Case 2:03-cv-04227-LDW-WDW Document 1 Filed 08/26/2003 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
LONG ISLAND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

CIVIL ACTION NO.

t .) Plaintiff", ' , :;' ~ tL." ~J~::
BOSTON ~T";~~~~~~:;i"~?1 ·l

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\I\'I::XLER J COMPLAINT &
JURY TRIAL DE~JA

I'

NATURE OF THE ACTION
This is an action under Title I of the Americans with Disabilities Act of 199WAl.bt··M.J~

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 disability and gender, retaliation, and constructive

discharge, and to provide appropriate relief to Christine Gagliardi who was adversely affected by

such practices. The Commission alleges that Defendant Boston Market Corporation violated the

Americans With Disabilities Act' and Title VII of the Civil Rights Act of 19642 by creating and

failing to remedy a hostile work environment by which Christine Gagliardi was subjected to

unwelcome severe and pervasive physical abuse, comments and harassment on the basis of her

disability (Asperger's Syndrome, Emotional Handicap, Learning Disabilities and Attention

Deficit Hyperactivity Disorder) and gender (female), and for retaliating against her for

complaining about the harassment. The Commission also alleges that Defendant Boston Market

Corporation intentionally created an intolerable work atmosphere for Christine Gagliardi that

forced her to quit involuntarily, resulting in her constructive discharge.

"ADA."

2

"Title VII."

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JURISDICTION AND VENUE 1. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to: Section 107(a) of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12117(a), which incorporates by reference Section 706(£)(1) and (3) of Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e-5(£)(1) and (3); Sections 706(£)(1) and (3) of Title VII ofthe Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq; and Section 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981a. 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of New York, Eastern District, Long Island Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency ofthe United States of America charged with the administration, interpretation and enforcement of Title I of the ADA and Title VII of the Civil Rights Act of 1964 and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Section 706(£)(1) and (3) of Title VII, 42 U.S.C. §§ 2000e-5(£)(1) and (3) and -6; by Section 706 (£)(1) and (3) of Title VII, 42 U.S.C. §2000e-5(£)(1) and (3); and by Section 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981a. 4. At all relevant times, Defendant, Boston Market Corporation (the "Employer"), a Delaware Corporation, has continuously been doing business in the State of New York and the City of Ronkonkoma, and has continuously had at least 15 employees.
2

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5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce under Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h) and also under Section 101(5) of the ADA, 42 U.S.C.§ 12111(5), and Section 101(7) ofthe ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h).
6. At all relevant times, Defendant Employer has been a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Christine Gagliardi filed a charge with the Commission alleging violations of Title I ofthe ADA and Title VII by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. At all relevant times, Christine Gagliardi has been a qualified individual with a Disability under the ADA, 42 U.S.C. §12102(2). 9. Since on or about May 1999, Defendant Employer wilfully engaged in unlawful employment practices at its Boston Market store at 650 Portion Road, Ronkonkoma, New York in violation of Section 102 of Title I of the ADA, 42 U.S.C. § 12112 and in violation of Sections 703 and 704 of Title VII, 42 U.S.C. §§2000e-2(a), 3(a) and 6. These practices include, but are not limited to, the following: a. During her time of employment with Defendant Employer, Christine Gagliardi
was continually subjected to a hostile work environment and offensive harassing conduct, including but not limited to the following harassing conduct by Defendant Employer's supervisors, employees and/or agents: humiliating
3

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Christine Gagliardi in front of others by yelling or screaming at her that she was not properly performing her tasks; making offensive comments to her because of her disability (including but not limited to comments such as: "You're a waste of space and I'm going to have you fired", "Go outside and weed the lawn, since that's all you're good for," "Since you have ajob coach, there must be something VERY mentally wrong with you," calling her a "retard and too stupid to learn," and that she was "worthless and an embarrassment to Boston Market" because of her disabilities); offensively touching her in aggressive and/or sexually harassing ways on multiple occasions (including but not limited to grabbing her so hard that bruises were left on her body, grinding of a male employee's pelvic area against her buttocks; throwing her to the floor while another employee held her down by her wrists and another employee shouted "Get her legs"); subjecting her to lewd and sexually offensive and harassing comments on a regular basis; and subjecting her to lewd and sexually offensive and harassing gestures on a regular basis. b. After Christine Gagliardi engaged in protected activity, including but not limited to complaining about the discriminatory practices described above, Defendant Employer retaliated against Christine Gagliardi by taking adverse action against her, including negatively affecting her terms and conditions of employment. c. Defendant Employer constructively discharged Christine Gagliardi by intentionally creating an intolerable work atmosphere for Christine Gagliardi and creating, escalating and failing to eliminate the hostile environment that forced her to quit involuntarily, resulting in her constructive discharge.
10. Defendant Employer failed to exercise the requisite care to prevent and correct promptly the harassment and hostile environment and took insufficient or no remedial action.
11. Since at least May 1999 and thereafter, Defendant Employer has failed, in violation of Section 105 of the ADA, 42 U.S.C. § 12115, which incorporates by reference Section 7II(a) of Title VII, 42 U.S.C. § 2000e-10(a), and in violation of Title VII, to post and keep posted notices which have been prepared or approved by the Commission setting forth
4

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excerpts from or summaries of the pertinent provisions of the ADA and Title VII and information pertinent to the filing of a charge or complaint, in that Defendant Employer posted invalid or unreliable phone numbers for making complaints of discrimination.
12. The effect of the practices complained of in paragraphs 9 through 11 above has been to deprive Christine Gagliardi of equal employment opportunities and otherwise adversely affect her status as an employee, because of her disability and/or her gender.
13. The unlawful employment practices complained of in paragraphs 9 through 11 above were intentional.
14. The unlawful employment practices complained of in paragraphs 9 through 11 above were done with malice or with reckless indifference to the federally protected rights of Christine Gagliardi.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practices, which discriminate on the basis of disability or sex, from engaging in retaliation and/or constructive discharge, and from engaging in any other employment practice which discriminates on the basis of disability or sex; B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities for qualified individuals with disabilities, and to women, and which eradicate the effects of its past and present unlawful employment practices;
5

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C. Order Defendant Employer to institute and carry out policies, practices and programs which provide equal employment opportunities for employees engaging in protected activity, and which eradicate the effects of Defendant Employer's past and present unlawful employment practices;
D. Order Defendant Employer to make whole Christine Gagliardi, by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices.
E. Order Defendant Employer to post and keep posted the notices required by Section 105 of the ADA, 42 U.S.C. § 12115, which incorporates by reference Section 711(a) of Title VII, 42 U.S.C. § 2000e-10(a), and to post the notices required by Title VII.
F. Order Defendant Employer to make whole Christine Gagliardi by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 9 through 11 above, including job search expenses and travel expenses, in amounts to be determined at trial.
G. Order Defendant Employer to make whole Christine Gagliardi by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraphs 9 through 11 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
H. Order Defendant Employer to pay Christine Gagliardi punitive damages for its malicious and reckless conduct, as described in paragraphs 9 through 11 above, in amounts to be determined at trial.
1. Grant such further relief as the Court deems necessary and proper in the public interest.
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. '

Case 2:03-cv-04227-LDW-WDW Document 1 Filed 08/26/2003 Page 7 of 7

J.

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 complaint.

Dated: New York, New York August 2.to , 2003

Respectfully submitted,
Eric S. Dreiband General Counsel
James L. Lee
Deputy General Counsel
Gwendolyn Y. Reams Associate General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 "L" Street, N.W. Washington, DC 20507

atherine E. Bissell (KB 1831) egional Attorney
Lisa Sirkin Supervisory Trial Attorney
J~
Semor Trial Attorney
New York District Office 33 Whitehall St., 5th Floor New York, NY 10004-2112 (212) 336-3705 [Judy Keenan direct line] (212) 336-3620 [General phone] Facsimile: (212) 336-3623
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 Case 2:03-cv-04227-LDW-WDW Document 30 Filed 10/07/2004 Page 1 of 19

Michael R. Curran
Anorney-at-Law
98-120 Queens Boulevard, Suite #l-C Rego Park, New York 11374
(718) 830-7741/(718) 830-0246 (tel.)
October 6, 2004
Clerk of the Court United States District Court Eastern District ofNew York-Long Island Division 100 Federal Plaza Central Islip, New York 11722-4438
Re: EEOC et 01. v_ Boston Market Corporation, No_ 03-CV-4227 (LDW) (WDW)
Dear SirlMs.:
Enclosed please find an original copy of Plaintiff-Intervenor's Complaint & Jury
Trial Demand ("Plaintiff-Intervenor's Complaint") in the above-referenced action, which has also been filed via the Electronic Case Filing system. Please note the filing:
1. The Plaintiff-Intervenor's Complaint has been dated February 13, 2004, the date
that the Plaintiff-Intervenor was permitted to intervene in this matter by the Hon. William
D. Wall, United States Magistrate Judge.
2. Plaintiff-Intervenor's Complaint does not have any exhibits annexed thereto. The exhibits that were originally submitted with the motion to intervene and proposed Plaintiff-Intervenor's Complaint in November 2003 are subject to a court-ordered seal and to a Protective Order and may not be disclosed to any party for any reason without an order by United States Magistrate WalJ. These exhibits should not be filed within the regular comt fIle and must be maintained in a secure status.
Kindly contact the undersigned if you have any questions.

~I{C---
Michael R. du~ Attorney for the Guardian of the Person & Property of
Plaintiff-Intervenor Christine Gagliardi

ce: HOD. William D. Wall, USMJ HOD. Leonard D. Wexler, USDJ Ms. Patricia Howlett, Esq. (Guardian)

Ms. Judy Keenan, Esq. (EEOC) Ms. Jean Schmidt, Esq. (Defendant)

Case 2:03-cv-04227-LDW-WDW Document 30 Filed 10/07/2004 Page 2 of 19

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
L__O___N__G___I_S__L__A__N__D___D___I_V__I_S__I_O__N______________________________ J(

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Civil Action No. 03-CV-4227 (LDW) (WDW)

Plaintiff,

and

CHRISTINE GAGLIARDI, by the Guardian of her Person and Property, PATRICIA HOWLETT, ESQ.,

PLAINTIFF-INTERVENOR'S COMPLAINT & JURY TRIAL DEMAND

Plaintiff-Intenrenor,

-against-

BOSTON MARKET CORPORATION,

Defendant.
-------------------------------------------J(
Plaintiff-Intervenor CHRISTINE GAGLIARDI (hereinafter "GAGLIARDI" and "Plaintiff-

Intervenor"), residing at 6] Woodview Lane, Centerreach, New York, for her Complaint against

Defendant BOSTON MARKET CORPORATION (hereinafter "BOSTON MARKET" or

"Defendant"), by the Guardian of her Person and Property, PATRICIA HOWLETTT, ESQ.

(hereinafter the "Guardian"), and by the attorney to the Guardian, Michael R. Curran, Attomey-at-

Law, states and alleges as follows:

NATURE OF THE ACTION

1. Plaintiff-Intervenor has brought this action against Defendant to redress discrimination by

Defendant who engaged in unlawful discriminatory practices relating to employment pertaining to

disability and gender, and who engaged in retaliatory acts and constructive discharge of Plaintiff-

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Intervenor for attempting to exercise her rights pursuant to the Americans with Disabilities Act of 1990,42 U.S.c. §§ 12101 et seq. ("ADA"), Title VII of the Civil Rights Act of1964, as amended, 42 U.S.C. §§ 2000e et§g!. ("Title Vll"), the Civil Rights Act ofl991, 42 U.S.C. § 1981a ("1991 CRA"), the New York State Human Rights Law, Art. 15 ofthe New York State Executive Law, §§ 290 et seq. ("NYSHRL"), prohibiting employment discrimination, and to provide reliefto PlaintiffIntervenor, who has been mentally, emotionally and physically abused by employees and agents of Defendant, on account of her disabilities (Asperger's Syndrome, Emotional Handicap, Learning Disabilities and Attention Deficit Disorder), her psycho-social impairment and her gender. 2. Plaintiff-Intervenor GAGLIARDI formerly worked for Defendant BOSTON MARKET for about two years during which time she was subjected to unwelcome touching and physical molestation in response to and in connection with her disabilities and gender by Defendant's employee Santos Padilla ("Defendant's employee Padilla") and other employees of BOSTON MARKET, through constant insulting, taunting and abusive remarks directed to her disabilities, sexual harassment, gender harassment, threats and retaliation by Defendant's employee Padilla and other employees of BOSTON MARKET and by Supervisor and Defendant's employee Kimberley Lopez ("Defendant's employee Lopez" and uDefendant's supervisor Lopez") and by other supervisory or managerial employees of Defendant BOSTON MARKET, the same or similar harassment for complaining about this treatment, a hostile work environment as a result of the foregoing, and, toward the end of her employment, sexual assault by Defendant's employee Padilla, and possibly other employees of BOSTON MARKET, of whom on multiple occasions Plaintiff-Intervenor warned management as to the dangerous and violent propensity and intention by Defendant's employee Padilla and others to inflict injury upon her. Following the assault, Plaintiff-Intervenor attempted to complain to and seek aid from company officials, but no proper contact infonnation had

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been posted or was available, and no named agent was denominated as responsible in or at the workplace for complaints pertaining to discrimination on the basis of disabilities and gender and discrimination in general. When Plaintiff-Intervenor attempted to complain about the assault to the immediate supervisory staffofDefendant BOSTON MARKET, Plaintiff-Intervenor's supervisors, in particular Defendant's employee Lopez, harassed and retaliated against her complaints by giving her unfavorable work assignments, reducing her hours and subjecting her to further verbal and mental abuse, which ultimately resulted in an intolerable working atmosphere and Plaintiff-Intervenor's termination, and which aided and abetted the acts of discrimination by Defendant BOSTON MARKET. (It is believed Defendant's employee Lopez was romantically involved with Defendant's employee Padilla and that Defendant's employee Lopez furthered Padilla's sexual harassment against Plaintiff-Intervenor GAGLIARDI by aiding and abetting the harassment and by personally engaging in retaliation against Plaintiff-Intervenor GAGLIARDI.) 3. As a result ofthe foregoing, Plaintiff-Intervenor suffered, inter alia, aloss ofearnings, severe emotional distress, severe depression, the loss of enjoyment of life and emotional and mental scarring pertaining to her mental and emotional disabilities and psycho-social impairment.
JURISDICTION AND VENUE 4. Jurisdiction over this controversy is invoked and the action instituted pursuantprovisions of: (a) the Americaos with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., in particular § 12117(a), incorporating by reference applicable sections ofTitle VII ofthe Civil Rigbts Act of 1964, 42 U.s.C. §§ 2000e-5(1) et §!OJ. and by invocation of28 U.S.C. §§ 1331, 1343(a)(3),(4) and 2201;
(b) Title VII of the Civil Rigbts Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., in particular § 706(1)(3) of Title VII, 42 U.S.C. § 2000e-5(1)(3), and by invocation of28 U.S.C. §§
1331, 1343(a)(3),(4) aod 2201;

