• Case 2:03-cv-02900-ADS-ARL

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•Filed 06/12/2003

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Page 1 of 6
p~@

______________________________________________________ ----------J(
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

29UO
SPATlJ"

Plaintiff,

Defendant. ______________________________________________________ ----------J(

COMPLAINT JURY TRIAL DEMAND

NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of sex and retaliation, and to provide appropriate relief to Barbara Marion, Susan Mullagan, Natalia Puteri, Kim Rico and other similarly situated employees affected by such unlawful practices. As alleged with greater specificity below, the Commission charges that Ms. Marion, Ms. Mullagan, Ms. Puteri, Ms. Rico and other similarly situated employees were sexually harassed by Defendarlt and retaliated against for complaining about the harassment. In addition, these employees have been discriminated against in other terms and conditions of employment based on their sex, female. As a result of Defendant's discrimination, the conditions of employment have been made so intolerable that female employees have been forced to resign.

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JURIDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451, 1331, l337, l343 and l345. This action is authorized and instituted pursuant to Sections 706(t)(1) and (3) and 707 ofTitle VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(t)(1)(3) and e-6 ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. 2. The alleged unlawful employment practices were and are now being committed within the jurisdiction ofthe United States District Court for the Eastern District of New York.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Sections 706(t)(1) and (3) and 707 ofTitle VII, 42 U.S.C. § 2000e-5(t)(I) and (3) and e-6. 4. At all relevant times, Defendant Mr. Gold, Inc. d/b/a La Piazza has continuously been a New York corporation doing business in the State of New York and the county of Nassau, and has continuously had at least 15 employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701 (b), (g) and (h) of Title VII, 42 U.S.C. §§2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Barbara Marion, Susan Mullagan, Natalia Puteri and Kim Rico filed a charge with the Commission alleging violations of Title VII by Defendant. All conditions precedent to the institution of this lawsuit

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have been fulfilled. 7. Since at least 1993, Defendant has engaged in unlawful employment
practices in violation of Sections 703 and 704 of Title VII, 42 U.S.C. §§ 2000e-2 and e-3. These practices have included, but are not limited to, the following:
A. Defendant has subjected a class of female employees to a pattern or practice offrequent and pervasive sexual harassment which has included, but is not limited to, making unwelcome comments of a sexual nature to and about female employees, grabbing and touching female employees without their consent, and engaging in verbally and physically intimidating conduct directed at female employees, all because oftheir sex. Specifically, this has included, but is not limited to: a male manager throwing a female employee on a table and unhooking her bra; a male worker throwing a female employee into a freezer and attempting to lock her in and touch her; a male worker jumping on a female employee and simulating having sex with her; and male employees calling female employees derogatory names based on gender. Defendant's unlawful conduct subjected Barbara Marion, Susan Mullagan, Natalia Puteri, Kim Rico and other similarly situated female employees to a hostile work environment because of their sex.
B. Defendant knows or should have known, and female employees have complained, about the sexual harassment, but Defendant has failed to remedy the hostile work environment and has failed to prevent further harassment.
C. Defendant retaliated against female employees for complaining about the harassment, including but not limited to allowing cooks to delay their food orders-resulting in lower tips for female waitpersons-and threatening to take away lucrative shifts.

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D. Defendant also discriminated against female waitpersons in other terms and conditions of employment, including penalizing them for making mistakes by forcing them to pay $10 for each mistake at the end of their shifts and threatening to terminate them if they called in sick. Male waitpersons were not penalized for mistakes or treated adversely for calling in sick.

E. Defendant has constructively discharged female employees by maintaining a hostile work environment, failing to remedy the harassment, retaliating against the women for complaining, and treating employees differently in terms and conditions on the basis of sex.

8. The effect of the practices complained of above has been to deprive Barbara Marion, Susan Mullagan, Natalia Puteri, Kim Rico and other similarly situated employees of equal employment opportunities and otherwise adversely affect their status as employees because of their sex.
9. The unlawful employment practices complained of above were and are intentional.

10. The unlawful employment practices complained of above were and are done with malice or with reckless indifference to the federally protected rights of Barbara Marion, Susan Mullagan, Natalia Puteri, Kim Rico and other similarly situated employees.
PRAYER FOR RELIEF
Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with them, from engaging in

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employment practices which discriminate on the basis of sex. B. Order Defendant to institute and carry out policies, practices, and programs
which provide equal employment opportunities for women and which eradicate the effects of Defendant's past and present unlawful employment practices.
C. Order Defendant to make whole Barbara Marion, Susan Mullagan, Natalia Puteri, Kim Rico and other similarly situated female employees by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of their unlawful employment practices, including, but not limited to, front pay and reinstatement.
D. Order Defendant to make whole Barbara Marion, Susan Mullagan, Natalia Puteri, Kim Rico and other similarly situated female employees by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above, in amounts to be determined at trial.
E. Order Defendant to make whole Barbara Marion, Susan Mullagan, Natalia Puteri, Kim Rico and other similarly situated female employees by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of above, including but not limited to pain, suffering, and humiliation, in amounts to be determined at trial.
F. Order Defendant to pay Barbara Marion, Susan Mullagan, Natalia Puteri, Kim Rico and other similarly situated female employees punitive damages for Defendant's malicious and reckless conduct described above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.

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H.
complaint.

Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its

Respectfully submitted,
Gwendolyn Y. Reams Acting Deputy General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 "L" Street, N.W. Washington D.C. 20507

atherine E. Bissell (KB 1831) Regional Attorney
Lisa Sirkin (LS 6532) Supervisory Trial Attorney

Anjuli elotra (AK 2766) Trial Attorney
New York District Office 33 Whitehall Street, 5th Floor New York, NY 10004-2112 (212) 336-3620 (212) 336-3623 (facsimile)

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 Case 2:03-cv-02900-ADS-ARL Document 33 Filed 11/20/2004 Page 1 of 10

UNITED STATES DISTR1CT COURT EASTERN DISTRICT OF NEW YORK
-------,-------- -x
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

-againstMR. GOLD, INC. d/b/a LA PIAZZA,

Civil Action No. CV-03-2900 (ADS)(ARL)

Defendant.
- - - - - ' - - - - - - - - - - -..- ....- - x
KIM RICO, SUSAN MULLAGAN, BARB~ MARION and NATALIA PUTERI, :

Plaintiff-Intervenors,

-against-

MR. GOLD, INC. d/b/a LA PIAZZA,

Defendants.

----x

~n;!
I
!

CONSENT DECREE The parties to this Consent Decree are the Equal Employment Opportunity Commission (hereafter "EEOC"); and Mr. Gold, Inc. d/b/a La Piazza (hereinafter ''Defendant'' or ''La Piazza"). The EEOC brought this action on June 12, 2003, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ~ (''Title VIT') and the Civil Rights Act of 1991,42 U.S.C. § 1981A. The EEOC alleges that Barbara Marion, Susan Mullagan, Natalia
I
_ _ _ _ _ _ _ _J

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Puteri, Kim Rico (hereinafter "Charging Parties") and other similarly situated employees were sexually harassed by Defendant and retaliated against for complaining about the harassment. In addition, EEOC also alleges that these employees have been discriminated against in other terms and conditions of employment based on their sex. Finally, EEOC alleges that, as a result of Defendant's discrimination, the conditions of employment have been made so intolerable that female employees have been forced to resign. The Defendant denies these allegations.
The parties desire to settle this action, and therefore stipulate and consent to the entry of this Decree as final and binding between the parties and their successors or assigns.
The Decree resolves all tilatters related to Civil Action No. CV-03-2900, now pending in the United States District Court for the Eastem District of New York. The parties agree that this Decree may be entered into without Findings of Fact and Conclusions of Law being made and entered by the Court. No waiver, modification or amendment ofany provision of this Consent Decree shall be effective unless made in writing, approved by all parties to this Consent Decree and approved or ordered by the Court.
In consideration of the mutual promises and agreements contained in this Decree, the sufficiency of which is hereby acknowledged, the parties agree as follows, the Court fmds appropriate, and it is therefore ORDERED, ADruDGED AND DECREED that:
1. This Consent Decree resolves all issues raised in EEOC Charge Numbers 160-A2-00714, 160-A2-00715, l60-A2-00716, 160-A2-00717 and all issues that were raised in the complaint filed by EEOC. The Decree does not resolve any charge ofdiscrimination currently pending before EEOC, or any charge that maybe filed in the future, except for the above-referenced charges that served as the jurisdictional prerequisite in this case.
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2. The parties agree and the Court finds that this Court has jurisdiction over the subject matter of this action and the parties to this action, that venue is proper, and that all administrative prerequisites have been met. No party shall contest the validity ofthis Decree or the jurisdiction of the federal district court to enforce this Decree and its terms.
3. This Decree is issued with consent of the parties. 4. The Parties agree that this Consent Decree constitutes the complete agreement between EEOC and Mr. Gold., Inc. d/b/a La Piazza with respect to the matters referred to herein. No waiver, modification or amendment of any provision ofthis Consent Decree shall be effective unless made in writing, approved by all Parties to this Decree and approved or ordered by the Court. 5. The provisions set forth in this Decree apply to any and all Mr. Gold, Inc. restaurants throughout the durstion ofthis Decree. 6. Non-discrimination
A. During the four (4) year durstion of this Decree, Defendant is
enjoined from discriminating against any individual because of her sex in violation ofTitle vn.
B. During the four (4) year duration of this Decree, Defendant, IS
enjoined from discriminating against any individual for asserting rights under Title vn.
Defendant further agrees not to retaliate against any individual fOT filing a charge, providing assistance or evidence or testifYing in the investigation or litigation ofthis or any other charge of
discrimination, or for asserting her or his rights under Title vn.
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7. Monetary Relief

A. In settlement ofthis dispute, Defendant agrees to pay $247,500,

including attorneys fees as agreed to by Charging Parties and Defendant, to the following as designated:

Barbara Marion: Susan Mullagan: Natalia Puteri: Kim Rico: Karen Daniels: Stephanie Ditmeier: Kim Gallagher: Laura Kolonics: Nicola Picolo:

$54,166.67 $54,166.67 $54,166.00 $10,000.66 $15,000.00 $15,000.00 $15,000.00 $15,000.00 $15,000.00

B. The monetary settlement, as described in Paragraph 7 herein, shall be in the form and manner as agreed to by the Defendant and Charging Parties. The monetary settlement to Karen Daniels, Stephanie Ditmeier, Kim Gallagher and Laura Kolonics, shall be made by check, sent by certified mail, return receipt requested, within 180 days of the execution of this Consent Decree, and an IRS Form 1099 shall be issued in connection with these checks, which are for compensatory damages in settlement of this above-referenced action, for which Ms. Daniels, Ms. Ditmeier, Ms. Gallagher, and Ms. Kolonics shall be responsible for any and all taxes owed on these monies; copies ofeach check upon issuance shall be forwarded to the EEOC, 33 Whitehall St., 5th Floor, New York, New York, 10004-2112, attention Trial Attorney Monique Roberts.
8. Policies and Procedures A. Defendant shall adopt policies and procedures, including reporting
procedures, regarding its prohibition of discrimination and how it will handle problems

