Sollitto v. McDonald
Filing
39
ORDER denying 30 Motion for Discovery. For the reasons discussed in the attached Memorandum and Order, the Court affirms 23 Judge Scanlon's order dated December 7, 2016. Ordered by Judge Margo K. Brodie on 4/19/2017. (Haji, Sara)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------ROBERT SOLLITTO, JR.,
Plaintiff,
v.
MEMORANDUM & ORDER
15-CV-5913 (MKB) (VMS)
DAVID SHULKIN, Secretary of United States
Department of Veterans Affairs, 1
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
On October 14, 2015, Plaintiff Robert Sollitto, Jr. commenced the above-captioned action
against the Secretary of the United States Department of Veterans Affairs, acting in his official
capacity. (Compl., Docket Entry No. 1.) Plaintiff alleges that the Department of Veterans
Affairs (the “VA”) discriminated against him based on his disability, failed to provide him with a
reasonable accommodation and created a hostile work environment in violation of the
Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (See generally id.) On October 29, 2015,
Plaintiff filed an Amended Complaint. (Am. Compl., Docket Entry No. 4.) Currently before the
Court is Plaintiff’s motion, pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, to set
aside part of Magistrate Judge Vera M. Scanlon’s December 7, 2016 Order (the “December
Order”), which granted in part and denied in part Plaintiff’s motion to compel certain
interrogatory responses and requests for production of documents. (See December Order,
1
Pursuant to Fed. R. Civ. P. 25(d), the caption has been updated to reflect the new
Secretary of the Department of Veterans Affairs, David Shulkin, who took office on February
14, 2017.
Docket Entry No. 23; Pl. Mot. to Set Aside the December Order (“Pl. 72(a) Mot.”), Docket Entry
No. 30.) For the reasons set forth below, the Court affirms Judge Scanlon’s December Order.
I.
Background
a.
Allegations in the Amended Complaint
Plaintiff is a thirty-one-year-old man who was diagnosed at birth with cerebral palsy.
(Am. Compl. ¶ 10.) He has difficulty ambulating and seeing and uses a cane to walk while
indoors and a scooter to move around outdoors. (Id. ¶ 11.) In September of 2012, Plaintiff
obtained a position working for the VA. (Id. ¶ 15.) Plaintiff alleges Defendant discriminated
against him because of his physical disability, ostracized him, failed to provide him with the
required training to perform his work, transferred him to various work sites and deliberately
failed to provide him with a reasonable accommodation despite his repeated requests. (Id. ¶ 16.)
In addition, Defendant allegedly informed Plaintiff that he would not be promoted to a higher
position despite his qualifications to perform the job duties of a higher position. (Id. ¶ 17.) As a
result of the alleged discrimination, Plaintiff suffered stress, anxiety, elevated blood pressure and
an injury on June 16, 2014 that forced him to remain out of work for approximately one year.
(Id. ¶¶ 19–22.)
b.
Plaintiff’s motion to compel
On April 15, 2016, Plaintiff served Defendant with interrogatories and requests for
production of documents (“RFPs”). (See Pl. Mot. to Compel at 1, Docket Entry No. 17.) On
June 21, 2016, Defendant served its objections and responses to Plaintiff’s discovery requests.
(See Def. Opp’n to Pl. Mot. to Compel at 1, Docket Entry No. 19.) The parties corresponded
about the scope of discovery between September and November of 2016. (Id.) On November 3,
2016, Plaintiff filed a motion to compel Defendant (1) “to provide responses to [I]nterrogatories
2
[No. 1–7 and 12], instead of referring Plaintiff to a mass of documents”; (2) “to undertake a
good[-]faith search and produce documents responsive to all of Plaintiff’s document requests,
and in particular Request No[s]. 1, 3, 4, 5, 7, 12, 13, 14, 15, 16, 17, 18 and 19”; and (3) to
produce for deposition “Peter Marsala, Defendant’s Safety Director, who immediately before
Plaintiff’s on[-]the[-]job accident, allegedly inspected Plaintiff’s worksite and concluded no
accommodation was warranted; Jillian Pepe (a former employee) and Dawn Marie [Nevins]
(now located in Colorado), Plaintiff’s former supervisors.” (Pl. Mot. to Compel at 1–2.)