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(c) the Civil Rights Act of 1991, 42 U.S.C. § 19810, and by invocation of28 U.S.C. §§ 1331, 1343(a)(3)(4) and 2201; (d) pursuant to Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.C!. 2399 (1986), and progeny, interpreting 42 U.S.C § 2000e-2(a), as to claims concerning sexual harassment; and (e) 28 U.S.C. § 1367(a), in that the federal and state claims herein arise from a connnonnucleus ofoperative fact such that they are so related one to the other that they fonn part ofthe same case or controversy under Article III of the United States Constitution. In particular, this Court has pendent jwisdiction over state law claims by Plaintiffpursuant to Article 15 ofthe New York State Executive Law §§ 290 et seq. 5. This action properly lies within the United States District for the Eastern District of New York, Long Island Division, pursuant to 28 U.S.C. 1391(b), because the claim arose in this judicial district, and pursuant to § 706(f)(3) ofTitie VII, 42 U.S.C. § 2000e-5(f)(3), because the unlawful employment practices were committed within the territorial jurisdiction of this judicial district.
PARTIES 6. Plaintiff EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (hereinafter the «EEOC") is the duly authorized agency ofthe govenunent ofthe United States ofAmerica charged with the administration, interpretation and enforcement of Title I of the ADA and Title VII of the Civil Rights Act of 1964, as amended, and is expressly authorized to bring this action by Section 107(a) ofthe ADA, 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(f)(1),(3) of Title VII, 42 U.s.C. §§ 2000e-5(f)(1),(3) and -6; by Sections 706(f)(1),(3) ofTitie VII, 42 U.S.C. §§ 2000e-5(f)(I),(3); and by Section 102 of the 1991 CRA, 42 U.S.C. § 1981 •. 7. At all relevant times herein, Plaintiff-Intervenor GAGLIARDI was a natural person, a citizen of the United States and • resident of Suffolk County in New York State. GAGLIARDI was

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employed as a regular part-time employee by Defendant BOSTON MARKET for approximately two years from 1999 until 2001. Plaintiff-Intervenor GAGLIARDI bas mental and emotional disorders and a psycho-social impainnent. Plaintiff-Intervenor is a person entitled to protection pursuant to the provisions ofthe ADA, 42 U.S.C. § 12111(8) and, pursuantto 42 U.S.C. § 12131(2) as a "qualified person with a disability," or alternatively and conjunctively. as a woman who has suffered discrimination in employment and sexual harassment pursuant to Title VII and relevant provisions of the 1991 eRA. Plaintiff-Intervenor GAGLIARDI is authorized to intervene in this action pursuant Fed. R. Civ. P. 24 and 42 U.S.C. § 2000e-5(f)(I). 8. Upon information and belief, at all relevant times herein, Defendant BOSTON MARKET was a foreign corporation organized under the laws of the State of Delaware, whose corporate address is 14103 Denver West Parkway, Denver, Colorado 8040 I, and doing business under and by virtue ofthe laws ofthe State ofNew York, maintaining as one of its principal places ofbusiness at all times relevant a location at 605 Portion Road, Ronkonkoma, New York 11779, continuously having at least 15 employees, and also having 500 or more employees at the time of the acts complained of. 9. Upon information and belief, at all relevant times herein, Defendant's employee Lopez was a natural person, a citizen or resident alien of the United States and a resident of Suffolk County in New York State. At all times relevant herein, Defendant's employee Lopez was a supervisory or management employee of Defendant BOSTON MARKET. 10. Upon information and belief, at all relevant times herein, Defendant's employee Padilla was a natural person, an undocumented alien residing within the territorial borders of the United States and a citizen of the foreign nation ofHondtrraS and a resident ofSuffolk County in New York State. At all times relevant herein, Defendant's employee Padilla was an employee of Defendant BOSTON

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MARKET. PROCEDURAL ASPECTS
11. Plaintiff-Intervenor GAGLIARDI repeats and realleges each and every allegation contained
in Paragraphs "I" through "10" ofthis Complaint as if set forth fully herein.
12. Plaintiff-Intervenor GAGLIARDI commenced this action by filing a charge ofdiscrimination
against BOSTON MARKET with the EEOC, alleging acts of disability-based and gender-based
discrimination and sexual harassment more particularly described below. 13. The EEOC initiated a vigorous and sympathetic investigation into the charges. On July 23, 2002, HOD. Spencer H. Lewis, Jr., District Director, New York District Office ofthe EEOC, issued a Detennination that there was "reason to believe that violations have_occurred" and that PlaintiffIntervenor was a "victim of unwanted conduct of a sexual nature," ''victim of discrimination on account of her disability," and a "victim of retaliation," by BOSTON MARKET, its agents, and employees, and that as a result of discriminatory conduct by Defendant, Plaintiff-Intervenor was subjected to intolerable working conditions and "was constructively discharged." 14. Informal attempts at conference, conciliation and persuasion by the EEOC with Defendant
BOSTON MARKET during the Summer and Fall-Winter of2002 were rejected by said Defendant. On or about August 26, 2003, the EEOC filed the instant enforcement action. 15. Plalntiff-Intervenor soughtto intervene in this action pursuantto 42 U.S.C. § 12117(a), which
incorporates by reference 42 U.S.C. § 2000e-5, and pursuant to Fed. R. Civ. P. 24(a) & 24(b). Plaintiff-Intervenor GAGLIARDI sought to intervene as she might be bound by the judgment pursuant to Fed. R. Civ. P. 24(a)(2) and her claim had questions oflaw and fact in common with the main action pursuant to Fed. R. Civ. P. 24(b)(2). Intervention would result in the claims ofPlaintiff-
Intervenor GAGLIARDI and PlaintiffEEOC against Defendant being adjudicated in one forum at

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one time for purposes ofjudicial economy and consistency of result. 16. On or about February 13, 2004, this Honorable Court issued an Order permitting Ms. GAGLIARDI to intervene in this action. 17. Plaintiff seeks injunctive and declaratory relief, money damages and other appropriate legal and equitable relief under the ADA and Title VII, pursuant to § 706(g) of Title VII, 42 U.S.C. §2000e-5(g), and 42 U.S.C. § 12117. Compensatory and puuitive damages are sought pursuant to 42 U.S.C. § 1981a. 18. Costs and attorney's fees may be awarded pursuant to 29 U.S.C. § 1132(g); 42 U.S.C. § 2000e-5(k) and Rule 54 of the Federal Rules of Civil Procedure.
STATEMENT OF FACTS 19. Plaintiff-Intervenor GAGLIARDI repeats and realleges each and every allegation in paragraphs "I" through "18" of this complaint with the same force and effect as if more fully set forth herein. 20. Plaintiff-Jutervenor GAGLIARDI was diagoosed shortly after birth in June of 1975 with a disabling condition tharaffects her short-and long-term memory and which makes it difficult for her to interact with other individuals, particularly adults. She has received a number ofpsychological evaluations for her disabling condition which is apparently genetic or the result of a prenatal condition which has been difficult to label with precision as it has been recognized as having characteristics in common with a number ofpsychological disorders. Plaintiff-Intervenor has been diagnosed with Asperger's Syndrome (or Disorder under the DSM N), Cognitive Disorder, and other neuoro-psychological disorders and psycho-social impairments. 21. The nature of Plaintiff-Intervenor's condition makes it difficult for her to function in jobs other than those of a very basic or routine nature. In addition, the condition is an obstacle or

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impediment to her ability to socialize with other persons in an adult or mature manner. As a result, she is most comfortable interacting with pets and animals and has long held a volunteer position where she can care for and interact with animals. Up until the end of2002, Plaintiff-Intervenor, who is twenty-eight (28) years ofage, had lived all ofher life with her parents. Her father was employed as a New York State Court Officer and her mother as a self-employed private investigator. 22. Plaintiff-Intervenor was emolled for much ofher life in special education classes. Following her graduation from high school, she was aided by the Eastern Suffolk: County Board ofCooperative Educational Services ("BOCES") program because of her special needs via a job development, placement, training and evaluative program. The BOCES program did not prove effective in placing Plaintiff-Intervenor; thus, Plaintiff-Intervenor's mother found a position for Ms. GAGLIARDI with BOSTON MARKET in or about the Spring-Summer ofl999 at the Defendant's store located at 605 Portion Road, Ronkonkoma, New York (the "Ronkonkoma store"). (The BOCES personnel continued to observe Plaintiff-Intervenor during her employment at the Ronkonkoma store.) 23. Plaintiff-Intervenor had some difficulties learning the functions ofa cashier because ofher learning disorders, particularly her Mathematics Disorder and difficulty with arithmetic, but was generally satisfied performing her duties as a dining room porter and maintenance person with Defendant BOSTON MARKET. 24. In or about December 2000, or possibly a month or so earlier, BOSTON MARKET hired Defendant's employee Padilla, as he identified himself, who was in actuality an undocumented alien national from Honduras whose real name was "Naum Galileo Matute-Caballero" (as later ascertained during a police investigation and criminal prosecution flowing from events herein). 25. Almost from the beginning of Defendant's employee Padilla's employment with BOSTON MARKET, he began to harass and make comments to Plaintiff-Intervenor ofa sexual nature. One of

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the manifestations ofPlaintiff-Intervenor's disorders is that she cannot bear to be touched, as being touched places her in a state of extreme fear and anxiety. Realizing this, Defendant's employee Padilla often made lewd and sexually suggestive comments to Plaintiff-Intervenor and, on at least one occasion, roughly touched her arm, leaving marks or bruises. At least two BOSTON MARKET employees, Albert Corso ("Corso") and Ann Pichardo ("Pichardo"), witnessed the behavior of Defendant's employee Padilla in his harassment of Plaintiff-Intervenor and later made sworn statements in connection with a police investigation. At least two other male employees, who were encouraged by Defendant's employee Padilla, joined in harassment of Plaintiff-Intervenor. 26. Plaintiff-Intervenor GAGLIARDI began to dread going to work and went to work in a state of fear and anxiety. When she reported Defendant's employee Padilla's behavior to manager Donna Robinson ("Robinson") and Defendant's supervisors Lopez, Jennifer Palmer ("Palmer") and Kenneth McLeod ("McLeod"), they did nothing to intervene despite the fact that BOSTON MARKET apparently had personnel policies concerning sexual harassment that were not followed in this instance. In fact, one of the supervisors. Defendant's employee Lopez, in violation of BOSTON MARKET employee policy, publicly boasted ofsexual liaisons with Defendant's employee Padilla, admitted he lived with her, and is alleged to have shown pornographic pictures of Defendant's employee Padilla to Plaintiff-Intervenor and other staffmembers,l Defendant's employee Lopez was openly hostile about Plaintiff-Intervenor's complaints concerning Defendant's employee Padilla. 27. Due to the fact that nothing was done to restrain Defendant's employee Padilla despite Plaintiff-Intervenor's complaints to supervisory and managerial staff of Defendant BOSTON MARKET, Defendant's employee Padilla continued his physical and verbal sexual harassment of
lIt is alleged that Defendant's employee Padilla was married with a wife and children in Honduras.

Case 2:03-cv-04227-LDW-WDW Document 30 Filed 10/07/2004 Page 11 of 19
Plaintiff-Intervenor. 28. On or about March 18,2001, Defendaot's employee Padilla, while at the Ronkonkoma store of BOSTON MARKET,' grabbed Plaintiff-Intervenor GAGLIARDI, bruising her arm, threw her against the wall and began to roughly grind his pelvis into her. TIris assault and other acts of harassment were witnessed by Corso who usually attempted to take Plaintiff-Intervenor's part in order to protect and defend her from harassment. (Corso was an ordinary hourly employee.) Following the assault, Plaintiff's employee Padilla continued to make remarks ofa sexual nature to Plaintiff-Intervenor, engaged in unwanted touching and may have joined with others in another harassing incident involving physical abuse. 29. When Plaintiff-Intervenor reported the assault to Robinson, the store manager, she did nothing, giving the reason that she did not want to get involved as she was transferring the next day to another BOSTON MARKET store, upon information and belief, located in Selden, New York. 30. Later, when regional manager, John Fronhoffer, heard about the assault, he stated that Plaintiff-Intervenor "shouldn't have made such a big deal about it," or words to that effect. 31. After living with severe emotional distress following the assault at work, Plaintiff-Intervenor began to suffer from severe emotional distress, anxiety and an intense fear of her workplace. 32. Finally, Plaintiff-Intervenor informed her parents, with whom she was living at the time, about what had happened to her at work, after GAGLIARDI's parents found a telephone number lying on the kitchen table on or about April 29, 200 I, and asked Plaintiff-Intervenor what the number signified. The telephone number allegedly recited the number for BOSTON MARKET Human
2Plaintiff-Intervenor is reasonably certain that this is the most likely date that the incident happened, but is impeded as to her memory to some degree by her disabilities as to the exact date. Part of the confusion lies in the fact that Defendant's employee Padilla was constantly present in the BOSTON MARKET Ronkonkoma store whether he was working or not in order to be with his friends in the store and his girlfriend, Defendant's employee Lopez.

