Noel v. The City of New York

Background

Gordon Noel alleged that the City of New York, through its Department of Correction, discharged him in October 2022 after claiming he had been absent without permission in February 2022. Noel said he had requested leave to care for his seriously ill mother and that Deputy Warden Terrance Graham had approved the leave. Noel characterized the discharge as a violation of the Family and Medical Leave Act.

During discovery, the City provided an email in which Graham acknowledged approving Noel’s leave. Noel sought to depose Graham about that email and Graham’s involvement in the leave request. Noel’s counsel first asked about Graham’s availability in January 2024. According to Noel, the City said Graham would be away during March and would be available after returning to the Department of Correction. The City later said Graham was not responding to calls or emails and directed Noel to subpoena Graham at a last-known address.

Noel made four unsuccessful attempts to serve Graham at that address in February 2024. The City represented that Graham was on leave and would be produced after returning. When Noel again sought Graham’s availability in April, the City said it had been unable to reach him. On April 12, the City disclosed that Graham had retired. Noel then learned that the previously provided address was inaccurate and made three more unsuccessful attempts to serve Graham at a more recent address.

Parties’ arguments

Noel argued that the City had represented that Graham was still employed and would be produced for deposition, failed to disclose his retirement promptly, and provided an inaccurate address. Noel asserted that these actions delayed the deposition by more than two months. He asked the court to extend fact discovery so he could subpoena and depose Graham, or to strike the City’s answer or impose another sanction.

The City argued that Graham was not under its control because he was away from work and later retired. It said that counsel had made repeated unsuccessful efforts to contact him but had not promised that the City could produce him. The City opposed striking its answer or imposing sanctions, arguing that Noel could not show willful conduct or disobedience of a court order.

The parties also disputed the City’s request for Noel’s tax returns for the previous five years. Noel argued that his income information was otherwise available from the City’s records and offered to provide the W-2 forms in his possession. The City argued that the returns were relevant because Noel sought lost-earnings damages and stated that it anticipated filing a motion to compel. The order did not rule on the tax-return dispute.

Ruling

Judge Mary Kay Vyskocil denied Noel’s motion to strike the City’s answer and denied Noel’s request for sanctions. The court stated that Noel did not appear to have acted as diligently as he should have in attempting to depose a person who did not appear to be within the City’s control.

The court granted Noel’s request for a discovery extension. It ordered that fact discovery be completed no later than June 15, 2024, and stated that no further extensions would be granted absent extraordinary circumstances. The court also adjourned the post-discovery conference from May 9 to June 18, 2024, at 10:30 a.m., and required the parties to submit a joint status letter one week before the conference.