Colon v. AT&T

Filing 59

RULING denying 35 Motion to Amend/Correct; granting 37 Motion to Compel. Defendant is directed to make the compelled discovery FORTHWITH. Under 58 the Order issued by the Court on November 9, 2010, any dispositive motions must be filed no later than thirty days after the date of this Ruling. Signed by Judge Charles S. Haight, Jr on December 17, 2012. (Caldwell, M.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

PAUL COLON,
Plaintiff,
v.

3:09-CV-0802 (CSH)

THE SOUTHERN NEW ENGLAND
TELEPHONE COMPANY, d/b/a
AT&T CONNECTICUT,
Defendant.

RULINGS ON MOTIONS TO AMEND AND TO COMPEL
HAIGHT, Senior District Judge:
Two motions in this action are currently pending before the Court: Plaintiff’s Motion for
Leave to File Second Amended Complaint (the “Motion to Amend”) [Doc. 35] and Plaintiff’s
Motion to Compel Discovery (the “Motion to Compel”) [Doc. 37]. For the reasons given below, the
Court denies the Motion to Amend and grants the Motion to Compel.
I.

Relevant Facts
Plaintiff, who is of Puerto Rican ancestry, worked for Defendant from 1995 to 2008. The

parties do not agree about even the fundamental sequence of events, but it appears that Plaintiff
applied for at least one supervisory position in July 2007 and did not receive it. Plaintiff alleges that
he was told that the reason that he did not receive this position was that he lacked supervisory
experience, and that afterwards non-Latinos received one or more such positions. On May 1, 2008,
Plaintiff was notified that he had been “surplused,” i.e., terminated as part of a reduction in force.
He applied for positions with Defendant thereafter, but was not successful. In May 2009, after

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exhausting the administrative prerequisites, Plaintiff filed the present action alleging that Defendant
discriminated against him based on his race and national origin.
After the filing of an Amended Complaint [Doc. 9], Plaintiff’s pleading consists of one count
brought under Title VII, citing both Defendant’s failure to promote him in July 2007 and his
termination in May 2008. On July 30, 2009, the Court issued an Order [Doc. 13] setting July 31,
2009 as the deadline for Plaintiff to file a motion to amend the pleadings. On November 30, 2009,
the Court issued a Ruling on Partial Motion to Dismiss (the “Dismissal Ruling”) [Doc. 19] holding
that the part of Plaintiff’s claim under Title VII that was based on Defendant’s failure to promote
him in June 2007 is time-barred, while his claim based on his termination in May 2008 remains
pending. However, the Court observed in that Ruling that evidence of the promotion denial that
proceeded the termination, if shown to be related, may constitute relevant background evidence in
support of the termination claim. Dismissal Ruling at 5.
On a motion by Defendant, the Court issued a a text Order [Doc. 58] stating that
“[d]ispositive motions, if any, shall be due thirty (30) days after the Court issues its ruling on
Plaintiff’s motion to file a second amended complaint and Plaintiff’s motion to compel, whichever
is later.”
II.

Motion for Leave to File Second Amended Complaint
In the Motion to Amend, Plaintiff seeks to add to his complaint claims for intentional and

