Cross v. Potter et al

Filing 138

DECISION AND ORDER denying Pltf's 134 Motion to Compel Discovery. Defts shall provide a further supplemental response by 11/5/12 as directed. Clerk is to modify court's records to reflect addition of Patrick R. Donahoe as an additional deft, in his capacity as US Postmaster General and John E. Potter as deft in his individual capacity. Signed by Magistrate Judge David E. Peebles on 10/12/12. [Served by mail.] (sfp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
____________________________________
SHARON L. CROSS,
Plaintiff,
Civ. Action No.
3:09-CV-1293 (TJM/DEP)

v.

PATRICK R. DONAHOE, in his official capacity
as Postmaster General of the United States
Postal Service; JOHN E. POTTER, in his
individual capacity; and JOHN DOE,1
Defendants.
____________________________________
APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
SHARON CROSS, Pro Se
47 Beaver Street
Cooperstown, New York 13326
FOR DEFENDANTS:
HON. RICHARD S. HARTUNIAN
United States Attorney
Post Office Box 7198
100 South Clinton Street
Syracuse, New York, 13261-7198
1

WILLIAM F. LARKIN, ESQ.
Assistant U.S. Attorney

On December 6, 2010, Patrick R. Donahoe succeeded John E. Potter as
the United States Postmaster General. Pursuant to Rule 25(d) of the Federal Rules of
Civil Procedure, Donahoe’s substitution as a defendant, in the place of John E. Potter,
in his official capacity, is automatic. Because plaintiff’s amended complaint named
defendant Potter both individually and in his official capacity, however, he remains a
defendant in this action, although solely in his individual capacity.

DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
DECISION AND ORDER
This action, which has been pending for nearly three years, was
commenced by pro se plaintiff Sharon L. Cross to challenge the
termination of her employment with the United States Postal Service
(“USPS”) in June 2009. Although initially broader, her suit has been
narrowed in scope through motion practice, and now includes claims by
plaintiff alleging violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000-e et seq., a deprivation of procedural due
process, and a violation of her right to privacy. As relief, Cross seeks
reinstatement to her former employment position, as well as damages in
the amount of $100 million.
Currently pending before the court is plaintiff’s motion seeking an
order compelling discovery. For the reasons set forth below that motion is
granted, in part, but otherwise denied.
I.

BACKGROUND
Plaintiff was employed with the USPS from 1999 until 2009. On

December 14, 2007, she was charged in this court, by the filing of a twocount criminal information, with submitting false medical documentation to
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the USPS, in violation of 18 U.S.C. § 1018. See United States v. Cross,
No. 07-CR-563, Dkt. No. 7. The filing of that information was followed, on
January 14, 2008, by the issuance of a notice from the USPS to plaintiff
advising her that her employment would be terminated, effective February
23, 2008, based upon the same facts underlying the criminal charges
against her.
On December 4, 2008, following a jury trial, the plaintiff was
acquitted of the criminal charges against her. See United States v. Cross,
07-CR-563, Dkt. Nos. 49, 50. Despite that acquittal, the USPS continued
in its efforts to terminate plaintiff’s employment. Those efforts culminated
in the termination of plaintiff’s employment in or about June 2009,
following the completion of grievance proceedings initiated by the
plaintiff’s union.
II.

PROCEDURAL HISTORY
Plaintiff commenced this action on November 18, 2009. Over the

course of its three-year ensuing lifetime, the case has had a tortured
procedural history that has included, among other things, five interlocutory
appeals by plaintiff to the United States Court of Appeals for the Second
Circuit. Dkt. Nos. 22, 41, 96, 115, 128. Of those, four have been

