Opinion
No. CV06 4017597 S
June 15, 2009
MEMORANDUM OF DECISION RE MOTION IN LIMIINE #121
The defendant, Town of Greenwich has filed a motion in limine to exclude from trial all evidence related to the plaintiff's claims of salary after 2008 and any pension benefits because they are beyond the filed of knowledge and experience of ordinary jurors and their determination without an expert witness. The plaintiff has failed to disclose an expert witness pursuant to Practice Book § 13-4. Additionally, the defendant argues that the plaintiff's claims related to projected salary increases for employees of the Town of Greenwich and her current employer, the City of New London and the assumption that there will be no pension or other benefit changes by either Greenwich or New London is "pure speculation."
The plaintiff was an employee of the defendant from approximately July 17, 1993 until her termination on February 9, 2004. In 1993, she was hired as Assistant Director of Personnel, and during 1996, she was promoted to the position of Deputy Director of Human Resources. At the time of her termination by Greenwich, during 2004, she was fifty-three years of age and held the position of Associate Director for Classification, Compensation, Performance Management and safety. She also claims she was performing all duties of the Deputy Director of Human resources, as well. The plaintiff claims that her age and gender were substantial factors in her termination on February 9, 2004 and that the defendant breached its Classification and Pay Plan when it failed to place her on a re-employment list or provide her with a statement of reasons for her termination. The plaintiff's claims are brought pursuant to General Statutes § 46a-60(a)(1) and breach of contract. The defendant has denied the plaintiff's allegations and alleges that her termination was part of a departmental reorganization. The plaintiff objects to the motion in limine filed by Greenwich.
General Statutes § 46a-60(a)(1) reads as follows:
(a) It shall be a discriminatory practice in violation of this section:
(1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness.
The court agrees that the issues of future salary losses and pension benefits after June 30, 2009 are beyond the knowledge and experience of ordinary jurors without expert testimony regarding these issues. It is well established that "expert testimony is required `when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors.'" Latham Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 301, 589 A.2d 337 (1991), quoting Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961); see also, Kenney v. Mystic Valley Hunt Club, Inc., 93 Conn.App. 368, 375, 889 A.2d 829 (2006).
Practice Book § 13-4 requires a party who expects to call an expert witness at trial "shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, to all parties within a reasonable time prior to trial. Section 13-4 (2008) also provides "[i]f disclosure of the name of any expert expected to testify at trial is not made in accordance with this subdivision, or if an expert witness who is expected to testify is retained or specially employed after a reasonable time prior to trial, such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure [A] will cause undue prejudice to the moving party; or [B] will cause undue interference with the orderly progress of trial in the case; or [C] involved bad faith delay of disclosure by the disclosing party"). Donahue v. Veridiem, Inc., 291 Conn. 537, 549-50 (2009).
Practice Book Sec. 13-4 regarding experts reads in relevant parts as follows:
(a) A party shall disclose each person who may be called by that party to testify as an expert witness at trial, and all documents that may be offered in evidence in lieu of such expert testimony, in accordance with this section. The requirements of Section 13-15 shall apply to disclosures made under this section.
CT Page 10063
(b) A party shall file with the court and serve upon counsel a disclosure of expert witnesses which identifies the name, address and employer of each person who may be called by that party to testify as an expert witness at trial, whether through live testimony or by deposition. In addition, the disclosure shall include the following information:
(1) Except as provided in subdivision (b)(2) of this section, the field of expertise and the subject matter on which the witness is expected to offer expert testimony; the expert opinions to which the witness is expected to testify; and the substance of the grounds for each such expert opinion-Disclosure of the information required under this subsection may be made by making reference in the disclosure to, and contemporaneously producing to all parties, a written report of the expert witness containing such information . . .
(3) Except for an expert witness who is a health care provider who rendered care or treatment to the plaintiff, or unless otherwise ordered by the judicial authority or agreed upon by the parties, the party disclosing an expert witness shall, within thirty days of such disclosure, produce to all other parties all materials obtained, created and/or relied upon by the expert in connection with his or her opinions in the case. If any such materials have already been produced to the other parties in the case, then a list of such materials, made with sufficient particularity that the materials can be easily identified by the parties, shall satisfy the production requirement hereunder with respect to those materials.
(4) Any request for modification of the approved Schedule For Expert Discovery or of any other time limitation under this section shall be made by motion stating the reasons therefore, and shall be granted if
(A) agreed upon by the parties and will not interfere with the trial date; or (B)(i) the requested modification will not cause undue prejudice to any other party; (ii) the requested modification will not cause undue interference with the trial schedule in the case; and (iii) the need for the requested modification was not caused by bad faith delay of disclosure by the party seeking modification . . .
