United States District Court, W.D. New York
BILLIE R. BANKS, Plaintiff,
GENERAL MOTORS, LLC, Defendant.
B. Scott United States Magistrate Judge
the Court are two motions: (a) plaintiff's motion to
compel production of certain documents and to extend the
Scheduling Order (Docket No. 48) and (b) plaintiff's
motion to compel the depositions of certain out of District
witnesses in plaintiff's counsel's offices in this
District (Docket No. 51). Responses to the first motion were
due by December 29, 2016 (Docket No. 49), which defendant
provided (Docket No. 50, Def. Memo. of Law, with exhibit,
Def. Atty. Decl., Docket No. 50, Ex. 1). Replies to this
motion were due by January 9, 2017 (Docket No. 49), which
plaintiff supplied (Docket No. 53). Scheduling Order (Docket
No. 47) deadlines were held in abeyance pending the first
motion, with the intention to amend the schedule in this
Order (Docket No. 49).
second motion, responses were due by January 20, 2017, with
argument for both motions eventually scheduled for February
1, 2017 (Docket Nos. 52, 56, 58 (minute entry for Feb. 1,
2017); see Docket Nos. 54, 55). Defendant filed its
Memorandum in opposition to this second motion to compel
(Docket No. 57), with defense counsel's Declaration
(id., Def. Atty. Decl.) and attached as an exhibit
the declaration of one of the putative witnesses, Patrick
Curtis (id., Def. Atty. Decl. Ex. 1-A).
a Title VII action in which plaintiff also alleged claims
under the New York State Human Rights Law (Docket No. 1,
Compl). As summarized in these motions, plaintiff claims that
she was discriminated against due to her race and sex, that
defendant created and permitted a hostile work environment,
and retaliated against her when she complained about this
discrimination (e.g., Docket No. 48, Pl. Atty. Decl.
¶ 3). Plaintiff, an African American woman (Docket No.
1, Compl. ¶ 23), alleges that in 2006 she was employed
as a Site Safety Supervisor at defendant's Lockport, New
York, plant, after working in other positions at that plant
since 1996 (id. ¶¶ 31-33). She claims that
she was underpaid relative to white male employees in similar
positions (id. ¶ 36) and that she was subjected
to different terms and conditions of employment due to her
race and gender (id. ¶ 43). From October 2002
defendant hired an investigator to follow plaintiff while she
was out of work on disability (id. ¶ 44). When
plaintiff returned to work, plaintiff was accused by
personnel director Jim Fennell of stealing company time by
fraudulently claiming disability, which plaintiff denied.
Nevertheless, plaintiff was terminated. (Id. ¶
45.) Plaintiff's medical records confirmed her disability
and limitations (id. ¶ 46). After reporting
this, plaintiff was reinstated, but no punitive action was
taken against Fennell (id. ¶ 47). She alleged
other instances of racial and gender discrimination
(id. ¶¶ 49-55 (use of racial epithet
without punishment), 56 (plaintiff's directive as Safety
Supervisor being ignored by white employees), 57 (unlike
white Safety Supervisors, plaintiff was never provided
contends that plaintiff actually worked for Delphi Automotive
Systems, LLC, from 1999 to 2009, a separate corporation from
defendant (Docket No. 50, Def. Memo. at 2). Defendant
acquired the premises of plaintiff's Lockport plant in
October 2009 (Docket No. 1, Compl. ¶ 19).
answered the Complaint (Docket No. 14; see Docket
No. 48, Pl. Atty. Decl. ¶ 4). This case initially was
referred to Magistrate Judge Foschio (Docket No. 15) who
issued a Scheduling Order in which discovery was due by
August 5, 2016 (Docket No. 25; see Docket No. 48,
Pl. Atty. Decl. ¶ 5). The case later was referred to the
undersigned (Docket No. 36) due to Magistrate Judge
Foschio's recusal (Docket No. 35). The current Amended
Scheduling Order (Docket No. 47) had plaintiff's expert
disclosure due by December 13, 2016, defense expert
disclosure by January 12, 2017, and discovery completed by
March 13, 2017 (id.; see Docket No. 48, Pl.
Atty. Decl. ¶¶ 18-19). Briefing for these pending
motions held these deadlines in abeyance (Docket No. 49).
served her discovery demands on September 10, 2015 (Docket
No. 48, Pl. Atty. Decl. ¶ 7, Ex. A). Eventually,
defendant responded but plaintiff claimed that this
production did not furnish responsive documents (id.
¶ 8, Ex. B). Meanwhile, the parties entered into a
Stipulation and Protective Order (id. ¶ 9;
Docket No. 40). After entry into that Stipulation, defendant
produced 2, 100 pages of documents in bulk; plaintiff
objected to the manner of that production and defendant
amended the response correlating the documents to
plaintiff's requests (Docket No. 48, Pl. Atty. Decl.