Plaintiff argued that Defendant failed to make a good-faith attempt to search for and provide
documents responsive to the interrogatories and RFPs, instead referring Plaintiff to either a Bates
range of all produced documents or the Report of Investigation (“ROI”) prepared by the
investigator who investigated Plaintiff’s underlying administrative discrimination claim. (Id.
at 3.)
In response, Defendant argued that Plaintiff had identified purported deficiencies for the
first time at a Rule 37 conference on November 1, 2016, and “refused to refine, clarify or
otherwise narrow the scope” of the discovery requests. (Def. Opp’n to Pl. Mot. to Compel at 1.)
Defendant further argued that it had produced more than 1075 pages of documents and that
Plaintiff’s requests were “overly broad” and “amount[ed] to an improper fishing expedition” of
personnel files not related to this case. (Id. at 2.) Defendant then explained its response to each
of the interrogatories and RFPs in dispute. (See generally id.)
The parties disputed the scope of Interrogatories Nos. 1–7 and 12. As relevant to
Plaintiff’s Rule 72(a) motion, the disputed interrogatories requested that Defendant: (1) identify
each department to which Defendant assigned Plaintiff and the reasons for such assignment, the
complaints Plaintiff made, Defendant’s response to those complaints, and all relevant documents,
3
(Interrogatory No. 3); (2) identify “all persons working at New York Harbor Healthcare System
in Brooklyn, New York” who are “physically disabled,” including any accommodations
provided to those persons and all relevant documents, (Interrogatory No. 4); and (3) describe in
“full and complete detail” the salary and benefits Plaintiff would have earned during the period
he was out of work, following his on-the-job accident, and append relevant documents,
(Interrogatory No. 12). (See Def. Obj. & Resp. to Pl. First Set of Interrogs. (“Def. Obj. to
Interrogs.”) 4–7, 9, Docket Entry No. 30-6.)
The parties also disputed the scope and sufficiency of Defendant’s responses to RFPs
Nos. 3, 4, 12, 14, 15, 16 and 17. As relevant to Plaintiff’s Rule 72(a) motion, the disputed RFPs
requested that Defendant produce: (1) all documents on which Defendant relied “to conclude on
or about June 16, 2014 that Plaintiff required no accommodation,” (RFP No. 12); (2) all
documents relating to Deborah Innella and Peter Marsala’s inspection of Plaintiff’s worksite,
(RFP No. 14); and (3) all documents that describe “any undue hardship Defendant claims it
would have experienced had it provided Plaintiff with the accommodation(s) he requested for his
disability,” (RFP No. 18). (See Def. Obj. & Resp. to Pl. First Set of Req. for Prod. (“Def. Obj. to
RFPs”) 6, 12–14, Docket Entry No. 30-7.)
On December 7, 2016, Judge Scanlon held a status conference on Plaintiff’s motion to
compel and issued the December Order, which granted in part and denied in part Plaintiff’s
motion. (See December Order at 1.) Judge Scanlon ruled that Defendant need not provide
further information responsive to Interrogatories Nos. 1–4, 7 and 12, but that Defendant had to
provide tailored responses to Interrogatories Nos. 5 and 6. (Id. at 2–4.) Judge Scanlon ruled that
Defendant need not supplement its document productions in response to Plaintiff’s RFPs. (Id. at
4.) In addition, Judge Scanlon noted that Plaintiff had already taken Nevins’ deposition,
4
Marsala’s deposition would be scheduled for January of 2017 and Plaintiff was free to subpoena
Pepe if Plaintiff wanted to depose her. 2
c.
Plaintiff’s Rule 72(a) motion
On December 27, 2016, Plaintiff appealed part of the December Order pursuant to Rule
72(a). 3 (See Pl. Letter to Def. Re Pl. 72(a) Mot., Docket Entry No. 24.) Specifically, Plaintiff
moves to set aside Judge Scanlon’s rulings that Defendant need not provide further responses to
Interrogatories Nos. 3, 4 and 12 or produce further documents in response to RFPs Nos. 12, 14
and 18. (Pl. 72(a) Mot. at 1.)
i.
