Opinion
3:19-CV-1952 (VDO)
10-02-2024
ELISEE CHERY, Plaintiff, v. TOWN OF ENFIELD, Defendant. EX. DESCRIPTION RULING DESCRIPTION RULING WITNESS RULING
MEMORANDUM DECISION ON MOTIONS IN LIMINE AND OBJECTIONS TO EXHIBITS AND WITNESSES
VERNON D. OLIVER, UNITED STATES DISTRICT JUDGE
As discussed during the pretrial conference held on October 1, 2024 before this Court, the Court rules on the motions in limine and objections to witnesses and exhibits as follows.
I. MOTIONS IN LIMINE
A. Plaintiff's Motion in Limine at ECF No. 118
Plaintiff's motion in limine to preclude Defendant from “introducing evidence that contradicts or supplements Defendant's proffered reasons for terminating Plaintiff's employment beyond the reason articulated by Defendant in Court filings” at ECF No. 118 is DENIED.
As Defendant correctly points out in its opposition, nowhere in Defendant's Answer does Defendant admit any facts regarding the reasons for terminating Plaintiff's employment. Moreover, Plaintiff's reliance on Defendant's Local Rule 56(a) Statement is misplaced because judicial admissions only arise where facts are admitted in a pleading and, in any event, the cited paragraphs in the Defendant's Local Rule 56(a) Statement do not purport to set forth the reasons for Plaintiff's termination.
By seeking to preclude Defendant from providing additional or conflicting evidence to support its reason(s) for Plaintiff's termination, Plaintiff is, in effect, improperly asking the Court to weigh the sufficiency of the evidence to support a particular claim or defense. However, “[a]ssessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court[.]” Vital v. Interfaith Med. Ctr., 168 F.3d 615, 622 (2d Cir. 1999).
B. Defendant's Motion in Limine at ECF No. 129
Defendant's motion in limine at ECF No. 129 to preclude Plaintiff “from offering any testimony, evidence or expert opinions regarding any diagnoses of adjustment disorder with mixed anxiety and depressed mood, and chronic post-traumatic stress disorder and/or that any such diagnoses are causally related to the incidents which are the subject matter of this action” is GRANTED IN PART and DENIED AS MOOT IN PART.
Defendant's motion in limine as to Plaintiff's Exhibit 102 is granted. Plaintiff may offer Exhibit 102 for the limited purpose of demonstrating that he sought mental health treatment after his termination, and not as evidence of any diagnoses, prognosis, or of causation, since Plaintiff's treater, Gladys Anderson, is not available for cross-examination. Accordingly, Plaintiff shall redact from Exhibit 102 any mention of a diagnosis or prognosis for inclusion in the finalized set of exhibits.
Because Anderson has passed away and Plaintiff never sought to designate her as an expert, Defendant's Daubert motion is denied as moot.
C. Defendant's Motion in Limine at ECF No. 130
Defendant's motion to preclude Plaintiff from offering any testimony, argument, and/or evidence by the 23 newly disclosed witnesses at trial is GRANTED IN PART and DENIED AS MOOT IN PART.
Under Federal Rule of Civil Procedure 37(c)(1), a party's non-compliance with the disclosure requirements of Rule 26 generally results in the preclusion of improperly disclosed witnesses, unless the Court finds that the non-compliance was “harmless.” When evaluating whether to preclude witness testimony, the Court considers “the following factors: (1) the party's explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness(es); (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.” Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 269 (2d Cir. 1999).
Considering these four factors, the Court concludes that Plaintiff's non-compliance with the Rule 26(a) disclosure requirements was not “harmless” and thus, preclusion is necessary under Fed.R.Civ.P. 37(c)(1). Plaintiff's argument in opposition that new counsel was retained in November 2023 upon which further investigation was made into additional witnesses is not a sufficient explanation for his failure to comply with Rule 26(a), as Plaintiff nevertheless had the last ten months to supplement his initial disclosures. Plaintiff also argues in his responses to Defendant's objections to Plaintiff's witness list that he identified these 23 witnesses in supplemental IEDP responses and/or responses to Defendant's interrogatories. However, these actions do not erase Plaintiff's non-compliance with Rule 26(a). Nor has Plaintiff reasonably explained why these late-disclosed witnesses' testimonies are important and not cumulative of the testimony of other witnesses Plaintiff intends to call at trial. Finally, in light of the fact that trial is scheduled to proceed in two weeks, the delay in disclosing these witnesses prejudices Defendant.
