Opinion
Civil Action 2:99-CV-1357
July 1, 2003
OPINION AND ORDER
Plaintiff brings this action for race and sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, as amended, and 42 U.S.C. § 1981 as well as conspiracy claims under 42 U.S.C. § 1985, 1986. Plaintiff also asserts supplemental state law claims under O.R.C. § 4112.02, .99, with additional common law claims of wrongful discharge, defamation, negligence, breach of contract, promissory estoppel, negligent and intentional infliction of emotional distress, civil conspiracy, and fraud. With the consent of the parties, 28 U.S.C. § 636 (c), this matter is before the Court on defendants' motion to dismiss
I. Background
Plaintiff names as defendants Sterling Commerce (America), Inc. (hereinafter "Sterling Commerce"), his former employer; Paul L.H. Olson, President of Sterling Commerce; Thomas Williams, Vice President of Finance and Administration; Terry Thomas, Vice President of Finance; Phyllis Hohe, Director of Business Administration; and Melissa Coleman, Manager of Contracts.
On September 16, 1996, plaintiff submitted his resumé and cover letter to Sterling Commerce in response to its advertisement seeking a Contract Specialist. First Amended Complaint, ¶¶ 11-12. During his interview with Sterling Commerce on November 7, 1996, plaintiff was allegedly informed by the Human Resources Advisor that the Contract Specialist position had been upgraded to a Senior Contract Specialist because defendant Hohe wished to fill the position with an individual possessing a law degree. Id., at ¶ 14. Plaintiff alleges that he was told that he would be considered for the Senior Contract Specialist position because he was a licensed attorney. Id. Plaintiff was later interviewed by Hohe, who, plaintiff alleges, informed him that the business environment and growth of Sterling Commerce would provide plaintiff with many opportunities for advancement and exposure to significant responsibilities. Id., at ¶ 18. However, plaintiff alleges that he was advised that Hohe did not offer him the position of Senior Contract Specialist because she was looking for an individual with more experience in the area of intellectual property Id., at ¶ 19. On December 18, 1996, plaintiff was offered the position of Contract Specialist. Id. Plaintiff accepted that offer of employment on December 23, 1996 and began working on December 29, 1996. Id., at ¶¶ 21, 24.
Plaintiff contends that he was the only male employee in the Department of Business Administration and that, beginning in February 1997, Hohe became hostile toward him and began treating him differently than the female employees under her supervision. Id., at ¶¶ 25-29. Plaintiff alleges that Hohe would assign him a project, then re-assign the project to female employees when it grew in significance. Id., at ¶ 31. Plaintiff also contends that Hohe failed to provide him with the same training that she provided to female employees. Id., at ¶ 32. Hohe also, allegedly, unreasonably increased plaintiff's workload and unfairly criticized and altered his work product, while not doing so to female employees. Id., at ¶¶ 33, 35. Plaintiff alleges that Hohe addressed him in a condescending and disrespectful tone, but did not do so in regard to her female employees. Id., at ¶ 36. Plaintiff further alleges that, in June 1997, Sterling Commerce and Hohe hired Coleman, a white female, as Manager of Contracts despite her lack of experience in the area of intellectual property and despite the fact that the job posting had been advertised as a Contract Specialist position. Id., at ¶ 44.
On October 1, 1997, plaintiff submitted an Employee Interim Self-Evaluation to Hohe in which plaintiff indicated that he had achieved all of his assignments, goals, and standards. Id., at ¶ 51. The self-evaluation also indicated, in the relevant section, that Hohe could assist him by alleviating inequities within the Department of Business Administration. Id., at ¶¶ 52. On October 6, 1997, Hohe and Coleman disciplined plaintiff with a "specifically created review period." Id., at ¶ 54. Coleman further disciplined plaintiff by placing him on probation. Id., at ¶ 58. Plaintiff alleges that, Coleman failed to provide him the necessary training and support he needed to succeed in his duties. Id., at ¶ 64.
