United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
The instant employment discrimination case was referred to Magistrate Judge Jeremiah J. McCarthy for supervision of all pretrial proceedings. Magistrate Judge McCarthy issued a Report and Recommendation recommending that plaintiff's complaint be dismissed in its entirety, with prejudice, as a result of plaintiff's willful failure to comply with the Magistrate Judge's discovery orders. For the following reasons, Magistrate Judge McCarthy's recommendation is adopted in part and denied in part. Plaintiff shall be allowed to proceed with his claims, however plaintiff will be sanctioned for his failure to comply with the Magistrate Judge's orders pursuant to Federal Rule of Civil Procedure 37 in that he will be precluded from seeking damages in the form of back pay or front pay.
BACKGROUND AND RELEVANT FACTS
Plaintiff Thomas Ostrander ("plaintiff" or "Ostrander") seeks damages against his former employer, defendant PCB Piezotronics, Inc. ("defendant" or "PCB") for alleged violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §12101, et seq. Plaintiff commenced employment with PCB in April 2008 as a Programming Manufacturing Engineer. During his employment, plaintiff requested a disability accommodation in the form of a quiet work area. Ostrander alleges that he was refused such an accommodation, and that his fellow employees harassed him on the basis of his disability. PCB terminated plaintiff's employment on March 18, 2009. Shortly thereafter plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). He received his right to sue letter in December of 2009.
Ostrander seeks damages in the form of back pay and front pay, punitive damages, attorney's fees, and compensatory damages which include medical expenses, reimbursement for job search expenses, and emotional pain and suffering. Ostrander was initially represented by attorney James Hartt. Hartt's motion to withdraw as plaintiff's attorney was granted on February 14, 2011, at which time plaintiff began proceeding pro se.
In April 2011, PCB served Ostrander with interrogatories and a request for production of documents. Defendant later moved to compel responses to its discovery demands. Magistrate Judge McCarthy ordered plaintiff to respond by July 26, 2011. In lieu of responding, plaintiff moved for appointment of counsel. The Magistrate Judge denied the request to appoint counsel and instructed the parties to resolve the motion to compel. The Magistrate Judge ordered that if the parties were unable to resolve the motion to compel, plaintiff's responses to defendant's motion would be due on August 19, 2011.
Ostrander failed to respond as directed. On August 25, 2011, the Magistrate Judge granted defendant's motion to compel and required plaintiff to respond by September 2, 2011. Plaintiff again failed to respond and defendant filed a second motion to compel on September 16, 2011. Plaintiff responded to the second motion, stating that he would have "the requested information for the defendant in the mail on or by September 20, 2011." (Dkt. No. 45) On September 20, 2011, Magistrate Judge McCarthy ordered plaintiff to respond by September 27, 2011 and stated "[p]laintiff's failure to comply with this Order may result in sanctions, including dismissal of the case." (Dkt. No. 46)
Plaintiff served responses in compliance with the Court's order on September 23, 2011. However, those responses were incomplete and caused defendant to file a third motion to compel. Magistrate Judge McCarthy ordered plaintiff to respond to the third motion to compel by October 14, 2011. Oral argument was scheduled for October 27, 2011. Ostrander did not respond to the motion or appear for oral argument. On October 28, 2011, the Magistrate Judge ordered plaintiff to fully respond to defendant's discovery request by November 28, 2011. He warned that failure to do so could result in dismissal with prejudice.
Plaintiff responded on November 25, 2011. As to defendant's document request #2, which sought plaintiff's federal income tax and W-2 forms from 2009 and 2010 and all subsequent years, Ostrander stated "this question is not being answered due to being privileged information." As to defendant's document request #3, which sought plaintiff's wage statements and other income statements from 2011, Ostrander stated "[t]his question is still burdensome, as I do not keep paystubs from every week of the year, and as I am still employed with the same employer that I have been since September of 2010, the defendant requests copies of my paystubs, and I have not gotten any raises or bonuses and still am paid the same amount every week since my first week of employment with current company."
On December 7, 2011, Magistrate Judge McCarthy ordered plaintiff to "explain in writing why his responses to document requests ##2 and 3... complied with [the] October 28, 2011 Text Order requiring him to fully respond' to these requests." Plaintiff responded that the documents requested were "personal pieces of information" he did not want on the internet. Plaintiff stated that he "would gladly produce the original documents for the defendant and their representative to inspect in person at any time if this would suit them."
Magistrate Judge McCarthy then issued a Report and Recommendation recommending that plaintiff's complaint be dismissed, in its entirety and with prejudice, based upon plaintiff's willful violations of the Magistrate Judge's discovery orders. Plaintiff filed objections to the Report and Recommendation offering various excuses for his non-compliance including that he was proceeding without the benefit of an attorney, was severely ill in August and September of 2011, and that his disability makes it difficult for him to "communicate, understand, learn, concentrate and meet deadlines." Ostrander also stated that when the Magistrate Judge instructed him to "fully answer", he "truly thought that this gave [him] the right to object to some of the defendant's requests." Defendant argues that dismissal is proper because plaintiff's non-compliance was willful, a lesser sanction would not be effective, the period of non-compliance extended for a long time, and plaintiff had ample warning that failure to comply may result in dismissal.
On the same day that plaintiff filed his objections to the Magistrate Judge's Report and Recommendation, plaintiff made a motion to appoint counsel. Shortly thereafter, Ostrander informed the Court that he was in discussions with an attorney who may agree to take his case. The Court then adjourned oral argument with respect to defendant's objections to allow him the opportunity to secure counsel. Ostrander was instructed to report to the Court as to whether counsel would appear on his behalf. Plaintiff then informed the Court that the attorney he had been corresponding with would not be taking his case. The Court scheduled a status conference with the parties and denied defendant's motion to appoint counsel.
Following denial of the motion to appoint counsel, the Court conducted a number of status conferences with the parties, and Ostrander was given additional time to find counsel on his own. The Court then received a notice of appearance by attorney Scott Michael Lupiani on behalf of plaintiff. Plaintiff's attorney was provided an opportunity to supplement plaintiff's objections to the Report and Recommendation recommending dismissal of the complaint, at which time the Court considered the matter submitted. Pursuant to 28 U.S.C. ...