Equal Emp't Opportunity Comm'n v. Upstate Niagara Coop., Inc.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. UPSTATE NIAGARA COOPERATIVE, INC., Defendant.

16CV842S

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

September 19, 2019

Hon. Hugh B. Scott

Order

Before the Court is plaintiff's motion to compel (Docket No. 34). Responses were due by August 5, 2019 (Docket No. 35), but defendant sought an extension (Docket No. 36) which was granted (Docket No. 37). Responses then were due by August 12, 2019, with any reply by August 21, 2019 (Docket No. 37). Defendant responded with its attorney's affidavit and exhibits and Memorandum of Law (Docket No. 42) and plaintiff filed its reply with counsel's declaration and exhibit (Docket No. 43). The motion was deemed submitted (without oral argument) on August 21, 2019.

BACKGROUND

Plaintiff is the federal agency charged with "the administration, interpretation and enforcement of Title VII" (Docket No. 1, Compl. ¶ 3). Defendant is a dairy cooperative in this District, employing at least 15 employees (id. ¶¶ 12, 4).

Gail Haas filed a charge with plaintiff alleging defendant violated Title VII, 42 U.S.C. §§ 2000e, et seq. (id. ¶ 6). Since 2009, plaintiff alleges that defendant "has engaged in unlawful employment practices at its three largest facilities located in Western New York" (id. ¶ 13), primarily in denying employment opportunities to qualified female applicants such as Haas (id.). Those practices allegedly deprived Haas and other qualified female applicants equal employment opportunities because of their sex (id. ¶ 14). Since 2009, defendant also failed to make and preserve relevant records (id. ¶ 15).

On October 19, 2015, plaintiff issued to defendant a Letter of Determination (id. ¶ 7; Docket No. 8, Def. Atty. Decl., Ex. G) finding reasonable cause to believe that Title VII was violated and inviting defendant to conciliate the matter (Docket No. 1, Compl. ¶ 7). After discussions with defendant, plaintiff was unable to reach a conciliation agreement with defendant (id. ¶¶ 8-10). In the Letter of Determination, plaintiff found that "there is reasonable cause to believe that [defendant] has failed to hire women in production positions at its West Seneca, Dale Road, and Rochester facilities since January 1, 2008" (Docket No. 8, Ex. G, at 2) and there was reasonable cause to believe that defendant failed to preserve application materials (id.). On October 24, 2016, plaintiff filed a Complaint in this action (Docket No. 1). In addition to seeking to make Haas and other female applicants whole, provide compensation and punitive damages, plaintiff also sought a permanent injunction against defendant engaging in discrimination on the basis of sex and to order defendant to institute policies and practices to provide equal employment opportunities for female applicants (Docket No. 1, Compl. at 8-9, Prayer for Relief).

While the Complaint alleges defendant's activities since 2009 (id. ¶¶ 13, 15), it implies (but does not state explicitly) that these unlawful employment practices are continuing to occur.

Defendant moved to dismiss on statute of limitations grounds (Docket No. 8) but this Court denied that motion (Docket No. 16). In rejecting a timeliness argument, Judge William Skretny found that a charge was filed with plaintiff within 300 days (id. at 10-11). Quoting the Eastern District of New York's decision in EEOC v. Thomas Dodge Corp. of N.Y., 524 F. Supp. 2d 227, 230 (E.D.N.Y. 2007), Judge Skretny noted that the limitation period applied to practices discovered by plaintiff and also to "'additional victims who are uncovered during such investigation'" (id. at 11, quoting Thomas Dodge Corp., supra, 524 F. Supp. 2d at 230, adding emphasis, 7). Judge Skretny's denial of the dismissal motion did not address the continuing nature of plaintiff's claims.

Defendant then answered (Docket No. 17) and this case was referred to the undersigned for pretrial proceedings (Docket No. 18). This Court eventually (cf. Docket Nos. 19-25) entered a Scheduling Order (Docket No. 26). Plaintiff moved to opt out or stay mediation, arguing that it lacked sufficient information about the female applicants to defendant to engage in meaningful settlement discussions and that it had pending discovery demands from defendant of application and other employment information from 2014 to the present (Docket No. 28). After discussion of the opt out or delay of mediation (Docket No. 31), this Court denied the opt out motion and denied in part delay of initial mediation by six months, instead granting a 90-day extension of that deadline (Docket No. 32; see Docket No. 33).

