Opinion
94 Civ. 0253 (RWS).
April 12, 2002.
DIANE SANK, Plaintiff, Pro Se, Englewood Cliffs, N.J.
HONORABLE ELIOT SPITZER, Attorney General of the State of New York, Attorney for Defendants, New York, NY., By: STEVEN L. BANKS, Assistant Attorney General, Of Counsel.
O P I N I O N
By order dated April 5, 2002, this Court granted in part the motion of pro se plaintiff Diane Sank ("Sank") pursuant to Rule 56(f) of the Federal Rules of Civil Procedure and postponed the decision of a summary judgment motion filed by defendants City University of New York ("CUNY"), City College of the City of New York ("CCNY") and Beverly Sowande ("Sowande") until Sank was able to complete necessary discovery.
Sank has filed this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), codified at 42 U.S.C. § 2000e et seq., alleging that defendants removed her as chairperson of the Anthropology Department based on her gender, race, religion, and age, and retaliated against her after she filed a complaint of discrimination with the New York City Human Rights Commission. Sank also alleges a violation of New York's Freedom of Information Law ("FOIL"), N.Y. Pub. Officers L. § 84 et seq., and breach of contract.
The April 5, 2002 order dismissed Sank's breach of contract claim and dismissed her FOIL claim inasmuch as she was seeking relief other than prospective injunctive relief. The Court declined to rule on the defendants' summary judgment motion with regard to the Title VII claim, however, as it was unclear from the pleadings and earlier argument that Sank had received all the discovery necessary to oppose the motion.
For the purposes of determining what discovery remained to be produced, a pretrial conference was held on April 10, 2002. Both defendants and Sank expressed frustration — the defendants at having to produce more information than they have already produced over the span of this eight-year-old case, and Sank at still not receiving what she feels she needs to make her case.
The discovery already produced is instructive. Michael D. Solomon, the Associate General Counsel for Faculty, Staff and Student Relations in the Office of General Counsel and Vice Chancellor for Legal Affairs at CUNY ("Solomon"), has overseen Sank's document discovery against CUNY and CCNY in this lawsuit. He submitted an affidavit dated December 20, 2001, detailing the documents produced to Sank. The following comes from this affidavit.
By order of the Court dated October 4, 2001, Sank (and her son, Brian Firschein) was given until December 4, 2001, to access the personnel records of current and past CCNY employees for the limited purpose of reviewing, copying, or recording information pertaining to an "employee's hiring date, separation date, race, gender, and current (or last known) address."
Through December 4, 2001, Sank submitted eight separate requests with lists of names, totaling approximately 457 names, as follows: November 4, 2001, 78 names; November 6, 2001, 58 names; November 8, 2001, 171 names; November 13, 2001, 48 names; November 26, 2001, 4 names; November 27, 2001, 41 names; November 28, 2001, 42 names; and November 30, 2001, 15 names. Sank obtained these names by reading through the minutes from Board of Trustees' meetings during the relevant time period. The minutes document the names (without other requested information, such as race and gender) of persons seeking and receiving distinguished professorships, leave, and administrative positions.
CCNY compiled, organized and alphabetized the eight separate lists into a master list. After removing 160 duplicate names, CCNY arrived at a list of 297 names. Five CCNY employees worked on locating and compiling the requested information on the 297 names. Records are kept in three separate rooms, and the employees searched in each room's records for the requested information. The three rooms contain, respectively, active employees' files, former employees' files, and payroll cards. If no payroll card is found, CCNY alleges that the files are either lost, cannot be located, or the individual was not an employee of CCNY (but may have been employed at another CUNY unit). All the information was set to be provided to Sank by January 11, 2002.
Sank complained in her Rule 56(f) motion that she was not provided with the race and sex of all of the 297 names she had requested information about.
The defendants can only produce what they have in their possession, and they stated at the April 10, 2002 conference that they had given Sank all the information they could locate on the 297 names. Solomon stated in his affidavit that race and sex information is not consistently maintained in the personnel records, even though there is a space for it on at least one form. Because that affidavit and another by defense counsel Steven L. Banks were dated December 20 and 21, 2001, a few weeks before defendants planned to produce all remaining documents to Sank, the defendants should submit an additional affidavit stating that they have produced to Sank all the information she requested about the list of 297 names, or that there are no such records that reveal it.
Solomon also stated that Sank had in fact been provided with race and sex information through the City University Personnel System, which is a computer file. Because Sank still states that she has not received all such information, the computer system presumably also does not contain the required information.
At the April 10, 2002 conference, Sank also requested the same information about four categories of individuals, as well as for approximately 700 names about which she had previously not requested information. The 700 names presumably come from the Board of Trustee minutes, but were not submitted to the defendants before the discovery cut-off date of December 4, 2001. It is unclear how many duplicates would exist among the four categories, the 700 names, and the 297 names that have already been produced in part. Given the 160 duplicates in Sank's most recent eight lists of names, there are certain to be some. While mindful of the fact that Sank is proceeding pro se, this request cannot be granted. The end of discovery was set for December 4, 2001. Sank failed to supply the defendants with the 700 additional names by that time. This lawsuit has stretched for almost eight years, and it is time to end discovery, continue on to summary judgment and, if warranted, a trial on the merits.
Conclusion
Defendants will produce to Sank within thirty (30) days of this opinion any required information on the 297 names they have not yet supplied and an affidavit to the effect that they have supplied to Sank all the required information on the 297 names. If the defendants have not supplied and cannot supply all the required information on any of the 297 names, they should instead produce an affidavit stating (1) that they have supplied all the required information for each of the 297 names not discussed in the affidavit, and (2) for each of the remaining names, a statement to the effect that they do not have the information or cannot reasonably locate it.
Upon receipt of the affidavits and information, Sank will have thirty (30) days to respond to the defendant's motion for summary judgment with respect to her Title VII claim. At that time, the Court will consider the defendant's summary judgment motion on submission.
It is so ordered.