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Sollitto v. Shulkin

United States District Court, E.D. New York

April 19, 2017

ROBERT SOLLITTO, JR., Plaintiff,
v.
DAVID SHULKIN, Secretary of United States Department of Veterans Affairs, [1]Defendant.

          MEMORANDUM & ORDER

          MARGO K. BRODIE, United States District Judge.

         On October 14, 2015, Plaintiff Robert Sollitto, Jr. commenced the above-captioned action against the Secretary of the United States Department of Veterans Affairs, acting in his official capacity. (Compl., Docket Entry No. 1.) Plaintiff alleges that the Department of Veterans Affairs (the “VA”) discriminated against him based on his disability, failed to provide him with a reasonable accommodation and created a hostile work environment in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (See generally id.) On October 29, 2015, Plaintiff filed an Amended Complaint. (Am. Compl., Docket Entry No. 4.) Currently before the Court is Plaintiff's motion, pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, to set aside part of Magistrate Judge Vera M. Scanlon's December 7, 2016 Order (the “December Order”), which granted in part and denied in part Plaintiff's motion to compel certain interrogatory responses and requests for production of documents. (See December Order, Docket Entry No. 23; Pl. Mot. to Set Aside the December Order (“Pl. 72(a) Mot.”), Docket Entry No. 30.) For the reasons set forth below, the Court affirms Judge Scanlon's December Order.

         I. Background

         a. Allegations in the Amended Complaint

         Plaintiff is a thirty-one-year-old man who was diagnosed at birth with cerebral palsy. (Am. Compl. ¶ 10.) He has difficulty ambulating and seeing and uses a cane to walk while indoors and a scooter to move around outdoors. (Id. ¶ 11.) In September of 2012, Plaintiff obtained a position working for the VA. (Id. ¶ 15.) Plaintiff alleges Defendant discriminated against him because of his physical disability, ostracized him, failed to provide him with the required training to perform his work, transferred him to various work sites and deliberately failed to provide him with a reasonable accommodation despite his repeated requests. (Id. ¶ 16.) In addition, Defendant allegedly informed Plaintiff that he would not be promoted to a higher position despite his qualifications to perform the job duties of a higher position. (Id. ¶ 17.) As a result of the alleged discrimination, Plaintiff suffered stress, anxiety, elevated blood pressure and an injury on June 16, 2014 that forced him to remain out of work for approximately one year. (Id. ¶¶ 19-22.)

         b. Plaintiff's motion to compel

         On April 15, 2016, Plaintiff served Defendant with interrogatories and requests for production of documents (“RFPs”). (See Pl. Mot. to Compel at 1, Docket Entry No. 17.) On June 21, 2016, Defendant served its objections and responses to Plaintiff's discovery requests. (See Def. Opp'n to Pl. Mot. to Compel at 1, Docket Entry No. 19.) The parties corresponded about the scope of discovery between September and November of 2016. (Id.) On November 3, 2016, Plaintiff filed a motion to compel Defendant (1) “to provide responses to [I]nterrogatories [No. 1-7 and 12], instead of referring Plaintiff to a mass of documents”; (2) “to undertake a good[-]faith search and produce documents responsive to all of Plaintiff's document requests, and in particular Request No[s]. 1, 3, 4, 5, 7, 12, 13, 14, 15, 16, 17, 18 and 19”; and (3) to produce for deposition “Peter Marsala, Defendant's Safety Director, who immediately before Plaintiff's on[-]the[-]job accident, allegedly inspected Plaintiff's worksite and concluded no accommodation was warranted; Jillian Pepe (a former employee) and Dawn Marie [Nevins] (now located in Colorado), Plaintiff's former supervisors.” (Pl. Mot. to Compel at 1-2.) Plaintiff argued that Defendant failed to make a good-faith attempt to search for and provide documents responsive to the interrogatories and RFPs, instead referring Plaintiff to either a Bates range of all produced documents or the Report of Investigation (“ROI”) prepared by the investigator who investigated Plaintiff's underlying administrative discrimination claim. (Id. at 3.)

         In response, Defendant argued that Plaintiff had identified purported deficiencies for the first time at a Rule 37 conference on November 1, 2016, and “refused to refine, clarify or otherwise narrow the scope” of the discovery requests. (Def. Opp'n to Pl. Mot. to Compel at 1.) Defendant further argued that it had produced more than 1075 pages of documents and that Plaintiff's requests were “overly broad” and “amount[ed] to an improper fishing expedition” of personnel files not related to this case. (Id. at 2.) Defendant then explained its response to each of the interrogatories and RFPs in dispute. (See generally id.)

         The parties disputed the scope of Interrogatories Nos. 1-7 and 12. As relevant to Plaintiff's Rule 72(a) motion, the disputed interrogatories requested that Defendant: (1) identify each department to which Defendant assigned Plaintiff and the reasons for such assignment, the complaints Plaintiff made, Defendant's response to those complaints, and all relevant documents, (Interrogatory No. 3); (2) identify “all persons working at New York Harbor Healthcare System in Brooklyn, New York” who are “physically disabled, ” including any accommodations provided to those persons and all relevant documents, (Interrogatory No. 4); and (3) describe in “full and complete detail” the salary and benefits Plaintiff would have earned during the period he was out of work, following his on-the-job accident, and append relevant documents, (Interrogatory No. 12). (See Def. Obj. & Resp. to Pl. First Set of Interrogs. (“Def. Obj. to Interrogs.”) 4-7, 9, Docket Entry No. 30-6.)

         The parties also disputed the scope and sufficiency of Defendant's responses to RFPs Nos. 3, 4, 12, 14, 15, 16 and 17. As relevant to Plaintiff's Rule 72(a) motion, the disputed RFPs requested that Defendant produce: (1) all documents on which Defendant relied “to conclude on or about June 16, 2014 that Plaintiff required no accommodation, ” (RFP No. 12); (2) all documents relating to Deborah Innella and Peter Marsala's inspection of Plaintiff's worksite, (RFP No. 14); and (3) all documents that describe “any undue hardship Defendant claims it would have experienced had it provided Plaintiff with the accommodation(s) he requested for his disability, ” (RFP No. 18). (See Def. Obj. & Resp. to Pl. First Set of Req. for Prod. (“Def. Obj. to RFPs”) 6, 12-14, Docket Entry No. 30-7.)

         On December 7, 2016, Judge Scanlon held a status conference on Plaintiff's motion to compel and issued the December Order, which granted in part and denied in part Plaintiff's motion. (See December Order at 1.) Judge Scanlon ruled that Defendant need not provide further information responsive to Interrogatories Nos. 1-4, 7 and 12, but that Defendant had to provide tailored responses to Interrogatories Nos. 5 and 6. (Id. at 2-4.) Judge Scanlon ruled that Defendant need not supplement its document productions in response to Plaintiff's RFPs. (Id. at 4.) In addition, Judge Scanlon noted that Plaintiff had already taken Nevins' deposition, Marsala's deposition would be scheduled for January of 2017 and Plaintiff was free to subpoena Pepe if Plaintiff wanted to depose her.[2]

         c. Plaintiff's Rule 72(a) motion

         On December 27, 2016, Plaintiff appealed part of the December Order pursuant to Rule 72(a).[3] (See Pl. Letter to Def. Re Pl. 72(a) Mot., Docket Entry No. 24.) Specifically, Plaintiff moves to set aside Judge Scanlon's rulings that Defendant need not provide further responses to Interrogatories Nos. 3, 4 and 12 or produce further documents in response to RFPs Nos. 12, 14 and 18. (Pl. 72(a) Mot. at 1.)

         i. Interrogatories ...


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