(h) A judicial authority may, after a hearing, impose sanctions on a party for failure to comply with the requirements of this section. An order precluding the testimony of an expert witness may be entered only upon a finding that (1) the sanction of preclusion, including any consequence thereof on the sanctioned party's ability to prosecute or defend the case, is proportional to the non-compliance at issue, and (2) the non-compliance at issue cannot adequately be addressed by a less severe sanction or combination of sanctions.
"The court's decision on whether to impose the sanction of excluding [an] expert's testimony . . . is not to be disturbed unless it abused its legal discretion, and [i]n determining this the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) Wyszomierski v. Siracusa, 290 Conn. 225, 233, 963 A.2d 943 (2009), quoting Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 66, 882 A.2d 1254, cert. denied, 276 Conn. 926, 888 A.2d 93 (2005).
The plaintiff's analysis of her damages relates to the difference in her salary and pension benefits that she currently receives from New London, her present employer, and what she concludes would have been her salary and pension benefits from Greenwich, had she remained an employee of Greenwich. An expert is required to offer testimony concerning the present value of the potential loss of future wages and pension benefits, including tax implications. Additionally, the court agrees with the defendant Greenwich that the plaintiff's projected salary increases for Greenwich and New London and the assumption that there will be no pension or other benefit changes in either Greenwich or New London is speculative in light of present economic conditions and the absence of an expert's testimony. An expert may or may not be able to testify as to the economic history, trends and averages regarding these issues, but nonetheless, such testimony would be required from an expert and not a lay person.
The court realizes that preclusion can be a harsh remedy. The court is cognizant of Practice Book § 13-4(h) which provides:
(h) A judicial authority may, after a hearing, impose sanctions on a party for failure to comply with the requirements of this section. An order precluding the testimony of an expert witness may be entered only upon a finding that (1) the sanction of preclusion, including any consequence thereof on the sanctioned party's ability to prosecute or defend the case, is proportional to the non-compliance at issue, and (2) the non-compliance at issue cannot adequately be addressed by a less severe sanction or combination of sanctions.
In determining whether the sanction of preclusion is proportional to non-compliance, and whether a less severe sanction can be formulated, the court is left with a situation where: (1) no expert has been disclosed; (2) no continuance of the trial has been requested by the plaintiff; and (3) jury selection is scheduled to commence on June 17, 2009. Given this situation and the lack of any alternatives or less severe sanctions, the court finds no other solution other than preclusion of the evidence. Accordingly, the defendant's motion in limine is hereby granted.
MEMORANDUM OF DECISION RE MOTION IN LIMINE #119
The plaintiff was an employee of the defendant from approximately July 17, 1993 until her termination on February 9, 2004. In 1993, she was hired as Assistant Director of Personnel, and during 1996, she was promoted to the position of Deputy Director of Human Resources. At the time of her termination during 2004, she was fifty-three years of age and held the position of Associate Director for Classification, Compensation, Performance Management and safety. She also claims she was performing all duties of the Deputy Director of Human Resources, as well. The plaintiff claims that her age and gender were substantial factors in her termination on February 9, 2004 and that the defendant breached its Classification and Pay Plan when it failed to place her on a reemployment list or provide her with a statement of reasons for her termination. The plaintiff's claims are brought pursuant to General Statutes § 46a-60(a)(1) and breach of contract. The defendant has denied the plaintiff's allegations and alleges that her termination was part of a departmental reorganization.
General Statutes § 46a-60(a)(1) reads as follows:
(a) It shall be a discriminatory practice in violation of this section:
(1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness;
In support of the plaintiff's allegations, the plaintiff seeks to present evidence of certain events that occurred from 1995 to 1998, a period of six to nine years prior to the plaintiff's termination to support her claims pursuant to § 46a-60(a)(1). The plaintiff also seeks to introduce evidence related to settlement agreements between the defendant Greenwich and former employees, as being relevant to the plaintiff's sex discrimination claims.
The plaintiff does not allege any facts for the period 1998 to 2002.
