United States District Court, W.D. New York
DARCY M. BLACK, Plaintiff,
BUFFALO MEAT SERVICE, INC., et al., Defendants.
HUGH B. SCOTT UNITED STATES MAGISTRATE JUDGE.
the Court are two motions. The first motion is
plaintiff's continued effort (see Docket Nos.
23, 28; see also Docket Nos. 27, 32 (Orders on
plaintiff's previous motions)) to compel production of
payroll and tax records from defendants, this time seeking
enforcement of this Court's prior Orders (Docket Nos. 27,
32) for production and for discovery sanctions (Docket No.
34). She also seeks to extend the Scheduling Order deadlines
given the delays in defense production (id.). In
support of this motion, plaintiff submits her attorney's
Declaration with exhibits (id.).
second motion is defendants' cross-motion to compel
(Docket No. 36), also submitted in response to
plaintiff's motion. In support of their cross-motion,
defendants submitted their attorney's Affidavit with
exhibits and Memorandum of Law (id.). Here,
defendants seek authorizations from plaintiff, scheduling of
her deposition, and production of her tax records
to plaintiff's motion were due by March 7, 2017, with
replies due by March 14, 2017, and argument on March 16, 2017
(Docket No. 35). This briefing schedule also held in abeyance
discovery deadlines in the current Scheduling Order
(see Docket No. 33) until plaintiff's motion was
resolved (Docket No. 35). With the filing of the
cross-motion, responses to that motion were due March 14,
2017, and argument of that motion was joined with that for
plaintiff's motion on March 16, 2017 (Docket No. 37).
Plaintiff filed her reply papers, including her
attorney's reply Declaration with exhibits (examples of
the W-2 reports produced by defendants, and plaintiff's
letter of March 14, 2017, enclosing certain sought
authorizations and discovery) and Reply Memorandum of Law
(Docket No. 38). Following that argument (Docket No. 39,
minutes of March 16, 2017, argument), the motions were deemed
with the prior discovery Orders in this action (Docket Nos.
27, 32) is presumed.
employment discrimination action was commenced by plaintiff
alleging violations of federal (Title VII, the Civil Rights
Act of 1964, the Equal Pay Act, and 42 U.S.C. § 1981)
and New York State law (New York State Human Rights Law).
Plaintiff claims that defendants created a hostile work
environment on the basis of race and sex and had
constructively discharged her. (Docket No. 2, Compl.) As
previously stated (Docket No. 32, Order of Nov. 29, 2016, at
2-3; Docket No. 27, Order of Aug. 16, 2016, at 2), plaintiff
claims that male coworkers were paid more than she was and
were allowed more breaks than she was; that her coworkers
made sexual and racial comments; that the shop rejected
African American applicants (although plaintiff is a
Caucasian female); and a coworker allegedly made comments
regarding her biracial children (see Docket No. 2,
Compl.; Docket No. 25, Defs. Memo. at 1).
answered (Docket No. 8), asserting 28 affirmative defenses,
about half of them declaring that each of plaintiff's ten
causes of action failed to state a claim (id. Ans.,
¶¶ 54-82; see also id. at pages 17-18
(Reservation of Rights as to named affirmative rights and
reserve right to other, unnamed defenses)). This case was
referred to the undersigned (Docket No. 9) and a Scheduling
Order was entered (Docket No. 13; see Docket Nos. 10
(Scheduling Conference Notice), 11 (plaintiff's proposed
discovery plan), 12 (minutes from Scheduling Conference)) and
later was amended (Docket Nos. 22, 27, 32, 33).
Motions to Compel (Nos.23, 28)
initially moved for defendants to produce (among other sought
items) W-2 statements, Form 1099 and other tax documents, and
payroll records for comparable employees (Docket No. 23, Pl.
Decl., Exs. A, I). Defendants opposed, stating that
plaintiff's document demands were disproportionate to her
claims and the issues in this case (Docket No. 25, Defs.
Memo. at 4-8; see Docket No. 27, Order at 8) but
defendants had produced over 500 pages of documents they
deemed responsive (Docket No. 25, Defs. Memo. at 8;
see Docket No. 27, Order at 8). After discussing
proportionality in discovery (Docket No. 27, Order at 12-15),
this Court held that defendant's production was
sufficient “(save additional production for her Equal
Pay Act claims), ” denying plaintiff's motion to
compel more (id. at 15).
later filed a second motion to compel (Docket No. 28)
defendants to produce where this Court deemed that the issue
was “whether defendants complied with this Court's
Order [Docket No. 27] and what was (or was not) produced to
plaintiff” (Docket No. 32, Order of Nov. 29, 2016, at
5). Plaintiff sought complete responses to document demands
in Paragraphs 8, 12, and 13 of her requests to produce,
including production of W-2 statements, Form 1099 and other
tax documents from January 1, 2004, to the conclusion of this
action for every employee of defendants (paragraph 12) and
all payroll records for that same period (paragraph 13)
(see Docket No. 32, Order at 7). Defendants rested
on the 500 pages of documents already produced as compliance
with these document demands (see id. at 8; Docket
No. 30, Defs. Memo. at 2-4). Plaintiff replied that she
needed these records for her Equal Pay Act claim (Docket No.
31, Pl. Atty. Reply Decl. ¶ 4; see Docket No.
32, Order at 8). This Court granted plaintiff's motion to
compel production of the tax and payroll records sought in
Requests 12 and 13 (Docket No. 32, Order at 10-11),
concluding that “absent evidence (sworn statement or
other admissible proof) of what defendants produced in
response to these claims, or a statement that such documents
do not exist (cf. Docket No. 30, Def. Memo. at 3),
defendants are to produce documents responsive to Requests
Nos. 12 and 13” (Docket No. 32, Order at 11 (emphasis
Pending Third Motion to Compel (No. 34)
discovery deadlines approaching, plaintiff moved for
expedited hearing and extension of the current Scheduling
Order (Docket No. 34). She also sought compliance with this
Court's August 16, 2016, and November 29, 2016, Orders
and production of all documents responsive to her Request
Nos. 12 and 13 (id.), seeking these tax and payroll
records from January 2016 to present (Docket No. 34, Pl.
Atty. Decl. ¶ 26).
renewed their response that they produced, among 500 pages of
documents already produced, materials responsive to
plaintiff's outstanding demands (Docket No. 36, Defs.
Memo. at 7-9). They question the temporal scope of