Opinion
No. 05 Civ. 2868 (JSR)(KNF).
October 26, 2006
MEMORANDUM AND ORDER
I. INTRODUCTION
In this civil rights action for retaliation brought by Dan Shah ("Shah") against his former employer, the Consolidated Edison Corporation ("Con Ed"), the plaintiff seeks to amend his complaint and asks for an order from the Court directing the defendant to disclose: (1) Con Ed's sick leave policy in effect when the plaintiff was terminated, as well as the method by which his sick leave was calculated; (2) all complaints and files pertaining to internal and external complaints of racial discrimination and/or retaliation, including complaints filed in federal or state courts against Con Ed; (3) contact information of the persons who filed those complaints; and (4) all Con Ed EEO, Human Resources, investigative, security, disciplinary, and personnel files pertaining to a sexual harassment complaint made by Masoud Hashmi ("Hashmi file"), who is not a party to this action. The defendant opposes the plaintiff's application to: (a) amend his complaint; and (b) compel disclosure. However, in the event that disclosure is ordered, Con Ed has requested that the Court issue an appropriate protective order that limits the use and dissemination of any material surrendered to the plaintiff. The plaintiff's motion is analyzed below.
BACKGROUND
On April 14, 2004, the plaintiff commenced a civil rights action against Con Ed ("Shah I"), alleging unlawful retaliation and that he was subjected to a hostile work environment. On March 15, 2005, the court granted Con Ed's motion for summary judgment, and dismissed the complaint with prejudice. See Shah v. Consolidated Edison Corp. of New York, No. 04 Civ. 2880 (S.D.N.Y. Mar. 15, 2005). The plaintiff commenced this action ("Shah II") on March 14, 2005. The complaint alleged retaliatory termination and that Con Ed maintained a hostile work environment. The defendant moved to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court granted the defendant partial relief, in that it dismissed the hostile work environment claim under the doctrines of res judicata and collateral estoppel, but determined that Shah could prosecute his retaliatory termination claim. Thereafter, disputes emerged over the propriety and scope of the plaintiff's discovery demands. A conference was held with the parties to address the disputes. At the conference, additional discovery disputes were presented to the Court for resolution. In addition, the plaintiff informed the Court that he wished to amend his complaint to include additional retaliation claims and a claim for constructive discharge. To facilitate matters, the parties were directed to make concise written submissions to the Court, setting forth their respective positions on the newest discovery dispute and the request to amend the complaint. The parties complied. The Court has considered the parties' written submissions.
DISCUSSION
1. Motion to Amend ComplaintFederal Rule of Civil Procedure 15(a) provides, in part, the following:
A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
Although a motion to dismiss is not a responsive pleading for purposes of Rule 15(a), and the plaintiff has a right to amend the complaint without leave of the court before a responsive pleading is served, that right "terminates upon the granting of the motion to dismiss." Elfenbein v. Gulf Western Indus., 590 F.2d 445, 448 n. 1 (2d Cir. 1978). This is so even where the motion to dismiss is granted in part. See Fezzani v. Bear, Stearns Co., No. 99 Civ. 0793, 2005 WL 500377, at *1-2 (S.D.N.Y. Mar. 2, 2005). A plaintiff whose right to amend the complaint once as a matter of course terminated, must seek leave to amend from the court. See Swan v. Bd. of Higher Educ., 319 F.2d 56, 60-61 (2d Cir. 1963). Absent "undue delay, bad faith, or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.," leave to amend a pleading should be "freely given," in accordance with Rule 15(a).Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962). "An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12 (b)(6)." Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (citing Dougherty v. North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 [2d Cir. 2002]).
The plaintiff seeks to add a claim for constructive discharge to his complaint. The defendant contends the plaintiff's attempt to assert a claim for constructive discharge is actually an attempt to do indirectly what he cannot do directly: reassert the hostile work environment claim that was previously dismissed by the court. Therefore, the defendant maintains the Court should deny the instant motion to amend because the "constructive discharge" claim is barred by the principles of res judicata and collateral estoppel, since it is based on the same factual allegations as the hostile work environment claim, which was dismissed previously by the court. The Court agrees.