¶¶ 10, 11, Ex. C).
then noted omissions in this production from her requests,
namely absent personnel files of similarly situated
employees; documents evincing findings of probable cause to
believe that defendant discriminated against its employees;
manuals, handbooks, policy statements regarding human
resources subjects (such as fringe benefits policies); W-2
statements, 1099 forms, and other IRS documents from 2007 for
the position of Safety Supervisor; all EEO-1 reports from
January 1, 2002, to present; and all claims of race or sex
discrimination, hostile work environment, or retaliation
lodged against defendant from the Lockport plant
(id. ¶ 12, Ex. A). Plaintiff wrote noting her
objections to this production (id. ¶ 13, Ex.
D). After an exchange of correspondence, defendant
supplemented its response (id. ¶ 14, Ex. E).
Plaintiff later notes “[u]nfortunately, the actual
documents referenced in the response were not included and
were not received until on or about August 4, 2016. Moreover,
this document production did not address all concerns of
Plaintiff as set forth in her May 20, 2016 letter
[id. Ex. D]” (id. ¶ 15). In
September 21, 2016, plaintiff detailed her objections to the
production to date (id. ¶ 17, Ex. F).
October 7, 2016, defendant responded, offering to produce
additional documents in certain categories (id.
¶ 20, Ex. G) and served its response on October 14,
2016, noting various objections (id. ¶ 21, Ex.
H). Plaintiff notes that she received personnel records of 25
other employees but no other documents (id. ¶
22). As for production of additional policies and other
discrimination complaints, defendant generally referred to
its earlier February 2016 production (id.
¶¶ 23, 26). As for the W-2 and other sought IRS
forms, defendant said that it would produce documents from
Lockport since 2009 (id. ¶ 24), as well as
offering to produce EEO-1 reports as “responsive
documents” (id. ¶ 25), objecting to
production of documents between 2002-09 (id. Ex. H,
at Response to Doc. Request No. 27, unnumbered page).
December 5, 2016, counsel for both parties had two lengthy
telephone calls about this production, later memorialized in
a letter (id. ¶¶ 27, 28-32, Ex. I).
Plaintiff argues the necessity and relevance of the items
sought to enable her expert to render an expert report
(id. ¶¶ 33-38).
Motion to Compel Document Production
now seeks production of W-2 statements from comparable
employees and defendant's EEO-1 reports (Docket No. 48).
At oral argument on February 1, 2017, plaintiff emphasized
that she sought these items for damages discovery and sought
the temporal ranges requested. Defendant responded that
plaintiff's requests were temporally overbroad; defendant
restated its willingness to produce, but only during the
period (from 2009) when it owned the Lockport plant. During
that argument, plaintiff sought sworn declarations from
defendant's record keepers that stated that defendant
searched but could not find (or did not possess) the
requested documents from before 2009.
opposes plaintiff's motion, but stated its willingness to
produce documents but within a reasonable time frame (Docket
No. 50, Def. Memo. at 2, 5-6). Defendant offers to produce
W-2 compensation records from 2010-16 and EEO-1 from 2012-16
after defendant acquired the Lockport plant, concluding that
this renders plaintiff's motion moot (id. at 5),
see Obiajulu v. City of Rochester, Dep't of Law,
166 F.R.D. 293, 296 (W.D.N.Y. 1996) (Feldman, Mag. J.).
argues that it produced over 4, 700 pages of documents in
response to plaintiff's discovery requests (id.,
Ex. 1, Def. Atty. Decl. ¶ 4; Docket No. 50, Def. Memo.
at 3). After defendant made its production in October 2016,
defendant had not heard from plaintiff until December 5,
2016, and then plaintiff filed the first motion, on December
7, 2016 (Docket No. 50, Def. Memo. Ex. 1, Def. Atty. Decl.
¶¶ 5, 6, 7). Defendant claims that it was not given
time to reconsider its position (id. ¶ 8;
id., Def. Memo. at 4).
reply, plaintiff argues that her expert cannot complete
expert disclosure until the documents sought (W-2 reports,
EEO-1) are produced (Docket No. 53, Pl. Reply Decl. ¶
18). She argues that defendant failed to produce a list of
policies and procedures responsive to one of plaintiff's
requests, the costs of fringe benefits, and the wage
information for Safety Supervisors that was promised in
December 2016 (id. ¶ 6), with plaintiff
concluding that defendant has no intention of producing these
outstanding items (id. ¶ 7). Defendant's
only objection to producing W-2 statements and EEO-1 reports
is the time range sought; plaintiff had sought these
documents from 2007 to the conclusion of this action and
EEO-1 reports from 2002 to conclusion (id.
¶¶ 11, 12). Plaintiff states that she needs W-2
statements from 2007 because she believes discriminatory
behavior is reflected from that date forward and EEO-1
reports for that period are needed to establish that females,
African Americans and female African Americans were
underrepresented in defendant's workforce (id.
¶¶ 13, 14). The Complaint alleges that
discrimination commenced on or about October 2002 and that
defendant continued to do business from 1996 (id.