Opinion
No. HHD-CV-02-4034594-S
May 13, 2008
MEMORANDUM OF DECISION
This case grows out of an employment dispute between the plaintiff, a Department of Corrections officer and the Department of Corrections (hereafter the "DOC"). The plaintiff claims that the defendant discriminated against her on the basis of her gender, race and sexual orientation and retaliated against her. Specifically, the plaintiff alleges that she was discriminated against because she is a lesbian. After trial, the jury rendered a verdict in favor of the defendant. Subsequent motions to set aside the verdict and for a new trial were filed and have now been supplemented by the present motion. Plaintiff concedes that she claims only those grounds for a new trial set forth in her most recent motion and memorandum and abandons other claims previously asserted. The present post-trial motion was filed on June 5, 2007, defendants' objection on September 17, 2007 and a hearing was subsequently held on the motion and some ancillary matters.
Plaintiff bases her request for a new trial on three items of evidence; the first two are newly discovered evidence not previously produced, and the last item is a document not produced until the last several days of trial. These documents are central to her claim of serious discovery misconduct by the defendants. The evidence and discovery misconduct in all equity, she urges, require the court to set aside the verdict and grant a new trial. For the reasons set forth in detail below, the court denies the motion.
The two items of "newly discovered" evidence the Plaintiff claims necessitate a new trial are complaints concerning sexual harassment made by certain corrections officers against their superiors, some of whom were also superiors of Ms. Duarte. The third item, which was produced at the eleventh hour of trial, is an anonymous note alleging that Ms. Duarte and another female correction officer had a romantic relationship, prohibited by the rules and regulations of the Department of Corrections. When her superiors read this note, the plaintiff claims, the campaign of illegal discrimination which led to her demotion began. While the plaintiff knew of this note and its general contents, the actual note was not produced until just shortly before the end of the trial.
I. DISCUSSION A. Legal Standard
The standard that governs the granting of either a motion or a petition for a new trial based on newly discovered evidence is well established. "The petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial. Kubeck v. Foremost Foods Co., 190 Conn. 667, 670, 461 A.2d 1380 (1983); Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983); Pass v. Pass, 152 Conn. 508, 511, 208 A.2d 753 (1965). This strict standard is meant to effectuate the underlying "equitable principle that once a judgment is rendered it is to be considered final," and should not be disturbed by posttrial motions except for a compelling reason. Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983).
Noting that she could locate no Connecticut cases with similar facts, the plaintiff cites two First Circuit cases of Anderson v. Cryovac, 862 F.2d 910 (1st Cir. 1988) and Teamsters, Chauffeurs, Warehousemen Helpers Union, Local 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) as cases involving serious discovery misconduct. She quotes extensively from Cryovac, the earlier decided of the two cases, to support her claim that she need not demonstrate that the outcome of the case would have different, had there not been discovery misconduct. She rightly argues that interpretations of Federal Rule 60(b) are germane and closely akin to the Connecticut statute and Practice Book rules. Nonetheless, she incorrectly relies on the statements in Cryovac that envision a "substantial inference rule" for discovery misconduct. That rule as articulated states that the claimed conduct must have substantially interfered with the claimant's ability to fully and fairly prepare for and proceed at trial. First, the facts in this case do not support such a conclusion and second, the later decided case of Superline by the same court plainly states that that movant must at least establish that it possesses a potentially meritorious claim or defense, which if proven, will bring success in its wake." (Emphasis added.)
Superline is consistent with our state law on the subject and therefore suggests that resort to and argument about the exact legal import of First Circuit cases need not be had. As to discovery, our Appellate court has found that "[t]he rules of discovery are designed to make a trial less a game of blind man's bluff and more of a fair contest with the basic issues and facts disclosed to the fullest [practical] extent." Sturdivant v. Yale-New Haven Hospital et al, 2 Conn.App. 103, 106, 476 A.2d 104 (1984). The plaintiff argues that Connecticut General Statues 52-270 permits a court to grant a new trial for "other reasonable cause." With this, the court agrees. The basic question is whether or not an injustice was done.