The defendant, Town of Greenwich, has moved the court to exclude from trial, all evidence related to events that occurred prior to February 9, 2001, except as related to the formation of a contract between the Town and the plaintiff. The defendant argues that while the plaintiff alleges discrete factual allegations in Count One that, if proven, could arguably support a claim of discrimination, the plaintiff has not alleged a continuing discriminatory policy or practice. As such, evidence related to events prior to 2001, except as related to the formation of a contract, is too remote from the date of the plaintiff's termination to be relevant, as there is a gap between 1998 and 2002, where there are no arguable allegations of discrimination. The defendant argues that many of the plaintiff's allegations in Count One occurred from 1995 to 1998, six to nine years prior to the plaintiff's layoff.
The defendant also argues that evidence related to settlement agreements between the town and former employees is not material to the issues of this case and is also too remote. In support of this argument, the defendant states that it has, with the permission of former employees, disclosed a limited number of the settlement agreements, none of which are relevant. As to undisclosed settlement agreements, the defendant claims that it is barred by privacy concerns of the former employees from disclosing those agreements, and even if they were ordered to be disclosed, they still would not be relevant, due to different fact patterns from the present case. As to the breach of contract claims, the defendant argues that the settlement agreements are not relevant due to fact patterns that differ from the plaintiff's termination, and the agreements do not address the issues as to whether the former employees were placed on an appropriate re-employment list or received a written statement of reasons.
I
CT Page 10058
Events Occurring Prior to 2001
The defendant has moved to preclude evidence of events occurring to 2001, other than events related to the formation of a contract. The defendant argues that the plaintiff has not alleged and cannot allege a continuing discriminatory practice violation and such evidence is too remote to be relevant to the issues in this case. The defendant notes that the filing of a complaint alleging a violation of § 46a-60 is subject to time limitations provided for in General Statutes § 46a-82. Section 46a-82(f) states in relevant part that "[a]ny complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination . . ."Our Supreme Court reviewed § 46a-82(f) in Williams v. Commission on Human Rights Opportunities, 257 Conn. 258, 278-82, 777 A.2d 645, on appeal after remand, 67 Conn.App. 316, 786 A.2d 1283 (2001), and concluded that the time limit contained therein is not subject matter jurisdictional but rather operates as a statute of limitations. Vollemans v. Wallingford, 103 Conn.App. 188, 194, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008). "We conclude that the time limit of § 46a-82(e) is mandatory, and thus the commission could properly dismiss the plaintiff's complaint if it was not filed within 180 days of the alleged act of discrimination." Williams v. Commission on Human Rights Opportunities, supra, 257 Conn. 284. The defendant therefore concludes as the plaintiff does not allege a policy or practice of discrimination, any allegations related to events that occurred more than 180 days prior to the plaintiff's termination or lay-off are not actionable. See, Dumas v. Bridgeport Board of Education, Superior Court, judicial district of Waterbury at Waterbury (Jan. 11, 2008, Upson, J.). "[D]iscrete discriminatory acts are not actionable if time barred, even though they are related to alleged acts alleged in timely filed charges. Each discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore must be filed within the 180 . . . day time period after the discrete discriminatory act occurred." National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 112 S.Ct. 2061 (2002); Tracy v. New Milford Public Schools, 101 Conn.App. 560, 922 A.2d 280 (2007). Furthermore, "discrete acts that fall within the statutory time period do make timely acts that fall outside the time period." Id. at 112.
The plaintiff argues that whatever the general filing requirements of § 46a-82(e), the instant case plainly qualifies for treatment under the "continuing violation" doctrine, which imparts a far greater review power upon the court. See State v. Connecticut Commission on Human Rights and Opportunities, 211 Conn. 464, 473 (1989) (recognizing the continuing violation doctrine for purposes of the Connecticut Fair Employment Practices Act.) The plaintiff urges the court to consider all events alleged by the plaintiff's complaint, regardless of timing, so long as the events were a part of a policy or practice of discrimination and at least one of the events occurred during the 180-day period preceding the filing of the charge. See Fitzgerald v. Henderson, 251 F.3d 345 (2nd Cir. 2001). The continuing violation does not depend upon any formal discriminatory policy or practice, but rather can rest upon a de facto policy or practice arising from "specific and related" acts of discrimination that an employer continues to tolerate. Id. at 361. However, this is not a claim of a hostile work environment where the doctrine of a continuing violation might apply. National R.R. Passenger Corp. v. Morgan, supra, 536 U.S. 115. Having determined that the acts occurring outside the 180-day filing limitation are not actionable, the court must determine if they are too remote and/or not relevant.
Connecticut courts "review federal precedent concerning employment discrimination for guidance in enforcing [Connecticut's] own anti-discrimination statutes." (Internal quotation marks omitted.) Commission on Human Rights and Opportunities v Savin Rock Condominium Ass'n., Inc., 273 Conn. 373, 386, 870 A.2d 457 (2005), quoting Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996).
