EEOC v. A & F Fire Prot. Co.
EEOC v. A & F Fire Prot. Co.
2018 WL 11508959 (E.D.N.Y. 2018)
December 6, 2018

Lindsay, Arlene R.,  United States Magistrate Judge

Redaction
Failure to Produce
Proportionality
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Summary
The Court granted the EEOC's motion to compel discovery from the Defendant for the periods January 2013-May 22, 2013 and from April 14, 2017 to the present. The Court also allowed the EEOC to obtain ESI such as financial statements, tax returns, audited balance sheets, and the name, address, and nature of any related business entities.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
A & F FIRE PROTECTION CO., INC., Defendant
CV 17-4745 (DRH)(ARL)
United States District Court, E.D. New York
Signed December 06, 2018

Counsel

Jeffrey Burstein, Justin Mulaire, Liane Tai Rice, Raechel Adams, U.S. Equal Employment Opportunity Commission New York District Office, New York, NY, Kirsten Peters, Pro Hac Vice, Equal Employment Opportunity Commission, Manhattan, NY, Rosemary DiSavino, Pro Hac Vice, EEOC, Newark, NJ, for Plaintiff.
Ana Getiashvili, Gerald C. Waters, Jr., Larry R. Martinez, Dong Phuong Van Nguyen, Nicholas Paul Melito, Law Offices of Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, NY, for Defendant.
Lindsay, Arlene R., United States Magistrate Judge