Accordingly, the following four witnesses shall not be allowed to testify at trial: Lieutenant Podpolucha, Elvin Rodriguez, Jonathan Rodriguez, and Pastor Elijah Oliver. Plaintiff filed an updated witness list on September 30 that excludes the following witnesses: Sergeant Edgar J. Ferreras, Carthon Danzinger, Kevin Magdycz, Alex Peck, Lamarre Davidson, Eddie Paul, Tonie Brown, Eric Rodriguez, Marvin Riviera, Kenya Allen, Charles Carvines, Michelle Perry, Elizabeth Rivera-Pirela, Wallesca Rivera, Denis Blan, Levon Freeman, Ernest Landers, Jason Walker, and Joe Willis. Therefore, Defendant's motion in limine as to these nineteen witnesses is denied as moot.
D. Defendant's Motion in Limine at ECF No. 131
Defendant's motion to preclude Plaintiff's Exhibits 104-159, 167-182, 192-216, and 235-238 on the basis of belated disclosure is DENIED. However, the Court makes the following additional findings regarding Defendant's objections to these exhibits:
• Defendant's objections to Exhibits 104, 117, and 119-159 are overruled. These exhibits are highly relevant and probative under Federal Rules of Evidence 401 and 403 as to whether Officer Roche was similarly situated to Plaintiff.
• Plaintiff states Exhibits 167-182 will not be presented to the jury. Accordingly, Defendant's objections to Exhibits 167-182 are denied as moot.
• Plaintiff states that he withdraws Exhibits 105, 106, and 192; therefore, Defendant's objections to these exhibits are denied as moot.
• Defendant's objections to Exhibits 193-216 are sustained except for Exhibits 197 and 216.
• Defendant's objection to Exhibit 237 is sustained except for the Bates-stamped pages ending in 2199 and 2200.
• Defendant's objection to Exhibit 238 is sustained. Hall's letter of reference does not provide any relevant or probative information related to Plaintiff's allegations, including his qualifications, in this case.
• The Court's Initial Discovery Protocols at ECF No. 5 delineate the categories of discovery the parties must produce in Initial Discovery, which include “Plaintiff's current resume(s),” and “[w]orkplace policies or guidelines relevant to the adverse action in effect at the time of the adverse action.” The Initial Discovery Protocols further provide that “[t]his Initial Discovery is not subject to objections except upon the grounds set forth in F.R.C.P. 26(b)(2)(B).” (ECF No. 5-2 at 2.) Therefore, Defendant's objections to Plaintiff's current resume (Exhibit 235) and the Town's Code of Ethics and Personnel Rules & Procedures (Exhibit 236) are overruled.
E. Defendant's Motion in Limine at ECF No. 132
For the reasons stated in the Court's decision overruling Defendant's objections to Plaintiff's Exhibits 167-182, supra, Defendant's motion in limine to preclude these Records Disposition Authorization Forms is denied as moot.
F. Defendant's Motion in Limine at ECF No. 133
Defendant's motion to preclude Plaintiff from presenting evidence of report-writing errors of non-similarly situated employees is DENIED.
Under the McDonnell Douglas framework, the plaintiff is permitted to discharge his burden through the use of direct or circumstantial evidence or a combination of both. While the evidence sought to be admitted generally must involve treatment of employees who are similarly situated to the plaintiff, Abdu-Brisson v. Delta Air Lines, Inc., 94-CV-8494 (HB), 1999 U.S. Dist. LEXIS 16050, at *12-15 (S.D.N.Y. Oct. 19, 1999), this Court has allowed Plaintiff to proceed on his discrimination claims under the “cat's paw” theory of liability. See ECF No. 76 at 13-14. Under this theory, “an employee may hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision. . . . The cat's paw metaphor refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action.” Id. (internal citations and quotation marks omitted).
Accordingly, although the Court finds that Officer Magagnoli and Plaintiff's FTOs were not similarly situated to Plaintiff because they were Plaintiff's supervisors during FTEP, based on the cat's paw theory of liability, Plaintiff may introduce evidence and/or testimony of report-writing errors committed by Officer Magagnoli or other FTOs at trial as circumstantial evidence of their discriminatory animus and/or intent.
G. Defendant's Motion in Limine at ECF No. 134
Defendant's motion to preclude Plaintiff from presenting evidence of stray remarks who were not directly involved in evaluating Plaintiff's performance is GRANTED IN PART and DENIED IN PART.
