United States District Court, W.D. New York
DARCY M. BLACK, Plaintiff,
BUFFALO MEAT SERVICE, INC., Defendants.
HUGH B. SCOTT UNITED STATES MAGISTRATE JUDGE.
this Court is defendants' motion (Docket No. 42) to
reconsider the Order of March 31, 2017 (Docket No. 40), which
(relevant to the reconsideration motion) granted
plaintiff's motion (Docket No. 34; see Docket
Nos. 23, 28; see also Docket Nos. 27, 32 (Orders on
plaintiff's previous motions)) to compel production of
further payroll and tax documentation from defendants, and
granting only in part defendants' own motion (Docket No.
36) to compel plaintiff to produce her tax returns.
to the motion for reconsideration were due by April 20, 2017
(Docket No. 43), which plaintiffs submitted (Docket No. 44).
Replies were due by April 27, 2017 (Docket No. 43), which
defendants provided (Docket No. 45). The motion thus was
deemed submitted without oral argument (Docket No. 43). The
portion of the parties' respective previous motions to
compel seeking recovery of reasonable motion costs
(see Docket No. 40, Order at 10) was held in
abeyance pending the reconsideration motion (Docket No. 43).
with the prior proceedings, especially the discovery motion
practice and Orders in this action (Docket Nos. 23, 25-26, 27
(first Order), 28, 30-31, 32 (second Order), 33
(3rd Amended Scheduling Order), 34, 36, 38, 39,
40 (third Order), 41 (transcript of Mar. 16, 2017, argument))
the parties jointly moved (Docket No. 46) to extend the
Scheduling Order (Docket No. 40, Fourth Amended Scheduling
Order), which was granted (Docket No. 47). In this Order,
deadlines will be expressly extended for parties to complete
expert discovery and disclosure.
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. 1, Compl.) As
previously stated (Docket No. 32, Order of Nov. 29, 2016, at
2-3, Black v. Buffalo Meat Serv., 2016 U.S. Dist.
LEXIS 164441, at *2-4; 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. 1,
Compl.; Docket No. 25, Defs. Memo. at 1). Plaintiff worked at
Buffalo Meat Service from 2004 to May 2010 (Docket No. 1,
Compl. ¶¶ 11, 13, 47-48) as a
wrapper-packer-cleaner (id. ¶ 12).
answered (Docket No. 8). 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). Previous 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 initially 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; Black, supra, 2016 U.S. Dist. LEXIS
164441, at *6). 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;
Black, supra, 2016 U.S. Dist. LEXIS 164441,
at *9-11). Defendants rested on the 500 pages of documents
already produced as compliance with these document demands
(see id. at 8; Black, supra, 2016
U.S. Dist. LEXIS 164441, at *11; 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; Black, supra, 2016
U.S. Dist. LEXIS 164441, at *12), 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; Black,
supra, 2016 U.S. Dist. LEXIS 164441, at *16-17
(emphasis in original)). In this present reconsideration
motion (as discussed in some detail below), defendants
contend that they supplemented with thousands of pages of
payroll and tax documents during plaintiff's tenure at
Buffalo Meat Service to 2010 (Docket No. 42, Defs. Memo. at
2-5). Plaintiff's Third Motion to Compel (No.
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). Defense counsel's present affidavit states
that defendants supplemented tax and payroll documents from
the period of plaintiff's tenure, with over 2, 700 pages
of materials (Docket No. 37, Defs. Atty. Aff. ¶¶
36, 38, 39). They questioned the temporal scope of
plaintiff's demands given the statute of limitations for
Equal Pay Act claims (Docket No. 36, Defs. Memo. at 7).
replied that her request is not temporally limited to
2005-2010 and that defendants' production is incomplete
on this basis (Docket No. 38, Pl. Reply Memo. at 1-5). She
contended that the prior Orders required defendants to
produce documents responsive to Requests 12 and 13
(id. at 2-3, quoting Docket No. 32, Order
at 11); instead, defense counsel provided a statement
attesting to the extent of defendants' production without
defendants attesting to whether the documents exist (Docket
No. 38, Pl. Reply Memo. at 3).
Cross-Motion (No. 36)
addition to responding to plaintiff's latest motion,
defendants cross-moved plaintiff to produce her W-2, tax
returns, execute medical and Social Security authorizations
(Docket No. 36). They also wanted plaintiff to schedule her
deposition following defense receipt of earnings, tax, and
medical records (id.).
to the present reconsideration motion, plaintiff asserted a
qualified privilege against producing her tax returns (Docket
No. 38, Pl. Atty. Reply Decl. ¶ 20; id., Pl.
Reply Memo. at 6-7). Instead, she offered her W-2 statements
as a sufficient statement of her damages rather than her
joint tax returns (id., Pl. Memo. at 6-7).
Court granted plaintiff's motion to compel and ordered
compliance with prior Orders while granting in part and
denying in part defendants' motion to compel (Docket No.
40, Order of Mar. 31, 2017). Pertinent to the reconsideration
motion, this Court held that defendants were to produce tax
and payroll records based upon representations that only 500
pages of those records were produced (id. at 6-7).
This Court then found that plaintiff need not produce her
joint tax returns but only produce W-2 forms instead
(id. at 8-9). This Court then extended the
Scheduling Order deadlines (id. at 9-10); this is
not the subject of defendants' reconsideration motion.
The Order also set forth briefing for discovery sanctions
(id. at 10); this briefing was held in abeyance
pending resolution of the present reconsideration motion
(Docket No. 43).
Present Motion for Reconsideration (No. 42)
now seek reconsideration of the March 31, 2017, Order (Docket
No. 40), and instead want an Order denying plaintiffs'
motion to compel further production of payroll and tax
documents (Docket No. 42, Defs. Notice of Motion at 1). They
contend that defendants did supplement the 500 pages of
production with 2, 700 pages of its employees' payroll
and tax documents to 2010 (id., Defs. Memo. at 2-3,
4-5). They state that they noted this supplementation in
prior proceedings (Docket No. 27, Order at 15; Docket No. 25,
Defs. Memo. at 2; Docket No. 36, Defs. Atty. Aff.
¶¶ 36, 38, 39; Docket No. 30, Defs. Memo. at 1, 2)
but this Court disregarded it (see Docket No. 42,
Defs. Memo. at 6). They produced in supplementation weekly
payroll records of all employees (and not merely comparable
employees) during plaintiff's employment and their W-2
statements and W-2 summary reports (Docket No. 42, Defs.
Memo. at 4-5). Defendants also want reconsidered the denial
(in part) of their motion to compel plaintiff's redacted
tax returns, defendants still seek disclosure of
plaintiff's source of income during the course of this
litigation (id. at 9). They note that this Court
during oral argument (see also Docket No. 41, Tr. of
Mar. 16, 2017, oral argument at 12) concluded that