Plaintiff's Motion to Compel (Docket No. 34) On May 13, 2019, plaintiff served its discovery requests (Docket No. 34, Pl. Atty. Affirm. ¶ 3, Ex. A), seeking applicant materials and employee date from January 2008 to the present (id. ¶ 4). Defendant objects to the temporal scope, stating that it was willing to produce responsive records from 2009 through 2013 or 2014 (id. ¶¶ 4, 5). After an agreed upon extension of time for defendant to respond to the discovery demands, defendant served its objections to plaintiff's discovery requests (id. ¶¶ 6, 7, Ex. B). On July 2, 2019, the parties had what plaintiff's counsel termed "a lengthy teleconference to discuss Defendant's temporal scope objection to the EEOC's discovery requests" (id. ¶ 8).

Plaintiff argues first that materials from January 2008 to July 21, 2009, are discoverable (Docket No. 34, Pl. Memo. at 2-4). Next, plaintiff's claim encompasses other individuals found after its investigation ended and documents surrounding those persons are relevant to plaintiff's claim (id. at 4-11). Plaintiff argues that the Letter of Determination provided defendant adequate notice that plaintiff intends to vindicate other aggrieved female applicants to defendant (id. at 5-9). Further, plaintiff contends that defendant cannot limit discovery to materials already provided in the agency's pre-action investigation (id. at 9-11).

Defendant first argues that plaintiff has not certified that it met and conferred with defendant prior to filing this motion (Docket No. 42, Def. Memo. at 5). It contends that it has produced documents from 2008 to July 22, 2009 (id. at 6). Discovery concerning post-Letter of Determination applications are not relevant to plaintiff's claim, which defendant defines as being restriction to prior to the October 19, 2015, Letter of Determination and subsequent conciliation (id. at 6-10). Since the claim dictates the scope of discovery and not the relief sought, the factthat plaintiff is also seeking injunctive relief does not open the door to discovery after October 2015 (id. at 10-11).

In reply, plaintiff's counsel outlined the discussions between counsel prior to filing this motion (Docket No. 43, Pl. Atty. Affirm.), concluding that it complied with Rule 37 and its meet and confer obligations (Docket No. 43, Pl. Reply Memo. at 1). Plaintiff contends that materials after the Letter of Determination date are relevant to its claim because its claim is for continuing harm beyond October 2015 (id. at 2-7). Plaintiff points out that defendant is not arguing undue burden (id. at 2 & n.2) or that the demands are not proportionate to the needs of this case (id. at 3 n.3) and reiterates that the discovery is necessary for its injunctive relief demand (id. at 7).

DISCUSSION

I. Applicable Standards

Discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 655-65 (Civil 2d ed. 1994). "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering . . . whether the burden or expense of the proposed discovery outweighs its likely benefit," Fed. R. Civ. P. 26(b)(1) (emphasis added).

Federal Rule 26(b)(2)(C)(i) allows this Court to limit the scope and means for discovery if "the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive." Rule 37(a) allows a party to apply to the Court for an Order compelling discovery, with that motion including acertification that the movant in good faith conferred or attempted to confer with the party not making the disclosure to secure that disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A). Under Rule 26(c), the Court has power to protect against abuses in discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984). The appropriateness of a protective Order is a balance of the litigation needs of the requesting party and the protectable interests of the party from whom discovery is sought. Mitchell v. Fishbein, 227 F.R.D. 239, 245 (S.D.N.Y. 2005). This Court has broad discretion in issuing such a protective order. Seattle Times, supra, 467 U.S. at 36.

At issue in this case is whether plaintiff makes claims that warrant production of defendant's employment records after October 19, 2015, the date plaintiff issued the Letter of Determination. Defendant makes two arguments on this ground. First, plaintiff's claim is limited to the period for conciliation, up to October 2015 and not later and, second, that production beyond October 2015 (added to production within what defendant believes is the relevant period of 2009-2015) is overly burdensome (Docket No. 42, Def. Memo. at 7).

II. Application

A. Two Preliminary Matters

Defendant raises two preliminary issues that can be addressed briefly.

1. Rule 37 Meet and Confer Requirement

Defendant also argues that plaintiff fails to comply with the meet and confer requirement of Rule 37 (Docket No. 42, Def. Memo. at 5). Plaintiff's reply papers outline its efforts in meeting with defendant to resolve this motion. Defendant's...