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concerning employment discrimination, including harassment and retaliation, at its restaurants; these policies and procedures will include the following:
I) A complaint form for employees believing they are or have been subjected to incidents ofharassment, discrimination and/or retaliation, to report any such incidents.
a) This complaint form, which shall be made available to all Defendant employees, shall include places for reporting: the identity of the alleged harasser; approximately when and where the alleged disl::rimination occurred; the identity of witnesses, if any; and a description ofthe alleged acts ofharassrnent, retaliation or other discrimination (hereinafter "discrimination" shall be inclusive of harassment and retaliation);
b) Although the form described in the foregoing paragraph shall be made available to all employees, a complaint of discrimination may be made in any form, such as verbally or bye-mail; a complaint or report of discrimination made in any
form shall be treated by Defendant in the manner described below, and which will also be
outlined in Defendant's policies and procl:dures regarding discrimination; c) Within ten (10) days from the time a report of
discrimination is received by Defendant, Defendant shall conduct an investigation as described below, and which will also be outlined in Defendant's policies and procedures regarding discrimination;
2) Defendant's Guidelines will include, in its policies and procedures regarding sexual harassment and other forms of discrimination, to assist Defendant in conducting thorough investigations of complaints of discrimination. The Guidelines for such investigation
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shall describe the following: who should be interviewed; how to evaluate the credibility of interviewees, especially when there is no witness to the discriminatory conduct; what steps to take when more than one person alleges that he/she has been harassed and/or retaliated against by the same person; what facts are important to obtain priOI' to a decision being made regarding the complaint; how to evaluate facts and make a rmding regarding the validity of a complaint of harassment or retaliation; and the appropriate remedy and/or disciplinary action to be taken;
3) Defendant will record actions taken during or as a result of an investigation of an harassment or retaliation complaint, including preserving interview notes that are to be written up and/or typed and reviewed by the person(s) interviewed, who shall be allowed to modify any statements not correctly recorded and initial those changes. Said notes, in either written or typed form, shall be kept at Defendant's Administrative or main office where personnel documents or files are kept. A log of all action taken should be maintained, including: the identity of the interviewer(s), complainant(s), other person(s) known to have participated in or have knowledge of the investigation and/or incidents; the identity ofperson(s) responsible for making decisions regarding actions to take resulting from the findings of the investigation; what actions were in fact taken; and relevant dates;
4) A report shall be made from information gathered from interviews which will be kept in the appropriate files with the corp()rate official responsible for Human Resources or personnel for Defendant; and
5) A copy of Defendant's policies and procedures containing the above listed provisions shall be submitted for approval to the EEOC within thirty (30) days of entry of this Decree. Once approved, these policies and procedures will be distributed by
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Defendant to its employees, including all restaurant personnel, within 10 days of EEOC approval or within ten (10) days of a new employee's hire. If an c:mployee can only read in Spanish, these policies and procedures shall be given to them in Spanish.
B. Defendant, will appoint a person to be its Human Resources Officer (UHRO'). Within twenty (20) days of entry of this Decree.
1) The HRO is to receive, investigate and resolve all complaints of discrimination, including, but not limited to, harassment based on sex and any complaint of retaliation. The HRO is to promulgate and promote Defendant's newly created antidiscrimination policy and to train (or arrange for the training of) all employees about the antidiscrimination policy and the laws described therein.
2) All complaints to the HRO are to be confidential. 3) The HRO is to retain reports and documents of all investigations conducted and any fmdings and/or resolutions thereto. The complainant will receive a brief summary of said findings and/or resolutions. 9. Training A. Defendant, within three (3) months of the entry of this Decree, will provide three (3) hours ofanti-discrimination training, including sexual harassment and retaliation, for all non-management employees in its restaurants. B. Defendant, within three (3) months of the entry ofthis Decree, will also provide five (5) hours of anti-discrimination training, including sexual harassment and retaliation, for all managers and supervisors in its restaurants.
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C. Within thirty(30) days aft!,'!" the execution of this Decree, Defendant shall submit for approval to the EEOC a copy of the curriculwn, agenda, address and curriculum vitae (or other information) regarding the trainers, and all training materials to be relied upon or presented at the training sessions. The EEOC will approve and notifY Defendant ofits approval of the submitted documents within fifteen (IS) business days of receipt. Defendant will obtain training by an outside agency or individual, i.e. no entity or individual involved in any way in this matter.
D. The first training session for employees and/or managers shall commence within fifteen (15) days after the EEOC approves the material submitted for approval under'1[8(c). Newly hired, transferred, and/or promoted employees and managers must undergo such training within fifteen (IS) days of the date ofhire or promotion to a management position.
E. Attendance sheets or records containing, but not limited to, the dates ofattendance, name of attendees, identity ofinstructor, and agendas for the training provided in '1[8(d) shall be maintained at the location where each employee's personnel file is kept; and,
F. Defendant will provide ongoing anti-discrimination training for all employees including managerial staff once every year for the duration of this Consent Decree. This reminder training shall reiterate, explain and answer questions about LaPiazza's policy prohibiting harassment and discrimination.
10. Monitoring A. Defendant agrees to provide the EEOC with a list of all
complaints, as described in '1[8 (A)(l)(a) of sex discriminationlharassment or retaliation, either
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fonnal or infonnal, including a summary of the steps taken during the investigation, the results of the investigation, and any disciplinary action taken. Defendant shall provide this summary every six months after the date of entry of this Consent Decree and continuing throughout the duration of this Decree; and,
B. Defendant further agrees to forward to the EEOC any and all attendance sheets or records, described in 'lI8(E) containing, but not limited to, the dateS of attendance, name of attendees, identity of instructor, and agendas for the training twice yearly commencing from the date of entry of this Consent Decree and continuing throughout the duration of this Decree.
11. Postings A. Defendant shall, within fiHeen (15) days after entry of the Consent
Decree, and continuing for the duration of the Decree, conspicuously post and maintain in all restaurants in the Tri-State Area, (including all places where employee notices are posted), a copy of the Notice of Lawsuit and S,*lement, in the fonn and with the content specified in Exhibit A hereto.
B. Defendant shall also display the EEOC poster, as required by federal law, outlining all applicable EEO-Iaws at all restaurants owed and operated by Louis Branchinelli.
12. This Decree constitutes the complete understanding among the parties regarding this Consent Decree. No other promises or agreement shall be binding unless agreed to in writing and signed by these parties.
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B. This Decree will remain in effect for four (4) years from the date ofentry.