Case 2:03-cv-04227-LDW-WDW Document 30 Filed 10/07/2004 Page 12 of 19
Resources which Plaintiff-Intervenor had copied from a posting on a wall at the Ronkonkoma store. 33. When Plaintiff-Intervenor's parents attempted to call the telephone number, there was no answer over a prolonged period of time and long afterward her parents were informed that the number had been changed but had never been revised on the posting. 34. Plaintiff-Intervenor's parents immediately took Plaintiff GAGLIARDI to the police where she made a complaint on April 30, 2001. The police launched an investigation and Defendant's employee Padilla was charged with a number of crimes, including stalking, to which Defendant's employee Padilla pleaded guilty under a plea bargain arrangement. An order of protection was entered against Defendant's employee Padilla in favor of Plaintiff-Intervenor by the court. 35. Defendant's employee Padilla was later found to have violated the order of protection and failed to comply with a court-ordered appearance because he had been arrested at Defendant's employee Lopez' house on an unrelated charge for driving while intoxicated, having hit a pole in the shopping center containing the BOSTON MARKET Ronkonkoma store, and having fled the scene of the accident. 36. Defendant's employee Padilla was fired by Defendant BOSTON MARKET after his arrest and conviction for stalking Plaintiff-Intervenor. 37. Following the arrest and conviction ofDefendant's employee Padilla, Plaintiff-Intervenor's schedule and hours changed, with Plaintiff-Intervenor believing her hours were being purposely decreased over the long term. 38. Supervisor and Defendant's employee Lopez constantly harassed Plaintiff-Intervenor and threatened to see that she was fired. Management allegedly made an effort to separate the shifts of Defendant's employee Lopez and Plaintiff-Intervenor, but Plaintiff-Intervenor still encountered Defendant's employee Lopez almost each day she worked with LOPEZ launching most times into a

Case 2:03-cv-04227-LDW-WDW Document 30 Filed 10/07/2004 Page 13 of 19
tirade of insults and remarks pertaining to Plaintiff-Intervenor's disability ("re-tard," etc.). 39. As a result of the foregoing, Plaintiff-mtervenor's condition worsened due to the severe emotional distress she experienced and she was evaluated by two separate psychologists in May and September of 2001. (She was also evaluated early the following year in January of2002.) Both psychologists found that Plaintiff-mtervenor had suffered permanent and significant emotional and psychological damage from the events complained of and management's failure to intervene. 40. Plaintiff-mtervenor felt management was insensitive to what had happened and had been happening to her and her feelings of hopelessness and isolation increased as management allowed Plaintiffs employee Lopez to interact and to threaten Plaintiff-Intervenor following Defendant's employee Padilla's conviction. In additio~ management, apparently knowing that PlaintiffIntervenor's disorder included difficulty with arithmetic and mathematics, cynically continued to assign her to work as a cashier. On other occasions, Plaintiff-Intervenor was sent out to canvass the parking lot and to weed the Ronkonkoma store lawn, because that was "all [she] was good for." 41. By July of2001, the environment at the BOSTON MARKET Ronkonkoma store had become unbearable and intolerable for Plaintiff-Intervenor, plus her scheduling and other terms and conditions ofemployment had been unfavorably changed. Plaintiff-Intervenor felt that she had been fired by BOSTON MARKET due to the hostile attitude ofits management at the Ronkonkoma store, that she was unwelcome at work and that she could no longer bear the way she was being treated. As a result, her employment terminated. 42. Defendants' actions were intentional and in reckless disregard for the mental and physical health of Plaintiff-Intervenor GAGLIARDI. As a result of the foregoing acts, Plaintiff-Intervenor has suffered grievous, extensive and continuing damages, including, but not limited to, pain and suffering, humiliation and embarrassment, severe emotional distress, a worsening of her

Case 2:03-cv-04227-LDW-WDW Document 30 Filed 10/07/2004 Page 14 of 19
neuropsychological disability, lost wages and benefits and attorney's fees. FIRST COUNT
43. Plaintiff-Intervenor repeats and realleges each and every allegation in paragraphs numbered "1" through "42" of this Complaint with the same force and effect as if fully set forth herein. 44. Defendant BOSTON MARKET intentionally discriminated against Plaintiff-Intervenor in violation ofTitle VII by pwposely SUbjecting her to severe andlor pervasive sexual harassment and an offensive, unbearable and hostile working environment, for which it is vicariously liable.
SECOND COUNT 45. Plaintiff-Intervenor repeats and realleges each and every allegation in paragraphs numbered "I" through "44" of this Complaint with the same force and effect as if fully set forth herein. 46. Defendant BOSTON MARKET intentionally discriminated against Plaintiff-Intervenor in violation of the ADA incorporating by reference Title VII by pwposely subjecting her to severe andlor pervasive harassment on account ofher mental, emotional and neuropsychological disorders, and because ofperception of Plaintiff-Intervenor as an individual with a mental impairment, and by subjecting here to an offensive, unbearable and hostile working environment, for which it is vicariously liable.
THIRD COUNT 47. Plaintiff-Intervenor repeats and realleges each and every allegation in paragraphs nwnbered "1" through "46" of this Complaint with the same force and effect as if fully set forth herein. 48. Violating both Title VII and the ADA, BOSTON MARKET retaliated against the PlaintiffIntervenor for engaging in protected activity by complaining about the discriminatory acts of Defendant's agents and employees. taking adverse action or failing to contain continlling hann, negatively affecting Plaintiff-Intervenor's tenns and conditions ofemployment.

Case 2:03-cv-04227-LDW-WDW Document 30 Filed 10/07/2004 Page 15 of 19
FOURTH COUNT 49. Plaintiff-Intervenor repeats and realleges each and every allegation in paragraphs numbered
"1" through "48" of this Complaint with the same force and effect as if fully set forth herein.
50. Defendant BOSTON MARKET condoned and/or ratified the actions ofits agents, servants or employees Defendant's employee Padilla and Defendant's employee Lopez. 51. BOSTON MARKET denied Plaintiff-Intervenor equal terms, conditions and privileges of employment due to her gender and disability in violation of the NYSHRL, justifying an award of
back pay, etc. and aU appropriate compensatory damages making Plaintiff-Intervenor whole commensurate with the provisions ofNew York State law.
FIFfHCOUNT 52. Plaintiff-Intervenor repeats and realleges each and every allegation in paragraphs numbered
"I" through "51" ofthis Complaint with the same force and effect as if fully set forth herein. 53 Defendant's employee and Supervisor Lopez aided and abetted Defendant BOSTON MARKET's discriminatory acts committed against Plaintiff-Intervenor. 54. Defendant's employee Lopez accordingly discriminated against Plaintiff-Intervenor in violation of the NYSHRL.
SIXTH COUNT 55. Plaintiff-Intervenor repeats and realleges each and every allegation in paragraphs numbered
"1" through "5411 of this Complaint with the same force and effect as if fully set forth herein.
56. Defendant's employee Padilla facilitated, aided and abetted Defendant BOSTON MARKET's discriminatory acts committed against Plaintiff-Intervenor. 5? Defendant's employee Padilla accordingly discriminated against Plaintiff-Intervenor in violation of the NYSHRL.

Case 2:03-cv-04227-LDW-WDW Document 30 Filed 10/07/2004 Page 16 of 19
SEVENTH COUNT 58. Plaintiff-Intervenor repeats and realleges each and every allegation in paragraphs nwnbered "1" through "57" of this Complaint with the same force and effect as if fully set forth herein. 59. Defendant BOSTON MARKET intentionally discriminated against Plaintiff-Intervenor in violation of Title vn, the ADA and the NYSHRL, by causing the constructive discharge and tennination of employment of Plaintiff-Intervenor for complaining of sexual harassment and harassment on account of her disabling conditions, disorders and impairments.
PRAYER FOR RELIEF WHEREFORE, Plaintiff-Intervenor respectfully requests the following relief::
A. that this Court accept jurisdiction of this case; B. that this Court declare the conduct engaged in by Defendants is in violation of
Plaintiff's rights under Title VII, the ADA, and the NYSHRL;
c. that this Court grant a permanent injunction enjoining Defendant BOSTON
MARKET. its owners, officers, management personnel, supervisors, employees, agents, attorneys, successors and assigns and those acting in concert therewith from any conduct discriminating against individuals on account oftheir gender or having mental impairment(s) and/or disorder(s) and enjoining them from any conduct violating the rights of Plaintiff-Intervenor as secured by Title VII, the ADA, and the NYSHRL;
D. that this Court award a money judgment to Plaintiff-Intervenor representing
compensatory damages, including lost wages, past and future wages and front pay, all other sums of money, including any and all benefits and any other emp10yment benefits together with interest on said amounts;

OCT-07-2004 06:09 AM

P.02

Case 2:03-cv-04227-LDW-WDW Document 30 Filed 10/07/2004 Page 17 of 19

E. that thi. Court award Plalntlfl'·lntorvenorp~udl!Il1.nl intorest for the entire period; F. that this Court award Plainlifl'·lntervenorcompensatory d9mllP'to be determined by
the jill)' .t tim. of trial; G. that this Court award Plaintiff·lntervenor punitive damages to be detennined by the
jill)' al time oftrial; H. that this Court award Plaintiff-Intervenor dan1ages for emotional distress und.er New
York law ~ Luciano v. OM Corporation. 912 F.Supp. 663 (B.D.N.Y. 1996); KUDer v. Empire Blue Cross &: Blue Shield, 2003 WI. 3S9462 (S.D.N. Y. 2003)); I. that this Court award Plaintlff·Intervenor oosts and disb_ments and reasonable attomeys' fees, Including the fees and CO!lts of experts, incUl'I'Cd in prosecutlna this actioniand J. that this Court grant .uob other reliefas it may deem ju.'lI and proper.

Plaintiff demands a trial byjwy as to all i99UC5 so triable under the facts raised herein.

Rego Park, Now York

F

13.2004

Patricia Howlett. A ey at Law Ouatdlan of Person &: Property ofPlaintifl'·lntervenor Christine Gagliardi 22 Evelyn Road West Islip, New Yori< 1119' (631) 661·4305 (leI.)

Michael R. C • AttomoyalLaw(mc2639) Attorney to ill.O for Plaintiff-Intervenor 98·12D Queen. Boul.vard. Suite #I·C Suite #1,(;
Rogo Park, New York 11374
(718) 830·7741/830·0246 (tel.)

Case 2:03-cv-04227-LDW-WDW Document 30 Filed 10/07/2004 Page 18 of 19

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK LONG ISLAND DIVISION
---------------------------------------------------------------- J(
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

Civil Action No. 03-CV-4227 (LDW) (WDW)

and

CIIRISTINE GAGLIARDI, by the
Guardian of her Penon and Property,
PATRICIA HOWLETT, ESQ.,

CERTIFICATION OF SERVICE

Plaintiff-Intervenor,

-against-

BOSTON MARKET CORPORATION,

Defendant.

-J(

MICHAEL R. CURRAN, an attorney duly licensed to practice law in the State of New York,

certifies as to the foHowing:

1. I am the attorney to the Guardian of the Person and Property of Christine Gagliardi, Ms.

Patricia Howlett, Esq., and am familiar with the facts and circwnstances ofthis matter through my

initial investigation of the complaint, discussions with family matters and meetings with the

incapacitated person herein, Christine Gagliardi.

2. On October 6, 2004, the undersigned mailed conformed copies of Plaintiff-Intervenor's

Complaint & Jury Trial Demand to the following: (a) Ms. Judy Keenan, Esq., Senior Trial Attorney,

U.S. Equal Employment Opportunity Commission, New York District Office, 33 Whitehall Street, 5~ Floor, New York, New York 10004-2112, attorneys for plaintiff; (b) Ms. JeanL. Schmidt, Esq.,

Case 2:03-cv-04227-LDW-WDW Document 30 Filed 10/07/2004 Page 19 of 19

Brown Raysman Millstein Felder & Steiner LLP, 900 Third Avenue, New York New York 10022-

4728, attorneys for defendant; and (c) Ms. PalriciaHowlett, Esq., 22 Evelyn Road, WestIslip, New

York 11795, Guardian of Person and Property ofChristine Gagliardi, placing same into a postage-

prepaid wrapper and into the exclusive care and custody of the United States Postal Service at a

depository within the City, County and State of New York.

Dated:

Rego Park, New York October 6, 2004

Michael . Curran Attorney for Guardian of Person & Property of Christine Gagliardi

 
 Case 2:03-cv-04227-LDW-WDW Document 44 Filed 11/30/2004 Page 1 of 2

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

-against-

Plaintiff,

ORDER CV 03-4227 (LDW) (WDW)

BOSTON MARKET CORP.,

Defendants. -------------------------------------------------------------X WALL, Magistrate Judge:

Before the court is a letter motion from plaintiff EEOC dated November 22, 2004, to

compel defendant to provide initial disclosures pursuant to Fed. R. Civ. P. 26 (a)(1). Defendant

opposes the motion in a letter dated November 24, 2004. For the reasons set forth herein, the

motion is granted and the costs of the motion are awarded to plaintiff as a Rule 37 sanction.

Rule 26 (a) provides that initial disclosures “must be made at or within 14 days after the

Rule 26 (f) conference.” The conference took place on October 20, 2004, and all initial disclosures should have been served by November 3rd. Defendant did not timely serve the disclosures. When no disclosures had been received by November 8th, plaintiff’s counsel wrote

to defendant’s counsel, then called. Defendant’s counsel apparently represented that the disclosures would be provided during the week of November 15th. When no response had been received by November 19th, plaintiff’s counsel again wrote to defendant’s counsel, indicating that

she would be forced to seek the court’s intervention if the disclosures were not received by noon on November 22nd. The disclosures were not received and this motion followed.

