Opinion
Civil Action 2:05-CV-87.
April 25, 2006
OPINION AND ORDER
This is an employment action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, and 42 U.S.C. § 1983, in which plaintiff, a female African-American police officer, alleges that she was discriminated against on account of her sex and race, was subjected to a hostile work environment and was retaliated against for having engaged in protected activity. Plaintiff also asserts a supplemental state law claim of intentional infliction of emotional distress. Named as defendants are the City of Columbus and defendant Sergeant Hamilton, plaintiff's supervisor. This matter is now before the Court on a number of discovery-related motions.
Plaintiff's Motions under F.R. Civ. P. 56(f), Doc. Nos. 23, 25.
Following the preliminary pretrial conference held on June 8, 2005, this Court ordered that discovery be completed by February 28, 2006, and that motions for summary judgment be filed no later than February 1, 2006. Preliminary Pretrial Order, Doc. No. 6. Defendants filed motions for summary judgment in a timely fashion. Doc. Nos. 14, 15. On March 6 and 7, 2006, plaintiff filed motions under F.R. Civ. P. 56(f) to permit additional discovery prior to responding to the motions for summary judgment. Doc. Nos. 23, 25. Defendants oppose these motions.
Rule 56(f) of the Federal Rules of Civil Procedure provides as follows:
When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
In the Sixth Circuit, a party invoking the provisions of Rule 56(f) must "file an affidavit that details the discovery needed, and . . . explain how it will help rebut the movant's showing of the absence of a genuine issue of material fact." Gettings v. Building Laborers Local 310 Fringe Benefit Fund, 349 F.3d 300, 305 (6th Cir. 2005) (citing Wallin v. Norman, 317 F.3d 558, 564 (6th Cir. 2003)). The affidavit required by Rule 56(f) must "indicate to the district court [the moving party's] need for discovery, what material facts [the moving party] hopes to uncover and why [the moving party] has not previously discovered the information." Id., quoting Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000). The importance of complying with Rule 56(f) cannot be over emphasized. Cacevic, 226 F.3d at 488.
The plaintiff's request for a continuance of the discovery completion date under Rule 56(f) is deficient in a number of respects. First, the affidavit of plaintiff's counsel, Doc. No. 24, does not appear to have been executed before a person qualified to administer an oath, notwithstanding the recitation of the language that the affiant was "duly sworn upon oath." Doc. No. 24. Moreover, although not every declaration must be sworn to be admissible, plaintiffs' counsel has not invoked the proper alternative to a notarized affidavit provided by 28 U.S.C. § 1746. Even overlooking this technical deficiency, the plaintiff's motions under Rule 56(f) also fail to provide in any meaningful detail the evidence that the requested discovery is likely to disclose. In any event, plaintiff has failed to establish that the discovery requested by her is necessary to meaningfully respond to the motions for summary judgment.
An unsworn declaration will have the same force and effect of a sworn declaration if executed under penalty of perjury in substantially the following language: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)." 28 U.S.C. § 1746(2).
Both motions for summary judgment present essentially legal claims. For example, both movants contend that plaintiff's discrimination claims are without merit because she has not established that she was subjected to a materially adverse employment action. Defendant Hamilton also contends that, as a matter of law, he cannot be held individually liable under Title VII and he challenges the legal sufficiency of plaintiff's claim of intentional infliction of emotional distress. The city also contends that plaintiff's own allegations do not allege that her claim of a hostile work environment is based on race or gender and that, as a matter of law, plaintiff's claims under 42 U.S.C. § 1983 and under state law cannot prevail. The only affidavits submitted in support of either motion for summary judgment are submitted to authenticate documents.
In her motions under Rule 56(f), plaintiff seeks an additional sixty days to propound requests for production of documents to both defendants and to depose defendant Hamilton and three other individuals associated with the Columbus Police Department. Although plaintiff states, in conclusory fashion, that the requested discovery "will result in or reveal genuine issues of material fact," Plaintiff's Supplemental Motion to Continue Discovery Cut-off in Accordance with F.R. Civ. P. 56(f), at pp. 7-8, Doc. Nos. 23, 25, it is not at all clear how the requested discovery can do so. Moreover, plaintiff's own affidavit could presumably allow plaintiff to meaningfully respond to the motions for summary judgment. Surely, for example, plaintiff's own affidavit regarding her treatment at the hands of defendants is at least as relevant as any testimony that plaintiff may obtain by deposing defendant Hamilton. Thus, the Court concludes that the requested discovery is not necessary to permit plaintiff to respond to the motions for summary judgment. Accordingly, plaintiff's motions to continue the discovery cut-off date in accordance with F.R. Civ. P. 56(f), Doc. Nos. 23, 25, are DENIED. Plaintiff's Motion for Extension of Time to Respond to Motions for Summary Judgment, Doc. No. 16.
On February 1, 2006, i.e., the same date that the defendant city filed its motion for summary judgment and approximately one week after defendant Hamilton filed his motion for summary judgment, plaintiff filed a motion for extension of time. Doc. No. 16. Plaintiff's motion, Doc. No. 16, is GRANTED as follows: Plaintiff may have ten (10) days from the date of this Order to respond to the motions for summary judgment.
Defendant Hamilton's Motion to Compel , Doc. No. 8.
On November 17, 2005, defendant Hamilton filed a motion to compel discovery and for sanctions in connection with plaintiff's alleged failure to respond to this defendant's discovery requests. Doc. No. 8. Plaintiff thereafter made substantive response to defendant Hamilton's discovery requests. See Response to Show Cause Order, Doc. No. 12. However, plaintiff has never, despite having been expressly granted an extension of time to do so, see Doc. No. 20, responded to defendant Hamilton's request for sanctions.
It is clear that plaintiff's substantive response to defendants' discovery requests was made only after the filing of the motion to compel. The Court concludes that plaintiff's failure to make timely response to the discovery requests was not "substantially justified" and an award of sanctions under F.R. Civ. P. 37(a)(4)(A) is warranted.
The motion to compel, to the extent that it seeks an award of sanctions, Doc. No. 8, is therefore GRANTED. Counsel for defendant Hamilton shall promptly provide to plaintiff's counsel an itemized statement of expenses, including attorney's fees incurred by defendant Hamilton in connection with the motion to compel. If any party wishes a hearing on the amount of sanctions to be awarded, that party shall request a hearing.
This Order resolves Doc. Nos. 8, 16, 23 and 25. The Clerk is DIRECTED to remove these motions from the Court's pending motions list.