Huminski v. Stop & Shop Supermarket Co LLC

Filing 50

ORDER: The plaintiff's motion to compel 28 is granted in part and denied in part. See attached ruling. Signed by Judge Donna F. Martinez on 6/27/17. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
THEODORE HUMINSKI,
Plaintiff,
v.
THE STOP & SHOP SUPERMARKET
COMPANY,
Defendant.

:
:
:
:
:
:
:
:
:
:

CASE NO.

3:16cv1136(RNC)

RULING ON PLAINTIFF'S MOTION TO COMPEL
The plaintiff brings this action against his former employer
alleging race and age discrimination and retaliation in violation
of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of
1967, 29 U.S.C. § 621 et seq., and the Connecticut Fair Employment
Practices Act, Conn. Gen. Stat. § 46a-60. Pending before the court
is the plaintiff's motion to compel.1
oral argument on June 15, 2017.

(Doc. #28.)

The court heard

The motion is granted in part and

denied in part as follows:
1.

Request for Production 17:

During oral argument, counsel

stated that the parties had resolved this request except as to one
individual, Juliette Sabo.

As to Sabo, the request is granted in

part and denied in part. The defendant shall produce any documents
that mention or concern (1) this case; (2) the plaintiff, Megan
Moore,

1

Britney

Roach,

Austin

Watkins,

or

Julie

Pinard;

and

U.S. District Judge Robert N. Chatigny referred the motion
to the undersigned. See doc. #29.

(3) Sabo's dishonesty, misconduct, reprimands, and/or discipline.
2.

Interrogatory 2 and Requests for Production 4 and 14:

oral

argument,

narrowed

the

the

plaintiff

requests

to

reformulated

seek

complaints

and
of

During

significantly
retaliation

or

discrimination on the basis of age or race in the past 5 years
involving the same decisionmakers as in this case.

The defendant

objects on the grounds of undue burden and relevance.
The defendant stated during oral argument that responding to
the requests would be unduly burdensome because the responsive
information

is

stored

offsite

and

is

not

electronic database that can be searched.2

maintained

on

an

"Under well-settled

law, the party resisting production bears the responsibility of
establishing undue burden."

Michanczyk v. Metropolitan Life Ins.

Co., No. 3:05CV1903, 2007 WL 926911, at *2 (D. Conn. Mar. 26,
2007).

The defendant has made no showing as to the nature and

extent of the actual burden it would face in responding to the
plaintiff's requests.

See, e.g., In re Application of Bloomfield

Inv. Res. Corp., 315 F.R.D. 165, 168 (S.D.N.Y. 2016) (overruling
burdensomeness objection where objecting party did not "present
particularized evidence in their briefing that production of the .
. . records would be unduly burdensome or costly, such as an
affidavit of a person with knowledge of the record keeping system
explaining in detail the basis of the objection"); Schiavone v.

2

This argument was not made in the defendant's brief.
2

Northeast Utilities Serv. Co., No. 3:08CV429, 2010 WL 382537, at *1
(D. Conn. Jan. 27, 2010)("a party objecting to a discovery request
on the grounds that the information sought is unduly burdensome
must go beyond the familiar litany that requests are burdensome,
oppressive or overly broad and submit affidavits or other evidence
revealing the nature of the burden."); In re In-Store Advertising
Sec. Lit., 163 F.R.D. 452, 455 (S.D.N.Y. 1995) ("If a party resists
production on the basis of claimed undue burden, it must establish
the factual basis for the assertion through competent evidence.").
The defendant's burdensomeness objection is overruled.
The defendant also argues that information regarding prior
complaints is not relevant.

The plaintiff contends that the

information is relevant to the defendant's motive and intent and to
the plaintiff's argument that the defendant's reasons for firing
him were pretextual.
company-wide

The court agrees.

practices

may

reveal

"Evidence relating to

patterns

of

discrimination

against a group of employees, increasing the likelihood that an
employer's offered explanation for an employment decision regarding
a particular individual masks a discriminatory motive."

Moll v.

Telesector Res. Grp., Inc., 760 F.3d 198, 204 (2d Cir. 2014)
(quoting Hollander v. Am. Cyanamid Co., 895 F.2d 80, 84 (2d Cir.
1990)).

See

1980)("Evidence

Lieberman
of

v.

general

Gant,

630

patterns

of

F.2d

60,

69

(2d

discrimination

Cir.

by

an

employer is relevant even in an individual disparate treatment

3

case."); Carter v. Logan Bus Co., No. 15CIV5217ENVJO, 2016 WL
5231800, at *2 (E.D.N.Y. Sept. 21, 2016) (affirming magistrate
judge's order requiring discovery concerning other employees and
noting that

"[d]efendants

seem

to

confuse

pattern-or-practice

discrimination claims, which are not at issue in this case, . . .
with the routine use of circumstantial evidence of a pattern of
discrimination to support an individual disparate treatment claim,
see Hollander, 895 F.2d at 84-85."); Sasikumar v. Brooklyn Hosp.
Ctr., No. 09 CV 5632, 2011 WL 1642585, at *3 (E.D.N.Y. May 2, 2011)
(holding that "courts in this circuit have repeatedly found similar
complaints of discrimination by corporate employers to be relevant
and discoverable" and granting motion to compel defendant to
produce complaints by employees of defendant's nursing department
alleging

discrimination

and/or

retaliation

based

on

national

origin, race, color or age for the years 2001 to 2005); Culkin v.
Pitney Bowes, Inc., 225 F.R.D. 69, 71 (D. Conn. 2004) ("Evidence of
general patterns of discrimination by an employer is clearly
relevant in an individual disparate treatment case and is therefore
discoverable pursuant to Fed. R. Civ. P. 26(b)(1).")
3.

The plaintiff seeks the ages and race of employees listed on

two documents (SS01169 and SS01128-29).
4.

The motion is granted.

The plaintiff's request for fees and costs is denied.

Where,

as here, a motion to compel is granted in part and denied in part,
the court has discretion to apportion fees.

4

See Fed. R. Civ. P.

37(a)(5)(C).

In this case, each party should bear its respective

motion costs and fees.

See Mayo-Coleman v. Am. Sugar Holding,

Inc., No. 14CV0079(PAC)(KNF), 2016 WL 7378767, at *1 (S.D.N.Y. Nov.
16, 2016) (declining to award of attorneys' fees where motion to
compel only partially successful); MASTR Adjustable Rate Mortgages
Trust 2006-OA2 v. UBS, Real Estate Securities Inc., No. 12 Civ.
7322(HB)(JCF), 2013 WL 5437354, at *2 (S.D.N.Y. Sept. 27, 2013)
("when motion is granted in part and denied in part, award of
expenses is discretionary"); Pegoraro v. Marrero, 281 F.R.D. 122,
134 (S.D.N.Y. 2012) (declining to award fees).
SO ORDERED at Hartford, Connecticut this 27th day of June,
2017.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

5