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dismissed for lack of jurisdiction, and the fifth remains pending. Dkt. Nos.
52, 113.
While both plaintiff’s original and amended complaints contained a
broader array of claims and named as defendants not only John E. Potter,
both individually and in his official capacity as the USPS Postmaster, but
additionally the American Postal Workers Union, A.F.L.-C.I.O, and its
president, William Burrus, as well as a John Doe defendant, her claims
have been winnowed through the issuance of three decisions by Senior
District Judge Thomas J. McAvoy. Dkt. Nos. 10, 31, 95. This action now
centers upon plaintiff’s wrongful termination claim, in violation of her civil
rights, against the remaining defendants.
On March 7, 2012, as later supplemented on March 12, 2012,
plaintiff moved for an order compelling the defendants to respond to
discovery demands served by her, including interrogatories, requests for
the production of documents (“RFPs”), and requests for admissions
(“RFAs”). Dkt. Nos. 92, 94. Following a hearing conducted to address
those motions, I issued an order, dated April 5, 2012, in which I directed
the remaining defendants to provide responses, under oath, to four of
plaintiff’s third set of interrogatories, but otherwise denied the motion,

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without prejudice to plaintiff’s right to serve an additional twenty-one
interrogatories upon defendant Potter, on or before April 30, 2012. Dkt.
No. 106.
On August 31, 2012, plaintiff moved seeking an order compelling
defendants to provide responses to her earlier interrogatories, pursuant to
the court’s order dated April 5, 2012, as well as to the twenty-one
additional interrogatories served on defendant Potter, with the court’s
permission. Dkt. No. 134. Defendants have since responded in
opposition to that motion, laying out for the court the discovery that has
been provided to the plaintiff throughout this case, and asserting their
belief that they have fully complied with the court’s prior order. Dkt. No.
135.
Upon its filing, plaintiff’s motion was scheduled for argument on
October 5, 2012, in Binghamton, New York. Text Notice dated Aug. 31,
2012. On October 1, 2012, however, the court received a communication
from the plaintiff stating that she “has been stricken with a virus and
severe flare up of various health conditions, which has [sic] seriously
disabled her requiring bed rest to recover.” Dkt. No. 136 at ¶ 3. Plaintiff
therefore requested “an extension and an enlargement of time to recover

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from sickness, research the law, investigate, and respond accordingly, to
the defendants with regarding [sic] her demands for discovery.”2 Id. at ¶
6. By text order issued on October 2, 2012, the requests for adjournment
of the scheduled hearing and an extension of time to reply were denied in
light of the age of the case, and instead, in my discretion, I ordered that
the motion be taken on submission.3
2

It should be noted that, under this court’s local rules, absent court
permission, there is no right of reply in connection with a non-dispositive motion.
N.D.N.Y.L.R. 7.1(b)(2). The court has previously admonished plaintiff for failing to
comply with this rule. See Text Order dated Jan. 5, 2012. Plaintiff is warned that her
failure to comply with this rule at any time in the future will result in the court striking
her reply with no recourse.
3

Despite the claimed need for bed rest to overcome her illness, on
October 5, 2012, plaintiff was apparently able to travel by car from her home in
Cooperstown, New York, to Utica, New York, where, according to the court staff, she
personally appeared to file an appeal from the ruling taking her motion on submit
without oral argument. I note, parenthetically, that plaintiff’s request for additional time
due to illness is but the latest in a series of similar requests that the court has received
throughout the pendency of this action. See, e.g., Dkt. No. 5 (communication dated
March 24, 2010, requesting an extension of time to file an amended complaint on the
basis of illness and the need to conduct research); Dkt. No. 7 (communication dated
April 23, 2010, requesting a sixty-day extension of time to file an amended complaint
due to illness and the need to conduct research); Dkt. No. 38 (communication dated
January 6, 2011, requesting an extension of time to comply with the court’s scheduling
order due to disabling medical conditions); Dkt. No. 40 (communication dated January
19, 2011, requesting an adjournment of a scheduled pretrial conference stating, “I
have been experiencing severe disabling medical conditions, including chronic pain,
and now have influenza flu virus which has caused me to be very ill.”); Dkt. No. 53
(communication dated May 17, 2011, requesting a stay of the action based upon
alleged vision problems, as well as other “severe disabling medical conditions,
including chronic pain.”); Dkt. No. 65 (communication dated August 29, 2011,
requesting a ninety-day extension of time to serve initial written demands in the case
based upon the fact that plaintiff “suffers from various health conditions which
seriously slows her ability in litigating [sic] in this case. . . .”); Dkt. No. 91
(communication dated February 28, 2012, requesting enlargement of times to
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III.