In opposition to the motion, defendant’s counsel states, in a brief, three-paragraph

submission, that the initial disclosures were served by hand on November 23, 2004, apparently

suggesting that the motion is moot, and requests that the motion be denied. Defendant offers no

Case 2:03-cv-04227-LDW-WDW Document 44 Filed 11/30/2004 Page 2 of 2

reason for failing to timely serve initial disclosures or for failing to follow through with subsequent assurances to provide them.
A party cannot simply ignore discovery demands, fail to respond to the adversary’s good faith efforts to obtain the disclosure, wait for the adversary to incur the expense of making a motion to the court, and then expect the court to step in and absolve them. Rule 37(a)(4) provides that “[T]he court shall . . . require the party whose conduct necessitated the motion or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees, unless the court finds . . . that the . . . nondisclosure . . . was substantially justified, or that other circumstances make an award of expenses unjust.” (emphasis added). Defendant has offered no reason whatsoever for the failure to provide initial disclosures. The court finds that defendant has utterly failed to demonstrate that the nondisclosure was “substantially justified, or that other circumstances make an award of expenses unjust,” and, without that showing, Rule 37 requires the imposition of such costs. A party has a right to timely disclosures, and to prompt responses to good faith efforts to resolve discovery disputes. Here, the plaintiff was afforded neither.
Plaintiff shall submit a statement of reasonable expenses, with the requisite support, within 15 days of the date of this order.

Dated: Central Islip, New York November 30, 2004

SO ORDERED:

s/William D. Wall WILLIAM D. WALL United States Magistrate Judge

2

 
 Case 2:03-cv-04227-LDW-WDW Document 61-2 Filed 08/23/2005 Page 1 of 13
EXHIBIT 1

Case 2:03-cv-04227-LDW-WDW Document 61-2 Filed 08/23/2005 Page 2 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
LONG ISLAND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, and
CHRISTINE GAGLIARDI
Plaintiff-Intervenor,
v.
BOSTON MARKET CORPORATION, Defendant.

CIVIL ACTION NO. CV -034227 (LDW) (WDW) ) ) ) )
) ) ) ) ) ) ) ) ) )

CONSENT DECREE

This actionwasinitiated on August26, 2003by plaintiff EqualEmploymentOpportunity Commission (hereinafter "EEOC"), an agency of the United States Government, alleging that defendantBostonMarket Corporationviolatedthe AmericansWith Disabilities Act (hereinafter "ADA") and Title VII of the Civil Rights Act of 1964 (hereinafter "Title VII') by subjecting plaintiff-intervenor Christine Gagliardi to a hostile environment on the basis of her disability and sex(female),by retaliatingagainstplaintiff-intervenorandby constructivelydischargingher. On February13,2004,the CourtallowedChristineGagliardito interveneinto this lawsuit.
Boston Market Corporation ("Boston Market") has denied all of the material allegations of the Complaintandthe IntervenorComplaintand denythat plaintiff-intervenorwas subjected to a hostile environment, retaliated against, constructively discharged or discriminated against in

Case 2:03-cv-04227-LDW-WDW Document 61-2 Filed 08/23/2005 Page 3 of 13

any way. BostonMarket deniesthat its noticesand postingsregardingits non-discrimination

policiesareor weredeficient.

The partiesagreethat it is in their mutual interestto fully resolvethe matter without further litigation. This agreemenits not an admissionof liability by defendantBostonMarket

Corporation. EEOC,ChristineGagliardiand BostonMarket Corporationherebystipulateand consent
to the entryof this Decreeasfinal andbinding betweenthe partiesenteringthis agreemenat nd their successorosr assigns.

The partieshave agreedthat this Decreemay be enteredwithout Findings of Factand

Conclusionsof Law havingbeenmadeandenteredby theCourt.

In considerationof the mutualpromisesof eachpartyto this Decree,the sufficiencyof which is hereby acknowledged,it is agreedand IT IS ORDERED, ADJUDGED, AND

DECREED AS FOLLOWS:

General Provisions

1

This Decree resolves all of the issues raised by EEOC Charge No. 160-A2-0461,

the complaintfiled by the EEOC in this action,andthe complaintfiled by plaintiff-intervenor

Gagliardi in this action.This Decreein no way affectsEEOC's right to processanypendingor

future charges that may be filed against defendant in accordance with standard EEOC

proceduresa, ndto commencecivil actionson any suchcharges.

The parties agreethat this Court has jurisdiction of the subjectmatterof this

actionandof the parties,thatvenueis proper,andthatall administrativeprerequisiteshavebeen met.

2 2.

Case 2:03-cv-04227-LDW-WDW Document 61-2 Filed 08/23/2005 Page 4 of 13
3 No party shall contestthe jurisdiction of the federal courtto enforcethis Decree or its tenus or the right of anypartyto bring an enforcemenst uit uponbreachof anyof thetenus of this Decreeby anyotherparty.
4, Breachof anytermof this Decreeshouldbedeemedto be a substantivebreachof this Decree.
proceedingsto enforcethis Decreein the eventthat any otherparty fails to perform any of the promisesandrepresentationcsontainedherein.
Boston Market Corporation and its managers, officers, agents, successors,and assigns,agreethat theywill not: discriminateagainstanyindividual becauseof the individual's sex or mental,emotional,or learningdisability; engagein harassmenttoward anyemployeeon the basisof sex or mental,emotional,or learningdisability; or engagein relatedretaliationor constructive discharge against any individual for reporting any such harassment or discrimination. For the purposeof enforcingthis Decree,this paragraphapplies only to the restaurantsin Ronkonkoma,Smithtown,Selden,Commack,Shirley, Deer Parkand EastIslip, New York,
Written Policy 7 Defendant Boston Market Corporation has adopted and will maintain the following statemenot f non-discrimination: Boston Market has zero-tolerance for unlawful discrimination, including harassment and sexual harassment, and for retaliation against employees who report suchconduct, who cooperatein any company investigation into a violation of company policie~, or who are involved in or who cooperate in any investigation by a governmental agencyregarding complaints of discrimination, harassmentor retaliation. These policies apply to employees at any and all activities, work related or not, if these activities impact the work environment. These policies
3
56.

Case 2:03-cv-04227-LDW-WDW Document 61-2 Filed 08/23/2005 Page 5 of 13
alsoapplyto customerss, uppliersandvendors.Employeeswho violatethe policy will bedisciplinedupto andincludingtermination. BostonMarket stronglybelievesthat employeesand applicantsfor employment shouldbe treatedfairly and without regardto race,color, sex,religion, national origin, age,disability, veteranstatus,or any otherprohibitedbasis. This applies to all employmentpractices, including recruiting, hiring, pay, performance reviews,training anddevelopmentp, romotions,andothertermsandconditionsof employment. Discrimination or harassmentof a Boston Market employee, whetherby anotheremployee,supplier,vendoror customer,will notbetolerated. 8. Defendant Boston Market Corporation has adopted and will maintain the complaint procedure attached as Appendix A for employees who believe that they have been discriminatedagainst,harassed,or retaliatedagainstand has distributedand will continueto distributesuchpolicy to all employees.
In addition to the complaint procedure described in Appendix A, employeesof defendantBoston Market Corporationmay report incidents of discrimination, harassment,or retaliation to a member of the managementeam at any Boston Market Corporationlocation,to a BostonMarket CorporationHumanResourcesManager,by usingthe Open Door Process, or, within 60 days of the entry of this Decree, to a toll-free telephone number for reporting incidents of discrimination, harassmentor retaliation.
b. Within 60 days of the entry of this Decree,defendantBoston Market
Corporation will establish and maintain a functioning, toll-free telephone number for reporting incidentsof discrimination,harassmenotr retaliation. Thetelephonewill beansweredby trained humanresourcespersonnelfrom 8:00 a.m.to 5:00p.m., MondaythroughFriday. During other hours,this telephoneline will havean outgoingrecordedmessagecontaininginformationabout the complaint reporting procedureand a listing of staffed hours, and will acceptrecorded messages.
4
a.

Case 2:03-cv-04227-LDW-WDW Document 61-2 Filed 08/23/2005 Page 6 of 13
9. Within 30 daysof the entryof this Decree,defendantBostonMarket Corporation
will developand implementan investigationprocedurefor reportedincidentsof discrimination, harassment,or retaliation, and a disciplinary policy for employeeswho Boston Market detenninesin good faith andaftera thorough,unbiasedinvestigationhaveengagedin harassing, discriminatoryor retaliatorybehavior.Prior to implementationE, EOCwill reviewand approve the proposedinvestigationprocedureanddisciplinarypolicy.
Notice and Postin!!
10. Defendant Boston Market Corporation will comply with EEOC's posting requirementsand post a postercontaininga descriptionof the Federallaws prohibiting job discriminationbasedonrace,color,sex,nationalorigin, religion, equalpayanddisability in each of its facilities, in placesvisuallyaccessibleto applicantsandemployeesof the defendant.
11 Defendant Boston Market Corporation will display a copy of the nondiscrimination statementdiscussedin paragraph7 in eachof its facilities, in places visually accessibleto applicantsandemployeesof thedefendant.
12, Within 30 daysof the entryof this Decree,defendantBostonMarket Corporation will displaya copyof the complaintprocedurediscussedin paragraph8 in eachof its facilities, in placesvisually accessibleto applicantsandemployeesof thedefendant.
13. Within 30 days of the entry of this Decree, defendant Boston Market Corporation will displaya remedialNotice pursuanto this Decreein theRonkonkomarestauranta, ttachedas Appendix B, in places visually accessibleto applicants and employees of the defendant in that restaurant.This Notice will be printed on Boston Market Corporation letterhead.
14. Defendant Boston Market Corporation's handbook of "Employee Guidelines" has included and will continue to include the statementof non-discrimination discussedin paragraph
5

Case 2:03-cv-04227-LDW-WDW Document 61-2 Filed 08/23/2005 Page 7 of 13
paragraph9. Anti-Discrimination Trainine:
15. Within four months from the entry of this Decree, and every year thereafter for the durationof this Decree,defendantBostonMarket Corporationwill provide no fewer than threehoursof training in Federalawsprohibiting discriminationin employment.The contentof eachof the threetrainingsis to be approvedby EEOC. The EEOCwill adviseBostonMarket
whether the content of the three trainings is approved within fourteen (14) days after it receives the contentfrom BostonMarket. If the EEOC doesnot adviseBostonMarket within fourteen (14) thatthe trainingis not approvedt,he contentwill be deemedapproved.Thetrainingis to be conductedby BostonMarket's training staff for all of defendant'semployeesin the areawhich currentlyincludesthe restaurantsin Ronkonkoma,Smithtown,Selden,Commack,Shirley, Deer Park and East Islip, New York, and specifically in those restaurants and any additional restaurantsoperatedby BostonMarket Corporationthat may be openedduring the durationof this Decreewhicharein the sameareaasanyof theserestaurants.
Eachof thesethree anti-discriminationemployeetrainingswill coverall areasof discriminationprohibited by laws enforcedby the EEOC, but will include special emphasison disability andsex-baseddiscriminationandharassmenta,ndonretaliation. Mental, emotional, and learning disabilities will be specifically addressed.
Each of thesethree anti-discriminationemployeetrainings will inform employees about the complaint procedure discussed in paragraph 8 and the investigation and disciplinary policies discussedin paragraph9.
6
ab.

Case 2:03-cv-04227-LDW-WDW Document 61-2 Filed 08/23/2005 Page 8 of 13
Co Eachof thesethreeanti-discriminationemployeetrainingswill reviewthe materialspostedby employerin accordancewith Federallaw andthis ConsenDt ecree(discussed in paragraphs 10, 11, 12, and 13).
16. Also within four monthsfrom the entryof this Decree,and everyyear thereafter for the duration of this Decree, for a total of three trainings, defendantBoston Market Corporation will provide no fewer than two additional hours of training in Federal laws
employees of defendant in the restaurantsin the areadescribed in paragraph 15. This anti-discriminationmanagemenat nd supervisoryemployeetraining
the complaintprocedurediscussedin paragraph8, and will specifically inform managersand supervisors about defendant Boston Market Corporation's investigation and disciplinary policies discussedin paragraph9.
DefendantBoston Market Corporationwill maintain a summaryof the topics coveredat eachtraining sessionreferencedin Paragraphs15 and 16 and an attendancesheet identifying the nameandjob title of the attendeesat eachsession.Within ten businessdaysof each employee and management/supervisoreymployeetraining, defendantBoston Market Corporationwill forwardto EEOCa copyof the summaryof the topicscoveredandattendance sheetsfrom eachtraining session.
18. Within 30 days,defendantBostonMarket Corporationwill include in its regular ~ployee training curriculum, notification of contentof Federalanti-discriminationlaws and 4efendant's statementof non-discrimination,complaintreporting procedure,and disciplinary policy regardingdiscriminatorybehavior.
7
a7.

Case 2:03-cv-04227-LDW-WDW Document 61-2 Filed 08/23/2005 Page 9 of 13

Monetary Dama2es
19. Within ten (10) days of the entry of this Dectee, DefendantBoston Market Corporationshall pay a total of $150,000pursuantto a sep~te agreement("Agreement")

betweendefendantand ChristineGagliardi. EEOC is not a p~ to that Agreementand is not

boundby its terms. 20, DefendantBoston Market Corporationwill pro~ide EEOC with copies of the
transmittallettersandcheckssentpursuanto theAgreement. 21 DefendantBostonMarketCorporationwill issue~ fornls in accordancewith the

Agreement.

Duration

22 This Decreeshallremainin effectfor threeyearsrt°m thedateof entry.

SOORDERED,ADJUDGEDAND DECREEDthis !dayof

,2005.

Dated: New York, NY
Dated New York, NY O~ll3l1..bO5

LeonardD. Wexler United StatesJud*
ri
ElizabethGrossm Acting Regional orney FORPLAINTIFF QUAL EMPLOYMENT OPPORTUNITY OMMISSION 33 Whitehall Stre , 5th Floor New York, NY 10 04-2112

8

Case 2:03-cv-04227-LDW-WDW Document 61-2 Filed 08/23/2005 Page 10 of 13

Rappaport, G1as!s,Greene & Levine,

LLP

500 Fifth Avenue
New York, NY 1 110

CO-COUNSELFPR PLAINTIFFINTERVENORC~STINE GAGLIARDI

9

Case 2:03-cv-04227-LDW-WDW Document 61-2 Filed 08/23/2005 Page 11 of 13

ApRendixA

Complaint Procedure

Boston Market's Zero Tolerance Policy (the "Policy") states ~ at all claims of harassment or

discrimination

or other violations of the Policy must be inve tigated. This means that any

complaint of harassment, discrimination or other violation of the Policy, however made, is

subject to the following procedure:

1 A claim of harassmentor discrimination or other violatio of the Policy may be reported to a restaurantGeneral Manager, an Area Manager, a H an Resourcesrepresentative or on a toll free telephone number established for this p se and manned by a Human Resourcesprofessional. The personreceiving a claim on the toll free number will report it to the appropriate Human Resourcesrepresentativeand 0 the Legal Department.

