Attali v. City of New York et al

Filing 107

OPINION AND ORDER re: 101 LETTER MOTION for Conference re Sufficiency of Plaintiff's Responses to Defendants' Request for Admissions pursuant to Fed. R. Civ. P. Rule 36 addressed to Magistrate Judge Henry B. Pitman from Gera ld E. Singleton dated 6/20/2017, filed by City of New York, 104 LETTER MOTION for Discovery Opposition to Defendant City's Letter Motion dated June 20, 2017 addressed to Magistrate Judge Henry B. Pitman from Christopher Bellistri dated 6/22/2017, filed by David Attali. I write to resolve a dispute among the parties concerning plaintiff's objections and responses to 59 of the requests for admissions ("RFAs") served by defendants. Defendants' motion to compel (D.I. 101) is granted in part as follows: plaintiff shall serve amended responses to RFAs 1 through 7, 16, 23, 24, 26, 30 through 33, 50 through 58 and 61 through 65 within 14 days of this Order. Defendants' motion to compel is otherwise denied. The Clerk of the Court is to mark Docket Items 101 and 104 as closed, and as further set forth herein. (Signed by Magistrate Judge Henry B. Pitman on 8/1/2017) Copies Transmitted By Chambers. (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------x
DAVID ATTALI,
15 Civ. 426

Plaintiff,

(AT) (HBP)

OPINION
AND ORDER

-againstCITY OF NEW YORK,

et al.,
Defendants.

-----------------------------------x
PITMAN, United States Magistrate Judge:

I.

Introduction

I write to resolve a dispute among the parties concerning plaintiff's objections and responses to 59 of the requests
for admissions

("RFAs")

served by defendants.

Defendants claim

that the responses are inadequate and seek an Order either
directing plaintiff to serve amended responses or deeming the
requests admitted (Defs.' Letter to the Undersigned, dated June
20,

2017

(Docket Item ("D.I.")

101 ("Defs.' Motion")).

argues that these RFAs themselves are improper and that,

Plaintiff
in any

event, his responses comply with plaintiff's obligations under
Fed.R.Civ.P. 36 (Pl. 's Letter to the Undersigned, dated June 22,
201 7 ( D. I . 104 )

( pl . s Opp . " ) ) .
II

I

II.

Facts

This is an employment discrimination lawsuit in which
plaintiff, a former police officer with the New York City Police
Department ("NYPD"), alleges that he was subjected to a hostile
work environment and constructively discharged on the basis of
his religion.

Defendants have served 59 RFAs on plaintiff that

primarily relate to NYPD policies and statements plaintiff
allegedly made to other officers during his tenure at the NYPD.

III.

Analysis

A.

Requests for Admission
under Fed.R.Civ.P. 36

Federal Rule of Civil Procedure 36(a) provides:
[a] party may serve on any other party a written request to admit, for purposes of the pending action
only, the truth of any matters within the scope of Rule
26(b) (1) relating to:
(A)

facts, the application of law to fact,
opinions about either; and

or

(B)

the genuineness of any described documents.

"This procedure is designed to promote the narrowing of issues
for trial, and can be a significant aid to the court as well as
the parties in ensuring a shorter and more focu[s]ed trial."
Sequa Corp. v. Gelmin,

91 Civ. 8675

2

(CSH),

1993 WL 350029 at *l

(S.D.N.Y. Sept. 7, 1993)

(Dolinger, M.J.)

In setting forth the

scope of an "Answer," the rule provides:
[i]f a matter is not admitted, the answer must specifically deny it or state in detail why the answering
party cannot truthfully admit or deny it.
A denial
must fairly respond to the substance of the matter; and
when good faith requires that a party qualify an answer
or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest.
The answering party may assert lack of knowledge or
information as a reason for failing to admit or deny
only if the party states that it has made reasonable
inquiry and that the information it knows or can
readily obtain is insufficient to enable it to admit or
deny.
Fed. R. Ci v. P. 3 6 (a) ( 4) .

If the court finds that "an answer does

not comply with this rule,

the court may order either that the

matter is admitted or that an amended answer be served."
Fed. R. Ci v. P. 3 6 (a) ( 6) .

B.

Application

For purposes of this Opinion,

the RFA responses and/or

objections that defendants are challenging can be divided into
five categories, each of which is addressed separately below.

1.

RFAs 1 through 7,
NYPD Anti-Discrimination Policies

In RFAs one through seven, defendants sought admissions
regarding plaintiff's knowledge of defendants'

3

anti-discrimina-

---·---------------

tion policies and the training plaintiff received concerning
these policies.