It should be noted that in September of 2007, the Connecticut Supreme Court granted certiorari to review an employment discrimination case in which the Connecticut Appellate Court thoroughly discussed the 180-day limitation period of § 46a-82(e) and ultimately, it decided not to follow the federal rules, adopting a new standard to determine precisely when an alleged discriminatory incident occurred. See Vollemans v. Wallingford, 103 Conn.App. 188, 928 A.2d 586, cert. granted, 284 Conn. 920, 933 A.2d 722 (2007). The rule established in Vollemans v. Wallingford, however, does not apply to the present case and, therefore, regardless of the court's ruling on certiorari, the analysis of the present case will not be affected. The Vollemans case specifically deals with the question of whether the 180-day statute of limitations period begins to run when an employee receives notice of a future termination or on an employee's final day of work.
"The trial court has broad discretion to determine both the relevancy and remoteness of evidence." (Internal quotation marks omitted.) Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 264, 694 A.2d 1319 (1997). "Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worth or safe to be admitted in the proof of the latter . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not [unfairly] prejudicial or merely cumulative." (Internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 96 Conn.App. 741, 748-49, 901 A.2d 1258 (2006), quoting State v. Colon, 272 Conn. 106, 200-01, 864 A.2d 666 (2004), cert. denied, U.S., 126 S.Ct. 102, 163 L.Ed.2d 116 (2005); see also Conn. Code Evid. § 4-1 "Generally speaking, the question of remoteness . . . must depend on all the considerations, including time, the character of the evidence, and all surrounding circumstances which in the opinion of the court ought to have a bearing upon its worthiness to be brought into consideration and determination of the matters in contention." State v. Hernandez, 224 Conn. 196, 203 (1992).
Remoteness in time of a prior incidents is a factor to be considered by the trial court in making a decision regarding admissibility of evidence. State v. Kulmac, 230 Conn. 43, 62, 644 A.2d 887 (1994). Evidence that is too remote from the issues in an action should be precluded. Buonanno, Admin. v. Cameron, 131 Conn. 513, 515 (1945). Events that occurred in 1995 to 1998 were six to nine years prior to the plaintiff's lay-off in 2004. Additionally, the plaintiff does not allege any facts occurring between 1998 to 2002. The court finds that the plaintiff will not be permitted to introduce evidence related to alleged discriminatory actions that occurred more than three years prior to the date she was laid-off because the evidence is too remote.
The plaintiff also claims the Town breached a contract that it had with the plaintiff. "The elements of breach of contract are the formation of an agreement, performance by one party. Breach of the agreement by the other party and damages." Rosato v. Moscardo, 82 Conn.App. 396, 411 (2004). The plaintiff claims the defendant breached a contract that it had with the plaintiff by not placing the plaintiff's name on an appropriate re-employment list and by not providing her with a written statement of reasons for her lay-off. The evidence related to a formation of a contract that occurred more than three years prior to the termination of the plaintiff's employment is too remote to be relevant and is also precluded. It is well established that "[r]elevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worth or safe to be admitted in the proof of the latter . . ." Sullivan v. Metro-North Commuter Railroad Co., 96 Conn.App. 741, 748-49, 901 A.2d 1258 (2006). "[I]ncreased remoteness in time does reduce the probative value of prior misconduct evidence . . ." State v. Romero, 269 Conn. 481, 499-500, 849 A.2d 760 (2004).
II Settlement Agreements
Lastly, the defendant also moves to preclude all evidence related to settlement agreements between the Town and former employees as such evidence is too remote to be relevant to the matters at issue. During the discovery phase of this case, the Town provided four such settlement agreements to the plaintiff with the permission of the four former employees. The Town argues that evidence of these four settlement agreements should be precluded because the four agreements were between the Town and female former employees. Three of the employees ages ranged between 59 and 70 when their employment ceased. "To establish a prima facie claim of disparate treatment under a facially neutral employment policy, it is necessary for the employee to produce evidence of four elements: (1) she was a member of a protected class; (2) she was qualified for her position; (3) she was discharged; and (4) the termination occurred under circumstances giving rise to an inference of discrimination." United Technologies Corp. v. Commission on Human Rights and Opportunities, 72 Conn.App., 212, 225-26, cert. denied, 262 Conn. 920 (2002). "[T]o meet the fourth prong of that prima facie showing, a female employee must establish `she was treated less favorably than comparable male employees in circumstances from which a gender-based motive could be inferred.'" Id. The defendant Town argues that the separation agreements at issue are all with female employees, and as a result, the plaintiff cannot use these agreements because the plaintiff must present evidence related to male employees to prove gender discrimination. Thus, the settlement agreements with the four female employees are not relevant. Additionally, the Town argues that other employee settlement agreements which have not yet been disclosed should also be precluded because of the privacy rights of former employees.