2. Human Resources and/or the Legal Department will be responsible for conducting an
investigation of any claim with assistance from the eneral Manager or the Area Manager as appropriate to the claim. The investigati n will commence as soon as possible after the claim is made. If appropriate, the rson accused of the alleged inappropriate behavior may be suspendedduring the inves igation of the claim.

3. The individual who made the claim will be asked to de ribe in writing what occurred
and will be interviewed to learn the facts surrounding th claim. The individual will be advised that while Boston Market cannot guarantee complete confidentiality, the investigation will be conducted in as confidential a anner as possible under the circumstances. The individual also will be told that Boston Market has a policy prohibiting retaliation, and that if he or she believes that they have been treated differently as a result of coming forward, he or sh should report their concern
immediately to Human Resources.

4. Anyone identified as havingknowledgeof what allegedl occurredwill be interviewed and generallyaskedto give a written statemenat s to th facts of what he or shesaw, heard or experienced. The individual will be advis d that the investigation is a confidential matterand that he or sheshouldnot discus it or anythingsaid during the interview with anyoneelse.The individual also will be old that BostonMarket hasa policy prohibiting retaliation,and that if he or shebelie es that they have beentreated differently as a resultof participatingin the investigatio he or sheshouldreport their
concernimmediatelyto HumanResources.

5. The CCTV systemwill be reviewedto ascertainwhethe~anythingwas capturedby the cameras.If so,a copyof the relevantportionsof the CCTf will bemadeandpreserved.

The employeewho is accusedof the Policy violation wi' be interviewedand giventhe opportunityto respondto theclaimsandexplainhis orherjbehavior.

A-I 6.

Case 2:03-cv-04227-LDW-WDW Document 61-2 Filed 08/23/2005 Page 12 of 13

7. A determination will be made by Human Resourcesandlo the Legal Department whether a violation of the Policy has occurred. If it cannot be de rmined if a violation occurred, the individual who is accusedof the Policy violation will advised of the determination. The individual also will be reminded of the Policy an advised that if the company receives another complaint he or she may be subjectto di iplinary action.

8. If the investigationrevealsthata violation of the Policy

l as occurred,

the individual

will

be disciplined.

The

specific

disciplinary

action

will

d pend

upon

the

severity

of the

violation andthe mannerin which similar violationshav beenhandledin the past.Any

suchdecisionmustbeclearedby HumanResourcesand/o the LegalDepartment.

9. The individualmakingthe claimwill betold whenthe in estigationhasbeencompleted.
If the claimis foundto havemerit,the individualalsowil betold that appropriateaction hasbeentaken. If it could notbe determinedwhetherthe e wasa violationof the Policy, the individual making the claim will be told that the. ividual accusedof the Policy violation hasbeenremindedof BostonMarket's policy d warnedaboutfutureconduct. The individual making the claim will be reminded bout Boston Market's policy
prohibiting retaliationandadvisedagainto speakto Hum Resourcesimmediatelyif he or shebelievesthattheyhavebeentreateddifferentlyasa esultof comingforward.

10.Any documents,including statementsgeneratedor coll~e ed as part of the investigation,

should be collected, placed in a file and sent to the H

Resource representative or

Legal Department to be retained

A-2

Case 2:03-cv-04227-LDW-WDW Document 61-2 Filed 08/23/2005 Page 13 of 13

Annendix B

NOTICE

This NOTICE to the employees of Boston Market C rporation in the Ronkonkoma

restaurant is being posted and provided as part of a C nsent Decree between Boston

Market Corporation as defendant and the U.S.

Employment Opportunity

Commission as plaintiff. Boston Market Corporation, part of the resolution of this

matter, will not in this restaurant: discriminate against any individual because of the

individual's sex or mental, emotional, or learning disabili ; engagein harassmenttoward

any employee on the basis of sex or mental, emotional, r learning disability; or engage

in related retaliation or constructive discharge against y individual for reporting any

such harassmentor discrimination.

2.

Federal law requires that there be no discrimination a1g t any employee

or applicant

for

employment

because

that

person

made

a complaint

of

.scrimination

because

of sex,

race, national origin, color, or religion with respect to ..g, compensation, promotion,

discharge, or other terms, conditions or privileges of empl yment.

BostonMarket Corporationwill complywith suchFeder law in all aspectsa, nd it will

not take any actionagainstemployeesbecausetheyhave xercisedtheir rights underthe

law by filing charges, cooperatedwith the U.S.

Employment Opportunity

Commission,or otherwiseopposedemploymenpt racticesmadeunlawful underTitle VII

of the Civil RightsAct of 1964,asamendeda, ndtheArne .canswith DisabilitiesAct.

4. The Equal Employment Opportunity Commission is a federal agency established to eliminate illegal discrimination from the workplace. It aintains offices throughout the United States. Its toll-free telephone number is 1-800-66 000 (TTY: 1-800-669-6820). If you believe that you have beendiscriminated against0 harassedin the course of your employment at Boston Market Corporation, or if yo believe that you have been retaliated against, you may call The Equal Employme t Opportunity Commission to report your complaint. You may visit its website at ://www.eeoc. ov for more information about your rights as an employee and for info ation on how to file a charge of discrimination.

5, This NOTICEwill remainposteduntil 3 YEARSFROMDi4TEOFSIGNATURE.

SIGNED this

day of

,2005.

Equal EmploymentOpportunityOfficer DO NOT REMOVENOTICEUNTIL3 YEARSFROMDArE OFSIGNATURE.

B-1 3.

 
 E.E.O.C. v. Boston Market Corp., Not Reported in F.Supp.2d (2004)

2004 WL 3327264 Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
BOSTON MARKET CORP., Defendants.
No. CV 03–4227 LDW WDW. | Dec. 16, 2004.
Attorneys and Law Firms
Judy A. Keenan, Katherine E. Bissell, New York, NY, for Plaintiff.
Joel L. Finger, Brown Raysman Millstein Felder & Steiner LLP, New York, NY, for Defendants.
Opinion
ORDER
WALL, Magistrate J.
*1 Before the court is a motion by the defendant Boston Market Corporation for an order permitting the defendant’s attorneys to engage in ex parte communications with two of plaintiff Christine Gagliardi’s psychologists and with representatives of the Eastern Suffolk Board of Cooperative Educational Services (“BOCES”), Suffolk County Adult Protective Services (“ADP”), and the Suffolk County District Attorney’s Office (“DA”). See 11/4/04 Finger Letter. Gagliardi takes the position that the defendant is authorized to obtain all of her medical records and to depose her doctors and other non-parties, but that the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) 42 U.S.C. §§ 1320d—1329d–8, along with various New York privileges and privacy rights, preclude ex parte discussions by Boston Market with those entities. See 11/10/04 Keenan Letter & 11/12/04 Curran Letter. For the reasons cited herein, the motion is denied.
BACKGROUND
The parties all agree that Gagliardi has placed her medical condition at issue in this lawsuit, which involves, inter

alia, disability discrimination claims pursuant to Title VII and the Americans With Disabilities Act. Patricia Howlett, Esq., acts in this litigation as Gagliardi’s Personal Needs and Property Management Guardian. Gagliardi has authorized, through Howlett, the release of her medical, health, educational, rehabilitation and employment records to the defendant and has authorized the defendant’s deposition of her doctors. She has also allegedly authorized her own attorneys to speak ex parte with her doctors, with BOCES and with the DA, and has authorized counsel for the other plaintiff, the EEOC, to “speak privately” with BOCES. See 11/4/04 Finger Letter at 1–2 & Ex. A. Howlett specified, in the authorization to BOCES, that she would not “permit ex-parte communications between [BOCES] and defendant Boston Market Corporation and the attorneys for Boston Market Corporation about Christine Gagliardi, unless expressly agreed to” by her in a separate release. Id. Counsel for EEOC reports that it has already furnished the defendant with relevant records in its possession, including the complete BOCES records. 11/10/04 Keenan Letter at 2 n. 3.

Boston Market now seeks a court order allowing it to have ex parte discussions with several non-party fact witnesses. The defendant seeks access to (1) current and former members of the Suffolk County DA’s office who handled the prosecution of Gagliardi’s criminal complaint against Mr. Padilla, a former employee of Boston Market and Gagliardi’s alleged harasser; (2) Elaine Laverty and Brian McIlvain, BOCES employees who worked with Gagliardi on employment issues; (3) representatives of Suffolk County’s Adult Protective Services who conducted an investigation in April 2001 regarding allegations of abuse against Gagliardi;1 and (4) Sandy Guarnotta2 and Stuart Rothman, psychologists who evaluated Gagliardi but who, according to the defendant, did not treat her. 11/30/04 Schmidt Letter at 1–2.

1

The court notes that the defendant did not list these

individuals in its 11/04/04 letter motion, but included

them in its 11/30/04 reply letter.

2

The EEOC reports that counsel for Boston Market has

cancelled a deposition of Dr. Guarnotta based on

information that she does not have records and lacks

any independent memory of Christine Gagliardi.

Keenan Letter at 2 n. 2. The defendant does not

mention this, and the court has proceeded on the

assumption that Boston Market wishes to meet ex parte

with both psychologists. Moreover, although the

defendant states in its November 4th letter that it seeks

to meet ex parte with Gagliardi’s doctors and

psychologists, the reply letter of November 30th lists

only the two psychologists.

1

E.E.O.C. v. Boston Market Corp., Not Reported in F.Supp.2d (2004)

*2 There does not seem to be a dispute as to whether the defendant is entitled to discovery from these non-parties. The dispute is, instead, about the mode of communication that the defendant can use to obtain discovery. Because all of the people the defendant seeks to interview are non-parties, the court cannot order them to speak informally with the defendant, and the court is not sure whether the defendant is seeking an order that the plaintiff must authorize ex parte discussions, or a declaratory judgment that ex parte communication is acceptable. In any event, the EEOC, in opposition to the motion, argues that ex parte access must be denied, because it would “permit defendant to have unrestricted access to information that is privileged, highly personal or private, without providing the safeguards of having counsel for EEOC and Christine Gagliardi present to interpose legitimate objections to inquiries or statements by defense counsel which have nothing to do with obtaining relevant information.” 11/10/04 Keenan Letter at 1. Counsel for Gagliardi, Michael Curran, argues that various state law privileges require denial of the motion. See 11/12/04 Curran Letter.
DISCUSSION
This motion presents a number of overlapping issues, including the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) 42 U.S.C. §§ 1320d–1329d–8, New York privilege and privacy issues, the discovery provisions of the Federal Rules of Civil Procedure, and Federal Rule of Evidence 501. The court will look first to these issues as they relate to the propriety of ex parte communications with the two psychologists.
1.) Ex parte communications with Ms. Gagliardi’s psychologists: The plaintiffs argue that state law privileges for medical and mental health providers bar ex parte communications with Gagliardi’s psychologists, specifically referencing New York’s statutory psychologist-patient privilege, set forth at C.P.L.R. § 4507. See Curran Letter. The threshold question, however, is whether state law privileges apply at all in this lawsuit, which is in federal court on federal question jurisdiction, the plaintiff having asserted claims pursuant to Title VII and the Americans with Disabilities Act. Assertions of privilege in federal question cases are governed by federal common law, not by state law. Fed.R.Evid. 501; see also National Abortion Fed’n, 2004 U.S. Dist. LEXIS 4530, *18 (S.D.N.Y. Mar. 18, 2004) (citing von Bulow v. von Bulow, 811 F.2d 136, 141 (2d

Cir.1987) & Ehrich v. Binghamton City Sch. Dist., 210 F.R.D. 17, 21 (N.D.N.Y.2002)). Where, as here, an action involves both federal and state law claims, courts “have ordinarily held that privileges are determined under federal law.” Tesser v. Board of Educ., 154 F.Supp.2d 388, 391 (E.D.N.Y.2001).
Rule 501 provides, however, that evidentiary privileges should be governed by federal common law, only if a relevant rule of law has not been “otherwise ... provided by Act of Congress.” In other words, Rule 501 reflects the general principle that courts develop federal common law only “when Congress has not spoken to a particular issue.” City of Milwaukee v. Illinois, 451 U.S. 304, 313, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981). In HIPAA, Congress has “spoken” about the protection that must be extended to patients regarding their health related information. For this reason, HIPAA and the regulations promulgated thereunder, and not Rule 501 and federal common law, control the release of medical information by the plaintiff’s psychologists. See National Abortion Fed’n, 2004 U.S. Dist. LEXIS 4530 at *19–20 (citing National Abortion Fed’n v. Ashcroft, 2004 U.S. Dist. LEXIS 1701, *15 (N.D.Ill. Feb. 5, 2004), aff’d, 362 F.3d 923 (7th Cir.2004)).
*3 HIPAA is “a complex piece of legislation that addresses the exchange of health-related information” (National Abortion Fed’n, 2004 U.S. Dist. LEXIS 4530 at *5–6), one that has “radically changed the landscape of how litigators can conduct informal discovery in cases involving medical treatment.” Law v. Zuckerman, 307 F.Supp.2d 705, 711 (D.Md.2004). Under the rulemaking authority set forth in HIPAA, the Secretary of Health and Human Services has promulgated regulations to protect the privacy of protected health information. National Abortion Fed’n, 2004 U.S. Dist. LEXIS 4530 at *6–7.

Health information includes:

any information, whether oral or recorded in any form or medium, that: (1) is created by a health care provider,3 health plan, public health authority, employer, life insurer, school or university or health care clearinghouse; and (2) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual.