No V. J..O SO ORDERED, ADJUDGED AND DECREED this

rI
day of

,2004.

APPROVED IN FORM AND CONTENT:

FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
~G~(s
Elizabeth Grossman Acting Regional Attorney
Monique J. Roberts Trial Attorney Equal Employment Opportunity Commission 33 Whitehall Street,S'" floor . New York, NY 10004 (212) 336-3704

ward, sq. Kaufman, chneider & Bianco, LLP 390 North Broadway Jericho, New York 1753
~ La Piazza

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 E.E.O.C. v. Mr. Gold, Inc., 223 F.R.D. 100 (2004)
223 F.R.D. 100 United States District Court,
E.D. New York.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
MR. GOLD, INC. d/b/a La Piazza, Defendant. Barbara Marion, Susan Mullagan, Natalia Puteri
and Kim Rico, Plaintiffs-Intervenors, v.
Mr. Gold, Inc. d/b/a La Piazza, Defendant.
No. CV-03-2900 (ADS) (ARL). | July 22, 2004.
Attorneys and Law Firms
*101 Equal Employment Opportunity Commission (Monique Roberts, Esq., of counsel), New York City, Kaufman, Schneider & Bianco, LLP (Richard M. Howard, of Counsel), Jericho, NY, for defendant.
Rosen, Leff (David M. Fish, Esq., of counsel), Hempstead, NY, for the Plaintiffs-Intervenors.
Opinion
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
This case involves allegations by the Equal Employment Opportunity Commission (“EEOC” or the “plaintiff”) of sex discrimination, retaliation and constructive discharge against Mr. Gold Inc. d/b/a La Piazza (“La Piazza” or the “defendant”) pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
Presently before the Court is a motion by the EEOC to set aside the Order issued by United States Magistrate Judge Arlene R. Lindsay on March 5, 2004 requiring that any future claimants in this case identified by the EEOC be part of a separate action.
I. BACKGROUND
Kim Rico, Natalia Puteria, Susan Mulligan and Barbara Marion were employed by the defendant. At some point in time, these women filed individual charges of employment discrimination with the EEOC, claiming that

the intolerable conditions of their employment at La Piazza forced their resignation. After an investigation, the EEOC determined that there was reasonable cause to believe that the defendant subjected his female employees to sexually offensive conduct, comments, and physical and verbal intimidation. On June 12, 2003, the EEOC commenced this action on behalf of the four original Charging Parties and other similarly situated employees affected by the defendant’s alleged discriminatory practices. Since the filing of this lawsuit, the EEOC added five additional women as claimants.
On October 21, 2003, Judge Lindsay established a pretrial discovery schedule. This schedule set forth a December 31, 2003 deadline for the EEOC to identify all claimants by the EEOC. In a letter dated December 23, 2003, the EEOC requested that the Court compel the defendant to produce complete employee data from January 1, 1996 to that time. The plaintiff also requested an extension of time in which to provide the defendants with the identities of the claimants. On January 26, 2004, Judge Lindsay granted the EEOC’s request and ordered the defendants to produce employee records from January 1, 1996 to January 1, 1999 on or before February 9, 2004. Judge Lindsay further ordered the EEOC to identify all claimants on or before March 1, 2004.
In a letter to the EEOC dated February 10, 1999, the defendant, for the first time, indicated that no such records existed, as records prior to 1999 were not maintained either by the employer or by its payroll company.
By letter dated March 1, 2004, the EEOC requested that the Court postpone the closing of the claimant class in the event other employees whom the EEOC is unable to contact learn about the case and come forward. On March 5, 2004, Judge Lindsay *102 denied the EEOC’s request. In particular, Judge Lindsay’s Order, stated:
Counsel appears to be confusing this Court’s ruling as limiting the number of claimants. As this Court previously expressed it is necessary that the EEOC identify [on] which plaintiffs and facts they intend to rely ... in proving this case. Defendants are entitled to know what specific claims they must defend against. This would not preclude the commencement of a separate action on behalf of later identified claimants. If appropriate those actions may be consolidated. This will ensure that the plaintiffs in this action will receive a fairly expeditious trial of their claims
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E.E.O.C. v. Mr. Gold, Inc., 223 F.R.D. 100 (2004)
rather than have endless extensions of discovery as “new” plaintiffs are added. Accordingly, this Court denies the request to permit joinder of new parties without limitation.
The EEOC now seeks a reconsideration of this order. Although not specified by the plaintiff, such motions to reconsider are brought pursuant to Rule 72(a) of the Federal Rules of Civil Procedure (“Fed. R. Civ.P.”). The EEOC asserts that the exclusion of possible claimants would prevent the EEOC from effectively carrying out its statutory mandate, namely to find potential victims of discrimination and advance the public interest and redress employment discrimination. The EEOC also claims that closing the class of claimants at this time serves to reward the defendant for failing to comply with the Court’s order and produce employee data.