Plaintiff responded to each of these with the

same narrative statement setting forth plaintiff's views on the
facts and defendants' policies and practices.
An example of these RFAs and plaintiff's response is as
follows:
Request No. 1
You were aware during the course of your employment
with the NYPD that the department prohibited discrimination in the workplace based on race, religion, ethnicity or gender.
Response
During the course of his employment with the NYPD,
Plaintiff was the target of unrelenting and conspicuous
discrimination at the World Trade Center Command [WTCC]
based upon his race, religion, and ethnicity by his coworkers, who insulted, harassed, intimidated, and
threatened him because of his Jewish faith and heritage, all in the presence of supervisors.
Plaintiff
was aware that, although his co-workers and supervisors
in the NYPD did permit the existence of this hostile
environment against him, the vile discrimination he was
forced to endure was, and should have been, strictly
prohibited in the workplace, and was allowed to persist
by supervisors who knew this was occurring and failed
to take any action abating the unremitting discrimination specifically directed at Plaintiff on a daily
basis.
Because Plaintiff knew this type of discrimination perpetuated against him by his fellow NYPD officers and allowed by supervisors was prohibited, Plaintiff did file a complaint, and sought the assistance
of, the Office of Equal Employment Opportunity [OEEO]
maintained by the NYPD, which utterly failed to protected him from the onslaught of Anti-Semitic rhetoric
and threats of violence against him.
The written
materials and information Plaintiff received in the
4

Police Academy, the information posted on the bulletin
boards at the WTTC, supervisory officers' addresses,
and NYPD Patrol Guide provisions, concerning the NYPD
Office of Equal Employment Opportunity and unlawful
discrimination in the workplace, led Plaintiff to
believe, albeit falsely, that the NYPD took discrimination in the workplace seriously and would assist an
employee who was the target of workplace discrimination
in being protected from hostile working conditions.
In
direct contradiction to the aforementioned materials,
information, addresses, and official Department provisions, the NYPD, specifically Plaintiff's co-workers
who visibly and relentlessly insulted, harassed, intimidated, and threatened Plaintiff, the supervisors who
were entrusted with the duty of managing, directing,
and controlling Plaintiff's co-workers, the Commanding
Officer of the WTCC who refused to take any corrective
action to assist Plaintiff and enabled the, by his own
admission, "hostile work environment" to continue
against Plaintiff, and the OEEO and its supervisory
staff of investigators who conducted a careless and
slipshod investigation which not only failed to assist
Plaintiff but negligently, recklessly, and/or purposefully misplaced, deleted, and/or lost the recording of
Plaintiff's initial and subsequent complaint and plea
for assistance.
(See Requests to Admit,

dated May 4,

2017, annexed as Ex. 1 to

Defs.' Motion; Plaintiff's Response to Notice to Admit,
June 3,

2017, annexed as Ex.

"RFAs and Responses") ) .

2 to Defs.' Motion

dated

(collectively,

Plaintiff seems to be admitting that,

although the NYPD had a published anti-discrimination policy,
that policy was not actually followed.
The responses to RFAs one through seven should be
supplemented because plaintiff has failed to admit or deny the
RFAs or otherwise comply with Fed.R.Civ. P. 36 (a) (4).

5

Although

plaintiff may include the qualifying language above, he is
required to either admit or deny the requests,
part admitted and qualify or deny the rest."
36

(a) ( 4)

.

or "specify the
Fed.R.Civ.P.

Therefore, defendant's motion to compel plaintiff to

serve amended responses to RFAs one through seven is granted.

2. RFAs SO through S7, 61 and 63 through 6S,
Plaintiff's Statements in Text Messages

In RFAs SO through S7,

61 and 63 through 6S,

defendants

sought plaintiff's admissions regarding words that plaintiff
allegedly used in text messages to other police officers.
Examples of the RFAs and responses in this category are as
follows:
Request No.

SO

On one or more occasions, you referred to another
officer in a text message or in conversation as the
"Mexican."
Response
Plaintiff objects to said matter as being immaterial,
irrelevant and contrary to Magistrate Judge Pitman's
[Order, dated May lS, 2017 (D.I. 93)].
Notwithstanding
said objection, Plaintiff has no recollection of ever
referring to another officer as the "Mexican."
Request No.

63

You sent one of [sic] more text messages to other
offices [sic] that you understood could be offensive to
Jews.

6

Response
Plaintiff objects to said matter as being immaterial,
irrelevant and contrary to Magistrate Judge Pitman's
[Order, dated May 15, 2017 (D.I. 93)].
Notwithstanding
said objection, Plaintiff has no recollection of ever
sending text messages "to other offices [sic] that you
understood could be offensive to Jews."
(see RFAs and Responses) .
Plaintiff's responses to these RFAs are insufficient.
Plaintiff's statement that he does not recall sending the text
messages is tantamount to a statement that he can neither admit
nor deny the request.