3

The court notes that HIPAA applies only to those

entities who are included in the statute’s definition of

“health provider,” and only such information as is

included in its definition of “health information.” Thus,

the statute applies herein only to the two psychologists

with whom Boston Market seeks to meet on an ex parte

basis. The defendant claims that the psychologists did

not treat Ms. Gagliardi, but HIPAA does not expressly

2

E.E.O.C. v. Boston Market Corp., Not Reported in F.Supp.2d (2004)

distinguish between treating and non-treating health providers, and there is no argument by either party on this issue. The court thus assumes that the psychologists are health providers as defined in the statute.
45 C.F.R. § 160.103. HIPAA contains a preemption provision that the statute and the regulations promulgated thereunder should supersede “any contrary provision of State law” except as provided in 42 U.S.C. § 1320d–7 (a)(2). See 42 U.S.C. § 1320d–7(a)(1). Under the exception relevant to this motion, HIPAA does not preempt or supersede state law if the state law relates to the privacy of individually identifiable health information and is ‘more stringent’ than HIPAA’s requirements. See National Abortion Fed’n v. Ashcroft, 2004 U.S. Dist LEXIS 1701 at *8 (citing 45 C.F.R. § 160.203(b) & U.S. ex rel. Stewart v. Louisiana Clinic, 2002 U.S. Dist. LEXIS 24062, *3 (E.D.La. Dec. 11, 2002)). A state privacy standard is more stringent than a HIPAA requirement if the state law “prohibits or restricts a use or disclosure in circumstances [under] which such use or disclosure otherwise would be permitted’ under HIPAA.” National Abortion Fed’n, 2004 LEXIS 4530 at *10 (quoting 45 C.F.R. § 160.202).
The plaintiff argues that New York law, specifically C.P.L.R. § 4507, which creates a statutory psychologist-patient privilege, is more stringent than HIPAA and should control here. Interpretation of the preemption provision is not, as the Seventh Circuit has observed, “free from doubt” (Northwestern Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 925 (7th Cir.2004). A question arises as to the application of the preemption provision: does it mean that “more stringent” state laws trump HIPAA regulations and apply both in cases where state law provides the rule of decision and in cases where federal substantive law controls; or does it mean that HIPAA applies in cases where federal law provides the rule of decision and in cases where the applicable state law is not more stringent than HIPAA, but that more stringent state law, rather than HIPAA, applies in cases where state law controls? Different courts have come to different conclusions, as a comparison of the district court and appellate court decisions in the Illinois National Abortion Federation case demonstrates.
*4 District Judge Kocoras, of the northern District of Illinois, held that the more stringent Illinois law was “activated” through HIPAA’s anti-preemption provision, which “demanded” its application, even though the case was before the court on federal question jurisdiction. 2004 U.S. Dist. LEXIS 1701 at *16–17. The Seventh Circuit, although it affirmed the district court’s quashing of the underlying subpoena, disagreed with Judge Kocoras’s interpretation of the preemption provision of HIPAA. The

court found that “HIPAA regulations do not impose state evidentiary privileges on suits to enforce federal law.” 362 F.3d at 925. More stringent state laws can be enforced “in suits in state court to enforce state law, and, by virtue of an express provision in Fed.R.Evid. 501, in suits in federal court (mainly diversity suits) as well [,] in which state law provides the rule of decision.” Id. But more stringent state laws do not “govern in federal-question suits.” Id.; compare United States ex rel. Pogue v. Diabetes Treatment Ctrs. of America, 2004 U.S. Dist. LEXIS 21830 (D.D.C. May 17, 2004) (applying “more stringent” Florida law in case brought “solely under the federal False Claims Act”).
Prior to the Seventh Circuit’s ruling, The Southern District of New York had come to the same conclusion about the preemption provision in the New York litigation involving the National Abortion Federation, noting that there is a difference “between a federal law that does not preempt a state law and a federal law that incorporates a state rule of law.” 2004 U.S. Dist. LEXIS 4530 at *13. The former “merely allows the state law to continue to operate in its sphere of influence, unaffected by the federal statute,” while the latter “gives the state law the force of federal law and makes it binding where it would not otherwise be.” Id. HIPAA, the Southern District held, intended the former result, and C.F.R. section 264(c)(2) “does not equate to the positive power to create binding law in the federal domain—here, a case arising under federal law brought in federal court.” Id. (citing Blonder–Tongue Lab., Inc. v. University of Ill. Found., 402 U.S. 313, 324 n. 12, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (“In federal-question cases, the law applied is federal law.”))

This court agrees with the reasoning the Seventh Circuit and Southern District opinions. As in National Abortion Fed’n, the C.P.L.R. section to which plaintiff points “remains the law in areas in which New York State has the authority to regulate, but it has not become the law in areas within the federal domain.” Id. Accordingly, New York law does not apply here, and no comparison of HIPAA and New York law is necessary to determine if the state law is “more stringent.4 The court thus turns to HIPAA for guidance on the issue of ex parte communications by adverse counsel with plaintiff’s psychologists.

4

Indeed, such a comparison might well present “apples

to oranges” issues. C.P.L.R. § 4507 is not a statute

governing procedures for the release of medical

information, but one that creates a psychologist-patient

privilege. One court has expressed the opinion that

HIPAA is not “rightly understood as an Act of

Congress that creates a privilege.” Northwestern Mem.

Hosp., 362 F.3d at 926. The impact of this distinction

on a potential comparison of the two laws is unclear,

but the court need not address the issue.

3

E.E.O.C. v. Boston Market Corp., Not Reported in F.Supp.2d (2004)

HIPAA expressly provides that a patient’s health information may be disclosed in a judicial or administrative proceeding, subject to specified regulations. 45 C.F.R. § 164.512(e). The provision allows disclosure of health information without patient consent: (1) pursuant to a court order that allows the health care provider and other entities to disclose “only the protected health information expressly authorized by such an order;” or (2) in response to a subpoena or discovery request if the health care provider receives adequate assurance that the individual whose records are requested has been given sufficient notice of the request, or if reasonable efforts have been made to secure a protective order. See National Abortion Fed’n, 2004 U.S. Dist. LEXIS 4530 at *7; C.F.R. § 164.512(e)(1)(I), (ii). The protective order must “prohibit the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and must require the return or destruction of the protected health information, including all copies, at the end of the litigation or proceeding. 45 C.F.R. § 164.512(e)(1)(v)(A) & (B).5

5

The regulation does not appear to require a protective

order when the disclosure is made pursuant to court

order, although the language in some opinions suggests

otherwise. See, e.g., A Helping Hand, LLC v. Baltimore

County, 295 F.Supp.2d 585, 592 (D.Md.2003) (“[T]he

HIPAA regulations permit discovery of protected

health information so long as a court order or

agreement of the parties prohibits disclosure of the

information outside the litigation and requires the

return of the information once the proceedings are

concluded.”) A protective order is expressly required

when the disclosure is pursuant to one of the other

methods, such as subpoena or discovery request. See

National Abortion Fed’n, 2004 U.S. Dist. LEXIS 4530

at *7 (section 164.512(e) permits disclosure without

patient consent “in response to a court order, provided

only the information specified in the court order is

disclosed” or in response to a subpoena or discovery

request where there has been notice or reasonable effort

to secure a protective order). Even if not required by

HIPAA, use of a protective order in conjunction with a

court order advances the “strong federal policy in favor

of protecting the privacy of patient medical records.”

Law, 307 F.Supp.2d at 711.

*5 HIPAA thus “set[s] forth the baseline for the release of health information” (Law, 307 F.Supp.2d at 708), and “places certain requirements on both the medical professional providing the information and the party seeking it.” Crenshaw v. MONY Life Ins. Co., 318 F.Supp.2d 1015, 1029 (S.D.Cal.2004). It does not expressly prohibit ex parte communications with health providers for an adverse party, but neither does it

authorize such communications. Two courts have considered the propriety of ex parte communications with health care providers under HIPAA after those communications had already taken place.
In Crenshaw, the District Court for the Southern District of California, noting that HIPAA does not authorize ex parte communications, found that such communication “does not fall within HIPAA’s requirement that confidential medical information be disclosed pursuant to a court order, subpoena or discovery request,” and that where no protective order safeguarding the plaintiff’s privacy was in place “only formal discovery requests could satisfy HIPAA.” Id. Defense counsel’s ex parte contacts with the plaintiff’s doctor and the doctor’s disclosures, the court held, thus violated the statute. Id.
In Law, the District Court for the District of Maryland considered whether adverse counsel’s ex parte discussions with a treating physician regarding the scope of the physician’s care violated HIPAA, and found that HIPAA does not “prohibit all ex parte communications with a treating physician for an adverse party. Mere contact between Plaintiff’s physician and Defendant’s counsel is not regulated by HIPAA.” 307 F.Supp.2d at 707. Such contact, the court noted, might include such “benign topics” as “the best methods for service of a subpoena, determining convenient dates to provide trial testimony, or the most convenient location for the anticipated deposition of the physician.” Id.
However, the court continued, “HIPAA clearly regulates the methods by which a physician may release a patient’s health information, including ‘oral’ medical records.” Id. Release of that information, the Law court suggested, can be made only pursuant to the methods set forth in the statute, and that ex parte communications in the absence of strict compliance with HIPAA are prohibited. Id. at 707, 711; and see In re PPA Litigation, 372 N.J.Super. 105, 855 A.2d 608 (N.J.Super. Ct. Law Div.2003) (HIPAA does not expressly bar ex parte communications, and does not preempt New Jersey’s allowable informal discovery of physicians, but does require compliance with certain procedures). Thus, the Law court found, there had been a HIPAA violation, and the court warned that counsel “should now be far more cautious in their contacts with medical fact witnesses when compared to other fact witnesses to ensure that they do not run afoul of HIPAA’s regulatory scheme.” 307 F.Supp.2d at 711.
This court finds that ex parte communications regarding the disclosure of health information, while not expressly prohibited by HIPAA, create, as the court in Law warned, too great a risk of running afoul of that statute’s strong federal policy in favor of protecting the privacy of patient medical records. Although the exchange of non-health related information such as the time or place of depositions might be discussed in ex parte encounters
4

E.E.O.C. v. Boston Market Corp., Not Reported in F.Supp.2d (2004)

between health providers and counsel for a party adverse to the patient, release of health information is to be made only through the use of the methods listed in HIPAA, that is, pursuant to a court order that specifies the substance of the information to be released, or pursuant to a subpoena or discovery request that adheres to the notice and protective order requirements of that statute. As a practical matter, it is unlikely that many health care providers would be willing to meet with adverse counsel, for fear of violating HIPAA.
*6 The court notes that HIPAA’s limitation of the ways in which health information may be released is separate and apart from any claim of privilege that the plaintiff may have had or waived. In this federal question case, issues of privilege are, as noted earlier, governed by federal common law, here, the federal psychologist-patient privilege recognized by the Supreme Court in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). That privilege, like other testimonial privileges, can be waived. 518 U.S. 1 at 15 n. 14, 116 S.Ct. 1923, 135 L.Ed.2d 337. Generally, a patient waives the psychotherapist-patient privilege by raising her mental condition as an element of her claim or defense. See Tesser v. Board of Educ., 154 F.Supp.2d 388, 395 n. 4 (E.D.N.Y.2001). Here, Gagliardi has waived the privilege applying to health information that she has put at issue, including relevant information from her psychologists, and she does not appear to dispute that the defendant is entitled to her health information insofar as it relates to the claims and damages that she has put at issue in this lawsuit. Gagliardi has authorized, through Howlett, the release of her medical, health, educational, rehabilitation and employment records to the defendant and has authorized the defendant’s deposition of her doctors. She has also authorized her own attorneys to speak ex parte with her doctors, with BOCES, and with the DA, and has authorized counsel for the other plaintiff, the EEOC, to “speak privately” with BOCES.
Thus, to the extent that the defendant wants the court to order Gagliardi to permit ex parte release of her health information by the psychologists, with the entry of a protective order that meets HIPAA’s requirements, the court declines to do so. Boston Market has not cited to any post-HIPAA case that has allowed ex parte contact with plaintiff’s health providers by defense counsel, and this court will not enter such an order. The strong policy underlying HIPAA would appear to trump the reasoning of those pre-HIPAA decisions that allowed defense counsel ex parte access to plaintiff’s treating physicians, finding it unfair to “permit plaintiff’s counsel unrestricted access to these crucial witnesses while denying defense counsel the same.” Horner v. Rowan Cos., 153 F.R.D. 597, 600 (S.D.Tex.1994) (citing Bryant v. Hilst, 136 F.R.D. 487 (D.Kan.1991)).

suggestion that a new protective order that includes the details required by HIPAA be entered, so that the defendant can proceed with discovery from the psychologists and other health care providers pursuant to the methods set forth in HIPAA. The plaintiffs shall review the proposed amended protective order submitted by the defendant as Exhibit D to its motion. When the parties have agreed on the terms, they shall submit the proposed order for the court’s approval. The court now turns to the other non-parties that the defendant seeks to contact in ex parte communications, to whom HIPAA does not apply.
2.) Ex parte communications with the D.A.’s office: *7 The defendant seeks ex parte contact with representatives of the D.A.’s office who handled Gagliardi’s criminal complaint against Mr. Padilla. The plaintiffs oppose such contact, and the EEOC argues that the Federal Rules of Civil Procedure do not contain any provision for ex parte interviews, and that Boston Market should be limited to the methods of discovery set forth in those rules—interrogatories, depositions, and subpoenas—subject to relevant privileges and privacy concerns. Keenan Letter at 2. Depositions of witnesses, EEOC argues, “where EEOC and counsel for Christine Gagliardi can hear the questions being asked by defense counsel and interpose objections, if warranted, provides defendant ample opportunity to obtain relevant information while protecting against disclosure of information to which defendant is not entitled.” Id. While the federal discovery rules do not include ex parte interviews as a discovery tool, neither do they bar such interviews, which are a commonly used discovery technique.
Thus, while court cannot order a non-party to engage in ex parte discussions, the defendant is free to approach the D.A.’s office on an ex parte basis if it wishes to do so, and the representatives of that organization can respond as they see fit. Although the defendant states that Gagliardi has authorized private discussions between the D.A. and her attorneys (11/04/04 Letter at 1), but has not authorized such discussions between the D.A. and Boston Market, the court is not aware of any power that Ms. Gagliardi has to approve of or bar the release of information by that entity, and will not order such an authorization.
If the representatives of the D.A.’s office refuse to speak privately with defense counsel, the defendant can subpoena them for depositions. Although this may be more expensive and time consuming, there is no suggestion that the defendant has been or will be deprived of information from these sources to which it is entitled, and there is no undue prejudice to Boston Market.