negligent misrepresentation. Defendant opposes adding those claims. Defendant’s Memorandum
of Law in Opposition to Plaintiff’s Motion for Leave to File His Second Amended Complaint [Doc.
39].
The only factual allegation that could support these proposed claims is the allegation that in
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or around July 2007 Defendant told Plaintiff that “he should not apply for any other UVERSE
supervisor openings because he did not have the necessary supervisor experience.” Proposed Second
Amended Complaint [Doc. 35-2], Count One ¶ 5. This is the only statement alleged on which
Plaintiff reasonably could have relied and thus could be the basis for a misrepresentation claim.
This allegation is new; it is not found in the Amended Complaint. In this respect, Plaintiff
misrepresented his Motion to Amend to the Court when he stated that the two new causes of action
“arise[] from the same facts set forth in the operative complaint,” that the proposed complaint
contains “minor editing changes,” and that “[b]ecause these two claims are supported by the facts
alleged in the operative complaint (at ¶s 4-11) [sic], plaintiff does not seek to amend the complaint
by pleading new and different facts.” Plaintiff’s Memorandum of Law in Support of His Motion for
Leave to Amend Complaint [Doc. 35-1] at 1. On the contrary, the new allegation is the primary
basis for the new claims.
Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend a pleading is
granted “freely . . . where justice so requires.” However, under Rule 16(b), scheduling orders “shall
not be modified except upon a showing of good cause.” The Second Circuit has reconciled those
rules by holding that once the deadline for amendment set in a scheduling order has expired, a
motion to amend is governed by the relatively demanding “good cause” standard of Rule 16(b) rather
than the “where justice so requires” standard of Rule 15(a). Parker v. Columbia Pictures Indus.,
204 F.3d 326, 339-340 (2d Cir. 2000). “[D]espite the lenient standard of Rule 15(a), a district court
does not abuse its discretion in denying leave to amend the pleadings after the deadline set in the
scheduling order where the moving party has failed to establish good cause. Moreover . . . a finding
of ‘good cause’ depends on the diligence of the moving party.” Id. at 340.
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Here, over a year passed between the deadline set in the July 30, 2009 scheduling order and
the filing of the Motion to Amend. Under these circumstances, Plaintiff must show good cause for
amendment, and good cause depends on Plaintiff’s diligence.
The Second Circuit established that a delay of over a year may justify denial of leave to
amend in Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003). In Parker v. Columbia
Pictures Indus., 204 F.3d 326, 339-341 (2d Cir. 2000), it held that leave to amend may not be
appropriate if the movant was aware of the existence of the new claims before the litigation or at
earlier stages of the litigation. The court upheld denial of leave to add a new claim for breach of
contract to a plaintiff’s complaint: “When he commenced this action . . . Parker had all the
information necessary to support a breach of contract claim, and nothing he learned in discovery or
otherwise altered that fact.” Parker at 341.
In this case, Plaintiff was not unaware of the new claims. They arise from facts of which he
was, by his own account, fully aware before he filed this action. See Proposed Second Amended
Complaint ¶¶ 4-5. Plaintiff’s current counsel explains that he was diligent after he took over the
matter from previous counsel. Plaintiff’s Reply Memorandum of Law in Further Support of His
Motion for Leave to Amend Complaint [Doc. 40] at 2. Nevertheless, the “good cause” argument
depends on excusing Plaintiff from his lack of diligence when he was represented by previous
counsel.
Courts most often do not accept a previous counsel’s neglect as “good cause” for a delay of
this length. The Second Circuit, for example, held that the fact that a plaintiff pursued discovery and
discovered the basis for a claim only after new counsel was substituted for prior neglectful counsel
was insufficient reason for permitting it to amend its complaint. Ansam Assocs., Inc. v. Cola
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Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985). Another court in this circuit found that the
negligence of two previous attorneys did not constitute “good cause” under Rule 16(b) to amend a
complaint, though the plaintiffs were pro se at the time they filed the motion to amend. Lamothe v.
Town of Oyster Bay, No. 08-cv-2078, 2011 WL 4974804, at *7 (E.D.N.Y. Oct. 19, 2011). See also
Rashdan v. Geissberger, No. C10-00634, 2012 WL 566379, at *3 (N.D. Cal. Feb. 21, 2012);
Trotman v. Monmouth Univ., No. 09-6163, 2012 WL 95345, at *3 (D.N.J. Jan. 12, 2012); Therion,
Inc. v. Media by Design, Inc., No. CV08-5256, 2010 WL 5341925, at *4-5 (E.D.N.Y. Nov. 10,
2010).
Granting leave to amend at this stage would to some extent prejudice Defendant. While
Plaintiff does not apparently propose to reopen discovery on this issue, Defendant has conducted
discovery without knowing that these new allegations were at issue. Under these circumstances, the
Court declines to grant leave to amend.
III.

Motion to Compel Discovery
Plaintiff moves to compel responses to certain discovery requests within its First Set of

Interrogatories (the “Interrogatories”), First Set of Requests for Production (the “First Requests”),
and Second Set of Requests for Production (the “Second Requests”). Since the filing of the Motion
to Compel, the parties have resolved their disputes regarding Interrogatories 7-9 and First Requests
7. Defendant’s Memorandum of Law in Opposition to Plaintiff’s Motion to Compel (“Opp.
Memo.”) [Doc. 45] at 1-2; Plaintiff’s Reply Memorandum of Law in Further Support of Motion to
Compel Discovery (“Reply Memo.”) [Doc. 57] at 1 n. 1. The parties continue to differ about
Interrogatories 14, 19, and 24, First Requests 13 and 18, and Second Requests 2-4 and 6-7.
Under the Federal Rules of Civil Procedure, parties may obtain discovery about any non5

privileged matter that is relevant to a party’s claim or defense. Fed. R. Civ. P. 26(b)(1).
“Relevance” has been construed to include “any matter that bears on, or that reasonably could lead
to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc.
v. Sanders, 437 U.S. 340, 351 (1978). The party resisting discovery bears the burden of showing
why discovery should be denied. Sedona Corp. v Open Solutions, Inc., 249 F.R.D. 19, 21 (D. Conn.
2008). The remaining disputed requests raise two issues, which the Court discusses in turn.
A.

