LYNDELLE T. PHILLIPS, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants 15 CV 1795 (JBW) (CLP) United States District Court, E.D. New York Filed October 06, 2016 Counsel Gregory G. Smith, Brooklyn, NY, for Plaintiff. Christopher Aaron Seacord, Jessica Giambrone, NYC Law Department, Lawrence J. Profeta, NYC Corporation Counsel, New York, NY, for Defendants Pollack, Cheryl L., United States Magistrate Judge ORDER *1 On April 2, 2015, plaintiff Lyndelle T. Phillips, Esq., commenced this action against the City of New York (“the City”), Salvatore J. Cassano, Commissioner of the New York City Fire Department (“FDNY”), and First Deputy Commissioner Daniel Shacknai, alleging discrimination based on race and retaliation, in violation of 42 U.S.C. §§ 1981 and 1983. An Amended Complaint was filed on June 19, 2015. Currently pending before this Court are several letter motions relating to discovery. DISCUSSION A. Motion to Reconsider Production of JDF Forms On May 23, 2016, this Court issued an Order ruling on certain discovery disputes between the parties. Among other things, this Court denied plaintiff’s motion to compel production of Job Data Forms (“JDF”) for at minimum 11 individuals who plaintiff has described as comparators. In denying the request, the Court noted that, according to defendants: 1) no JDFs exist for certain individuals because no personnel action that would be reflected on the form occurred during the relevant time period; and 2) since the JDF is not an FDNY form, defendants had produced the only ones retained by the FDNY. (Order dated May 20, 2016). The Court further noted that plaintiff had failed to demonstrate that the JDFs had any information bearing on issues in the case, but indicated that if the plaintiff could provide an adequate explanation of the relevance of these documents, the Court would reconsider the motion. By letter dated May 24, 2016, plaintiff seeks reconsideration of the Court’s Order, indicating that the JDF is a form that records job data changes for any particular employee and serves a dual purpose of “contradict[ing] defendant’s legitimate reason (‘mis-management’) for terminating plaintiff” and it shows that plaintiff’s comparators also mismanaged their departments and were not terminated. (Pl.’s 5/24/16 Ltr. at 1). In response, defendants note that JDFs were introduced to City agencies in 2002 and they are two pages of a New Hire Packet which is now completed for every new hire. (Defs.’ 6/3/16 Ltr. at 1-2). According to defendants, plaintiff’s document demands sought production of the JDFs generated between January 1, 2010 and June 9, 2014 but for only certain individuals. (Id. at 2). Thereafter, plaintiff served an interrogatory for the names of certain managerial employees and now is seeking the JDFs for all those identified in that interrogatory even though the request for these documents was never previously made. (Id.) Apart from this problem, defendants contend that plaintiff has been provided with all of the information she is seeking. (Id.) According to defendants, all of the information contained in the JDF is also contained in the RCH, which defendants state have already been produced for some FDNY managerial employees. (Id. at 2). Defendants indicate that it would be unduly burdensome to require defendants to search for and review 30 personnel files, which are not electronically stored, for “the sole purpose of providing plaintiff with information she already has.” (Id.) *2 Having reviewed the parties’ submissions and considered plaintiff’s arguments, the Court remains unconvinced that plaintiff has satisfied her burden of showing why these forms are necessary, when she has apparently received other forms containing the same information, albeit in a different format. Although plaintiff speculates that the documents will “contradict” defendants’ explanation as to why plaintiff was terminated, plaintiff has not explained how documents in someone else’s file would show such a contradiction. Nor has plaintiff demonstrated that these forms contain the type of information that would show that other employees who had engaged in mismanagement were not terminated for conduct similar to hers. Particularly given that the latest request is for a significantly greater number of individuals than originally requested, and defendants’ argument as to burden, the Court denies the request on the grounds that the effort to retrieve these documents is not proportional to the marginal, if any, additional information that may be