DISCUSSION
A.

Standard Governing Discovery

Absent a court order expanding discovery to encompass any matter
relevant to the subjects raised in the litigation, the scope of discovery in a
civil action is governed by Rule 26(b) of the Federal Rules of Civil
Procedure, which provides, in pertinent part, that “[p]arties may obtain
discovery regarding any matter, not privileged, that is relevant to the claim
or defense of any party[.]” Fed. R. Civ. P. 26(b)(1). Under this provision

designate experts, stating that, among other things, she “suffers from various medical
conditions, including arthritis, vision problems, which prevents [sic] or hinders [sic] her
efforts in this case”); and Dkt. No. 110 (communication dated April 13, 2012,
requesting an enlargement of thirty days to file an amended complaint as permitted by
the court based upon the fact that plaintiff “has been ill and suffers from various health
conditions an extensionslows [sic] her ability litigating this case . . . .”).
A similar pattern has emerged in a separate action brought by the plaintiff’s
husband in this court. See Cross v. State Farm Ins. Co., No. 3:10-CV-1179, Dkt. No.
40 (communication dated July 14, 2011, requesting adjournment of a scheduled
pretrial conference due to illness); Dkt. No. 49 (communication dated August 10, 2011,
requesting an extension of time to respond to a motion by defendant due to injuries
resulting from an accident); Dkt. No. 56 (communication dated September 23, 2011,
seeking an adjournment based upon plaintiff’s accident injuries); Dkt. No. 67
(communication dated November 1, 2011, requesting an extension of time due to
illness); Dkt No. 72 (communication dated February 28, 2012, requesting an extension
of time due to illness and the need to conduct research); Dkt. No. 86 (communication
dated May 29, 2012, seeking a sixty-day enlargement of the time to move to compel
discovery based upon plaintiff’s injuries); Dkt. No. 103 (communication dated July 30,
2012, requesting an extension of time to move to compel discovery based upon
plaintiff’s injuries); and Dkt. No. 114 (communication dated September 6, 2012,
objecting to the rescheduling of a motion before Senior District Judge Thomas J.
McAvoy and requesting a continuance based upon illness).
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the bounds of permissible discovery in a civil action are generally
regarded as expansive, although they are not without limits. Fears v.
Wilhelmina Model Agency, Inc., No. 02 Civ. 4911, 2004 WL 719185, at *1
(S.D.N.Y. Apr. 1, 2004); Innomed Labs, LLC v. Alza Corp., No. 01 CIV.
8095, 2002 WL 31012165, at *1 (S.D.N.Y. Sept. 6, 2002).
Despite the generous breadth of discovery permitted under Rule
26(b)(1), the rules recognize certain specific, potentially overriding
considerations that can effectively circumscribe the required production of
otherwise relevant discovery. For example, a court is authorized to
restrict discovery sought by a party if the information requested, though
otherwise discoverable, “is unreasonably cumulative or duplicative, or can
be obtained from some other source that is more convenient, less
burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i); see also
Jones v. McMahon, No. 5:98-CV-0374, 2007 WL 2027910, at *15-16
(N.D.N.Y. July 11, 2010) (Lowe, M.J.); Fed. R. Civ. P. 26(b)(2)(B) (setting
forth a comparable limitation relating to electronically stored information).
In addition, Rule 26 establishes a rule of proportionality that permits a
court to limit discovery upon a determination that

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the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs
of the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in
the action, and the importance of the discovery in
resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C)(iii).
Finally, it should also be noted that Rule 26 empowers a court to
issue an order “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense . . . .” Fed. R.
Civ. P. 26(c); see Saylavee LLC v. Hockler, No. 3:04-CV-1344, 2005 WL
1398653, at *1-2 (D. Conn. June 14, 2005). Ordinarily, a party seeking a
protective order bears the burden of establishing a basis for the entry of
such an order. Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992).
“In determining whether a discovery request is burdensome the court must
weigh the burden to the producing party against the need of the party
seeking the information.” Cook v. United States, 109 F.R.D. 81, 85
(E.D.N.Y. 1985).
B.