ORDER

*1 Before the Court is the Plaintiff U.S. Equal Employment Opportunity Commission's (“EEOC” or “Plaintiff”) motion to compel discovery filed on November 1, 2018. ECF No. 36. A & F Fire Protection Co., Inc. (“Defendant”) responded to the motion to compel by letter dated November 9, 2018. ECF No. 40. For the reasons set forth below Plaintiff's motion shall be granted, in part, denied, in part.
On August 14, 2017, Plaintiff commenced this action against Defendant to correct and redress alleged discrimination in the workplace. The Complaint alleges various unlawful employment practices based upon race and national origin. On October 17, 2017, Defendant filed an answer to the Complaint. Plaintiff has moved to strike certain of Defendant's affirmative defenses. That motion is fully briefed and has been referred to the undersigned for a Report and Recommendation. Presently before the Court is Plaintiff's motion to compel more complete responses to Plaintiff EEOC's First Set Of Interrogatories To Defendant A & F Fire Protection Co., Inc. (“Interrogatories”) and Plaintiff EEOC's First Request For Production Of Documents To A & F Fire Protection Co., Inc. (“Document Requests”).
First, Plaintiff seeks to compel discovery responses for the periods, January 2013-May 22, 2013 and from April 14, 2017 to the present. Plaintiff contends that “discovery covering a reasonable number of years prior to and after the liability period is routinely permitted.” Pl. Ltr at 2 (citing Cooper v. Parsky, 140 F.3d 433, 440-41 (2d Cir. 1988)) (“evidence of ... conduct may be admissible to shed light on the motives with which acts within the limitations period were performed”). Defendant argues the time period should be limited to 300 days prior to the filing of the first charge, ending on the date of issuance of the Letter of Determination in the administrative investigation (April 14, 2017).
This action seeks to redress claims arising from a hostile work environment allegedly created by Defendant. “Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct.” AMTRAK v. Morgan, 536 U.S. 101, 117, 122 S. Ct. 2061, 2074, 153 L. Ed. 2d 106 (2002). Because a hostile work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice, a hostile work environment claim will be timely so long as “one act contributing to claim occurred within the statutory period; if it did, ‘the entire time period of the hostile environment may be considered by a court for purposes of determining liability.’ ” Sundram v. Brookhaven Nat'l Labs, 424 F. Supp. 2d 545, 560 (E.D.N.Y. 2006) (quoting Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir. 2004)); Go v. Rockefeller Univ., 280 F.R.D. 165, 172 (S.D.N.Y. 2012) (discovery generally permitted for a few years prior to the defendants’ alleged illegal action); Williams v. Borough of Manhattan Community College, No. 94 Civ. 4304 (RWS), 1995 U.S. Dist. LEXIS 11958, 1995 WL 495499 (S.D.N.Y. Aug. 18, 1995) (allowing discovery relating to conduct occurring before the claim period begins because “[u]nder this ‘continuing violation’ exception to the Title VII limitations period, if an employee files an EEOC complaint that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims for acts of discrimination pursuant to that policy will be timely, even if they would be untimely standing alone”). Accordingly, discovery into actions and practices prior to the period of the claim may lead to evidence of the alleged hostile environment. Thus, discovery into the period prior to 300 days before the filing of the first complaint on March 25, 2014 is appropriate.
*2 With respect to the period following issuance of the Letter of Determination in the administrative investigation (April 14, 2017) to the present, “the scope of discovery is commonly extended to a reasonable number of years prior to the defendants’ alleged illegal action and also for periods after the alleged discrimination.” Miles v. Boeing Co., 154 F.R.D. 117, 118 (E.D. Pa. 1994). In the Complaint, Plaintiff alleges that “[s]ince 2013, Defendant subjected other black and Hispanic employees to the same race-national origin-based hostile work environment ...” ECF No. 1, ¶ 17. Thus, contrary to Defendant's assertion, there is an allegation that the discrimination is ongoing, and, indeed, Plaintiff seeks a permanent injunction, enjoining Defendant for these discriminatory practices. Accordingly, discovery after the Letter of Determination issued is appropriate and Plaintiff's motion to compel is granted.
Defendant shall produce documents responsive to Plaintiff's requests and revised interrogatory responses for the time period January 2013-May 22, 2013 and from April 14, 2017 to the present within 30 days from the date of this order.
Second, Plaintiff contends that discovery should not be limited to a single job classification or department. “Despite this broad scope of discovery permitted in Title VII actions, there are appropriate limits that may be imposed in order to balance the needs and rights of both plaintiff and defendant.” Obiajulu v. City of Rochester, 166 F.R.D. 293, 296 (W.D.N.Y. 1996) (citing Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir. 1990) (limiting discovery in Title VII cases to employing unit); James v. Newspaper Agency Corp., 591 F.2d 579 (10th Cir. 1979) (limiting discovery in gender discrimination case to plaintiff's department); Haselhorst v. Wal-Mart Stores, Inc., 163 F.R.D. 10 (D. Kan. 1995) (discovery limited to employing unit); Rodger v. Electronic Data Systems, 155 F.R.D. 537 (E.D.N.C. 1994) (appropriate scope of discovery in age discrimination case was relevant operations division)).
Plaintiff's motion to compel Defendant to respond to the Interrogatories and Document Requests for all employees is denied as overly broad and not-proportional, however, Plaintiff may propound more directed requests to a broader category of employees, provided such requests are specifically tailored to the actions alleged in the Complaint.
Third, Plaintiff seeks an order compelling Defendant to produce unredacted copies of documents. In a footnote, Defendant agrees to review its document production for any redactions that are objectionable to the EEOC. In addition, Defendant has requested the Court enter a Confidentiality Order with regard to the parties’ document production. The parties are directed to meet and confer regarding the terms of a Confidentiality Agreement and submit a proposed order to the Court no later than December 28, 2018.
Finally, Plaintiff contends that it is entitled to discovery regarding related business entities. Defendant opposes this production, claiming the EEOC is engaged in a fishing expedition. Plaintiff argues that it is entitled explore whether any or all of the employees of the related entities may be considered employees of Defendant in order to determine the applicable statutory damages cap. To do so, Plaintiff must establish that the single employer doctrine applies. See Centeno v. 75 Lenox Realty LLC/J.K. Mgmt. Corp., No. 14 CV 1916 (DLI)(LB), 2017 U.S. Dist. LEXIS 15008 *28 (E.D.N.Y. Feb 1, 2017). This requires Plaintiff to “establish that the defendant is part of an ‘integrated enterprise’ with the employer, thus making one liable for the other.” Parker v. Columbia Pictures Industries, 204 F.3d 326, 341 (2d Cir. 2000); see also Arculeo v. On-Site Sales & Marketing, LLC, 425 F.3d 193, 198 (2d Cir. 2005) (“There is well-established authority under this theory that, in appropriate circumstances, an employee, who is technically employed on the books of one entity, which is deemed to be part of a larger ‘single-employer’ entity, may impose liability for certain violations of employment law not only on the nominal employer but also on another entity comprising part of the single integrated employer.”). Thus, Plaintiff is entitled to discovery regarding related business entities to obtain this information. See, e.g., Ujkic v. Twenty-First Century Fox, Inc., No. 16-CV-9608 (AJN), 2018 U.S. Dist. LEXIS 48594 (S.D.N.Y. Mar. 22, 2018) (discovery permitted to reveal relationship between plaintiff and related entities); Ayala v. Metro One Sec. Sys., Inc., No. 11-CV-233 (JG) (ALC), 2011 U.S. Dist. LEXIS 42325, 2011 WL 1486559 (E.D.N.Y. Apr. 19, 2011) (plaintiff “entitled to discovery of any facts within the defendants’ possession that may reveal the defendants to be a single integrated enterprise”).
*3 Defendant is directed to produce documents responsive to Plaintiff's Document Requests Nos. 2, limited at this time to financial statements, tax returns and audited balance sheets of Defendant, 28, 29 and 40, limited at this time to the name, address and nature of any such business entities within 30 days from the date of this Order.