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Banks v. General Motors, LLC

United States District Court, W.D. New York

February 13, 2017

BILLIE R. BANKS, Plaintiff,
v.
GENERAL MOTORS, LLC, Defendant.

          ORDER

          Hugh B. Scott United States Magistrate Judge

         Before 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).

         For the 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).

         BACKGROUND

         This is 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 support staff)).

         Defendant 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).

         Defendant 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).

         Plaintiff 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).

         Plaintiff 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).

         On 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).

         On 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).

         Plaintiff's Motion to Compel Document Production

         Plaintiff 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.

         Defendant 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.).

         Defendant 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).

         In 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. ΒΆ ...


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