On approximately October 22, 1997, plaintiff sought the assistance of defendants Olson and Williams. Id., at ¶ 78. Plaintiff alleges that, when he asked to be transferred to another department, Olson and Williams denied the request. Id., at ¶ 82. In fact, the Vice President of Human Resources informed plaintiff that his options were to either agree to a mutual separation or return to his position in the Department of Business Administration. Id., at ¶ 83.
Plaintiff further alleges that Sterling Commerce terminated his employment on December 19, 1997, after hiring a white female as a Contract Specialist on December 15, 1997. Id., at ¶¶ 68-70.
II. Discussion
On October 18, 2002, defendants filed a motion to dismiss, alleging that plaintiff has failed to fully comply with this Court's orders, and has otherwise persisted in his failure to cooperate in the discovery process. Rule 37(b)(2) of the Federal Rules of Civil Procedure provides, in relevant part, "If a party . . . fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, (including) ... [a]n order dismissing the action. . . ." Fed.R.Civ.P. 37(b)(2)(C). Additionally, Rule 41 provides, "For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action. . . ." Fed.R.Civ.P. 41(b). In applying either Rule 37(b)(2) or Rule 41, the Court is to consider four factors:
(1) whether the party's failure is due to willfulness, bad faith, or fault;
(2) whether the adversary was prejudiced by the dismissed party's conduct;
(3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and
(4) whether less drastic sanctions were imposed or considered before dismissal was ordered.Harmon v. CSX Transp. Inc., 110 F.3d 364, 366-67 (6th Cir. 1997).
A. Willfulness, Bad Faith, or Fault
Plaintiff bears the burden of showing that his failure to comply with defendants' discovery requests, as well as this Court's orders, was due to inability and not willfulness or bad faith. See United States v. Reyes, 458 F.3d 451, 458 (6th Cir. 2002). In this case, plaintiff has made no such showing, and in fact, the record reflects otherwise.
Defendants scheduled a deposition of plaintiff for March 30, 2000. See Exhibit 6, attached to Defendants' Motion for Sanctions and to Compel the Deposition of Plaintiff. Prior to March 30, plaintiff sent defendants a letter requesting that his deposition be postponed so that he could have additional time to review defendants' discovery responses. Exhibit 13, attached to Defendants' Motion for Sanctions and to Compel the Deposition of Plaintiff Defendants, however, denied plaintiff's request. Exhibit 15, attached to Defendants' Motion for Sanctions and to Compel the Deposition of Plaintiff. On March 30, plaintiff arrived for his deposition. Plaintiff responded to several preliminary questions regarding the deposition notice, his name and address, and the length of time he had spent at his current address. Exhibit A, attached to Maria Clark Affidavit, attached as Exhibit 1 to Defendants' Motion for Sanctions and to Compel the Deposition of Plaintiff. Thereafter, plaintiff refused to answer any questions and unilaterally terminated the deposition. Id. In response to defendants' motion to compel, this Court stated, "[P]laintiff was not entitled to delay his deposition on the ground that he had not had an opportunity to examine the discovery that he had requested from defendants." Opinion and Order, at p. 13 (November 16, 2000). While this Court ultimately refused to grant defendants' request for sanctions, plaintiff was advised that "the Court will not hesitate to impose sanctions against plaintiff should he again fail to participate fully in the discovery process." Id., at p. 14.
On February 15, 2000, defendants served their first set of Interrogatories and their first set of Requests for Production of Documents, requesting information related to plaintiffs claim of damages. Exhibits A and B, attached to Defendants' Motion to Compel. Plaintiff did not fully respond to these requests, but indicated that he would provided a "more detailed statement of damages" once he obtained "sufficient discovery from defendants[,]" and that he would "make [other] documents available for inspection simultaneously with defendants' complete production of documents." Exhibit E, attached to Defendants' Motion to Compel. In response to defendants' motion to compel, this Court, once again, noted, "The rules governing discovery do not permit one party to condition his discovery obligations on the other party's discovery responses." Opinion and Order, at p. 6 (September 24, 2001). This Court granted defendants' motion to compel and ordered plaintiff to respond within fifteen (15) days of the order. Id.,p at p. 7. Additionally, this Court granted defendants' request for sanctions, noting, "Plaintiff persists in attempting to transform the litigation process into a game." Id., at p. 10.
