Joiner v. MVP Service Corporation
Filing
29
ORDER denying without prejudice to renew 13 Motion to Amend or Correct; granting in part and denying in part 19 Motion to Compel. Plaintiff has until October 15, 2012 to file her renewed motion. No further extensions of this deadline will be granted. Signed by Hon. Jonathan W. Feldman on 9/13/2012. (RJO)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HESS DELL JOINER,
Plaintiff(s),
v.
DECISION AND ORDER
11-CV-6497
MVP SERVICE CORPORATION,
Defendant(s).
Preliminary Statement
Pro se plaintiff, an African American woman over fifty years of
age, brings the instant action against her employer, MVP Service
Corporation, pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e to e-17, and Age Discrimination in Employment Act
of 1967, 29 U.S.C. §§ 621–34.
See Complaint (Docket #1).
Plaintiff
alleges in her Complaint, inter alia, that defendants subjected her
to disparate treatment because of her race and age.
Id.
Currently
pending before the Court is plaintiff’s motion to supplement the
Complaint (Docket # 13) and motion to compel (Docket # 19).
Discussion
I.
9,
2012,
Plaintiff’s Motion to Supplement Complaint:
plaintiff
filed
her
first
motion
to
On January
supplement
the
Complaint. (Docket # 10). On January 11, 2012, the Court denied her
motion without prejudice to renew because plaintiff failed to attach
a proposed amended or proposed supplemental pleading with her motion
papers.
See Order (Docket # 11).
The Court instructed plaintiff
that her “motion must include a proposed amended or supplemental
pleading” and advised her to “consult with the Western District of
New York’s pro se office attorneys for questions on process and
procedure.”
Id.
On January 20, 2012, plaintiff filed this second motion to
supplement the Complaint.
to her first
The current motion is virtually identical
motion to supplement. (Docket # 13).
The only
difference between her first motion and this motion is that plaintiff
has attached to the instant motion a “Proposed Supplement to the
Complaint.”
This “supplement,” however, does not contain a single
supplemental allegation or claim, and merely indicates that plaintiff
seeks permission to supplement her Complaint. This document does not
suffice as the supplemental pleading required by my earlier Order.
Because plaintiff timely filed the instant motion to amend, the
Court will give her one final chance to file a renewed motion to
amend or supplement.
Accordingly, plaintiff’s motion to supplement
(Docket # 13) is denied without prejudice to renew.
until October 15, 2012 to file her renewed motion.
Plaintiff has
The motion must
include a proposed amended or supplemental pleading. In other words,
plaintiff is advised that the supplemental pleading must set forth
the NEW factual allegations that plaintiff believes should be part
of her case.
Plaintiff is strongly encouraged to consult with the
Western District of New York’s pro se office attorneys for questions
on complying with this Order. No further extensions of this deadline
will be granted.
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II.
Plaintiff’s Motion to Compel: In this motion, plaintiff
seeks an Order compelling defendant to produce further responses to
her First Request for Production of Documents.
(Docket # 19).
Plaintiff asserts that defendant “has objected to 90% of” her
demands.
Id.
In response to plaintiff’s motion, defendant points
out that it timely served its responses to plaintiff’s document
demands and produced “over 500 pages of documents.”
See Defendant’s
Memorandum in Opposition (hereinafter “Def. Opp. Memo”) (Docket # 21)
at p. 1.
Defendant argues that plaintiff’s motion should be denied
because (i) she “did not make a sincere, good-faith attempt to
resolve the discovery dispute before filing the instant motion,” and
(ii) defendant’s responses to plaintiff’s demands “are reasonable.”
Id. at pp. 2, 5.
The Court, having reviewed the papers in support of (Dockets
## 19, 28) and in opposition to (Dockets ## 21, 22, 24) plaintiff’s
motion to compel (Docket # 19), as well as defendant’s Responses to
plaintiff’s First Request for Production of Documents (see Exhibit
“2" attached to Docket # 22), hereby Orders that the defendant shall
produce a further response to plaintiff’s Document Demand Number 2
(letter “f” in the instant motion).
drafted,
it
information
seems
about
reasonably
plaintiff’s
Although perhaps imprecisely
apparent
job
that
this
performance
Demand
that
is
seeks
in
the
possession of defendant. This information is relevant to plaintiff’s
claims.
Defendant is directed to conduct a search for documents in
3
its possession that refer to or are relevant to plaintiff’s job
performance.1
Responsive documents would include emails or other
memoranda in which plaintiff’s job performance or job status is
discussed.
If any document is being withheld on the basis of
privilege, a privilege log must be provided.
It also is apparent
that plaintiff is seeking information on whether she was “treated
differently from the white Supervisors under Kellie Traver.”
See
Plaintiff’s Memorandum of Law (hereinafter “Pl. Memo”) (Docket # 28)
at p. 5.
From the organizational chart supplied by defendant, there
appears to be nine other supervisory employees in the Rochester
Claims Operations who are supervised by Traver or are one level below
direct supervision by Traver.
employees are Caucasian.
It is unclear whether any of these
Defendant shall review the personnel files
of employees who held these supervisor positions during the three
years prior to plaintiff’s termination and disclose to plaintiff
documents pertaining to discipline or counseling for job performance
issues as well as documents pertaining to promotions.
See Dzanis v.
JPMorgan Chase & Co., No. 10 Civ. 3384(BSJ)(JLC), 2011 WL 5979650,
at *2-3 (S.D.N.Y. Nov. 30, 2011)(finding that certain “similarly
situated” employees’ personnel files were relevant because they
1
Defendant’s previous responses repeatedly refer to conducting
a “reasonable search” for discoverable documents. The Court is unsure
what a “reasonable search” includes or omits. Therefore, to the
extent defendant’s search for responsive documents is anything less
than what is required under the Federal Rules of Civil Procedure,
defendants shall conduct a further search.
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“could
provide
evidence
of
disparate
treatment”).
No
other
information from the personnel files need be disclosed and any
information disclosed shall be deemed confidential and subject to the
stipulated protective order.
See id. at *7 (directing the parties
to “submit a protective order to govern the disclosure of these
personnel files”).
Finally, plaintiff seeks data on “claim inventories,” a topic
that appears to be relevant to defendant’s position that plaintiff
was not performing her job. Plaintiff claims that defendant produced
“an inventory on all of the claims queues” when what she wants are
monthly claim balances specifically related to Ms. Travers and
monthly balances for Ms. Braswell and Ms. Groth.
(Docket # 28) at p. 3.
See Pl. Memo
It is impossible for the Court to discern
whether the information disclosed by defendant is responsive since
only the May 1, 2012 transmittal letter (Docket # 24) is included in
the defendant’s response.
Defendant shall review available data and
attempt to provide the breakdown of claim aging data plaintiff seeks.
Defendant shall have thirty (30) days from entry of this Order to
provide any supplemental documents.
In all other respects, plaintiff’s motion to compel (Docket #
19) is denied.
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Conclusion
Plaintiff’s motion to supplement (Docket # 13) is denied without
prejudice to renew.
Plaintiff’s motion to compel (Docket # 19) is
granted in part and denied in part.
SO ORDERED.
______________________________
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated: September 13, 2012
Rochester, New York
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