REPORT AND RECOMMENDATION
Defendant's Renewed Motion to Dismiss or, in the Alternative, to Compel Further Responses and Modify the May 8, 2001 Order (Docket No. 47) is pending for consideration by the undersigned United States Magistrate Judge. *fn1 Upon consideration of the motion, the memoranda in support thereof and in opposition thereto and the entire record herein, the undersigned finds that plaintiff has willfully failed to comply with the undersigned's order compelling discovery, and recommends that this action be dismissed as a sanction.
Plaintiff commenced this action as a pro se litigant by a complaint filed on March 3, 1999. By a 25-page amended complaint filed on December 23, 1999 by counsel appointed from the pro bono panel, plaintiff, a former employee of the Department of the Treasury, generally alleges race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. By a Memorandum and Order entered on June 22, 2000 (Docket No. 32), the Court (Huvelle, J.) denied defendant's motion to dismiss Count I of the Amended Complaint, but granted the motion to dismiss Count II. On July 10, 2000, both plaintiff and counsel appointed from the pro bono panel moved to withdraw counsel's appearance. Counsel's motion was granted by an Order filed on July 11, 2000 (Docket No. 36).
At a status hearing on November 3, 2000, the Court ordered that the parties exchange witness lists on January 2, 2001. Defendant's Motion to Dismiss or, in the Alternative, for Sanctions and to Compel Discovery Responses by and Deposition of Plaintiff ("Motion to Dismiss"), Ex. 5 (Tr. at 4, lines 18-24). Mindful that plaintiff was proceeding pro se, the Court explained the terms of the scheduling order in detail, including the standards governing the witness lists, answers to interrogatories, production of documents, and depositions. *fn2 During the course of the explanation, plaintiff interjected the following comment:
MS. SMITH: The only thing that I have - - I'm going by the record, the evidence I already submitted to the defendant that they should already have. If they ask me for something in discovery they already have, refer to the file when it was submitted and given to them. I'm not going to give them the same thing they already have.
THE COURT: I don't know what they have.
MS. SMITH: That's not my problem. Motion to Dismiss, Ex. 5 (Tr. at 4, lines 9-16).
In response to the concern of defendant's counsel regarding plaintiff's claim of emotional distress, plaintiff declared that "[m]y medical documentation was submitted to the defendants. I'm not going to submit it again." Motion to Dismiss, Ex. 5 (Tr. at 39, lines 7-9).
In the Scheduling Order entered on November 3, 2000 (Docket No. 38), the Court assigned this action to the complex track, and directed that discovery close on April 30, 2001 and dispositive motions be filed by June 30, 2001.
On April 4, 2001, defendant filed his Motion to Dismiss or, in the Alternative, for Sanctions and to Compel Discovery Responses by and Deposition of Plaintiff (Docket No. 43). In the memorandum in support of the motion, defendant maintained that "plaintiff has not fulfilled a single one of her obligations under [the Scheduling Order] and the rules of discovery other than to provide a list of 121 witnesses on January 9, 2001 - - one week late." Defendant's Memorandum in Support of Motion to Dismiss or, in the Alternative, for Sanctions and to Compel Discovery Responses by and Deposition of Plaintiff at 2. By an Order of Referral filed April 6, 2001 (Docket No. 44), that motion and all discovery disputes were referred to the undersigned United States Magistrate Judge. See April 6, 2001 Order of Referral at 2. The Court also ordered plaintiff to file her response to defendant's motion to dismiss or, in the alternative, for sanctions and to compel discovery, no later than April 30, 2001. Id. at 1.
Plaintiff filed her response (Docket No. 45) in accordance with the April 6 Order. In it, she maintained that "I have already provided the necessary information to the [defendant's] interrogatories responses to allegations and documented evidence attached to all my affidavits." With respect to the deposition which she failed to attend, plaintiff stated that "[m]ost of my responses to Defendant were by telephone." [Plaintiff's Response] to Defendant's Motion to Dismiss or, in the Alternative for Sanctions and to Compel Discovery Responses by and Deposition of Plaintiff at 1.
Plaintiff and counsel for defendant appeared before the undersigned on May 8, 2001 for a hearing on defendant's motion. After consideration of the parties' oral arguments, as well as their written submissions, the undersigned granted defendant's motion to compel answers to interrogatories, production of documents and deposition testimony. *fn3 The clarity of the undersigned's Order notwithstanding, plaintiff persisted in her resistance to making discovery:
MS. SMITH: I understand, I understand what you're saying , but I'm saying that if the Court hasn't reviewed the discovery materials as to assess what should be a part of this case and what shouldn't be a part of this case, why would you order me to give the attorney what she doesn't really need? It's not relevant to my case and that's what I'm saying, most of the information that she's asking for is not relevant to my case files or to my case. They're my privacy information I feel that they don't need to have, you know.
And if she can show the relevance to it pertaining to the allegations at issue, I won't have a problem with that. But just because she wants something, you know, I have to provide it? Yes, I have a problem with that, you know. If she asks me for a list of what date my kids was born, I'm supposed to give her that? That has nothing to do with this case. May 8, 2001 Hearing (Tr. at 40, line 25 to 41, line 15).
The undersigned informed plaintiff that her relevance objections had been considered, but were overruled. See May 8, 2001 Hearing (Tr. at 18, lines 2-12; 41, lines 17-23; 45, lines 11-20). Additionally, the undersigned informed plaintiff, on at least five occasions, that her continued failure to comply with the Court's orders could be the basis of a finding that she willfully refused to engage in discovery, and that her case could be dismissed as a sanction. May 8, 2001 ...