However, plaintiff has not indicated

whether he conducted a reasonable inquiry of his text messages
before asserting that he could not recall whether he sent them,
Further,

as is required by Fed.R.Civ.P. 36(a) (4).

the portion of

the RFAs that solicit plaintiff's opinion as to whether the text
messages were offensive are proper because RFAs may solicit a
party's opinion.

See Fed.R.Civ.P. 36(a) (1) ("A party may serve on

any other party a written request to admit
facts,
either")

the application of law to fact,
(emphasis added) .

. relating to

or opinions about

Thus, defendant's motion to compel

plaintiff to serve amended responses to RFAs 50 through 57,
and 63 through 65 is granted.

7

61

3. RFAs 44 through 49,
Plaintiff's Statements
in Unspecified Communications

In RFAs 44 through 49, defendants sought plaintiff's
admissions regarding words he allegedly used to refer to other
officers.

Unlike the RFAs discussed in the preceding section,

these RFAs do not specify whether the statement was written or
oral or otherwise indicate when or how the communication was
made.

An example of an RFA and response in this category is as

follows:
Request No.

44

On one or more occasions, you referred to Police
Office[r] Vlad Hamilton as "Communist."
Response
Plaintiff objects to said matter as being immaterial,
irrelevant and contrary to Magistrate Judge Pitman's
[Order, dated May 15, 2017 (D.I. 93)].
Notwithstanding
said objection, Plaintiff has no recollection of ever
referring to Vlad Hamilton as a "Communist."
(see RFAs and Responses) .
Plaintiff's responses to these requests are sufficient.
By stating that he has no recollection, plaintiff has effectively
taken the position that he has searched his memory and has
concluded that he can neither admit nor deny the request.
Defendants have not suggested any other inquiry that plaintiff
could have undertaken to respond to these requests.
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Therefore,

defendants' motion to compel amended responses to RFAs 44 through
49 is denied.

4.

RF As 16, 2 3, 2 4, 2 6,
30 through 33, 58 and 62,
Overlap with Deposition Testimony

RFAs 16,
various inquiries.

23,

24,

26,

30 through 33,

58 and 62, pose

Plaintiff's responses to each of these

contain a citation to certain portions of plaintiff's deposition
Plaintiff argues that

testimony without further explanation.

"the overwhelming majority" of the RFAs were "definitely posed as
questions .

and answered,

deposition (Pl. 's Opp. at 2).

ad nauseam,

by Plaintiff" at his

Plaintiff did not quote the

specific testimony in his responses to these RFAs or in his
submissions to me and it is,

therefore,

impossible to determine

if plaintiff's responses are sufficient.

Further,

on their face,

plaintiff's responses fail to comply with the substance of
Fed. R. Ci v. P.

3 6 (a) ( 4) .

Thus, defendants' motion to compel

amended responses to RFAs 16, 23,
62 is granted.

9

24,

26,

30 through 33,

58 and

5.

RFAs 59, 60 and 118 through 139,
Objections Based on May 2017 Discovery Order

Defendants have not challenged the sufficiency of
plaintiff's responses to RFAs 59,
Instead,

60 and 118 through 139.

defendants argue that plaintiff has improperly objected

to these RFAs on the basis that they are contrary to the discovery order I issued on May 15,
dress this dispute,

2017

93) . 2

(D.I.

I need not ad-

however, because plaintiff has not relied on

this objection to refuse to respond to any of these RFAs.

Thus,

there is thus no dispute for me to resolve and this aspect of
defendants' motion to compel is denied.

IV.

Conclusion

Therefore,

for the reasons discussed in this Opinion,

defendants' motion to compel
follows:
through 7,

(D.I.

101)

is granted in part as

plaintiff shall serve amended responses to RFAs 1
16,

23,

24,

26,

30 through 33,

50 through 58 and 61

1

Defendants' objections to this Order were overruled by the
Honorable Analisa Torres, United States District Judge, on June
22, 2017 (D.I. 103).
Defendants have also challenged plaintiff's use of this
objection in response to many of the other RFAs that are
addressed in this Order.
However, as with the RFAs discussed in
this section, plaintiff has responded to the other RFAs at issue
notwithstanding his objection and, thus, it is unnecessary to
address the validity of the objection.
10

through 65 within 14 days of this Order.
compel is otherwise denied.

Defendants' motion to

The Clerk of the Court is to mark

Docket Items 101 and 104 as closed.

Dated:

New York, New York
August 1, 2017
SO ORDERED

H~~AN~~
United States Magistrate Judge
Copies transmitted to:
All Counsel

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