Discovery About Promoted Employees (Interrogatory 14, Second Requests 2,
3, 4, 6).

The first issue is whether Plaintiff is entitled to documents and information concerning the
placement and qualifications of the employees granted certain supervisory positions for which he did
not apply. Defendant argues that Plaintiff cannot prevail in showing that a failure to promote was
discriminatory unless he applied for the position in question. See, e.g., Brown v. Coach Stores, Inc.,
163 F.3d 706, 710 (2d Cir. 1998). Opp. Memo. at 15-18. Plaintiff replies that though he did not
apply for those positions, he failed to do so because Defendant told him he could not apply for them.
Reply Memo. at 2-3.
It is important to note the role that these promotions play in this action. Plaintiff cannot base
his claim on the assertion that the failure to grant him these promotions was discriminatory. The
Court’s Dismissal Ruling established that no such claims remain; all that remains is Plaintiff’s claim
that his termination was discriminatory.
Thus, the only role that the promotions play in this action is as background evidence that
might tend to support Plaintiff’s argument that his termination was influenced by his race or national
origin. For this purpose, they fall within the broad scope of discovery. If Defendant, having failed

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to promote Plaintiff to a certain position allegedly because of his lack of supervisory experience,
proceeded to promote to such positions a series of non-Latino employees who lacked supervisory
experience, this tends to support Plaintiff’s assertion that his race or national origin influenced his
termination.1 The question of whether Plaintiff applied for these promotions is not dispositive.
Defendant asserts that facts about these promotions “cannot create an inference of discrimination
because Plaintiff never applied,” Opp. Memo. at 16, but if Defendant told Plaintiff that it failed to
grant him such a position because he lacked supervisory experience but then gave such positions to
non-Latinos who lacked such experience, that act would tend to support an inference of
discriminatory intent.
B.

Discovery About Post-Termination Applications (Interrogatories 19, 24, First
Requests 13, 18, Second Requests 7)

The second issue is whether Plaintiff is entitled to discovery concerning his post-termination
applications for employment with Defendant. On this issue, neither party’s brief is clear about what
exactly are the facts that are at issue. Plaintiff’s Memorandum of Law in Support of Motion to
Compel Discovery [Doc. 38] at 16-17; Opp Memo. at 18-20; Reply Memo. at 4.
Nevertheless, Defendant’s objections are evidently not sustainable. First, Defendant asserts
that no one was ultimately hired for certain positions at issue. Opp. Memo. at 19. If so, that fact
itself constitutes part of the answer to the interrogatory; it should be made as an answer under oath,
not an objection. Second, it asserts that some of those positions involve decisionmakers different
from the two (Mr. Gantenbein and Ms. McDonald) who, according to Defendant, made the decision
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Although the Amended Complaint does not contain the allegation that Plaintiff was told
not to apply for supervisory positions, as noted supra, it does allege that Defendant told him that
he was not being offered one position because he lacked supervisory experience. Amended
Complaint ¶ 5.
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to terminate Plaintiff. Id. But it is the very purpose of discovery to determine such facts as who the
relevant decisionmakers are. The allegation that the only two decisionmakers at issue are Mr.
Gantenbein and Ms. McDonald is not made in the Amended Complaint, but rather is Defendant’s
own assertion. Third, Defendant asserts that apart from attempts to mitigate damages, Plaintiff’s
applications to “Ameritraining, Inc.” have nothing to do with Defendant. Id. But Plaintiff’s
discovery requests make no mention of Ameritraining. If the answer to one of Plaintiff’s requests
is that it concerns an application to a company other than Defendant, and that Defendant therefore
has no information about it, that fact should be part of Defendant’s answer, not an objection.
Defendant has not sustained its burden to show that discovery should be denied on either
issue. Consequently, the Motion to Compel is granted.
IV.

Conclusion
Plaintiff’s Motion for Leave to File Second Amended Complaint [Doc. 35] is DENIED.

Plaintiff’s Motion to Compel Discovery [Doc. 37] is GRANTED. Defendant is directed to make this
discovery FORTHWITH. Under the Order issued by the Court on November 9, 2010 [Doc. 58], any
dispositive motions must be filed no later than thirty days after the date of this Ruling.

It is SO ORDERED.
Dated: New Haven, Connecticut
December 17, 2012
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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