apply or misapplies relevant statutes, case law, or rules of procedure.” Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 206 F.R.D. 78, 86 (S.D.N.Y.2002) (internal quotations omitted).
[3] Further, a magistrate judge’s resolution of discovery disputes deserves “substantial deference” by the district court, Norex Petroleum Ltd., v. Access Industries, Inc. No. 02 Civ.1499, 2003 WL 21872389, at *2 (S.D.N.Y. Aug.7, 2003) (citation omitted), and reversal of a magistrate judge’s order is only appropriate if there is an abuse of discretion. U.S. Parcel Service of Amer., Inc. v. The Net, Inc., 222 F.R.D. 69, 71 (E.D.N.Y.2004) (citation omitted).
[4] Accordingly, because the plaintiff’s appeal of Judge Lindsay’s March 5, 2004 order addresses nondispositive discovery issues, the Court shall apply this deferential standard of review.

II. DISCUSSION
A. Timeliness The Federal Rules of Civil Procedure provide that parties must file objections to a magistrate judge’s non-dispositive decision “within 10 days of being served with a copy of the magistrate judge’s order.” Rule 72(a). The EEOC’s motion to set aside Judge Lindsay’s Order was filed on March 16, 2004, less than 10 days after service of Judge Lindsay’s Order, and it is timely. See Fed.R.Civ.P. 6(a) (“When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.”).
B. Standard of Review [1] [2] Pre-trial discovery issues are generally considered nondispositive matters. Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.1990). When considering objections to a magistrate judge’s ruling on a nondispositive matter, a district judge will modify or set aside any portion of the magistrate’s order found to be “clearly erroneous or contrary to law.” Rule 72(a); see also 28 U.S.C. § 636(b)(1)(A) (“A judge of the court may reconsider any [nondispositive] pretrial matter ... where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.”). A finding is clearly erroneous if “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); U.S. v. Isiofia, 370 F.3d 226, 232 (2d Cir.2004). An order is contrary to law “when it fails to

C. As to the Order of March 5, 2003 [5] [6] [7] In its motion to set aside Judge Lindsay’s Order the EEOC first argues that closing the class of claimants at this time *103 precludes the EEOC from carrying out its statutory mandate, which is to “advanc[e] the public interest in preventing and remedying employment discrimination” through the enforcement of Title VII claims. General Telephone Co. v. EEOC, 446 U.S. 318, 331, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). The Court acknowledges that when bringing a class action pursuant to Title VII, the EEOC is to identify all the claimants affected by discrimination, and is responsible for “ ‘investigating, litigating, and, if possible, settling claims....’ ” EEOC v. Venator Group, No. 99 Civ. 4758, 2001 WL 246376, at *5 (S.D.N.Y. Mar.13, 2001) (citing EEOC v. Cons. Edison Co., 557 F.Supp. 468, 473 (S.D.N.Y.1983)). Nevertheless, the EEOC’s duties are not unfettered as courts “are not powerless to prevent undue hardship to the defendant ... [and] ... may, by discovery and other pretrial proceedings, determine the nature and extent of the claims the EEOC intends to pursue against it.’ ” EEOC v. Carrols Corp., 215 F.R.D. 46, 51 (N.D.N.Y. Feb.18, 2003) (quoting Gen. Tel. Co. Of the Northwest, Inc. v. EEOC, 446 U.S. 318, 333, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980)).
Moreover, after a scheduling order is entered, it “shall not be modified except upon a showing of good cause.” Fed.R.Civ.P. 16(b). Here, Judge Lindsay ordered that the deadline to identify all claimants be extended to March 1, 2004. In the Court’s view, the failure to close the time period would allow the EEOC an indefinite term to add claimants, in direct contradiction to the discovery schedule set by the Court.
The EEOC also contends that closing the class of claimants at this time rewards the defendant for its “delay
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E.E.O.C. v. Mr. Gold, Inc., 223 F.R.D. 100 (2004)
tactics,” i.e. the failure to timely provide the relevant employee data. However, because a request to produce documents is subject to the caveat that a party must have the documents “in its possession, custody or control,” Fed.R.Civ.P. 34(a), the defendant’s delay in providing employee records does not constitute a refusal to cooperate. Because no such records exist, even if the Court extended the class closing date, the EEOC will not be in a better position than it is now. On the other hand, the Court notes that the defendant faces potential prejudice in properly preparing an adequate defense without knowing which individuals were seeking relief. The Court stresses Judge Lindsay’s declaration concerning the ability of the EEOC to commence a separate action on behalf of later identified claimants, and, subsequently consolidating these actions, if appropriate. Thus, the Court is not limiting the number of claimants, but rather ensuring that due process and the defendant’s rights are preserved. In addition, the Court notes that the present intervenor plaintiffs are entitled to an expedient trial and should not be subject to endless extensions of discovery. See Venator Group, 2001 WL 246376, at *6.
After a review of defendant’s objections, the relevant

documents and Judge Lindsay’s Order, the Court is unable to conclude that Judge Lindsay’s determination was either clearly erroneous or contrary to law.
III. CONCLUSION Based on the foregoing, it is hereby
ORDERED, that the plaintiff’s motion to set aside Judge Lindsay’s March 5, 2004 Order is DENIED; and it is further
ORDERED, that the parties are directed to appear in courtroom 1024, Long Island Federal Courthouse, Central Islip, New York 11722 on Thursday, September 9, 2004 at 9:00 a.m. to set a date for trial.
SO ORDERED.
	  