1. Identified/Known Persons
In Malarkey v. Texaco, Inc., 983 F.2d 1204 (2d. Cir. 1993), the Second Circuit affirmed the district court's decision to admit statements about a plaintiff made by non-decisionmakers within the time frame of the alleged discriminatory actions. The Malarkey Court held that it was within a district court's discretion to admit statements made by non-decisionmakers because they were probative of a “pervasive corporate hostility towards” the plaintiff “and supported her claim that she did not receive a promotion due to her employer's retaliatory animus.” Id. at 1210. Additionally, even if the stray remarks were from a non-decisionmaker, it is possible that that the individual may have influenced the employees who were responsible in their decision to terminate Plaintiff.
The Court therefore finds that the probative value of stray remarks from FTOs or other identified Enfield police officers about Plaintiff is NOT outweighed by undue prejudice under Federal Rule of Evidence 403. Because the requested relief includes precluding remarks about the plaintiff during the time period at issue, the motion in limine is denied as to these individuals.
2. Unknown Persons
Defendant's motion to preclude Plaintiff from presenting evidence of stray remarks from unidentified individuals is granted without prejudice to Plaintiff's identification at trial of the individuals to whom the remarks can be attributed.
H. Plaintiff's Motion in Limine at ECF No. 135
Plaintiff's motion to preclude Defendant's witnesses “from testifying as to their opinions regarding decisions made regarding Plaintiff's termination when such individuals and/or their observations were not part of the decision-making process leading to the termination of Plaintiff's employment” at ECF No. 135 is DENIED WITHOUT PREJUDICE.
A lay witness may testify in the form of an opinion, provided such testimony “is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determinations of a fact in issue.” Fed.R.Evid. 701. To the extent that Defendant elicits testimony from witnesses “that amounts to a naked speculation concerning the motivation for [the] adverse employment decision,” Federal Rule of Evidence 701(b) bars such testimony. See Hester v. BIC Corp., 225 F.3d 178, 185 (2d Cir. 2000) (holding that the admission of opinion testimony as to the defendant's ultimate motivations was error). Defendant may elicit testimony from witnesses as to their opinions regarding Plaintiff's termination so long as they have personal knowledge of the facts that form the basis of their opinion and their testimony focuses solely on those objective facts. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (holding that Rule 701 allowed a former employee to opine at trial that age played a factor in the plaintiff's termination where the witness had been defendants' employee for almost twenty years, had worked directly under the named defendants, had been personally involved in the procedures that led to the plaintiff's termination, and had been present when the decision to terminate was made).
Since Plaintiff merely speculates about the scope and nature of Defendant's witness testimony at this time, Plaintiff's motion in limine is denied without prejudice to particularized renewal during trial.
I. Defendant's Motion in Limine at ECF No. 136
Defendant's motion to preclude “[P]laintiff from introducing testimony regarding Plaintiff's professional qualifications from individuals who did not work with Plaintiff at the Enfield Police Department” is DENIED WITHOUT PREJUDICE.
Pursuant to Federal Rule of Evidence 403, relevant evidence may be excluded if its probative value is substantially outweighed by, among other things, a danger of unfair prejudice or needlessly presenting cumulative evidence. Under McDonnell Douglas, a plaintiff establishes a prima facie case of discrimination by showing that (1) he is a member of a protected class; (2) he is qualified for his position; (3) he suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination. Bart v. Golub Corp., 96 F.4th 566, 570 (2d Cir. 2024). Because testimony about Plaintiff's prior employment is probative of whether he is qualified for the position at issue, and such testimony is not outweighed by a danger of unfair prejudice, Defendant's motion in limine is denied without prejudice to particularized renewal at trial.
II. RULINGS ON DEFENDANT'S OBJECTIONS TO PLAINTIFF'S EXHIBITS
The Court uses the following abbreviations: EX. = exhibit, ORR = overruled and SUS = sustained.
EX.