In objecting to the motion in limine relating to the settlement agreements with former employees, the plaintiff argues that the privacy and confidentiality concerns of the employees who agreements were not revealed are not controlling. The plaintiff points to General Statutes § 1-214 of the Freedom of Information Act and General Statutes § 31-128f. Section 1-214a specifically compels the disclosure of such documents, including those containing confidentiality provisions, and Section 31-128f specifically excepts the employee's permission to disclose any information from his/her personnel file when disclosure is sought to be made . . . pursuant to a . . . judicial order, . . . or in response to a government audit or the investigation or defense of personnel-related complaints against an employer." To date, the defendant Town has refused to provide copies of these agreements. The plaintiff concedes that the four agreements with former female employees are irrelevant in the absence of agreements with former male employees to which they were intended to be compared.
Sec. 1-214a. Disclosure of public agency termination, suspension or separation agreement containing confidentiality provision.
Any agreement entered into by any public agency, as defined in section 1-200, with an employee or personal services contractor providing for the termination, suspension or separation from employment of such employee or the termination or suspension of the provision of personal services by such contractor, as the case may be, that contains a confidentiality provision that prohibits or restricts such public agency from disclosing the existence of the agreement or the cause or causes for such termination, suspension or separation including, but not limited to, alleged or substantiated sexual abuse, sexual harassment, sexual exploitation or sexual assault by such employee or contractor, shall be subject to public disclosure under this chapter.
Sec. 31-128f. Employee's consent required for disclosure.
No individually identifiable information contained in the personnel file or medical records of any employee shall be disclosed by an employer to any person or entity not employed by or affiliated with the employer without the written authorization of such employee except where the information is limited to the verification of dates of employment and the employee's title or position and wage or salary or where the disclosure is made: (1) To a third party that maintains or prepares employment records or performs other employment-related services for the employer; (2) pursuant to a lawfully issued administrative summons or judicial order, including a search warrant or subpoena, or in response to a government audit or the investigation or defense of personnel-related complaints against the employer; (3) pursuant to a request by a law enforcement agency for an employee's home address and dates of his attendance at work; (4) in response to an apparent medical emergency or to apprise the employee's physician of a medical condition of which the employee may not be aware; (5) to comply with federal, state or local laws or regulations; or (6) where the information is disseminated pursuant to the terms of a collective bargaining agreement. Where such authorization involves medical records the employer shall inform the concerned employee of his or his physician's right of inspection and correction, his right to withhold authorization, and the effect of any withholding of such authorization upon such employee.
The court has been asked to issue a ruling on the defendant's motion to preclude certain evidence and has not been requested to order disclosure of the still undisclosed agreements with the former employees who have thus far refused to allow the defendant to disclose their settlement agreements. The plaintiff did not renew her request for a judicial order of disclosure of settlement agreements with former employees who have refused to give their permission for the release of these agreements. The court has only been asked to preclude the four disclosed agreements concerning four former female employees. "A motion in limine is the proper mechanism by which "to invoke a trial judge's inherent discretionary powers to . . . exclude evidence . . ." Richmond v. Longo, 27 Conn.App. 30, 38, 604 A.2d 374, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992).
This court was informed that the voluntary disclosure of the settlement agreements with the four former female employees was a result of an agreement that was reached with the court (Hiller J.) on a previous date during a pretrial conference. At that time, the defendant agreed to write to certain former employees seeking their permission to release the information contained in their settlement agreements with the Town of Greenwich. In response, four parties agreed and the remaining refused to give their permission. Since that time, the court is unaware of any further attempt by the plaintiff to seek the court's ruling regarding the information contained in any settlement agreement that was not voluntarily disclosed.
Accordingly, the court does not need to determine the questions relating to the confidentiality of any prior settlement agreements of those employees who have refused to grant permission to voluntarily release the details of those agreements. As the plaintiff concedes that the settlement agreements with four former female employees are irrelevant in the absence of settlement agreements with former male employees, the evidence of the agreements with the four former female employees is hereby precluded.
The defendant's motion in limine is hereby granted in total.