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U.S. District Court Eastern District of New York (Central Islip) CIVIL DOCKET FOR CASE #: 2:03-cv-02900-ADS-ARL

CLOSED

Equal Employment Opportunity Commission v. Mr. Gold, Inc. Assigned to: Senior-Judge Arthur D. Spatt Referred to: Magistrate-Judge Arlene R. Lindsay Cause: 42:2000 Job Discrimination (Sex)

Date Filed: 06/12/2003 Date Terminated: 08/19/2004 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Katherine E. Bissell Equal Employment Opportunity Commission NY District Office 33 Whitehall Street 5th Floor New York, NY 10004 Fax: (212) 336-3623 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monique Joy Roberts Equal Employment Opp. Comm. NY District Office 33 Whitehall Street, 5th Floor New York, NY 10004 (212) 336-3704 Fax: (212) 336-3623 Email: monique.roberts@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff Barbara Marion

Intervenor Plaintiff Susan Mullagan

Intervenor Plaintiff Natalia Puteri

Intervenor Plaintiff Kim Rico

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V. Defendant Mr. Gold, Inc. doing business as La Piazza
Interested Party Kim Rico
Interested Party Natalia Puteria
Interested Party Susan Mullagan
Interested Party Barbara Marion

represented by Richard M. Howard Kaufman, Schneider & Bianco, LLP 190 Willis Avenue Mineola, NY 11501 (516)747-0300 Fax: (516)237-2893 Email: rhoward@meltzerlippe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David M. Fish Rosen, Leff Esqs. 105 Cathedral Avenue P.O. Box 2360 Hempstead, NY 11550 516-485-3500 Fax: 516-485-3128 Email: dfish@rosenleff.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David M. Fish (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David M. Fish (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David M. Fish (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/12/2003

#

Docket Text

1 COMPLAINT against Mr. Gold, Inc. filing fee $ 150, receipt number 986 Summons Issued, filed by Equal Employment Opportunity Commission.

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07/11/2003 07/11/2003 07/11/2003 07/11/2003 07/16/2003
08/14/2003 08/14/2003 09/25/2003 10/21/2003 10/21/2003
10/21/2003 11/26/2003

(Attachments: # 1 Civil Cover Sheet)(Romano, Daniel) (Entered: 06/20/2003)
2 MOTION to Intervene as pltffs by Kim Rico, Natalia Puteria, Susan Mullagan, Barbara Marion. (Coleman, Laurie) (Entered: 07/17/2003)
3 AFFIRMATION of David M. Fish, Esq. on behalf of Proposed Intervenor-Pltffs Barbara Marion, Susan Mullagan, Natalia Puteria, Kim Rico Re: In Support of their [2] MOTION to Intervene as pltffs.(Coleman, Laurie) (Entered: 07/17/2003)
4 NOTICE of PROPOSED Intervening Complaint by Proposed Intervenor-Pltffs Barbara Marion, Susan Mullagan, Natalia Puteria, Kim Rico. (Coleman, Laurie) (Entered: 07/17/2003)
5 NOTICE of Appearance by Richard M. Howard on behalf of Mr. Gold, Inc. d/b/a La Piazza. (Dachille, Patty) (Entered: 08/12/2003)
6 ORDER signed by Judge Arthur D. Spatt on 7/16/03: Consent to change attorney - it is hereby consented that Kaufman, Schneider & Bianco, LLP be substituted as attorney of record for Mr. gold, Inc., d/b/a La Piazza, in place and stead of the undersigned attorney, Carabba Locke, LLP. So Ordered by Judge Spatt on 7/16/03.(Dachille, Patty) (Entered: 08/12/2003)
7 DISCLOSURE of Interested Parties by Mr. Gold, Inc..(Coleman, Laurie) (Entered: 08/22/2003)
8 ANSWER to 1 Complaint by Mr. Gold, Inc..(Coleman, Laurie) (Entered: 08/22/2003)
9 ORDER - A conference will be held in this case on 10/21/03 @ 2:00 p.m. before USMJ Lindsay. All counsel must be present. (Signed by Judge Arlene R. Lindsay on 9/25/03). C/M(Coleman, Laurie) (Entered: 09/30/2003)
10 Calendar Entry for proceedings held before Arlene R. Lindsay on 10/21/03 at 2:00 p.m. for Civil Cause for Initial Conference; Counsel for all sides present. Pretrial Scheduling Order adopted. (Fagan, Linda) (Entered: 11/04/2003)
11 PRETRIAL SCHEDULING ORDER; At a regularly scheduled conference before the undersigned, all counsel being present, the following Pretrial Scheduling Order for this action was adopted: Joinder of additional parties to be completed: concluded; Amendment of pleadings completed: concluded; All discovery, inclusive of expert discovery, to be concluded: 6/30/04; Rule 56.1 statement to be served by moving party: 7/15/04; (Responding party shall have seven days to serve responsive 56.1 statement); Settlement conference before the undersigned: 8/12/04 at 11:30 a.m.; All claimants in this case to be identified by no late than 12/31/03; Set Discovery due by 6/30/04.( Signed by Judge Arlene R. Lindsay on 10/21/03. ) c/g (Fagan, Linda) Modified on 11/4/2003 (Fagan, Linda). (Entered: 11/04/2003)
Set Deadlines/Hearings: Settlement Conference set for 8/12/04 at 11:30 a.m. before Magistrate-Judge Arlene R. Lindsay. (see docl #11) (Fagan, Linda) (Entered: 11/04/2003)
12 MEMORANDUM OF DECISION AND ORDER granting the intervenor's [2] motion to intervene in this case pursuant to Rule 24(a)(1) is GRANTED.

