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Banks v. General Motors, LLC

United States District Court, W.D. New York

July 26, 2017

BILLIE R. BANKS, Plaintiff,



         Before the Court is plaintiff's third (cf. Docket Nos. 48, 51 (motions to compel); Docket No. 59 (Order)) motion to compel (Docket No. 65). Responses to this motion were due by June 29, 2017, with replies due July 6, 2017 (Docket No. 66). Defendant filed a timely response (Docket No. 70) and plaintiff duly replied (Docket No. 71), and the motion was deemed submitted.

         Meanwhile, the Scheduling Order (Docket Nos. 59, 63) had discovery conclude by June 26, 2017; this Court later recognized that this deadline would need to be changed due to the pending motion to compel (Docket No. 66). The parties then moved jointly to extend time to conduct depositions (Docket No. 67), which was granted (Docket No. 68). Discovery then was due by July 14, 2017, again with this Court providing that this deadline may be extended further upon action on the pending motion to compel (Docket No. 69).


         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 a prior series of motions (Docket No. 48, Pl. Atty. Decl. ¶ 3; Docket No. 59, Order of Feb. 13, 2017, at 2), 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). Plaintiff notes, however, that, while defendant claimed that it had no access to personnel records before 2009, defendant later produced pre-2009 records (Docket No. 65, Pl. Atty. Decl. ¶ 30). 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).

         Previously, plaintiff moved to compel production of certain documents (Docket No. 48; see Docket No. 65, Pl. Atty. Decl. ¶ 12), which was granted (Docket No. 59, Order of Feb. 13, 2017; see Docket No. 65, Pl. Atty. Decl. ¶ 14) and for conducting depositions of defendant's personnel in this District (Docket No. 51) which was granted in part, denied in part (Docket No. 59, Order, at 14-16). That Order also set the amended schedule for pretrial activities in this case (id. at 10-11), which was later extended (Docket Nos. 63-64, 68-69).

         Plaintiff's Latest Motion to Compel

         Plaintiff seeks complete responses to her Request for Production of Documents and desires leave to resume the deposition of seven General Motors personnel[1] at defendant's expense (Docket No. 65, Pl. Notice of Motion). Plaintiff notes that three of these witnesses had yet to be deposed as of the date of the filing of this motion (Docket No. 65, Pl. Atty. Decl. ¶ 27 (Daniel Hersch, Pat Curtis, and retired human resources manager James Fennell yet to be deposed)), with their depositions scheduled in June (id. ¶ 28). Plaintiff claims that defendant deliberately failed to produce documents or produced them the afternoon or evening before an employee's deposition, prejudicing her preparation for the depositions (id. ¶ 31). Since defendant failed to produce personnel files of these (and other) witnesses and General Motors employees, plaintiff seeks production of the documents and leave to conduct further depositions, if necessary, at defense expense (id. ¶ 32).

         Plaintiff acknowledges that defendant produced approximately 2, 100 pages of documents (id. ¶¶ 8, 9 (later correlating these documents to plaintiff's requests, following plaintiff's objection to bulk production of these documents)). The parties then agreed that defendant would produce personnel documents for 25 General Motors employees (id. ¶ 10, Ex. D). As depositions of some of these employees approached, plaintiff sought from defendant complete personnel files (id. ¶¶ 15-16-17, 18- 19, Exs. F, G, H). After conducting employee depositions in April and May of 2017 (id. ¶ 20), plaintiff again listed documents yet to be produced by defendant (id. ¶ 21, Ex. J, letter of May 18, 2017). Defendant on May 19 and 24, 2017, produced portions of the personnel records of Lonnie Everett and Mike Moresco and documents about the posting of plaintiff's former position (id. ¶¶ 22-23, 24). Moresco, who was assisting defense counsel in obtaining other employees' records, testified at his deposition that he was not asked to produce his own files (id. ¶¶ 18, 25, Ex. K). Plaintiff claims that since May 26, 2017, defendant has failed to produce responsive documents (id. ¶ 26, see id. Ex. K).

         Defendant responds that, despite objections that plaintiff's requests for the personnel files of 45 General Motors' employees was overly broad, defendant produced copies of the files of 27 employees (Docket No. 70, Def. Memo. at 2-3, 4), while retaining objections as to overbreadth for certain employees' files (id. at 4). Performance evaluations and training records were not part of the personnel files so, upon plaintiff's objection during a deposition, defendant separately produced performance evaluations or was obtaining for production other evaluations (mostly for employees called as witnesses) (id. at 3) where such records were available (id. at 7). Defendant claims that these evaluations and training records were produced prior to plaintiff's depositions (id. at 3). One employee, Dan Hesch, was noticed for deposition eight business days before the examination; defendant argues that it did not have enough time to obtain all of his records (id.). Defendant concludes that, by either its production or objection, that plaintiff's present motion to compel is now moot (id. at 5). It contends that plaintiff's motion boils down to (a) whether she is entitled to performance evaluations and training records for sixteen General Motors employees[2] whom defendant deems are not relevant to this action and (b) whether plaintiff is entitled to resume depositions of seven General Motors employees at defendant's expense (id.). Defendant argues that plaintiff is not entitled to those evaluations and records or to further depositions (id. at 4, 5, 7-9, 10-11). Defendant invokes this Court's discretion regarding production of non-party personnel files (id. at 6 & n.2 (applying cited precedent, although cases applied New York Civil Rights Law § 50-a)), Sidari v. Orleans County, 180 F.R.D. 226, 231-32 (W.D.N.Y. 1997) (Scott, Mag. J.); Gavenda v. Orleans County, 174 F.R.D. 265, 268-69 (W.D.N.Y. 1996) (Scott, Mag. J.).