DESCRIPTION
RULING
2
Benefit checklist for terminating employee - E. Chery
OBJECTION WITHDRAWN
79
9/28/16 MPD Commendation - E. Chery
ORR
94
Sergeant Lefebvre Memo re Plaintiffs Expired Plates
ORR (subject to overcoming hearsay objection - business record)
95
Sergeant Parent's Affidavit iso Def s MS J
SUS (unless used pursuant to FRE 613)
97
Plaintiffs Resume (as submitted for employment with EPD)
OBJECTION WITHDRAWN
98
MPD Record of Chery
ORR
99
8/12/15 MPD Memo re Chery's Certification of Probation
ORR
100
10/13/15 MPD Rating Fonn - Chery
ORR
101
11/01/16 MPD Rating Fonn - Chery
ORR
102
Chery Therapy Records
SUS (subject to redaction or satisfaction of FRE 803(6) (A-E))
104
Dennis Roche Job Application for EPD
ORR
105
Nicholas King Job Application and Resume for EPD
EX. WITHDRAWN
106
Kevin Ragion Job Application for EPD
EX. WITHDRAWN
107
List of EPD officers and demographics
ORR
108
2016-17 Insurance Rates: Police Union
ORR
109
2017-18 Insurance Rates: Police Union
ORR
110
2018-19 Insurance Rates: Police Union
ORR
111
2019-20 Insurance Rates: Police Union
ORR
112
Vanessa Magagnoli Salary Record
ORR
113
Keith Parent Salary Record
ORR
114
Steven Prior Salary Record
ORR
115
Nicholas King Salary Record
ORR
116
Kevin Ragion Salary Record
ORR
117
Dennis Roche Salary Record
ORR
118
Timothy Gerrish Salary Record
ORR
119
Roche Weekly Report: Week 1, Phase 1
ORR
120
Roche Weekly Report: Weeks 2 & 3, Phase 1
ORR
121
Roche Weekly Report: Weeks 4 & 5, Phase 1
ORR
122
Roche Weekly Report: Weeks 8 & 9, Phase 2
ORR
123
Roche Weekly Report: Weeks 11 & 12, Phase 2
ORR
III. RULINGS ON PLAINTIFF'S OBJECTIONS TO DEFENDANT'S EXHIBITS
124
Roche Weekly Report: Weeks 13 & 14, Phase 3
ORR
125
Parent 12/11/17 Memo to (CC) Sferrazza re Roche
ORR
126
Roche 7/31/17 DOR
ORR
127
Roche 8/1/17 DOR
ORR
128
Roche 8/2/17 DOR
ORR
129
Roche 8/3/17 DOR
ORR
130
Roche 8/5/17 DOR
ORR
131
Roche 8/6/17 DOR
ORR
132
Roche 8/7/17 DOR
ORR
133
Roche 8/8/17 DOR
ORR
134
Roche 8/13/17 DOR
ORR
135
Roche 8/14/17 DOR
ORR
136
Roche 8/15/17 DOR
ORR
137
Roche 8/16/17 DOR
ORR
138
Roche 8/17/17 DOR
ORR
139
Roche 8/20/17 DOR
ORR
140
Roche 8/21/17 DOR
ORR
141
Roche 8/22/17 DOR
ORR
142
Roche 8/23/17 DOR
ORR
143
Roche 8/24/17 DOR
ORR
144
Roche 8/29/17 DOR
ORR
145
Roche 8/30/17 DOR
ORR
146
Roche 8/31/17 DOR
ORR
147
Roche 9/1/17 DOR
ORR
148
Roche 9/4/17 DOR
ORR
149
Roche 9/5/17 DOR
ORR
150
Roche 9/6/17 DOR
ORR
151
Roche 9/7/17 DOR
ORR
152
Roche 9/8/17 DOR
ORR
153
Roche 9/12/17 DOR
ORR
154
Roche 9/13/17 DOR
ORR
155
Roche 9/14/17 DOR
ORR
156
Roche 9/28/17 End of Phase 1 Evaluation Summary
ORR
157
Roche 10/20/17 End of Phase 2 Evaluation Summary
ORR
158
Roche 11/20/17 End of Phase 3 Evaluation Summary
ORR
159
Roche 11/5/17 End of Phase: Traffic Evaluation Summary
ORR
166
Mitigation Summary
SUS subject to redactions as to extraneous/irrelevant pages
167
5/3/18 Records Disposition Authorization Form by Community Development
MOOT
168
3/21/18 RDA Form by Town Clerk
MOOT
IV. RULINGS ON PLAINTIFF'S OBJECTIONS TO DEFENDANT'S WITNESSES
169
5/9/17 RDA Form by Public Safety/Police
MOOT
170
4/28/17 RDA Form by Town Manager
MOOT
171
2/7/17 RDA Form by Town Manager
MOOT
172
11/9/17 RDA Form by Town Manager
MOOT
173
7/28/20 RDA Form by Dir. Of Development Services
MOOT
174
1/17/20 RDA Form by Town Manager
MOOT
175
1/2/20 RDA Form by Town Clerk
MOOT
176
1/2/20 RDA Form by Town Clerk
MOOT
177
11/29/18 RDA by Town Clerk
MOOT
178
12/4/23 RDA Form by Town Clerk
MOOT
179
6/19/23 RDA Form by Finance/Treasure
MOOT
180
10/28/22 RDA Form by Social Services
MOOT
181
5/9/22 RDA Form by Town Manager
MOOT
182
5/9/22 RDA Form by Town Manager
MOOT
183
Plaintiffs 2015 Tax Return
EX. WITHDRAWN
184
Plaintiffs 2016 Tax Return
EX. WITHDRAWN
185
Plaintiffs 2017 Tax Return
SUS except as to W-2
188
Plaintiffs 2020 Tax Return
SUS without prejudice to being produced
189
Plaintiffs 2021 Tax Return
SUS without prejudice to being produced
191
Plaintiffs 2023 Tax Return