In order to properly review the newly discovered evidence and to assess its impact, "the trial court must weigh that evidence in conjunction with the evidence presented at the original trial." Kubeck v. Foremost Foods Co., supra, 669. It is only in the light of the reasonably credible evidence that the "missing evidence" and its import on this trial can be assessed. And while plaintiff has timely filed a motion for a new trial, and not a petition after entry of judgment, the legal standards as to after-discovered evidence remain the same. See for example State v. Newton, 59 Conn.App. 507, 512, 757 A.2d 1140, (2000) stating "As a reviewing court considering the trial court's decision in granting or denying a motion for a new trial, we must be mindful of the trial judge's superior opportunity to assess the proceedings over which he or she has personally presided."
B. Evidence at Trial which Reasonably Supports the Jury's Verdict
The jury learned during the trial that Bonnie Duarte began her career with the Department of Correction in 1988 at the Gates Correctional Institution. She did well in her early years and was promoted to become a lieutenant. Her sexual orientation was known to others and was not secret. During the timeframe relevant to this case, she was a lieutenant on the second shift at Radgowksi Correctional Institution. As a supervisor, many correction officers reported to her, including Cynthia Bruner, with whom she had a personal romantic relationship. Lieutenant Duarte also reported up the chain of command ultimately to the warden. When she became the third shift supervisor at Radgowski in 2000, she became the most senior officer on that middle-of-the-night shift and was responsible for the running of the institution during her shift. The warden ultimately responsible for her supervision in her last two assignments was Warden Gurukuar Khalsa. Lieutenant Duarte was directly supervised by Captains Duane Kelley and Wayne Valade. Because of the shift work, she often did not have a great deal of contact with her immediate supervisors.
The Department of Correction operates as a paramilitary organization with a strict chain of command and with many administrative directives regulating the daily conduct of its employees, and in particular the correction officers in hazardous duty positions tasked with maintaining security and order within its facilities. Many of those administrative directives were presented to the jury as well as the detailed manner in which they were interpreted and enforced. Employees in positions such as Bonnie Duarte's were also given performance evaluations on a quarterly basis, In general prior to 1999, the plaintiff had received positive evaluations.
1) Employment History
The plaintiff maintains that active discrimination against her based on her sexual orientation began in the fall of 1999. But other conclusions can also reasonably be drawn based on the credible evidence that was presented to the jury. In 1999, Warden Khalsa instructed the captains within her chain of command to begin to enforce the directive concerning personal appearance, including in particular hair length and style. Directive 2.13 is very specific that:
Hair shall not cover more than one half the ear, stand out more than one inch from the ear, extend to the eyebrows or be worn below the top of the collar. Hair which falls below the collar shall be tucked under or tied up.
Administrative Directive 2.13. Exhibit 12.
The evidence supports the conclusion that the plaintiff complied with this directive only sporadically.
Prior to the fall of 1999, the directive concerning hair had not been enforced rigorously, but Captain Kelley had spoken to Lieutenant Duarte about the length of her hair and her compliance prior to being instructed to specifically enforce this. The testimony at trial demonstrated that Captain Kelley had to enforce the hair directive during this time with respect to other officers, both male and female, not just against the plaintiff.
In early October 1999, Lieutenant Duarte and Captain Kelley, whom it was apparent she did not like, met to discuss her first quarterly evaluation. The meeting was, by the testimony of both individuals, a disaster with Lieutenant Duarte treating both the system of evaluation and Captain Kelley with significant disdain and disrespect. The lightening rod for her anger was Ms Duarte's disagreement with how housing moves for inmates were being conducted, as she believed that the moves made her job harder. While there is disagreement as to the degree of profanity used by Lieutenant Duarte towards Captain Kelley, the jury could reasonably have concluded that Lieutenant Duarte was insubordinate and unprofessional towards her superior during the course of the interview concerning her evaluation. During the evaluation. Captain Kelley warned her that in her role, she needed to set an example for others by her conduct and that her attitude towards superiors and her lack of compliance was jeopardizing her performance. The jury could reasonably have concluded that this testimony was credible and that Lieutenant Duarte had a serious performance problem. At the time of this meeting, Captain Kelley had not yet received or read the anonymous note, which the plaintiff claims caused the discrimination against her to begin.