         Defendant argues that plaintiff fails to show relevance of the performance evaluations of the named employees (id. at 8) or how the requested information is not more than a fishing expedition (id. at 9). Plaintiff had used performance evaluations only to impeach and discredit witnesses (id. at 10). Defendant next states that the specific requests plaintiff sought did not exist or were already produced (id. at 9). Defendant concludes that plaintiff failed to show how these performance evaluations warrants an order to allow additional deposition (id. at 11).

         Defendant denies that plaintiff was prejudiced by the afternoon or evening production of performance evaluation prior to depositions because defendant deems those documents to be marginally relevant (id. at 10). Personnel documents for five witnesses (Tom Rush, Susan Gouthro, Robert Duke, Daniel Hesch, and George Miller) were produced back in October 2016 (id.).

         Defendant concludes that plaintiff is not entitled to costs for her motion (id. at 11-12).

         Plaintiff, in reply (Docket No. 71), argues that personnel records of similarly situated employees to a plaintiff, supervisors of a plaintiff, and individuals involved in discriminatory behavior is discoverable (id. at 1-2), Barella v. Village of Freeport, 296 F.R.D. 102, 106 (E.D.N.Y. 2013). She distinguished the cases defendant cites that personnel records need not be produced (id. at 2). She notes the defendant did not raise any confidentiality concerns and points to the parties' Stipulation and Protective Order concerning disclosure in this case (id.; see Docket No. 34, Stipulation and Order). Plaintiff argues that there is no viable reason for failure to produce these documents, denying that production is overly broad or unduly burdensome. She claims the employees' performance evaluations and training records were relevant “to demonstrate disparate treatment between those who discriminate, or permit discrimination to occur, and those who are subject to discrimination” (Docket No. 71, Pl. Reply Memo. at 4). She still seeks the witnesses' disciplinary record, arguing that these items also are relevant (id.). Plaintiff also wants an affidavit from an employee of defendant attesting to what was produced and what was not found, despite defense counsel's representation of what had been produced (id. at 6-7). In the event documents produced by defendant on June 30, 2017, or subsequently lead to additional lines of questioning, plaintiff seeks leave to conduct further depositions of Miller, Rush, Gouthro, Duke, Moresco, Hesch, and Curtis, at defendant's expense (id. at 8), citing e.g., Adames v. G.B. Restaurants Inc., No. 12CV569, 2014 WL 202380, at *5-6, 2014 U.S. Dist. LEXIS 5866, at *14-18 (W.D.N.Y. Jan. 16, 2014) (Scott, Mag. J.).

         To understand the discovery issues involving the various deposed General Motors' employees, below is a table of plaintiff's contentions and defendant's response.

         The first table lists the seven employees plaintiff seeks to continue their depositions following receipt of additional documents and defendant's position.

         Table 1

GM Employee's Name

Plaintiff, No. 65

Defendant, No. 70

George Miller

seeking additional documents

¶ 21

Deposed as of June 28, at 4. UAW employee, without General Motors evaluation, at 10 n.3. Produced documents October 2016, at 10.

Tom Rush

seeking additional documents ¶ 21; alleged harasser

Deposed as of June 28, at 4. Produced documents Oct. 2016, at 10.

Susan Gouthro

seeking additional documents

¶ 21

Deposed as of June 28, at 4. Produced documents Oct. 2016, at 10.

Robert Duke

seeking additional documents ¶ 21, documents regarding posting of position and hiring of Duke, ¶ 24; hired to replace plaintiff

Deposed as of June 28, at 4. Produced documents Oct. 2016, at 10.

Michael Moresco

seeking additional documents ¶ 21. Evaluations received from 2009-16, ¶ 23. Testified that he was never asked to pull his own personnel file, ¶ 25, Ex. K (email objection)

Deposed as of June 28, at 4. Produced documents April 21, 2017, at 10.

Daniel Hesch

seeking additional documents, ¶¶ 21, 28 (nothing after 2008); assistant plant manager. Needs to be deposed, ¶¶ 27-28, scheduled for June 8, 2017 (June 7 motion), ¶ 28

Deposed as of June 28, at 4. Produced documents Oct. 2016, at 10.

Pat Curtis

seeking additional documents, former plant manager, ¶¶ 21, 28, needs to be deposed, ¶ 27, scheduled for June 12 (June 7 motion), ¶ 28

No disciplinary records, at 7.

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