Opinion
02 Civ. 3727 (GBD)(HBP).
June 12, 2003.
MEMORANDUM OPINION AND ORDER
I write to resolve the discovery issues left open at the June 3, 2003 conference concerning plaintiff's motion to compel the production of documents.
By letter dated June 11, 2003, defendant has advised the court that it has no documents concerning disciplinary actions against Adda Del Rosario. According, plaintiff's request fro such documents is denied as moot. To the extent plaintiff originally sought documents concerning disciplinary actions against other employees, by letter dated June 10, 2003, plaintiff limited his request to Ms. Del Rosario, and in all other respects, the request is deemed withdrawn.
To the extent plaintiff seeks documents concerning complaints against Robert Senior, his request is granted in part. Because intent is in issue in this case, similar act evidence may be admissible. Fed.R.Evid. 404(b). Thus, complaints of discrimination or other forms of mistreatment against Senior by other deaf employees may lead to the discovery of admissible similar act evidence. Accordingly, no later than June 29, 2003, defendant is directed to produce all documents in its possession, custody or control concerning any complaint made to any person by any of defendant's hearing impaired employees who worked during the evening shift (2:30 p.m. to 11:00 p.m.) at the Joseph Addabbo Building regarding Robert Senior.
Defendant resists an identical discovery concerning Hector Obregon by relying on deposition testimony in which plaintiff stated that he did not believe Obregon treated him differently because he was deaf (Ortega Dep. at 129). Although Ortega clearly did testify in the manner claimed by defendant, at another point in his deposition, Ortega testified that he did believe Obregon treated him differently and gave him "attitude" because he was deaf (Ortega Dep. 169-70). Which of these conflicting accounts should be credited cannot be resolved in the context of a discovery dispute, and to hold that the former account is controlling would, in effect, constitute a grant of partial summary judgment that Obregon was not guilty of any act of discrimination. Since Ortega gave conflicting testimony concerning Obregon, there is no legal basis, at this stage of the proceedings, to conclude that he did not discriminate against plaintiff, complaints against him by other deaf employees are discoverable for the same reason that complaints against Senior by other deaf employees are discoverable. Accordingly, no later than June 29, 2003, defendant is directed to produce all documents in its possession custody or control concerning any com plaint made to any person by any of defendant's hearing impaired employees who worked during the evening shift (2:30 p.m. to 11:00 p.m.) at the Joseph Addabbo Building regarding Hector Obregon.
Plaintiff does not press his request for documents concerning other complaints by deaf workers at the Joseph Addabbo building, and I deem it withdrawn (see, Letter of John J. Leonard, Esq., dated June 10, 2003 (omitting all reference to plaintiff's request for other documents concerning complaints by deaf employees).