Exhibit 10 is Captain Kelley's summary of the meeting.
Some seven days after this meeting, Captain Kelley received the anonymous note. This note claims that the plaintiff and another female correctional officer, Cynthia Bruner, were having a romantic relationship. It also claims that the other officer was lying about her recent knee injury and how it took place. Captain Kelley provided this note to Warden Khalsa and both he and Warden Khalsa testified they decided not to investigate whether or not the two officers were having a relationship, despite such conduct being a violation of another administrative directive. Captain Kelley did testify that he had previously been aware of Lieutenant Duarte's sexual orientation, based on knowledge gained at another facility in which they had both worked in previous years. There was also testimony that investigations based on reports of romantic relationships between officers, while reflecting conduct in violation of the administrative directives, were rare. At the time, Warden Khalsa did order an investigation concerning the facts surrounding the knee injury of the second female correction officer, Officer Cynthia Bruner.
Exhibit 454, last page.
Additional testimony, which the jury could have further credited, demonstrated that between October and December of 1999, when the second quarterly evaluation of the year was completed with Captain Kelley, Lieutenant Duarte continued to be sporadically in and out of compliance with respect to how her hair was worn. She continued to be disrespectful and insubordinate. During her December evaluation, Captain Kelley praised Lieutenant Duarte for some of her work, indicated that her hair was not in compliance and that she also needed to improve her communications with her supervisors.
To make the situation worse and rub salt into the wound, the next day Lieutenant Duarte came to work with her hair half up and half down and full of bobby pins and hair gel. Much testimony was heard about how she did not know how to deal with her hair, which was too short to put up properly or tuck into her collar, and too long to meet the other portions of the directive. Nonetheless, another more negative conclusion is supported by the evidence. Lieutenant Duarte by December of 1999 had been so drawn into the confrontation with her superiors that she was unable to control her insubordinate conduct and disrespectful treatment of them.
She met with Warden Khalsa about how her hair was worn. She took offense when the Warden suggested she speak to another female officer about her hair or go home and try again. She stated that if she went home, she would not return that day to the facility. While a great deal of detailed testimony was elicited about hair, the jury could also reasonably have concluded that the underlying more important matters of lack of respect and setting an example for other officers remained unheeded by Lieutenant Duarte who was unable to rise above the conflict-ridden interactions she had had with Captain Kelley and now her warden, Warden Khalsa.
Warden Khalsa reported these events to her supervisor, Complex Warden Pam Richards who met with the plaintiff. Lieutenant Duarte stated that she was being picked on by Captain Kelley because of her hair. She denied that she had been disrespectful. There was no mention made at that time of discrimination. At trial, Lieutenant Duarte testified that it is as a result of the comments made by Warden Khalsa that she determined she was being discriminated against on the basis of her sexual orientation. Such an inference is certainly plausible, but not the only one the jury could have drawn from the events of the fall of 1999, in particularly Lieutenant Duane's unwillingness to accept any responsibility of her own actions. The jury could reasonably have concluded that her supervisors were acting appropriately in their comments to her about her insubordinate conduct. The timing of her meeting with Captain Kelley concerning her evaluation in October and the receipt of the anonymous note shortly thereafter demonstrates that the negative evaluation of her work performance began well before the anonymous note was delivered. The jury could have concluded it was not the precipitating event that occasioned the conduct Lieutenant Duarte characterizes as discrimination, but rather Lieutenant Duarte's own work performance that necessitated the negative performance evaluations.
Following these events, the Complex Warden ordered an investigation into the details of what had taken place. This was conducted by Complex Captain Trainer. He concluded that Lieutenant Duarte had failed to act in professional manner towards employees and the public. He found that she violated Administrative Directive 2.17. She was then suspended for five days. Warden Khalsa testified that she agreed with this and she was concerned about security since such behavior had a propensity to disrupt the secure functioning of any facility. As was her right, the plaintiff filed a grievance over the suspension, but the suspension was upheld.