Interrogatories Nos. 3, 4 and 12
Plaintiff argues that he is entitled to the information requested in Interrogatory No. 3 4
because it is relevant to Plaintiff’s claim that Defendant “tried to avoid [its] duty to address his
2
Judge Scanlon also ruled largely in Plaintiff’s favor on Defendant’s cross-motion to
compel certain interrogatory responses and documents from Plaintiff, but that portion of the
December Order is not on appeal before the Court. (See December Order at 4, 5.)
3
The Court notes that under Rule 72(a), a party may object to a magistrate judge’s nondispositive order “within 14 days after being served with a copy.” Fed. R. Civ. P. 72(a).
Plaintiff did not move to set aside Judge Scanlon’s December Order until December 27, 2016,
fifteen days after Plaintiff states he was “served by [ECF] with notice of the Order.” (See Pl.
72(a) Mot. at 1; December Order (entered Dec. 12, 2016).) However, because Defendant has not
objected to the timeliness of Plaintiff’s Rule 72(a) motion, the Court will consider Plaintiff’s
motion on the merits. Cf. Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008) (“In
general, ‘failure to object timely to a magistrate’s report operates as a waiver of any further
judicial review of the magistrate’s decision.’” (citation omitted)).
4
Interrogatory No. 3 asks Defendant to identify “each department, unit and worksite to
which Defendant assigned Plaintiff, and describe for each: (a) the reason for the assignment; (b)
the person(s) who made the decision to assign Plaintiff to the department, unit and worksite; (c)
the complaints Plaintiff made regarding the assignment(s); (d) the Defendant’s response(s), if
any[,] to Plaintiff’s complaint(s) and request(s); and (e) all documents related to [Defendant’s]
response to this Interrogatory.” (Def. Obj. to Interrogs. at 4.) Although Defendant objected to
Interrogatory No. 3, Defendant responded by referring Plaintiff to a series of previously
produced documents. (Id. at 4–5.)
5
complaints and requests by shifting his worksite” instead of “engaging in the interactive process
and properly responding to his requests for an accommodation.” (Id. at 6.) Defendant argues
that it responded appropriately to Interrogatory No. 3 by referencing documents that “contained
summaries and sworn statements describing Plaintiff’s employment history, the areas in which
he was assigned, the dates he was moved along with the reasons for the moves, his supervisors
and those in his chain of command, the accommodation requests he made and Defendant’s
responses to those requests.” (Def. Opp’n to Pl. 72(a) Mot. (“Def. 72(a) Opp’n”) 5, Docket
Entry No. 31.) Defendant notes that it also produced Plaintiff’s personnel records, which
“contained the requested information relating to the departments and units to which Plaintiff was
assigned.” (Id.)
As to Interrogatory No. 4, 5 Plaintiff argues that he is entitled to information relating to
the identity of other employees with disabilities because such information might support his
claim that Defendant refused to promote him because of his disability. (Pl. 72(a) Mot. at 7.)
Plaintiff argues that his needs outweigh those employees’ privacy interests. (Id.) Defendant
argues that it identified documents responsive to Plaintiff’s request, including “a roster of
individuals who worked in the same department as Plaintiff that listed whether the employee
5
Interrogatory No. 4 requests that Defendant “[i]dentify all persons working at the New
York Harbor Healthcare System[] in Brooklyn, New York who are physically disabled, including
any accommodation you provided to said person, and identify all documents related to your
response to this Interrogatory.” (Def. Obj. to Interrogs. at 5.) In response, Defendant objected
that the interrogatory was vague and overly broad because it sought information relating to
individuals that may not have the same disability as Plaintiff or require similar accommodations.
(Id.) Defendant also objected to the extent the interrogatory sought confidential personnel
information protected by state and federal privacy laws. (Id.) Defendant nevertheless referred
Plaintiff to a series of previously produced documents.
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suffered from a disability,” and “sworn statements from Plaintiff’s co-workers and managers that
identified whether the individual suffered from a disability.” (Def. 72(a) Opp’n at 5.)