Earlier in this litigation, the plaintiff asserted a hostile work environment claim against the defendant. The claim was based on the same factual allegations he made in Shah I, to wit, that he was a victim of a racially hostile work environment, maintained by the defendant through its failure to address its racially discriminatory and retaliatory practices. On July 28, 2006, the assigned district judge dismissed that claim with prejudice, upon the application of Con Ed, and pursuant to the doctrines of res judicata and collateral estoppel.
In the instant motion, the plaintiff proposes to amend the complaint to add a constructive discharge claim, which recites the same factual allegations that already failed to survive a defense motion to dismiss. In fact, the language of the first three paragraphs of the proposed constructive discharge claim is identical to the language the plaintiff used in the hostile work environment claim he asserted in his original complaint. The plaintiff does not allege any new facts or any facts different from those he alleged in his hostile work environment claim. He simply recast the claim by asserting that he used accrued sick leave to absent himself from work because of the hostile work environment to which he was subjected by the defendant.
"A hostile-environment constructive discharge claim entails something more [than an abusive work environment]: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign." Pennsylvania State Police v. Suders, 542 U.S. 129, 147, 124 S. Ct. 2342, 2354 (2004). Here, the plaintiff did not resign involuntarily; rather, he took advantage of the defendant's paid sick leave policy to absent himself from work in May 2004, shortly after he filed the complaint in Shah I. The defendant discharged the plaintiff after he failed to return to work upon exhausting his sick leave benefits. Consequently, granting the plaintiff's request to amend his complaint, to add a claim for constructive discharge, would be a futile exercise because the proposed constructive discharge claim could not withstand a motion to dismiss made pursuant to Fed.R.Civ.P. 12(b)(6). Accordingly, the plaintiff's request, to amend the complaint to add a constructive discharge claim, is denied.
The plaintiff also seeks to amend the complaint to augment his retaliatory termination claim. In the original complaint, the plaintiff alleged he was unlawfully terminated by Con Ed because he: (i) complained about unlawfully racial discrimination on his own behalf and on behalf of other Con Ed employees; and (ii) was willing to testify in a court proceeding concerning the circumstances at Con Ed about which he complained. In the motion before the Court, the plaintiff proposes to add the following allegations to his claim of retaliatory termination: (a) that he was terminated by Con Ed because he complained about unlawful discrimination on behalf of a co-worker on whose behalf Shah testified; and (b) that he was terminated by Con Ed because he complained of unlawful discrimination and retaliatory practices and, furthermore, commenced a lawsuit on his own behalf. No evidence of undue delay, bad faith or dilatory motive on the part of the plaintiff in attempting to amend his complaint to augment his retaliatory termination claim appears to exist. Moreover, Con Ed does not allege that it will be prejudiced in any way by this proposed augmentation of the retaliatory termination claim. The Court does not perceive any prejudice that would be visited upon the defendant were the augmentation allowed. In addition, since the court determined previously that the retaliatory termination claim should not be dismissed, the Court finds that augmenting the factual allegations of that claim would not be futile. Accordingly, the plaintiff's request, to amend the complaint, by augmenting his retaliatory termination claim with additional factual allegations, is granted.
2. Discovery Requests
The plaintiff seeks disclosure of any internal and external complaints of unlawful discrimination and/or retaliation made by other Con Ed employees for the five-year period commencing January 1999. The plaintiff also seeks any files made and kept by Con Ed regarding those complaints. The defendant objects to this request. It contends the plaintiff's request is: (i) beyond the scope of Fed.R.Civ.P. 26(b); (ii) overly broad; and (iii) likely to cause irreparable harm to the defendant, because it would require the disclosure of confidential information.
The Federal Rules of Civil Procedure inform that, a party "may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defenses of any party." Fed.R.Civ.P. 26 (b) (1). The discovery rules are to be accorded broad and liberal treatment to ensure that civil trials in federal courts are not carried on in the dark. See Ratliff v. Davis Polk Wardwell, 354 F.3d 165, 170 (2d Cir. 2003). A trial court has wide discretion in its handling of matters pertinent to pre-trial discovery. See Cruden v. Bank of New York, 957 F.2d 961, 972 (2d Cir. 1992). "A Court has the discretion to deny discovery requests if it determines that they are not `reasonably calculated to lead to the discovery of admissible evidence,' Fed.R.Civ.P. 26(b)(1) or that `the burden or expense of the proposed discovery outweighs its likely benefit.' Fed.R.Civ.P. 26(b)(2)." Yurman v. Chaindom Enterprises, Inc., No. 99 Civ. 9307, 2000 WL 1871715, at *3 (S.D.N.Y. Dec. 20, 2000).
