Carter v. Logan Bus Co., Inc. et al

Filing 31

MEMORANDUM AND ORDER, Finding that the order of Magistrate Judge James Orenstein requiring discovery concerning employees terminated after taking FMLA or medical leave to be neither clearly erroneous nor contrary to law, that order is affirmed and the appeal is dismissed. (Ordered by Judge Eric N. Vitaliano on 9/19/2016) c/m (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BERNARD CARTER,

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Plaintiff,
-against15 Civ. 5217 (ENV) (JO)
LOGAN BUS CO., INC, LITTLE
RICHIE BUS SERVICE INC.,
LORINDA ENTERPRISES, LTD.,
GRANDPA'S BUS CO., INC.,
LORISSA BUS SERVICE INC.,
LITTLE LINDA BUS CO., INC.,
LITTLE LISA BUS CO., INC., and
LORINDA LOGAN,
Defendants.

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VITALIANO, D.J.
Plaintiff Bernard Carter brought this action alleging that defendants discriminated against
him on the basis of his disability and for his use of medical leave, and subjected him to
retaliation, in violation of, inter alia, the Americans with Disabilities Act, 42 U .S.C. § 12101 ef
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seq. ("ADA"), and the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"). Am.
Compl., ECF No. 22. The parties are presently conducting discovery under the able supervisiob
of Magistrate Judge James Orenstein. After plaintiff moved to compel certain discovery
responses, Magistrate Judge Orenstein held a status conference, at which time he heard oral
argument on the motion to compel. He granted the motion in part. Minute Entry, ECF No. 21
see Hr'g Tr., ECF No. 25. Defendants now move to appeal portions of that discovery order.

Defs. Mot., ECF No. 26. For the reasons that follow, the order is affirmed.

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Background
The discovery requests at issue are (I) plaintiffs Interrogatory No. 11, as amended,

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which seeks the identity of all employees terminated between 2012 and 2015, who took FMLJX
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or medical leave within six months of their termination, and (2) plaintiffs Document Request i
No. 4, as amended, which seeks all documents concerning the employees identified in

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Interrogatory No. 11. Defs. Mem. at 2, ECF No. 26-1; see Pl. Mem. at 3, ECF No. 27; Mot. to
Compel at 2, ECF No. 19. 1
In opposition to the motion, defendants argued that these requests were overbroad,

burdensome, and not relevant, on the ground that discovery concerning terminated employees j
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who did not also complain of discrimination "did not relate to the issues in this case." Def. Mot.
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to Compel Opp. at 2, ECF No. 20. At oral argument, Magistrate Judge Orenstein rejected thei~
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argument and also chastised defense counsel for basing the claim of burden on speculation. Hr' g
Tr. 4:17-8: 13, 12:22-14:8. This appeal followed.
Legal Standard
Generally, "magistrate judges have broad discretion in resolving nondispositive matte~ .

. . ." Gorman v. Polar Electro, Inc., 137 F. Supp. 2d 223, 226 (E.D.N.Y. 2001). A district

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may only set aside a magistrate judge's order on a nondispositive matter if it is "clearly
erroneous or contrary to law." 28 U.S.C. § 636(b)(l)(A); see Fed. R. Civ. P. 72(a). "An orde~ is
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contrary to law 'when it fails to apply or misapplies relevant statutes, case law, or rules of
procedure."' Rothgaber v. Town ofOyster Bay, 492 F. Supp. 2d 130, 137 (E.D.N.Y. 2007)

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Defendants initially included plaintiffs Document Request No. 5 in their appeal, but noted
their reply that, in fact, Magistrate Judge Orenstein had ruled in their favor on that request fo~
documents concerning the positions and wages of all employees who took FMLA leave. Defs.
Reply Mem. at 5 n.2, ECF No. 28; Hr' g Tr. 8:21-9: 10.
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(quoting Catskill Dev., L.L.C. v. Park Place Entm't Corp., 206 F.R.D. 78, 86 (S.D.N.Y. 2002)).

The Supreme Court has emphasized that such an order can only be found to be "clearly

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erroneous" when "the reviewing court on the entire evidence is left with the definite and firm

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conviction that a mistake has been committed." United States v. United States Gypsum Co., 333
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U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 ( 1948).
Discussion
Defendants claim that it was error to order discovery concerning other employees
because plaintiff has not alleged either a pattern or practice or a disparate impact theory of
discrimination. Defs. Mem. at 6-8. 2 Defendants also submit an affidavit alleging, for the first

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time, that responding to Interrogatory No. 11 would require over 3 months, 450 employee hours,
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and $30,000 in labor costs, because they do not maintain any electronic data to facilitate a

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search. Defs. Mem. at 9-10; Reece Aff. ~~ 2-7, ECF No. 26-2.
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But, countervailing these arguments, in employment discrimination cases, "liberal civil]
discovery rules give plaintiffs broad access to employers' records." Wards Cove Packing Co.

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Atonio, 490 U.S. 642, 657, 109 S. Ct. 2115, 2125, 104 L. Ed. 2d 733 (1989), superseded by
statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074.
"Evidence relating to company-wide practices may reveal patterns of discrimination against a I
group of employees, increasing the likelihood that an employer's offered explanation for an
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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.

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Cyanamid Co. 895 F.2d 80, 84 (2d Cir. 1990)). By way of example, in Hollander, the Second

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Defendants do not raise any dispute concerning the proposed time periods, see Hr'g Tr. 13:6.JI
13, nor do they complain of the request for "all" documents.

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Circuit found no error in permitting discovery concerning employees in the plaintiff's protected
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category who were terminated within a certain time period, as well as the reasons for their
terminations. Hollander, 895 F.2d at 84-85. If such discovery "uncover[ed] a pattern of

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[employees in the protected category] leaving [the defendant] under unexplained circumstances,"
such evidence, "might help prove [the plaintiff's] claim that [the defendant's] explanation for

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discharge was pretextual." Id. at 85.

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Magistrate Judge Orenstein was, therefore, well within the bounds of his discretion when
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he ordered discovery concerning employees who, like plaintiff, were fired within six months of
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taking FMLA or medical leave. Defendants seem to confuse pattern-or-practice discrimination

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claims, which are not at issue in this case, see Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir. I
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2012), 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. Defendants also rely on
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cases where company-wide discovery was deemed irrelevant to a specific supervisor's biased

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acts. See Def. Mem. at 7 (citing Sinni v. Forest Hills Hosp., No. 09 Civ. 4572 (SLT), 2011

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1004817, at *3 (E.D.N.Y. Mar. 18, 2011); Bellinger v. Astrue, No. 06 Civ. 321 (CBA) (SMG),
2010 WL 1268063, at *l (E.D.N.Y. Apr. 2, 2010)). In contrast, Carter alleges that the company
failed to inform him of his right to take FMLA and disability leave, and terminated him witholt
notice in the midst of his medical treatment. As in Hollander, evidence that other employees
were similarly treated is a proper area for discovery.
Concerning defendants' claim of burden, "Rule 72(a) precludes the district court from
considering factual evidence that was not presented to the magistrate judge." Thai Lao Lignitdi

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(Fhailand) Co. v. Gov 't ofLao People 's Democratic Republic, 924 F. Supp. 2d 508, 512
(S.D.N.Y. 2013). Defendants disingenuously claim that the facts supporting undue burden

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we~e

/s/ USDJ ERIC N. VITALIANO