Opinion
602102/03.
Decided February 7, 2005.
In this action, plaintiff alleges, inter alia, that he was subjected to a hostile work environment and disparate treatment based on his race, age and national origin when employed at the defendant Israel Discount Bank of New York (hereafter the "Bank") in violation of New York State and New York City Human Rights Laws. Plaintiff further alleges that the individual defendants, who hold supervisory positions at the Bank, engaged in discriminatory conduct and/or were aware of such conduct and failed to stop it.
According to the complaint, the discriminatory conduct against plaintiff, who had been employed by the Bank since 1987, began in 1992, when he began to work at the Bank's bookkeeping department where his supervisors were defendants Elena Bastante and Joseph Cortes. In particular, plaintiff, who is Caucasian and whose ethnic background and religious faith is Jewish, alleges that he was discriminated against as the only non-Hispanic employee in the bookkeeping department. ( It is alleged that the only other Caucasian Jewish employee in the bookkeeping department was also discriminated against and as a result left the department). The purported discriminatory conduct is alleged to have occurred from 1992 until plaintiff was terminated in November of 2002. By decision and order dated September 24, 2004, this court found that as plaintiff was entitled to discovery dating back to 1992 based on his claim alleging a hostile work environment.
At issue here are plaintiff's Interrogatories Nos. 3 and 4 and defendants' objections and responses thereto which state as follows:
Interrogatory No. 3
Please state whether defendant [Bank] has ever received a complaint of racial discrimination.
Response to Interrogatory No. 3
Defendants object to Interrogatory No. 3 on the grounds that it is vague, overly broad time and scope and it seeks information that it not material and necessary to the prosecution or defense of this action.
Without waiving these objections, defendant [Bank] responds that is not aware of any complaints filed during the period of plaintiff's employment by or on behalf of any [Bank] employee with any federal, state or local government agency, or any court actions concerning discrimination on the basis of an employee's Caucasian race or Jewish religion or heritage.
Interrogatory No. 4
If your answer to the proceeding question is in the affirmative, please state:
a. The name, title, sex, age, race, religion, and national origin of each applicant and employee who made such complaint;
b. The date of such complaint;
c. A description of the complaint and its basis;
d. A description of the investigation and resolution of each complaint;
e. The name, title, and age of the person(s) responsible for resolving each complaint;
f. The current employment status of the person filing the complaint.Response to Interrogatory No. 4
See response to Interrogatory No. 3.
DISCUSSION
"Evidence of past discriminatory practices of an employer is generally relevant in employment discrimination cases." Abrams v. General Electric Co., 1997 WL 458446 (ND NY 1997); see also Abbott v. Memorial Sloan-Kettering Cancer Center, 276 AD2d 432, 433 (1st Dept 2000). At the same time, however, a plaintiff in a discrimination action is not entitled to information regarding all formal and informal complaints against a defendant without limitation as to the nature, time or geographical location of such complaints. See Neuschatz v. Societe Generale, 176 AD2d 134 (1st Dept 1991) (holding that information sought by plaintiff in sexual discrimination action was not relevant where request for all formal and informal complaints of sexual harassment against defendant); McCarthy v. Klein, 238 AD2d 552 (2d Dept 1997) (finding that request in documents relating to other acts of sexual abuse, sexual misconduct, or sexual misconduct made by former employees, patients, or any other person against the defendant doctor were not relevant to plaintiff's claims that she was terminated from her position as a result of sexual discrimination and a hostile work environment). Instead, "other claims of discrimination against a defendant are discoverable [only] if limited to the same form of discrimination, if limited to the same department or agency where plaintiff worked, and if limited to a reasonable time before and after the discrimination complained of." Bolia v. Mecury Print Productions, Inc., 2004 WL 2526407, *1 (WD NY 2004) (citations omitted).
Apparently recognizing that the subject interrogatories are overly broad, plaintiff's counsel indicates in his letter dated December 8, 2004, that "he is willing to limit the scope of his request to informal and formal complaints of racial and/or religious discrimination relating to the bookkeeping department at [the Bank] made from 1992 to 2002."
Here, the gravamen of plaintiff's claim is that he was discriminated against as a Caucasian, Jewish male, who is not of Hispanic origin. Accordingly, employee complaints of discrimination based on race or religious persuasion made by any non-Hispanic employees working in the Bank's book-keeping department would be relevant to plaintiff's claims.
As for the time limitations for such complaints, depending on the facts of the case, courts have permitted discovery of similar complaints for two years preceding a plaintiff's employment ( Ri Sau Chan v. NYU Downtown Hosp, 2004 WL 1886009 (SD NY 2004), for two years preceding and two years after plaintiff's claims of discrimination ( Bujnicki v. American Paving Excavation, 2004 WL 1071736 (WD NY 2004); or to those employees who, like the plaintiff, had 25 years of service and were terminated within five years of the plaintiff, and filed complaints with an administrative agency during a two-year period. Abbott v. Memorial Sloan-Kettering Cancer Center, 276 AD2d at 433.
In this case, however, as to the hostile work environment claim is based on the alleged discrimination occurring over a ten-year period, plaintiff should be permitted to obtain discovery regarding complaints during this period. Although the court recognizes that ten years is significantly longer than allowed in other discrimination cases, under the factual circumstances of this case, the ten year period is reasonable.
The remaining issue is whether plaintiff is entitled to informal complaints against defendants. While the courts in discrimination cases have usually issued orders granting discovery of formal complaints of discrimination filed with either a court or administrative agency See Abbott v. Memorial Sloan-Kettering Cancer Center, 276 AD2d 432 (limiting discovery to prior complaints filed against defendants with anti-discrimination agencies); Flanagan v. Travelers Ins. Co., 111 FRD 42, 48 (WD NY 1986) (directing defendant to provide evidence regarding administrative complaints filed against defendant by other employees), informal or internal complaints have also been found to be subject to disclosure. Zahorik v. Cornell University, 98 FRD 27 (ND ND 1983) (female plaintiffs entitled to discovery of defendant's of internal complaints or grievances).
At the same time, however, as plaintiff did not complain to the Bank about the alleged discriminatory conduct, and is not claiming retaliation, evidence regarding the Bank's handling of internal complaints is not as obviously relevant here as in a retaliation case. Compare Ri Sau Chan v. Downtown Hosp, 2004 WL 1886009 (permitting discovery of informal complaints in action asserting retaliation based on plaintiff's complaints of sexual harassment). Under these circumstances, the Bank should not be required to investigate internal/informal complaints for which there is no documentary evidence. However, the Bank will be required to identify all formal complaints against it (i.e. complaints filed with a governmental agency or court) and all internal/informal complaints made against it for which there is a documentary evidence.
CONCLUSION
In view of the above, it is
ORDERED that within twenty days of the date of this order the Bank shall respond to Interrogatory No. 3 to the extent of indicating whether, for the period between 1992 and 2002, the Bank was the subject of any claims filed with any court or administrative agency or any informal complaints for which there is a written record regarding discrimination based on race or religious persuasion by non-Hispanic employees working in the book-keeping department; and it is further
ORDERED that to the extent any complaints are identified in response to Interrogatory No. 3, the Bank shall respond to Interrogatory No. 4.
The court notes that personnel information is subject to a Confidentiality Stipulation.