ABBOTT v. MEMORIAL SLOAN KETTERING CANCER CENTER (2000)

Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered on or about April 21, 1999, which, in this employment discrimination action, granted plaintiff's motion to preclude defendant from offering evidence at trial with respect to certain matters unless it provided certain disclosure to plaintiff, unanimously modified, on the law and the facts, to limit defendant's required disclosure respecting 25-year employees to those terminated within five years of plaintiff's dismissal and to limit the extent of defendant's required disclosure as to complaints against defendant filed with anti-discrimination agencies for the years 1995 through 1997 to complaints against defendant premised on discrimination by reason of race or color, and otherwise affirmed, without costs.

 Plaintiff has set forth claims sounding in both disparate treatment and disparate impact.   Under either theory, a plaintiff may use statistical evidence to rebut an employer's non-discriminatory explanation of its actions (see, Hollander v. American Cyanamid Co., 895 F.2d 80, 84).   Although the motion court properly found that plaintiff was entitled to information respecting defendant's termination of employees with 25 years of service, the court improvidently exercised its discretion in failing to impose a limit as to the number of years for which such disclosure must be made.   Accordingly, the appealed order is modified to the extent of limiting defendant's disclosure to employees terminated in the five years prior to plaintiff's termination.

 While, as the motion court found, plaintiff is entitled to disclosure of other charges filed against defendant (see, id.), the court erred in ordering disclosure of all discrimination charges against defendant for the years 1995 to 1997.   The scope of defendant's disclosure of discrimination complaints for 1995 through 1997 should be limited to complaints based on discrimination by reason of race or color.

MEMORANDUM DECISION.