The court does, however, accept the defendant’s 5

E.E.O.C. v. Boston Market Corp., Not Reported in F.Supp.2d (2004)

3. Ex parte communication with BOCES and Adult Protective Services: The defendant also seeks ex parte contact with Elaine Laverty and Brian McIlvain, employees of BOCES, who allegedly helped Ms. Gagliardi to find jobs and who met and spoke with Gagliardi while she worked at Boston Market. The parties agree that BOCES treats its records and information as confidential, and their procedures specifically provide for disclosure with the written consent of the individual about whom information is sought or pursuant to subpoena after notification to the individual. 11/10/04 Keenan Letter, Ex. 5; 11/30/04 Schmidt Letter at 2 n. 2.
Gagliardi, through Howlett, has authorized her own attorneys to speak ex parte with BOCES, and has authorized counsel for the other plaintiff, the EEOC, to “speak privately” with BOCES. She specifically told BOCES that such authorization did not extend to Boston Market, unless is was rendered in a separate document. See 11/04/04 Finger Letter, Ex. A. Under these circumstance, there would appear to be little point in the defendant’s attempting to contact BOCES on an ex parte basis, given their procedures for access to information. It is unclear whether the defendant has asked Gagliardi for authorization, but if she will not grant it, the defendant can proceed by subpoena.
*8 The parties do not specify the procedures used by Adult Protective Services for the release of information, but, like BOCES, it treats its information as confidential. Indeed, before the court is a request by the New York

State Office of Children & Family Services (“OCFS”) on behalf of Adult Protective Services that the court conduct an in camera review of Adult Protective Services documents responsive to a document subpoena served by the defendants. 12/10/04 Bray Letter. OCFS states that the documents and the information contained therein are confidential pursuant to Section 473–e of the New York State Social Services Law. There is little or no likelihood that representatives of APS will meet ex parte with defense counsel, and the court will not order such contact. As with the D.A. and BOCES, the defendant may subpoena the APS witnesses if it appears that they have relevant information. The court will issue a ruling on the request for in camera review of the APS documents in a separate order, and that order may or may not influence the defendant’s decision on how to proceed.
On a separate issue, the court notes its receipt of the December 14, 2004 letter from counsel for the EEOC, Ms. Keenan, which states the EEOC’s decision not to pursue the sanctions allowed in the court’s order of November 30. The court accepts the EEOC’s position, and the sanctions awarded in the November 30 order are vacated. As to the unusual statement in Ms. Keenan’s letter that neither the plaintiffs nor the defendant would seek sanctions for the instant motion, the court notes that there was no sanctionable conduct involved, and no sanctions would have been awarded.
SO ORDERED.
	  

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U.S. District Court Eastern District of New York (Central Islip) CIVIL DOCKET FOR CASE #: 2:03-cv-04227-LDW-WDW

CLOSED

Equal Employment Opportunity Commission v. Boston Market Corporation Assigned to: Senior-Judge Leonard D. Wexler Referred to: Magistrate-Judge William D. Wall Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 08/26/2003 Date Terminated: 07/28/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Movant Christine Gagliardi

represented by Michael R. Curran Michael R. Curran, Attorney at Law 98-120 Queens Boulevard Suite 1-C Rego Park, NY 11374 718-830-7741 Fax: 718-830-9088 Email: mrc4law@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Equal Employment Opportunity Commission

represented by Judy A. Keenan U.S. Equal Employment Opportunity Commission New York District Office 33 Whitehall Street, 5th Floor New York, NY 10004-2112 212-336-3705 Fax: 212-336-3623 Email: judy.keenan@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine E. Bissell Equal Employment Opportunity Commission NY District Office 33 Whitehall Street 5th Floor New York, NY 10004 212-336-3620 Fax: 212-336-3623 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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V. Defendant Boston Market Corporation

represented by Joel L. Finger Thelen Reid Brown Raysman & Steiner LLP 900 Third Avenue New York, NY 10022 (212) 895-2000 Fax: (212) 895-2900 Email: jfinger@brownraysman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/26/2003
08/26/2003 10/27/2003 11/14/2003 11/14/2003
11/14/2003 11/14/2003 11/26/2003
12/01/2003
12/09/2003

#

Docket Text

1 COMPLAINT against Boston Market Corporation, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(Duong, Susan) (Entered: 08/28/2003)
Summons Issued as to Boston Market Corporation. (Duong, Susan) (Entered: 08/28/2003)
2 ANSWER to Complaint filed by Boston Market Corporation.(Montero, Edher) (Entered: 11/04/2003)
3 Notice of MOTION to Intervene by proposed plaintiff Christine Gagliardi. (Talbott, Thomas) (Entered: 02/25/2004)
4 CERTIFICATION by Michael Curran in Support. re [3] Notice of MOTION to Intervene by proposed plaintiff Christine Gagliardi . (Talbott, Thomas) (Entered: 02/25/2004)
EXHIBITS (a-c)in Support re [4] Certification in Support.Filed under seal . (Talbott, Thomas) (Entered: 02/25/2004)
5 MEMORANDUM in Support re [3] Notice of MOTION to Intervene by proposed plaintiff Christine Gagliardi . (Talbott, Thomas) (Entered: 02/25/2004)
6 Letter dated 11/26/03 from Steven Weiss to Magistrate Wall.Regarding :extend opposition to motion to intervene to 12/8/03. (Talbott, Thomas) (Entered: 02/25/2004)
7 Letter dated 11/26/03 from Michael Curran to Magistrate Wall. Regarding briefing schedule for motion to intervene. (Talbott, Thomas) (Entered: 02/25/2004)
8 MEMORANDUM in Opposition re [3] Notice of MOTION to Intervene by proposed plaintiff Christine Gagliardi by Boston Market Corporation. (Talbott, Thomas) (Entered: 02/25/2004)

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12/09/2003 12/09/2003 12/10/2003 12/13/2003 02/06/2004 02/13/2004 02/26/2004 03/11/2004 03/11/2004
03/29/2004 05/11/2004 05/12/2004

9 DECLARATION of Joel L. Finger in Opposition re [3] Notice of MOTION to Intervene by proposed plaintiff Christine Gagliardi by Boston Market Corporation. (Talbott, Thomas) (Entered: 02/25/2004)
11 Letter dated 12/9/03 from Joel Finger to Magistrate Wall. Regarding :response to 11/26/03 letter from Michael Curran and 12/8/03 letter of EEOC. (Talbott, Thomas) (Entered: 02/25/2004)
10 RESPONSE to Motion re [3] Notice of MOTION to Intervene by proposed plaintiff Christine Gagliardi filed by Equal Employment Opportunity Commission. (Talbott, Thomas) (Entered: 02/25/2004)
12 PLAINTIFF-INTERVENOR'S REPLY in Support re [3] Notice of MOTION to Intervene by proposed plaintiff Christine Gagliardi . (Talbott, Thomas) (Entered: 02/25/2004)
Incorrect Case-Document Information filed. Docket entry #3(complaint) filed as duplicate of docket entry #1 (complaint) deleted. (Talbott, Thomas) (Entered: 02/06/2004)
13 ORDER granting [3] Motion to Intervene. Clerk of Court to change caption. Plaintiff-intervenor to serve complaint. Exhibits to Mr. Curran's certification to be sealed. Confidentiality order to be submitted for approval.Signed by JudgeWilliam D. Wall on 2/13/04.cf (Talbott, Thomas) (Entered: 02/25/2004)
14 Letter from Michael R. Curran dtd. 2/23/04 on behalf of Christine Gagliardi to Judge Wall, expressing the intent to fulfill the terms of the Court's Order dtd. 2/13/04 and to discuss an issue pertaining to representation. (Montero, Edher) (Entered: 03/03/2004)
15 Letter from Michael R. Curran to Judge William Wall Regarding filing of intervenor complaint. (Disbrow, Sandra) (Entered: 03/11/2004)
16 ORDER re [15] Letter. Court's direction to serve the intervenor complaint is hereby stayed pending the formalization of the guardianship. Mr. Curran is directed to notify the court in writing when the guardian has her commission. At that point, a conference will be scheduled to discuss how the matter will proceed. Signed by Judge William D. Wall on 3/11/04. c/m (Disbrow, Sandra) (Entered: 03/11/2004)
17 LETTER-CERTIFICATE OF SERVICE of Judge Wall's Order dtd. 3/11/04, served on 3/24/04 by mail to all counsel. Filed by Christine Gagliardi (Montero, Edher) (Entered: 04/05/2004)
18 Letter from Michael R. Curran dtd. 5/5/04 to Judge Wall enclosing a copy of the Commissionto Guardian dtd. 4/9/04 re the appointment of Ms. Patricia Howlett, Esq., Guardian for Ms. Christine Gagliardi, Plaintiff-Intervenor. (Montero, Edher) (Entered: 05/17/2004)
19 ORDER: The guardianship has now been formalized, and the court will hold a conference on 6/7/2004 at 10:00 AM to discuss the impact of Ms. Howlett's appointment on this lawsuit. All attorneys, including Ms. Howlett, must attend and must be prepared to address the legal ramifications of Ms. Howlett's appointment. Mr Curran is directed to serve a copy of this order on all counsel, including Ms. Howlett, upon receipt. SO ORDERED (Signed by Judge William

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05/24/2004 06/08/2004
06/17/2004
07/26/2004 07/29/2004 08/03/2004 08/03/2004 08/03/2004 08/23/2004 09/07/2004 10/01/2004 10/01/2004

D. Wall on 5/12/04). c/f to Mr. Curran.(Montero, Edher) (Entered: 05/17/2004)
21 Letter dated 5/19/04 from Michael Curran to counsel. Re: enclosed is order dated 5/12/04 by Magistrate Wall. (Talbott, Thomas) (Entered: 06/08/2004)
20 Minute Entry for proceedings held before William D. Wall : Status Conference held on 6/7/2004. Next settlement conference 6/17/04 at 2:00 p.m. It is recommended that this matter be administratively closed pending Mr. Curran's approval for fiduciary appointment, and Ms. Howlett's approval to retain him. After that process is concluded the intervening plaintiff shall serve the complaint and move to reopen the case. Signed by William D. Wall on 6/7/04. c/g (Disbrow, Sandra) (Entered: 06/08/2004)
22 Minute Entry: Before William D. Wall on 6/17/04 at 2:00 pm, civil cause forSettlement Conference. Case called. Appearing for plaintiff: Matthew Zullo, Michael Curran (by phone), Judy Keenan (EEOC), Patricia Howlett (Gaurdian) present. Appearance for deft excused. Conf held. The next Status Conference will be held on 8/5/2004 at 2:00 PM. The following rulings were made: If Mr. Curran is not on the Rule 36 Fiduciary List maintained by the NYS Office of Court Administration by the next conference, Ms.Howlett shall retain new counsel. The court will enter a discovery schedule at the next conference. SO ORDERED (Montero, Edher) (Entered: 07/02/2004)
24 Letter dated 7/22/04 from Matthew Zullo to Magistrate Wall. RE: application of Mr. Curran to Office of Court Administration will be filed there. (Talbott, Thomas) (Entered: 08/09/2004)
25 Letter from Michael R. Curran dtd. 7/21/04 to MJ Wall, Clerk of the court, and all counsel enclosing Pt. 36 Internet Fiduciary Eligibility Listings for the undersigned. (Montero, Edher) (Entered: 08/13/2004)
23 ORDER Status Conference adjourned from 8/5/04 to 8/25/2004 at 2:00 PM before Judge William D. Wall. Signed by Judge William D. Wall on 8/3/04. ce(Disbrow, Sandra) (Entered: 08/03/2004)
26 Letter dated 8/3/04 from Judith Kennan to All Parties, cc to Mag. Judge Wall, re: Confirming status conference adjourned from 8/5/04 to 8/25/04 at 2:00 p.m. before Mag. Judge Wall. (Dachille, Patti) (Entered: 08/17/2004)
28 Letter from Judy Kennan to All counsel dtd. 8/3/04. (Montero, Edher) (Entered: 09/01/2004)
27 ORDER adjourning conference of 8/25/04 to 9/7/04 at 11:00 before Magistrate Judge Wall. Signed by Judge William D. Wall on 8/23/04. cm/cf(Talbott, Thomas) (Entered: 08/23/2004)
29 ORDER The conference scheduled for September 7, 2004 is adjourned to October 1, 2004. See attached order. Signed by Judge William D. Wall on 09/07/04. c/f(Hepworth, F.) (Entered: 09/07/2004)
31 STIPULATED PROTECTIVE ORDER. Signed by Judge William D. Wall on 10/1/04. CG(Talbott, Thomas) (Entered: 10/14/2004)
32 Minute Entry for proceedings held before William D. Wall : Status Conference held on 10/1/2004 at 11:00 a.m. The next scheduling conf. 10/20/04 at 2:00 p.m.

