Local 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO v. City of New York

Background

The plaintiffs were Local 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO, and two New York City Fire Department employees. They brought a proposed class action against the City of New York, the Fire Department, the Department of Citywide Administrative Services, and several unnamed defendants. The plaintiffs alleged that employees in the Fire Department’s Emergency Medical Services Bureau seeking promotions above lieutenant were subjected to disparate treatment and disparate impact based on impermissible considerations. They asserted claims under 42 U.S.C. §§ 1981 and 1983, the New York State Human Rights Law, and the New York City Human Rights Law.

The motion concerned discovery for class certification, not the underlying discrimination claims. During a deposition, Chief Jerry Gombo could not recall when he became Assistant Chief of EMS, although he remembered that it happened sometime in the mid-1990s. The plaintiffs later requested the operations order that they believed would show the promotion date. They asked the court to impose an adverse inference—in this context, to treat a disputed fact as established against the defendants—namely, that Gombo had been Assistant Chief by 1996 or earlier. They argued that this was necessary to ensure that his testimony covered the beginning of the proposed class period, 1996 and 1997.

Legal standard

The plaintiffs invoked Federal Rule of Civil Procedure 37(b)(2)(A)(i), which permits sanctions when a party fails to obey a discovery order. One possible sanction is directing that certain facts be treated as established. The court explained that a court order requiring compliance with the discovery request is a necessary prerequisite to sanctions under that rule. The court also described an adverse inference as an extreme sanction that should not be imposed lightly. In deciding whether to impose a Rule 37 sanction, courts may consider the noncompliant party’s reason for noncompliance, whether lesser sanctions would work, the length of the noncompliance, warnings about the consequences, and prejudice to the moving party.

Court’s analysis

The court gave two reasons for denying the motion. First, the plaintiffs identified no written or oral court order requiring the defendants to produce the operations order. The court found that no such order had been issued between Gombo’s deposition and the filing of the motion. Because the required discovery-order predicate was missing, the court did not need to analyze the usual factors for imposing sanctions. The plaintiffs’ reliance in their reply on other provisions of Rule 37 and other court orders did not change the result because those orders did not concern the operations order.

Second, the court concluded that the plaintiffs could not show prejudice. Documents attached to the defendants’ opposition showed that Gombo became Assistant Chief in 1994 and remained in that position after the merger of EMS with the Fire Department. The court stated that the plaintiffs therefore had the answer to the question underlying their requested inference and still had time before the deadline for their class-certification motion. Because there was no prejudice, the court found that an adverse inference was not warranted.

Disposition

Judge Sarah L. Cave denied the plaintiffs’ Motion for Sanctions and directed the Clerk of Court to close the motion at ECF No. 281. The opinion did not decide the merits of the plaintiffs’ discrimination claims.