reflected on them. B. Other Outstanding Discovery By letter dated September 9, 2016, plaintiff seeks to compel production of certain discovery, complaining that the City has failed to comply with certain orders of this Court and has still not responded and produced certain items. (Pl.’s 9/9/16 Ltr. at 1). In response, defendants contend that the motion to compel should be denied because despite defendants’ counsel’s efforts, plaintiff failed to meet and confer in accordance with Local Civil rule 37.3. (Defs.’ 9/16/16 Ltr. at 1). Plaintiff’s counsel disputes this assertion and claims that he tried to reach out to defendants’ counsel by email on September 7 and 8 but was unsuccessful. (Pl.’s 9/9/16 Ltr. at 1). Since the parties have fully set forth the issues in their letters and since there is a dispute as to whose fault it was that no meet and confer occurred, the Court considers the issues despite noncompliance with Rule 37.3. They issues are as follows: 1) New Hire Data Forms (“NHDF”): Plaintiff claims that the NHDFs for all comparators have not been produced. (Pl.’s 9/9/16 Ltr. at 1). According to defendants, these documents were not used by the FDNY until 2007 and, like the JDFs, are part of the New Hire Packet. (Defs.’ 9/16/16 Ltr. at 2). Thus, for any FDNY employee hired before 2007, there is no New Hire Packet and therefore no NHDF exists for employees hired before 2007. (Id.) Since many of the alleged comparators are high-level managers employed within the FDNY for often 20 years or more, the vast majority of these individuals do not have NHDFs; for those that do, defendants state that their NDHFs have been produced. (Id.) In reply, plaintiff argues that defendants have failed to provide any proof as to the unavailability of the NHDFs and in any event, “[t]he City could have produced the equivalent records....” (Pl.’s 9/18/16 Ltr. at 2). Since it is unclear what plaintiff is referring to when asking for production of the “equivalent records” and since the only request at issue is plaintiff’s request for the specific form – NHDF – the Court denies the motion to compel. However, defendants are Ordered to provide a formal written response to plaintiff’s request, explaining what NHDFs exist and that all existing NHDFs have been produced for the comparators for the relevant period. 2) EEO Complaints: Plaintiff requested production of all EEO Complaints against Robert Wallace for the period June 5, 2006 through June 9, 2014. (Pl.’s 9/9/16 Ltr. at 1). In its May 20, 2016 Order, this Court directed defendants to produce any EEO Complaints against Bazel, Rampino,[1] Queenan, Quinn-Papa or Wallace, or provide a “detailed affidavit” indicating the search efforts made. (Order at 9). *3 In response, defendants claim that they “had previously agreed to re-run searches for complaints against Ellis,” which they claim to have done, and they produced six EEO complaints against Queenan, Quinn-Papa, and Ellis. (Defs.’ 9/16/16 Lt. at 2). Although defendants’ letter says nothing with respect to the other individuals, defendants claim that they “have complied with this Court’s order regarding these documents,” and they state that “plaintiff’s insistence that defendants produce an affidavit setting forth the defendants’ search efforts...is excessive, unduly burdensome and should be rejected.” (Id.) Defendants’ objection to this Court’s direct and explicit Order of May 20, 2016 is way out of time and defendants are currently in contempt of the Court’s directive. Defendants are ORDERED to provide an affidavit from a person with knowledge setting forth the efforts made to search for EEO Complaints against the above-named individuals and to certify that no other such complaints exist that have not been previously provided. 3) EEO Complaints Against Maglione: Plaintiff claims that no EEO complaints were provided with respect to Michelle Maglione. (Pl.’s 9/9/16 Ltr. at 1). Defendants contend that these documents were produced on April 21, 2016. (Defs.’ 9/16/16 Ltr. at 2). In her Reply, plaintiff does not refer to this issue again. Accordingly, the motion to compel with respect to EEO Complaints against Maglione is denied as moot. 4) EEO Complaints by Riccitelli, Mattilano and Squillaro: Plaintiff also seeks production of EEO Complaints alleging, inter alia, gender and disability discrimination by Riccitelli, Mattilano, and Squillaro against Kaye Ellis.