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12/12/2003 12/29/2003 01/26/2004 01/26/2004
02/05/2004 02/05/2004 03/05/2004
03/05/2004

Ordered, that the intervenors are directed to file and serve their Intervening Complaint within 20 days of the date of this Order. Ordered, that the parties are directed to continue with discovery forthwith. Ordered, that the Clerk of the Court is directed to amend the caption accordingly to read pursuant to the caption set forth herein. (Signed by Judge Arthur D. Spatt on 11/26/03). C/M (Coleman, Laurie) (Entered: 12/03/2003)
20 ANSWER to Intervenor Complaint by Mr. Gold, Inc..(Coleman, Laurie) (Entered: 04/28/2004)
13 LETTER dated 12/23/03 from Richard Howard to Judge Lindsay Re: In response to the letter of same date from Anjuli Kelotra, Esq., of the EEOC. It is submitted that dft is not obligated to search for records from over seven years ago. Records for a period of four years provide an ample basis to establish a pattern and practice, should such a pattern exist. (Coleman, Laurie) (Entered: 03/22/2004)
14 LETTER MOTION dated 12/23/04 from Anjuli Kelotra to Judge Lindsay Re: EEOC asks the Court to compel production of complete employee data for the years 1996 to the present, and consequently for an extension of time in which to provide dft with the identities of Claimants. (Coleman, Laurie) (Entered: 03/22/2004)
ENDORSED ORDER granting [14] letter application - The pltff is entitled to complete employee data for the years 1996 to the present under FRCP 26(b)(1). The dft shall produce records from 1/1/96 to 1/1/99 on or before 2/9/04. The pltff shall identify all claimants in this case on or before 3/1/04. (Signed by Judge Arlene R. Lindsay on 1/26/04). EOD #14. C/F(Coleman, Laurie) (Entered: 03/22/2004)
15 LETTER MOTION dated 1/26/04 from Richard Howard to Judge Lindsay Re: I write on behalf of the dft to request that your Honor's Order of 1/26/04 be reconsidered. (Coleman, Laurie) (Entered: 03/22/2004)
ENDORSED ORDER denying dft's [15] letter application requesting reconsideration the Court's 1/26/04 Order. (Signed by Judge Arlene R. Lindsay on 2/5/04). EOD #15. C/F(Coleman, Laurie) (Entered: 03/22/2004)
18 Letter APPLICATION dtd. 3/1/04 from Lisa Sirkin, Supervisory Trial Attorney to Mag. J. Lindsay advising that the EEOC requests this court not close the claimant class at this time; to do so wold reward the dft for failing to produce employee information, and would thwart EEOC's obligation to redress discrimination on behalf of the class of women who were discriminated against both prior to l999 and currently. (Barhome, Sydelle) (Entered: 04/20/2004)
ENDORSED ORDER re [18] Letter: Counsel appears to be confusing this Court's ruling in limiting the number of claimants. As this Court previously expressed it is necessary that the EEOC identify which plfs and facts they intend to rely on in proving this case. Dfts are entitled to know what specific claims they must defend against. This would not preclude the commencement of a separate action on behalf of later identified claimants. If appropriate these actions may be consolidated. This will ensure that the plf in this action will receive a fairly expeditious trial of their claims rather than have endless extensions of discovery as "new" plfs are added. Accordingly this court denies the request to permit joinder of new partiews without limitation. So Ordered. . Signed by Judge Arlene

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03/07/2004 03/16/2004 04/19/2004 06/01/2004 06/09/2004
06/09/2004
06/09/2004 06/25/2004 06/25/2004

R. Lindsay on 3/5/04. (Barhome, Sydelle) (Entered: 04/20/2004)
19 Letter dtd. 3/3/04 from Richard M Howard to Mag. J. Lindsay responding to 3/1/04 letter of Lisa Sirkin, Esq. of Plf EEOC and outlining to the Court the events leading up to his advising Plf and intervenors' counsel that the requested records were not in the possession, custody or control of the Dft. (Barhome, Sydelle) (Entered: 04/21/2004)
17 Letter from Anjuli Kelotra to the Honorable Judge Arthur D. Spatt, dated 3/15/04 re: To seek reconsideration of the Order issued by Magistrate Jude Arlene R. Lindsay on 3/5/04 requiring that any future claimants identified by EEOC in this class case be part of a separate action and effectively closing the class. (Fagan, Linda) (Entered: 04/19/2004)
16 Letter from Richard M. Howard to The Honorable Arthur D. Spatt, dated 3/18/04 re: To respond to the 3/1/04 letter of Anjuli Kelotra, Esq. of the Pltff EEOC, seeking reconsideration of the Magistrate Judge Lindsay's order of 3/5/04; and to request that said order be affirmed. (Fagan, Linda) (Entered: 04/19/2004)
21 LETTER dated 5/27/04 from Monique Roberts to Judge Lindsay Re: EEOC requests that Your Honor assist the parties in reaching settlement in this case by scheduling a court date for a settlement conference. (Coleman, Laurie) (Entered: 06/17/2004)
22 LETTER dated 5/28/04 from Richard Howard to Judge Lindsay Re: In response to the letter of today's date from Pltff's counsel. While the dfts agree with the request for the Court's assistance in resolving this matter (having previously requested same in prior correspondence), I feel that certain implications of said letter must be clarified. Dft has remained ready, willing and able to resolve this matter in an expedited fashion. (Coleman, Laurie) (Entered: 06/17/2004)
ENDORSED ORDER on [22] letter - My review of this correspondence suggests that the parties should have one more meeting prior to Court intervention. Accordingly, all counsel are directed to meet and confer on settlement on or before 7/1/04. A telephone conference will be held 7/2/04 @ 11:00 a.m. Pltff is to initiate the call. (Signed by Judge Arlene R. Lindsay on 6/9/04). EOD #22. C/M(Coleman, Laurie) (Entered: 06/17/2004)
Set/Reset Hearings: Telephone Conference set for 7/2/2004 @ 11:00 a.m. before Magistrate-Judge Arlene R. Lindsay. (Coleman, Laurie) (Entered: 06/17/2004)
23 Letter dated 6/23/04 from Richard M. Howard to Mag. Judge Lindsay re: I write on behalf of all counsel in this action to request a brief extension of the Court's order directing that the parties meet to discuss settlement on or before 7/1/04, to 7/12/04. (Dachille, Patti) (Entered: 06/30/2004)
ENDORSED ORDER re granting [23] Letter: Application granted. The parties shall meet on or before 7/12/04 to discuss settlement. A telephone status conference will be held on 7/26/2004 at 11:30 A.M. before Magistrate-Judge Arlene R. Lindsay. The plaintiff is to initiate the call to (631) 712-5730. So Ordered. Signed by Judge Arlene R. Lindsay on 6/25/04. (Dachille, Patti) (Entered: 06/30/2004)