Finally, Plaintiff argues that Defendant’s response to Interrogatory No. 12 6 is insufficient
because the documents to which Defendant refers “do not show what salary [Plaintiff] would
have earned during his time out of work, nor do they provide sufficient information to ascertain
what benefits, nor the nature and amount of the benefits he would have received, during this
period.” (Pl. 72(a) Mot. at 7–8.) Defendant asserts that it “produced Plaintiff’s personnel
records that reflected his grade level, salary and benefit information that he received while
employed at the VA,” and that Plaintiff remained at the same level on the government pay scale
after he returned from leave. (Def. 72(a) Opp’n at 5–6.)
ii.
RFPs Nos. 12, 14 and 18
As to RFP No. 12, 7 Plaintiff states only that Defendant responded by pointing Plaintiff
“to the entire ROI.” (Pl. 72(a) Mot. at 8.) Similarly, Defendant pointed Plaintiff to the same
ROI documents “and a few others” in response to Plaintiff’s RFP No. 14. 8 (Id.) Plaintiff argues
6
Interrogatory No. 12 requests that Defendant “[d]escribe in full and complete detail[]
the salary Plaintiff would have earned and benefits he would have earned during the period he
was out of work, following the June 17, 2014 accident, and identify all documents related to this
Interrogatory.” (Def. Obj. to Interrogs. at 9.) In response, Defendant objected to the
interrogatory as vague, overly broad and speculative, but referred Plaintiff to a series of
previously produced documents. (Id.)
7
RFP No. 12 requests that Defendant “[p]roduce all documents on which [Defendant]
relied to conclude on or about June 16, 2014 that Plaintiff required no accommodation.” (Def.
Obj. to RFPs at 12.) Defendant objected to the RFP as mischaracterizing Defendant’s position,
but referred Plaintiff to the ROI. (Id.)
8
RFP No. 14 requests that Defendant “[p]roduce all documents related to the inspection
by Deborah Innella and Peter Marsala of Plaintiff’s worksite.” (Def. Obj. to RFPs at 13.)
Defendant objected to the RFP as overbroad and vague and as assuming that Innella had
conducted such an inspection. (Id.) Defendant nevertheless referred Plaintiff to the ROI and to
7
that references to the ROI were insufficient because “[t]he ROI does not contain the information
sought by these [RFPs]” and thus, “Defendant should be directed to produce the responsive
documents.” (Id.) Plaintiff did not mention RFP No. 18. 9
Defendant argues that it produced “all documents” responsive to RFP No. 12 and
produced “responsive documents, including narratives of the inspection of Plaintiff’s worksite
and pictures taken of Plaintiff’s office,” to RFP No. 14. (Def. 72(a) Opp’n at 6.) Defendant also
avers that it “is not withholding any documents responsive to [RFP No. 18].” (Id.)
II. Discussion
a.
Standard of review
Under the Federal Magistrates Act, 28 U.S.C. § 636, and Rule 72 of the Federal Rules of
Civil Procedure, “[a] magistrate judge is authorized ‘to make findings as to non-dispositive
pretrial matters, such as discovery matters, which may not be disturbed by a district judge absent
a determination that such findings were clearly erroneous or contrary to law.’” Ingenito v. Riri
U.S.A., No. 11-CV-2569, 2015 WL 9412541, at *5 (E.D.N.Y. Dec. 22, 2015) (alteration in
original) (citing Ebo v. N.Y. Methodist Hosp., No. 12-CV-4432, 2015 WL 4078550, at *4
(E.D.N.Y. July 6, 2015)); see also Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir. 2007)
(“[T]he district court to whom the case is assigned shall consider . . . objections and shall modify
several other previously produced documents, and noted that it was not otherwise withholding
non-privileged, relevant documents responsive to the request. (Id.)
9
RFP No. 18 asks Defendant to “[p]roduce all documents which describe any undue
hardship Defendant claims it would have experienced had it provided Plaintiff with the
accommodation(s) he requested for his disability.” (Def. Obj. to RFPs at 15.) Defendant
objected to the RFP as, among other things, argumentative, calling for a legal conclusion as it
relates to the undue hardship defense and mischaracterizing Defendant’s position. (Id.)
Defendant nevertheless referred Plaintiff to several sets of previously produced documents and
noted that it was not otherwise withholding non-privileged, relevant documents responsive to the
request. (Id.)