Nonetheless, shortly thereafter, Warden Khalsa approved Lieutenant Duarte's promotion to the third shift supervisor. She took this action hoping that separating Lieutenant Duarte and Captain Kelley by a change of shifts would ease the existing tensions and permit Lieutenant Duarte to positively demonstrate her capabilities. Despite the time shift and these hopes, there continued be incidents which did not reflect well on Lieutenant Duarte's professionalism and her treatment of other officers. Some were in direct violation of administrative directives. Some had to do with how her time was registered at work and how she secured her keys.
While the plaintiff was able to offer the testimony of other correctional officers concerning the selective enforcement of administrative directives and that Warden Khalsa herself had not properly secured her own keys on two occasions, the jury could also reasonably have credited the contrary testimony about the plaintiff's own conduct.
In April of 2000, Lieutenant Duarte learned that she would be named Employee of the Quarter, but that this decision was rescinded by Warden Khalsa. While the plaintiff views this as more evidence of discrimination, the evidence reasonably also supports a valid administrative concern that when an employee is under investigation for insubordination, even though not known to others, such award could have negative repercussions in the future. From all of these events, the jury could have concluded that Lieutenant Duarte did not take to heart the confidence placed in her by her superiors by her shift change. She did not moderate her behavior so that she could perform well as a leader of others. Instead, she engaged in a campaign to prove her superiors "wrong" and continued her insubordinate conduct. Her final evaluation for the July 1, 1999-June 30, 2000 year was unsatisfactory.
Matters on all these fronts for Ms. Duarte grew worse during the ensuing months, although there was a period of improvement in the fall. Nonetheless, due to all of the events that had taken place, the plaintiff was demoted in January of 2001 from a lieutenant to a correctional officer and transferred to another correctional institution.
2) Testimony Concerning System-Wide Sexual Discrimination by the DOC
The jury also had before it the various complaints that the plaintiff had filed before the Commission on Human Rights and Opportunities (hereafter "CHRO") alleging discrimination. There was testimony from which the jury could also have concluded that there was pervasive discrimination within the ranks of the Department of Corrections. This was the testimony of Ms. Parker, the lead investigator for the CHRO and author of report on allegations of sexual harassment within the DOC. The report itself also came into evidence. While there was no direct information about the plaintiff in the report, the report was very damaging to the defendant concerning its internal handling of such sexual harassment complaints. Nonetheless, despite such evidence of discrimination and retaliation by the DOC in the past against those who filed claims of sexual discrimination, the jury did not find in the plaintiff's favor in this case.
Exhibit 15.
It should be noted that while the Plaintiff's claims are not of sexual harassment, but of discrimination on the basis of sexual orientation, such fine legal distinctions are not likely to have been drawn by members of the jury.
C. Alleged Discovery Misconduct
This factual backdrop provides the necessary framework in which to review the claims asserted in plaintiff's motion for the new trial. The discovery misconduct, plaintiff alleges, occurred because the DOC "keeps its records in multiple sets of separate files . . . the DOC produced information from one or two sets but systematically withheld documents from security files. The most important document withheld, she alleges, was the anonymous note provided to her supervisor, Captain Kelley and slipped under his door on October 7, 1999. A copy of that note was not located until the last few days of trial and not introduced into evidence until the last day of trial.
Plaintiff's Supplemental Memorandum of Law dated June 4, 2007, pps. 1-2.
A collateral issue also remains as to whether the plaintiff may proceed to an evidentiary hearing to demonstrate the pervasive discovery conduct she alleges, supported by several conclusory affidavits attached to her Supplemental Memorandum. The defendant opposes this and several disqualification motions and subpoenas concerning this requested hearing remain outstanding.