SUS without prejudice to being produced
192
10/23/19 Reservation of Rights Letter from Travelers
EX. WITHDRAWN
193
Dept of VA BELT Assessment Certification of Training
SUS
194
Dept of VA ESB Written Exam Certificate of Training
SUS
195
Dept of VA OC Training Certificate of Training
SUS
196
Dept of VA Bi-Annual Use of Force Certificate
SUS
197
Dept of VA Standardized Training Course Certificate
ORR
198
Dept of VA In Service Transcript - Police Response to Sexual Assault
SUS
199
Dept of VA In Service Transcript - Duty to Intervene
SUS
200
Dept of VA In Service Transcript - Crisis Intervention
SUS
201
Dept of VA In Service Transcript - Fair and Impartial Policing
SUS
202
Dept of VA In Service Transcript - Firearms Safety
SUS
203
Dept of VA In Service Transcript FY24 OC Training
SUS
204
Dept of VA In Service Transcript - FY24 ESB Written Exam
SUS
205
Dept of VA In Service Transcript - FY24 Biannual use of force Part 2
SUS
206
Dept of VA In Service Transcript - FY24 BELT Assessment__
SUS
V. RULINGS ON DEFENDANT'S OBJECTIONS TO PLAINTIFF'S WITNESSES
207
Dent of VA In Service Transcript - BELT Union
SUS
208
Dept of VA In Service Transcript - BELT Uniform
SUS
209
Dept of VA In Service Transcript - BELT Stress Mgmt
SUS
210
Dept of VA In Service Transcript - Belt Roles of VA and Situational Law Enforcement
SUS
211
Dept of VA In Service Transcript - BELT First Amendment Auditors
SUS
212
Dept of VA In Service Transcript - BELT Duty to Intervene
SUS
213
Dept of VA In Service Transcript - BELT Biohazards
SUS
214
Dept of VA In Service Transcript - BELT AB3 Intro
SUS
215
Dept of VA In Service Transcript - LETC Training
SUS
216
Dept of VA - Law Enforcement Training Center - Student Class Transcript
ORR
235
Current Resume
ORR
236
Town of Enfield Code of Ethics and Personnel Policies and Procedures
ORR
237
Enfield Department of Public Safety Police Division - 2017 Special Orders
SUS with exception of 2199-2200
238
Letter of Reference from F. Hall
SUS
239
Affidavit of F. Hall
SUS (unless used pursuant to FRE 613)
EX.
DESCRIPTION
RULING
503
Officer Performing Rating 10/1/14- 9/30/15
SUS subject to production of complete document. May be offered on rebuttal.
504
Performance Management System Conference Report
ORR if offered on rebuttal
505
Email between Jansen and Plaintiff, 1/3/17
ORR if offered on rebuttal
508
Letter from W. Tanner to C. Sferrazza, 5/11/17
ORR
509
Record of Training, 6/17/17
ORR
IV. RULINGS ON PLAINTIFF'S OBJECTIONS TO DEFENDANT'S WITNESSES
WITNESS
RULING
Keith Parent
SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence.
Carl Sferrazza
SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence.
Fred Hall
SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence.
Kevin Ragion
SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence.
Nicholas King
SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence.
Vanessa Magagnoli
SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence.
Steven Prior
SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence.
Timothy Gerrish
SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence.
Michael Emons
SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence.
Gary Collins
SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence.
Captain Golden
ORR WITHOUT PREJUDICE to the extent that any FTEP requirements/ evaluation criteria & POST requirements are identical and necessary for Plaintiffs certification as a police officer and witness has personal knowledge about these matters.
Ralph Jensen
ORR if witness is offered on rebuttal.
Kelly Bolduc
ORR if witness is offered on rebuttal.
William Tanner
ORR
V. RULINGS ON DEFENDANT'S OBJECTIONS TO PLAINTIFF'S WITNESSES
WITNESS
RULING
Pastor Sean Brown
SUS
Shelor Cejour
ORR
Christine Chambers
SUS
Francis Montano
ORR based on new proffer and limits on testimony as contained in Plaintiffs updated witness list.
Tyesha Reese
SUS
Kelly Burgess
SUS
SO ORDERED.