Analysis of Plaintiff’s Motion

Before turning to the specifics of plaintiff’s latest motion to compel
discovery, for contextual purposes, it is important to note what discovery
has been provided to her by defendants. According to defendants’ motion
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opposition papers, they have provided her with a great deal of potentially
relevant information and materials. More specifically, defendants have
disclosed to plaintiff the following five categories of information. First, on
October 28, 2011, defendants provided plaintiff with four volumes of
documents comprised of the report of an investigation into plaintiff’s EEO
complaint, her USPS Family and Medical Leave Act (“FMLA”) records,
and additional materials related to Cross provided by the USPS Labor
Relations Department. Second, on November 17, 2011, defendants
provided plaintiff a copy of her official USPS personnel file. Third, on
November 30, 2011, defendants responded to plaintiff’s discovery
demands dated October 26, 2011. Fourth, on November 19, 2007,
defendants provided plaintiff with a copy of the report of an investigation
conducted by the USPS Office of Inspector General pertaining her, as well
as a copy of the criminal complaint filed against her. Fifth, on March 5,
2012, defendants provided plaintiff with responses to her interrogatories,
RFPs and RFAs, dated February 17, 2012, as well as her RFPs dated
February 6, 2012. Following the issuance of the court’s order dated April
5, 2012, defendants provided additional materials to plaintiff, including (1)
supplemental responses to interrogatories as ordered by the court, sent

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on May 2, 2012; (2) responses to plaintiff’s RFAs and RFPs, dated April
20, 2012, sent on May 18, 2012; and (3) responses to plaintiff’s
resubmitted third set of interrogatories, sent on May 21, 2012.
Despite having been provided all of this discovery, plaintiff argues
that defendants have failed to comply with the court’s order dated April 5,
2012. As discussed above, that order required defendants to provide
responses to plaintiff’s interrogatories numbered 1, 2, 3, and 12.
Interrogatory number 1 requests information concerning the decision to
terminate Cross’ employment and the roles played by the various USPS
personnel involved in that decision. Defendants’ response, which details
the sequence of events leading up to plaintiff’s termination, including the
reasons for that termination, is fairly comprehensive and complete, with
one exception. Specifically, the response states that the decision to
remove plaintiff from her employment was made “by officials of the U.S.
Postal Service.” While the defendants also identify the person who issued
the notice of removal to the plaintiff, a second individual who concurred in
the decision, and a third who drafted the notice of removal, it does not
clearly and unequivocally state that those are the only three USPS
employees who participated in the decision-making process. For this

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reason, defendants are directed to provide a further supplemental
response either stating that those three individuals are the only USPS
employees who participated in the decision-making process leading up to
plaintiff’s termination, or, alternatively, identifying those others who also
played a role in making that decision.
Interrogatory number 2 requests information concerning any
meetings conducted to address plaintiff’s termination. Based upon my
review of the defendants’ supplemental response to this question, I find
that it is adequate. Similarly, with respect to interrogatory number 3,
which requests information regarding plaintiff’s performance evaluation
and disciplinary actions taken against her, I find that the defendants’
response is proper. Interrogatory number 12 seeks information
concerning any investigation conducted into plaintiff’s employment and/or
termination from that employment. Once again, the supplemental
response provided by the defendants to this inquiry is sufficient.
Finally, liberally construed, plaintiff’s motion argues that defendants’
responses to plaintiff’s additional interrogatories (permitted by the court’s
order dated April 5, 2012,) are insufficient. After reviewing these
additional interrogatories (Dkt. No. 134, Attach. 1 at 33-40; Dkt. No. 135,

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Attach. 1 at 21-28), I decline to enforce them. Several of the most recent
interrogatories are duplicative of interrogatories already reviewed by the
court.4 The remaining questions are either vague, ambiguous,
argumentative, or premature5 and/or call for conclusions of law, or are
subject to the rule of proportionality set out in Rule 26(b)(2)(C)(iii).6
4

