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Black v. Buffalo Meat Service, Inc.

United States District Court, W.D. New York

June 23, 2017

DARCY M. BLACK, Plaintiff,
v.
BUFFALO MEAT SERVICE, INC., Defendants.

          ORDER

          HON. HUGH B. SCOTT UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         Responses 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).

         Familiarity 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[1]), 34, 36, 38, 39, 40 (third Order), 41 (transcript of Mar. 16, 2017, argument)) is presumed.

         Separately, 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.

         BACKGROUND

         This 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).

         Defendants 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)

         Plaintiff 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).

         Plaintiff 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. 34)

         With 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).

         Defendants 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).

         Plaintiff 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).

         Defendants' Cross-Motion (No. 36)

         In 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.).

         Pertinent 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).

         This 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).

         Defendants' Present Motion for Reconsideration (No. 42)

         Defendants 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 plaintiff's ...


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