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or set aside any portion of the magistrate judge’s order found to be clearly erroneous or contrary
to law.” (quoting Fed. R. Civ. P. 72(a))). An order is clearly erroneous if, based on all the
evidence, a reviewing court “is left with the definite and firm conviction that a mistake has been
committed.” In re Gordon, 780 F.3d 156, 158 (2d Cir. 2015) (internal quotation marks omitted)
(quoting United States v. Murphy, 703 F.3d 182, 188 (2d Cir. 2012)); Ingenito, 2015 WL
9412541, at *5. “An order is contrary to law when it fails to apply or misapplies relevant
statutes, case law, or rules of procedure.” Ingenito, 2015 WL 9412541, at *5 (citation and
internal quotation marks omitted). Under this highly deferential standard, magistrate judges are
“afforded broad discretion in resolving discovery disputes, and reversal is appropriate only if that
discretion is abused.” McNamee v. Clemens, No. 09-CV-1647, 2014 WL 1338720, at *2
(E.D.N.Y. Apr. 2, 2014) (first citing Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 524
(2d Cir. 1990); and then citing United States v. Dist. Council, 782 F. Supp. 920, 922 (S.D.N.Y.
1992)). Therefore, “a party seeking to overturn a discovery order [by a magistrate judge] bears a
heavy burden.” Bachayeva v. Americare Certified Special Servs., No. 12-CV-1466, 2013 WL
4495672, at *1 (E.D.N.Y. Aug. 20, 2013) (quoting Garcia v. Benjamin Grp. Enter. Inc., 800 F.
Supp. 2d 399, 403 (E.D.N.Y. 2011)).
b.
The December Order was neither clearly erroneous nor contrary to law
Plaintiff has not demonstrated that Judge Scanlon’s rulings on Interrogatories Nos. 3, 4
and 12 and RFPs Nos. 12, 14 and 18 are clearly erroneous or contrary to law. Instead, Plaintiff
recites the same arguments that he made to Judge Scanlon in the motion to compel production,
(see Pl. Mot. to Compel at 2–3), repeatedly noting the relevance of the desired information to his
legal theory. However, although a party is entitled to matters that are “relevant to the claim or
defense of any party,” Fed. R. Civ. P. 26(b)(1), a court must also consider whether the additional
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Rule 26 limitations on discovery apply, see Fed. R. Civ. P. 26(b)(2)(C) (noting that a court
“must” limit the frequency or extent of discovery where, among other things, the discovery is
“unreasonably cumulative or duplicative, or can be obtained from some other source” or the
party seeking discovery “has had ample opportunity to obtain the information by discovery in the
action”). See During v. City Univ. of N.Y., No. 05-CV-6992, 2006 WL 2192843, at *4 (S.D.N.Y.
Aug. 1, 2006) (“Because ‘the trial court is in the best position to weight fairly the competing
needs and interests of parties affected by discovery,’ Rule 26 confers broad discretion to weigh
discovery matters.” (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984))). Judge
Scanlon weighed the parties’ arguments in deciding Plaintiff’s motion to compel, and Plaintiff
has not demonstrated that the challenged rulings were clearly erroneous. It was well within
Judge Scanlon’s discretion to determine, for example, that the privacy interests of Defendant’s
employees with disabilities outweigh Plaintiff’s right to those personnel files, and,
notwithstanding Judge Scanlon’s decision, Defendant produced a roster of employee information
responsive to Interrogatory No. 4. (See Def. 72(a) Opp’n at 5.) The fact that the information
Plaintiff seeks through Interrogatories Nos. 3 and 12 would be “relevant to [Plaintiff’s] claims of
disability discrimination” and “relevant to [Plaintiff’s] calculation of damages,” respectively,
does not render Judge Scanlon’s rulings clearly erroneous.
Because Plaintiff fails to identify any way in which the December Order was clearly
erroneous or contrary to law, the Court denies Plaintiff’s motion.
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III. Conclusion
For the foregoing reasons, the Court affirms Judge Scanlon’s December Order in its
entirety.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: April 19, 2017
Brooklyn, New York
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