For example, interrogatories numbered 1-8, 11-12, and 16 in plaintiff’s
most recent set of interrogatories (Dkt. No. 134, Attach. 1 at 33-40; Dkt. No. 135,
Attach. 1 at 21-28) are identical to, or make the same demand as, plaintiff’s
interrogatories numbered 6, 7, 8, 9, 10, 17, 15, 13, 19, 4, and 11, respectively, which
were previously considered, and rejected, by the court in plaintiff’s motion to compel
dated March 12, 2012 (Dkt. No. 94 at 33-40). In addition, interrogatories numbered 13
and 17 in plaintiff’s most recent set of interrogatories (Dkt. No. 134, Attach. 1 at 33-40;
Dkt. No. 135, Attach. 1 at 21-28) are identical to, or make the same demand as,
plaintiff’s request for admissions numbered 3 and 12, respectively, which were
previously considered, and rejected, by the court in plaintiff’s motion to compel dated
March 12, 2012 (Dkt. No. 94 at 25-29).
5

Interrogatory number 4 of plaintiff’s re-served interrogatories, for
example, seeks information concerning defendants’ anticipated trial witnesses.
Interrogatory number 5, in turn, requests information regarding any expert witnesses to
be called by the defendants to testify at trial. Plaintiff is obviously entitled at some
appropriate point to this information. The exchange of trial witness information is
controlled by Rule 26(a)(3) of the Federal Rules of Civil Procedure, as supplemented
by the court’s Uniform Pretrial Scheduling Order (“UPSO”). The exchange of
information concerning expert retention should already have occurred in this case, as
directed by the court’s UPSO.

6

Plaintiff’s re-served interrogatories also request a broad range of
information concerning cases or complaints in which discrimination and retaliation is
alleged against the USPS. It is true that in her complaint, which is comprehensive,
plaintiff alleges discrimination on the basis of age and gender, as well as her nonunion status, in connection with her employment termination. Amended Complaint
(Dkt. No. 9) at ¶ 57. In the court’s view, this conclusory allegation is insufficient to
support her far-ranging requests for information regarding any “written or oral
complaint or charge of any form of retaliation whether formal or informal, external or
internal” by any USPS employee against the USPS at any location in the past ten
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IV.

SUMMARY AND ORDER
Discovery in this action, which has been pending for several years,

is now closed. By all accounts plaintiff has been provided with
considerable information concerning the grounds for her termination and
the decision making process that led up to that decision. The court has
reviewed plaintiff’s latest motion, as well as defendants’ responses to
interrogatories ordered by the court to be answered, and plaintiff’s reserved third set of interrogatories. Based upon the foregoing, with the one
exception explained above, the court finds that defendants have complied
with the court’s expectations and the requirements of the applicable
discovery-related provisions of the Federal Rules of Civil Procedure.
Accordingly, it is hereby
ORDERED as follows:
1)

Within twenty-one days of the date of this order, the

defendants shall provide a further supplemental response, under oath, to
interrogatory number 1 of plaintiff’s third set of requests for admissions,
requests for documents and interrogatories (Dkt. No. 92, Attach. 1 at 17;

years. Dkt. No. 134, Attach. 1 at 36 (interrogatory number 11). The sheer breadth of
such a request presents the prototypical circumstance in which the court can, and
should, invoke the rule of proportionality set forth in Rule 26(b)(2)(C)(iii) Federal Rules
of Civil Procedure.
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Dkt. No. 134, Attach. 1 at 20; Dkt. No. 135, Attach. 1 at 3), and specifically
shall list all individuals who participated in any way in the decision to issue
a notice of removal of plaintiff from her position with the USPS.
2)

With this exception, plaintiff’s motion to compel discovery (Dkt.

No. 134) is DENIED.
3)

The clerk is respectfully directed to modify the court’s records

to reflect the addition of Patrick R. Donahoe as an additional defendant, in
his capacity as United States Postmaster General, leaving John E. Potter
as a defendant in his individual capacity only.
4)

No costs or attorney’s fees are awarded to any party in

connection with plaintiff’s motion.
5)

The parties are hereby advised that an appeal may be taken

from this ruling to Senior District Judge Thomas J. McAvoy. Any such
appeal must be filed within fourteen days from the date of service of this
order.
Dated:

October 12, 2012
Syracuse, New York

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