[2] (Pl.’s /9/9/16 Ltr. at 2). Defendants respond by indicating that they have not located any EEO Complaints filed by these individuals, nor does it appear that they made requests for reasonable accommodations. (Defs.’ 9/16/16 Ltr. at 2). Moreover, defendants contend that this is “not a case alleging disability discrimination or the denial of a reasonable accommodation,” and therefore there is no relevance to any such complaints.[3] Since defendants have represented that they have searched for and not found any responsive documents, the Court denies the motion to compel, but Orders defendants to put this response in writing. 5) Cassano EEO Complaint: Plaintiff seeks once again to compel production of the alleged complaint against Salvatore Cassano. (Pl.’s 9/9/16 Ltr. at 2). This alleged complaint was at issue in the May 2016 dispute and indeed, the Court ordered defendants to conduct another search for this complaint. (Order at 8). In a letter dated June 10, 2016, defendants provided the Court with two EEO Complaints for in camera review. Upon review, it is clear that these complaints were not filed against Cassano and do not appear to be the document requested by plaintiff. Although plaintiff’s letters express skepticism that Cassano’s paperwork cannot be found, the Court finds that defendants have exercised due diligence to find this document and cannot produce what they do not seem to have any longer. Indeed, plaintiff’s own letter indicates that plaintiff “removed the file from the EEO office... and handed it to Mr. Shacknai.” (Pl.’s 9/18/16 Ltr. at 3). Presumably, Mr. Shacknai no longer has the document and he can be questioned about what happened to it when deposed. Defendants are Ordered to respond to this request in writing and indicate that, despite a diligent search, including of Shacknai’s files, no such document could be located. *4 To the extent that plaintiff seeks production of the other complaints provided to the Court for in camera review, there has been no showing of relevance. Indeed, because the EEO Complaints do not concern the plaintiff and do not specifically reference either Mr. Cassano or any of the other comparators listed above, the Court denies the request to compel production of these wholly unrelated documents. CONCLUSION In light of the foregoing, the Court denies plaintiff’s motion to compel JDFs for plaintiff’s comparators and denies plaintiff’s request to compel the alleged EEO Complaint against Salvatore Cassano. The Court denies plaintiff’s motion to compel EEO Complaints against Maglione as moot. Defendants are hereby Ordered to provide an affidavit setting forth the efforts made to search for EEO Complaints against Bazel, Rampino, Queenan, Quinn-Papa, and Wallace. Defendants are also Ordered to provide an affidavit setting forth their efforts to search for the EEO Complaints by Riccitelli, Mattilano, and Squillaro. Finally, defendants are Ordered to provide a formal written response to plaintiff’s request for NHDFs, explain what NHDFs exist, and confirm that all existing NHDFs have been produced for the relevant period. The Clerk is directed to send copies of this Order to the parties either electronically through the Electronic Case Filing (ECF) system or by mail. SO ORDERED. Footnotes [1] In plaintiff’s September 9, 2016 letter, plaintiff has as separate requests, production of EEO complaints against Julian Bazel (Pl.’s 9/9/16 Ltr. at 2 ¶ 4), and against Robert Rampino. (Id. ¶ 6). Since defendants addressed these issues in connection with the other EEO complaints, the Court does not deal with them separately. [2] This paragraph in plaintiff’s letter also mentions Ellis. (Pl.’s 9/9/16 Ltr. at 2). Defendants indicated that they had produced whatever complaints they had against him. (Defs.’ 9/16/16 Ltr. at 2). [3] Courts in this district have considered evidence for a claim of one category of discrimination as separate and apart from evidence for a claim of other forms of discrimination. See Vazquez v. Southside United Hous. Dev. Fund Corp., No. 06 CV 5997, 2009 WL 2596490, at *1 (E.D.N.Y. Aug. 21, 2009) (treating evidence of race and gender discrimination under Title VII as separate from evidence of discrimination on the basis of a disability in violation of the ADEA); Faber–Womack v. Town of Riverhead Police Dept., No. 08 CV 2368, 2009 WL 2983022, at *3 (E.D.N.Y. Sept. 10, 2009) (dismissing Title VII gender-based discrimination claims because the plaintiff failed to include such allegations in her EEOC charge and the “claim of gender discrimination [was] not reasonably related to the race and color discrimination claims set forth in Plaintiff’s administrative filings”).