a. Sick Leave Policy
The defendant contends the plaintiff's employment was terminated because he failed to return to work after exhausting his sick leave. The plaintiff contests that claim and asserts that Con Ed did not terminate every employee who exhausted his or her sick leave. Furthermore, according to Shah, alternatives to termination that Con Ed has made available to others, were not offered to him because of his claims of unlawful discrimination and retaliation. The defendant's sick leave policy, as well as the method it used to determine that Shah had exhausted his sick leave are relevant to the plaintiff's claim and not privileged information. Therefore, Con Ed must disclose that information to the plaintiff.
b. Prior Complaints of Unlawful Discrimination and/or Retaliation
The plaintiff's retaliatory termination claim survived the defendant's motion to dismiss. Consequently, the plaintiff is entitled to obtain information that is relevant to that claim and not privileged. Con Ed contends that, because the retaliation and hostile work environment claims the plaintiff made in Shah I were dismissed on the merits, as a result of Con Ed's motion for summary judgment and, furthermore, since the plaintiff's requests for the same information were denied, as irrelevant, by the court in Shah I, it follows that the instant request should also be denied. However, Con Ed ignores the fact that the Shah I complaint did not contain a claim for retaliatory termination. Therefore, the denials of the plaintiff's requests for disclosure in Shah I do not control the Court's determination of the instant disclosure request.
In order to establish a prima facie case of retaliation, Shah will have to show that he engaged in protected activity, his employer was aware of his participation in protected activity, he suffered an adverse employment action based upon his activity and a causal connection exists between the protected activity and the adverse employment action. See Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993). Proof of causation can be shown indirectly. This may be accomplished through circumstantial evidence, such as instances where similar disparate treatment was visited on fellow employees who engaged in similar conduct. See Taitt v. Chemical Bank, 849 F.2d 775, 778 (2d Cir. 1988);Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). The Court finds that in the circumstance of the case at bar, the plaintiff is entitled to obtain disclosure of the material maintained by the defendant related to complaints of other Con Ed employees who have been terminated after complaining of unlawful discrimination or retaliation since that information is relevant to the subject matter of this action. The material to be disclosed shall pertain to the five years immediately preceding the date of the plaintiff's termination. The plaintiff is directed to use any material disclosed by Con Ed in response to the instant discovery demand solely in connection with the prosecution of this action.
c. Contact Information of All Persons Who Filed Internal or External Complaints
During the prosecution of Shah I, the plaintiff made a motion to compel disclosure of contact information for all employees of Con Ed who had filed external discrimination complaints, including those filed with a court. The motion was denied. The court explained that Shah's request was a "`catch-all' request" that is "patently overbroad." Through the instant request, the plaintiff seeks contact information of all persons who complained about unlawful discrimination by the defendant and/or retaliation, both internally to Con Ed and externally to administrative agencies and federal or state courts. Shah contends he wishes to interview these persons and to use them as witnesses at trial.
This request is overly broad and will not be granted because doing so would require the defendant to expend resources obtaining and disclosing material that is not relevant to the subject matter of this action. However, as discussed above, the plaintiff is entitled to have the defendant disclose information it maintains about retaliatory termination claims made by others to and about Con Ed. As a consequence, the Court is persuaded that he is also entitled to receive contact information Con Ed has for the persons who made those complaints and to use that information solely in connection with the prosecution of this action.
c. Masoud Hashmi Files
The only claim in this action is the retaliatory termination claim. The plaintiff neither alleges that Masoud Hashmi was retaliated against by the defendant nor that his employment with Con Ed was terminated in retaliation for making a complaint of racial discrimination. Therefore, the Court finds that no basis exists for directing Con Ed to disclose the Hashmi file to the plaintiff. Accordingly, the plaintiff's request, for an order directing Con Ed to disclose the Hashmi file, is denied.
CONCLUSION
For the reasons set forth above, the plaintiff's motion, to amend the complaint to add a claim for constructive discharge, is denied; and the plaintiff's motion, to amend the complaint to augment his retaliatory termination claim, is granted. The plaintiff's motion, to compel disclosure of certain historical information, is granted in part and denied in part.
SO ORDERED.