title VII and the New York State Human Rights Law ("NYSHRL") to continue, noting "[t]hough bare of amplifying factual allegations, Plaintiff's complaint, does allege that she engaged in a protected activity, and does allege that as a result of engaging in a protected activity she suffered an adverse action through the denial of Z time and through being required to return to work notwithstanding her alleged disability." Kleehammer v. Monroe County, 743
F. Supp. 2d 175, 188 (W.D.N.Y. 2010).
In her cross-motion, Plaintiff contends that Defendants failed to identify Sommers as a possible witness at any time prior to filing their memorandum of law. Pl.'s Mem. ...