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10/07/2004 10/20/2004 10/20/2004 10/20/2004 11/05/2004 11/10/2004 11/12/2004 11/13/2004 11/22/2004 11/22/2004 11/22/2004

Plaintiff intervener to serve intervener complaint by 10/8/04. The parties are to agree and submit a proposed discovery plan by the next conf. (Talbott, Thomas) (Entered: 10/14/2004)
30 First Intervenor COMPLAINT as Plaintiff-Intervenor, by her Guardian, Patricia Howlett, Esq., filed by Christine Gagliardi.(Curran, Michael) (Entered: 10/07/2004)
Minute Entry for proceedings held before William D. Wall : Status Conference held on 10/20/2004. Scheduling order entered. (Disbrow, Sandra) (Entered: 10/20/2004)
33 SCHEDULING ORDER: Pretrial Conference set for 7/29/2005 2:00 PM before Judge William D. Wall. Amended Pleadings due by 11/30/2004. Discovery due by 4/29/2005. Signed by Judge William D. Wall on 10/20/04. (Disbrow, Sandra) (Entered: 10/20/2004)
34 ORDER The court will conduct a status conference on 1/19/05 at 2:00 p.m.; pretrial conference 7/29/05 at 2:00 p.m. Signed by Judge William D. Wall on 10/20/04. c/g(Disbrow, Sandra) (Entered: 10/20/2004)
35 Letter from Joel L. Finger, Esq., Counsel for defendant Boston Market to Honorable William D. Wall, Magistrate Judge Regarding Letter brief permitting defendant's attorneys to have ex parte discussions with plff's doctors.. (Schmidt, Jean) (Entered: 11/05/2004)
36 Letter from EEOC to Hon. William D. Wall Regarding EEOC Opposition to Defendant's Letter Motion re. Ex Parte Interviews. (Attachments: # 1 Exhibit Exhibits to EEOC Opposition to Letter Motion)(Keenan, Judy) (Entered: 11/10/2004)
37 Letter from Michael R. Curran, Attorney for Plaintiff-Intervenor to Hon. William D. Wall, USMJ, Regarding Plaintiff-Intervenor's Opposition to Nov. 4, 2004 Letter-Motion by Defendant Boston Market; Plaintiff-Intervenor Joins in EEOC Letter of Nov. 10, 2004. (Curran, Michael) (Entered: 11/12/2004)
38 Letter from Michael R. Curran to Hon. William D. Wall, USMJ, Regarding Correction to Nov. 12, 2004 Letter in Opposition to Defendant's Nov. 4, 2004 Letter-Motion (typos corrected & missing Exhibit "A" annexed). (Attachments: # 1 Exhibit Exhibit "A")(Curran, Michael) (Entered: 11/13/2004)
39 Letter from Defendant to Magistrate Judge William D. Wall Regarding Defendant's request for permission to file reply in support of its 11/04/04 letter motion re: ex parte contact with Plaintiff's health care providers, and others. (Schmidt, Jean) (Entered: 11/22/2004)
40 Letter from Judy Keenan, EEOC to Hon. William D. Wall Regarding Def. Request to File Reply re. Nov. 4, 2004 letter motion. (Keenan, Judy) (Entered: 11/22/2004)
41 Letter from Judy Keenan to Hon. William D. Wall Regarding EEOC request for order compelling defendant to provide discovery. (Attachments: # 1 Exhibit Exhibits to EEOC Letter Brief of 11/22/04 to compel discovery)(Keenan, Judy) (Entered: 11/22/2004)

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11/23/2004
11/24/2004 11/24/2004 11/30/2004 11/30/2004 12/14/2004 12/16/2004 12/21/2004 12/22/2004 12/27/2004 01/20/2005

42 Letter from Michael R. Curran, Attorney for Plaintiff-Intervenor, to Hon. William D. Wall, USMJ, Regarding Plaintiff-Intervenor's opposition to Defendant's Nov. 22, 2004 application to file a reply to Plaintiff/Plaintiff-Intervenor's Nov. 10, 12, 2004 opposition to Defendant's Nov. 4, 2004 Letter-Motion. (Curran, Michael) (Entered: 11/23/2004)
ORDER re 39 Letter. Request to file a reply letter, no longer than three pages, is granted. The letter shall be filed no later than Tuesday, November 30, 2004. . Signed by Judge William D. Wall on 11/24/04. c/e(Hepworth, F.) (Entered: 11/24/2004)
43 Letter from Jean L. Schmidt to Honorable William D. Wall Regarding Letter Brief in Opposition to EEOC's Motion to Compel. (Schmidt, Jean) (Entered: 11/24/2004)
44 ORDER re 41 Letter motion to compel defendant to provide initial disclosures. Motion is granted and the costs of the motion are awarded to plaintiff as a Rule 37 sanction. See attached order. Signed by Judge William D. Wall on 11/30/04. c/e(Disbrow, Sandra) (Entered: 11/30/2004)
45 Letter from Jean L. Schmidt, Counsel for Defendant to Honorable William D. Wall, Magistrate Judge Regarding Reply Letter Brief In Support of Defendant's motion to permit its attorneys to have ex-parte communications with third-party witnesses. (Schmidt, Jean) (Entered: 11/30/2004)
46 Letter from EEOC to Hon. William D. Wall Regarding EEOC's Statement of Reasonable Expenses in Connection With EEOC's Letter Motion to Compel Defendant to Provide Fed. R. Civ. P. 26(a)(1) Initial Disclosures. (Keenan, Judy) (Entered: 12/14/2004)
47 ORDER re 38 Letter, 36 Letter, 43 Letter, 37 Letter, 45 Letter. Defendant's application is denied. See attached order . Signed by Judge William D. Wall on 12/16/04. c/e(Hepworth, F.) (Entered: 12/16/2004)
48 Letter from Jean L. Schmidt, Attorney for Boston Market, to Honorable William D. Wall Regarding disclosure of Adult Protective Services' records. (Schmidt, Jean) (Entered: 12/21/2004)
49 Letter from Plaintiff EEOC to Hon. William D. Wall Regarding EEOC's Response to Defendant's Letter re. Discovery of Adult Protective Services Records. (Attachments: # 1 Exhibit)(Keenan, Judy) (Entered: 12/22/2004)
Incorrect Case-Document Information filed. The reply letter from defendants dated 12/23/04, and then numbered 50, is rejected for filing and has been deleted. No replies are permitted on letter motions. See Local Civil Rule 37.3 (c) and Judge Wall's Individual Rule 3.A.ii. (Disbrow, Sandra) (Entered: 12/27/2004)
50 ORDER Thirty days shall be added to all discovery deadlines. A settlement conference will be held on February 3, 2005 at 1:30 p.m. All counsel shall attend and have their parties available for approval of any settlement that may arise. Plaintiff Christine Gagliardi shall attend in person. Counsel shall confirm the date and time of the conference with one another. Signed by Judge William D. Wall on 01/19/05. c/e(Hepworth, F.) (Entered: 01/20/2005)

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01/20/2005 02/09/2005 02/09/2005 02/23/2005
03/23/2005 03/23/2005 04/15/2005
04/18/2005
05/19/2005
06/01/2005 06/01/2005
06/13/2005
07/08/2005 07/14/2005

Minute Entry for proceedings held before William D. Wall : Status Conference held on 1/19/2005. (Hepworth, F.) (Entered: 01/20/2005)
Minute Entry for proceedings held before William D. Wall : Settlement Conference held on 2/3/2005. (Disbrow, Sandra) (Entered: 02/09/2005)
51 ORDER re Settlement Conference. Next settlement/status conference will be held on 2/22/05 at 2 pm. Signed by Judge William D. Wall on 2/3/05. c/g(Disbrow, Sandra) (Entered: 02/09/2005)
ORDER The settlelment conference previously scheduled for 2/22/05 is adjourned to 3/24/05 at 2:00 p.m. Counsel are directed to confirm the date and time of the conference with each other prior to the conference date. Signed by Judge William D. Wall on 2/23/05. (Disbrow, Sandra) (Entered: 02/23/2005)
52 Letter from Jean L. Schmidt, Esq. to Hon. William Wall Regarding Adjournment of conference scheduled for 3/24/05.. (Schmidt, Jean) (Entered: 03/23/2005)
ORDER re 52 Letter. Application granted. The settlement conference scheduled for 3/24/05 is adjourned to 5/4/05 at 2:00 p.m. Signed by Judge William D. Wall on 3/23/05. (Disbrow, Sandra) (Entered: 03/23/2005)
53 Letter from Michael R. Curran, attorney for Plaintiff-Intervenor, to Hon. William D. Wall, USMJ, Regarding request on mutual consent by the parties to adjourn the settlement conference of May 4, 2005 at 2:00 p.m. to May 19, 2005.. (Curran, Michael) (Entered: 04/15/2005)
ORDER re 53 Letter. Application granted. The settlement conference scheduled for 5/4/05 is adjourned to 5/19/05 at 3:30 p.m. No further adjournments will be granted. Ordered by Judge William D. Wall on 4/18/05. (Disbrow, Sandra) (Entered: 04/18/2005)
54 Minute Entry & ORDER for proceedings held before William D. Wall : Settlement Conference held on 5/19/2005. Next telephone status conference 6/1/05. See attached order. So Ordered by William D. Wall on 5/19/05. c/g (Disbrow, Sandra) (Entered: 05/19/2005)
55 Letter from Defendant to Honorable William Wall Regarding request for adjournment of conference. (Weiss, Steven) (Entered: 06/01/2005)
ORDER re 55 Letter. Application granted. The conference scheduled for 6/1/05 is adjourned to 6/13/05 at 10:30 a.m., and will take place in courtroom 820 of the Federal Courthouse in Central Islip. Ordered by Judge William D. Wall on 6/1/05. (Disbrow, Sandra) (Entered: 06/01/2005)
56 Minute Entry & Order for proceedings held before William D. Wall : Settlement Conference held on 6/13/2005. Next telephone status conference will be held on 7/11/05 at 2:00 p.m. Ordered by William D. Wall on 6/13/05. c/g (Disbrow, Sandra) (Entered: 06/13/2005)
57 Letter from EEOC to Magistrate Wall Regarding Agreement on Settlement. (Roberts, Monique) (Entered: 07/08/2005)
ORDER In light of the pending settlement of this matter, the pretrial conference scheduled for 7/29/05 is adjourned sine die. Ordered by Judge William D. Wall

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07/28/2005 08/04/2005 08/09/2005
08/23/2005 08/24/2005
10/06/2005 10/06/2005

on 7/14/05. (Disbrow, Sandra) (Entered: 07/14/2005)
59 ORDER of DISCONTINUANCE: The parties have reported to the Court that this action has been settled. That this action is discontinued without costs and without prejudice. Ordered by Judge Leonard D. Wexler on 7/28/05. c/m(Montero, Edher) (Entered: 08/08/2005)
58 Letter from EEOC by Judy Keenan to Hon. Leonard D. Wexler Regarding Request to Amend 07/28/2005 Order of Discontinuance. (Keenan, Judy) (Entered: 08/04/2005)
60 Letter from Michael R. Currnan, attorney for Plaintiff-Intervenor Christine Gagliardi, to Hon. Leonard D. Wexler, Sr. District Judge, Regarding Application Joining with EEOC in its August 4, 2005 request to administratively close this matter with entry of the Consent Decree, but that the action not be dismissed until such time as the Consent Decree expires. (Curran, Michael) (Entered: 08/09/2005)
61 NOTICE of Settlement with Proposed Consent Decree for Approval and Entry by Court by Equal Employment Opportunity Commission (Attachments: # 1 Text of Proposed Order Proposed Consent Decree)(Keenan, Judy) (Entered: 08/23/2005)
62 Letter from Michael R. Curran, Attorney for Plaintiff-Intervenor, to Hon. Leonard D. Wexler, Sr. United States District Judge, Regarding an application by Plaintiff-Intervenor who joins with the EEOC in its request to modify the July 28, 2005 Order of this Court in order to provide that the action shall not be dismissed until the Consent Decree expires three years from date of entry of said Decree. (Curran, Michael) (Entered: 08/24/2005)
ORDER re 61 Notice of Settlement filed by Equal Employment Opportunity Commission. Consent decree is So Ordered by Judge Leonard D. Wexler on 10/5/05.(Ausili, Peter) (Entered: 10/06/2005)
ORDER re 62 Letter,, 59 Order, 58 Letter. The Court's 7/28/05 Order is modified to the extent that this action is deemed administratively closed pending the term of the Consent Decree; the parties are to submit an order dismissing the action when the Consent Decree expires. So Ordered by Judge Leonard D. Wexler on 10/5/05. (Ausili, Peter) (Entered: 10/06/2005)

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 EEOC LITIGATION SETTLEMENT REPORT - October 2005

http://www.eeoc.gov/litigation/settlements/settlement10-05.html

EEOC v. Boston Market Corp. No. CV-034227 (LDW/WDW) (E.D.N.Y. Oct. 5, 2005)
The New York District Office filed this ADA/Title VII case alleging that defendant, a national fast-food restaurant chain, subjected charging party, a cashier/server/greeter at its Ronkonkoma, New York restaurant, to a hostile work environment because of her disability (Asperger's Syndrome a neurological impairment causing autistic-like behaviors and deficiencies in social and communication skills) and sex (female), and retaliated against her for her complaints about the harassment, resulting in her constructive discharge.
Defendant hired charging party in May 1999 into a part-time position assisting servers, cleaning tables, collecting trays, and operating the cash register during nonpeak hours. A cashier who trained charging party was intolerant of her disability and berated her when she had difficulty learning her job tasks. The cashier and two other employees who provided supervision or training to charging party made disparaging comments to her, such as telling her there must be something very mentally wrong with her because she had a job coach and calling her worthless and an embarrassment to Boston Market. The sexual harassment began in December 2000 when a newly-hired male employee began propositioning charging party for sex and making sexual comments to her. Other male employees sometimes joined in the sexual comments, and charging party and others complained to management many times. Following an egregious incident in which the harasser threw charging party against a wall and ground his hips into her buttocks, charging party and coworkers complained to management to no avail. Charging party's parents helped her file a criminal complaint against the harasser, who admitted to harassment and pled guilty to a stalking offense. Defendant fired the harasser after the police investigation revealed that he was using a false identity. Charging party continued working, but defendant cut her hours, and a coworker who was a friend of the harasser intensified her harassment of charging party, causing her to resign.
The parties resolved the case through a 3-year consent decree. Charging party intervened and the decree provides that she will receive $150,000 pursuant to a separate agreement between her and defendant to which EEOC is not a party. The decree provides that defendant has adopted a nondiscrimination policy and a complaint procedure and within 60 days of entry of the decree will establish a toll-free telephone number for reporting incidents of discrimination, harassment, or retaliation. Defendant will display its nondiscrimination policy and complaint procedure in each of its facilities. Defendant will provide antidiscrimination training annually to employees in the area that currently includes the restaurants in Ronkonkoma, Smithtown, Selden, Commack, Shirley, Deer Park, and East Islip, New York, and in any restaurants opened in that area while the decree is in effect.

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