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07/19/2004 07/22/2004 07/26/2004
08/19/2004 08/19/2004 08/31/2004 10/25/2004 10/25/2004 10/27/2004

24 LETTER dated 7/13/04 from Monique Roberts to Judge Spatt Re: To inform the Court that Anjuli Kelotra, the original attorney on the above referenced case, has transferred to another district office within the Commission and will no longer be the attorney of record in this case. Monique J. Roberts, trial attorney for the Equal Employment Opportunity Commision, will be the attorney of record henceforth. (Coleman, Laurie) (Entered: 07/20/2004)
25 MEMORANDUM OF DECISION AND ORDER - Ordered, that the pltff's motion to set aside Judge Lindsay's 3/5/04 Order is DENIED. Ordered, that the parties are directed to appear in courtroom 1024, Long Island Federal Courthouse, Central Islip, NY 11722, on 9/9/04 @ 9:00 a.m. to set a date for trial. (Signed by Judge Arthur D. Spatt on 7/22/04). C/M(Coleman, Laurie) (Entered: 07/26/2004)
26 MINUTE ENTRY before Judge Arlene R. Lindsay on 7/26/04 @ 11:30 a.m., for Civil Cause for Settlement Conference. Counsel for all sides present. The parties have reached a settlement with respect to the monetary terms, but are unable to agree on the issue of confidentiality. Accordingly, a settlement is not possible at this time. The parties' scheduling order is amended as follows: All Discovery, inclusive of Expert Discovery, shall be completed by 8/20/04. Rule 56.1 Statements shall be served on or before 9/3/04. The Final Conference scheduled for 8/12/04 is cancelled. The parties are scheduled to appear before Judge Spatt on 9/9/04 and the case will be returned ready for Trial that day. (Coleman, Laurie) (Entered: 07/28/2004)
27 LETTER MOTION dated 8/17/04 from Richard Howell to Judge Spatt and Judge Lindsay Re: To advise the Court that we have reached a settlement of this action and we are is the process of documenting the same. We request that the 9/9/04 conference be adjourned to permit the parties to complete the settlement in this matter. (Coleman, Laurie) (Entered: 08/20/2004)
ENDORSED ORDER granting 27 Letter Application requesting that the 9/9/04 conference be adjourned - CASE CLOSED subject to the terms of the Stipulation of Settlement. (Signed by Judge Arthur D. Spatt on 8/19/04). EOD #27. C/M.(Coleman, Laurie) (Entered: 08/20/2004)
28 Letter dated 8/25/04 from Monique J. Roberts to Hon. Arthur D. Spatt re: EEOC respectfully brings to the Court's attention that this matter will not be resolved in the form of a stipulation of settlement, but as a Consent Decree, w/the Court retaining jurisdiction throughout the life of the Decree. The same will be forward to the Court when completed. Thus, closure of the action at this time may not be warranted. (Dachille, Patti) (Entered: 09/17/2004)
29 Letter from David Fish to Judge Spatt Regarding Settlement Agreement. (Fish, David) (Entered: 10/25/2004)
30 Letter from Richard Howard to Judge Spatt Regarding settlement compliance. (Howard, Richard) (Entered: 10/25/2004)
32 LETTER dtd 10/26/04 from Richard M. Howard to Judge Spatt re: Response to the letter of today's date from David Fish, Esq. attorney for the Plaintiff-interveners in this action. It is obvious that the parties have reached agreement. The only issue is the date from which the Defendant's payments to the

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11/19/2004 11/20/2004

interveners are due. the Defendant contends said payments are due beginning 75 days from October 19, 2004 and the interveners contend said payments are due beginning 75 days from September 2, 2004. The terms of the agreement appear strikingly clear to the Defendant. We welcome the court's assistance to compel compliance with said terms. (Mierzejewski, Elizabeth) (Entered: 12/02/2004)
31 SETTLEMENT AGREEMENT Final Consent Decree by Equal Employment Opportunity Commission. (Roberts, Monique) (Entered: 11/19/2004)
33 CONSENT DECREE: This Consent Decree resolves all issues raised in EEOC Charge #s 160-A2-00714, 160-A2-00715, 160-A2-00717 and all issues that were raised in the complaint filed by EEOC. The Decree does not resolve any charge of discrimination currently pending before EEOC, or any charge that may be filed in the future, except for the above ref charges that served as the jurisdictional prerequesite in this case. (see order for additional details) (Signed by Judge Arthur D. Spatt on 11/20/04). c/m(Montero, Edher) (Entered: 12/08/2004)

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