On December 10, 2001, defendants moved to dismiss this action, or in the alternative issue a preclusion order with monetary sanctions, referring to continued discovery abuses on the part of plaintiff. Defendants argued that, despite this Court's September24, 2001 order, plaintiff had failed to: (1) produce the W-2 forms and income tax returns requested, (2) provide the calculation of damages sought by him, and (3) produce information relating to his work history. Lori A. Clark Affidavit, attached as Exhibit A to Defendants' Motion (1) to Dismiss . . . or in the Alternative, Exclude Plaintiff's Damages Claims, or in the Alternative, Compel Plaintiff's Compliance with Court Order. . . . The Court, however, refused to dismiss the action at that time or to issue a preclusion order. Opinion and Order, at p. 10 (September 17, 2002). Instead, the Court gave plaintiff an additional ten (10) days to produce the requested discovery. Id. The Court noted, however, that "[t]here will be no extension of this date and the Court will accept no excuses for any failure on plaintiff's part to strictly comply with this order." Id. Plaintiff was also put on notice that "his failure to strictly comply with this order will result in the dismissal of the action." Id. (emphasis added).
On September 24, 2002, plaintiff filed a notice of appeal with the United States Court of Appeals for the Sixth Circuit in connection with this Court's award of sanctions. Plaintiff also filed a motion for stay of the proceedings pending resolution of his appeal. On December 17, 2002, the United States Court of Appeals for the Sixth Circuit dismissed plaintiffs appeal. Subsequently, this Court denied as moot plaintiff's request for a stay. Order (January 29, 2003). After plaintiff's motion for a stay was denied, defendants filed a status report with this Court indicating that plaintiff had yet to comply with the Court's order to produce W-2 forms, a calculation of damages, and information relating to work history. Plaintiff also filed a status report. However, plaintiff does not explain why he has failed to comply with this Court's discovery order. Instead, plaintiff again complains that defendants have failed to comply with his own discovery requests.
This series of events demonstrates a pattern of continued refusal to fully comply with this Court's discovery orders. Moreover, it is clear that plaintiff's actions were willful.
B. Warning
Additionally, a pre-dismissal warning for failure to comply with a court's order is pivotal to a determination of willfulness. Maldonado v. Thomas M. Cooley Law School, (slip copy), 2003 WL. 21130032, *3 (6th Cir. 2003) ( citing Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir. 1988)). As was discussed supra, plaintiff has been repeatedly warned that his failure to comply could lead to the imposition of sanctions. In fact, plaintiff was specifically warned that "failure to strictly comply with [the Court's] order will result in the dismissal of the action." Opinion and Order, at p. 10 (September 17, 2002).
C. Prejudice
There can be no doubt that defendants have been prejudiced by plaintiffs repeated failure to cooperate in discovery. Defendants have expended time, money and effort in pursuit of discovery that plaintiff was legally obligated to provide. Harmon, 110 F.3d at 368. Defendants assert that they have been unable to complete discovery due to plaintiffs failure cooperate in the litigation that he initiated. See Defendants' Motion for Extension of Summary Judgment deadline. See also Defendants "Motion for Extension of Discovery Cut-Off and Summary Judgment Deadline.
D. Alternate Sanctions
Finally, this Court concludes that a lesser sanction would be ineffectual under the circumstances of this case. This Court has repeatedly warned plaintiff that his failure to cooperate would lead to the imposition of sanctions, and the Court has previously imposed monetary sanctions for plaintiff's failure to cooperate in the discovery process. Yet plaintiff's unwillingness to comply with this Court's orders persists. Therefore, considering all the factors, this Court concludes that dismissal is an appropriate sanction.
WHEREUPON, in light of the foregoing discussion, this Court concludes that defendants' motion to dismiss is meritorious and it is therefore GRANTED.
The Clerk shall enter FINAL JUDGMENT in this action.