For the reasons set forth in detail below, the court concludes that an evidentiary hearing is not required to resolve the present issues before it. The evidence in question is merely cumulative to other evidence introduced at trial and would not have produced a different result. "Merely cumulative evidence would be newly discovered evidence of the very same fact and the same attending circumstances, testified to upon the former trial, and . . . of the very same nature as that before offered in proof of that same fact." (Internal quotation marks omitted). Reilly v. State, 32 Conn.Sup. 349, 355, 355 A.2d 324 (1976). No new trial is required when the alleged "new" evidence is similar to that introduced at an earlier hearing. Shelton Sewer Authority v. DeFilippo, 2 Conn.App. 355, 356, 478 A.2d 623 1984). This is so, even assuming arguendo that there was serious discovery misconduct, because that misconduct was not so pervasive that it tainted the entire proceedings irrevocably The detailed analysis of the after-discovered evidence, which follows below, will therefore assume that there was discovery misconduct, even though none has yet been demonstrated.
D. The After-Discovered Evidence 1) The Anonymous Note
As to the evidence, it is admitted that the anonymous note was not turned over to the plaintiff until the last days of the trial. There are some factual discrepancies as to whether it was turned over on the morning of June 21 or not until June 22. It is undisputed that at the time the document was offered into evidence, the plaintiff was granted a recess to evaluate what action to take. At the conclusion of the recess, the plaintiff did not take exception to the entry of the document into evidence, nor claim that she had only seen it for the first time that day. She had known of its existence for some considerable period prior to trial, although defendant's counsel was unable to locate it until that time.
In fact, at trial management meetings prior to trial and at the commencement of trial, no claims concerning outstanding discovery issues were asserted.
Admittedly, this case had as its main focus discrimination on the basis of sexual orientation, although other claims were pursued as well. Plaintiff's counsel in opening arguments stressed that Lieutenant Duart was on an upward trajectory in her employment from her first year at the D.O.C. in 1988 until October 1999, when Captain Kelley became her supervisor. The existence of the note and its general contents alleging a romantic relationship with another female correctional officer was pointed out to the jury numerous times before the actual document was produced.
Plaintiff now asserts that she was left with a Hobson's choice when the note was offered into evidence and that an objection would not have aided her cause, since the jury had already heard about it. Those are tactical decisions that were hers to make. Nonetheless, it is of considerable importance to the court that the record does not contain any such claims, made outside of the presence of the jury.
But even assuming for a moment that discovery misconduct had been proven by clear evidence, why would the actual language of the note have had a tendency to "bring success in its wake," as Superline, supra, holds? The existence of the note was not hidden, the central thrust of its contents had been known during the entire pendency of the case. Discrimination of the basis of sexual orientation was at the core of the trial and articulated by counsel at the start. The note's actual tone and contents tend to support the testimony of the various defense witnesses who claimed that they did not investigate further, since no details could have been secured from an anonymous source. The language of the note is also such to support the comments that it was not particularly trustworthy information, but merely salacious. And it is cumulative of the other facts the jury could have found concerning sexual discrimination in the Department of Correction.
As noted, the court has not yet conducted such an inquiry nor permitted the evidentiary hearing to proceed.
There is a crucial distinction to make between never having known about the note on the one hand, and on the other, having the knowledge of it as well as its contents, without having the physical document and the exact language at hand. In the first instance, there is considerably more weight to the claim that it might have produced a different result, although there was certainly other evidence of discrimination including the CHRO report that was before the jury. The court cannot and does not find that the evidence was such that it would bring "success in its wake." Most of what the actual note had to contribute to the outcome was already before the jury, just not its exact language. The court concludes, therefore, that in this case that defendant's failure to provide a copy of the actual note, even if brought about by discovery misconduct, where its existence and general contents were known and consistently used by the plaintiff throughout the trial, did not so taint the process as to in all equity warrant a new trial.
2. The Discrimination Complaints
There were discovered after the conclusion of the trial two complaints filed against Captain Kelley and Captain Valade. The first was a complaint of sexual discrimination filed by Lieutenant Osten. The second complaint produced after trial was filed by Lieutenant Lisa Jackson, a lesbian. There is no question that these documents were germane to the case and requested in discovery. There is also no question that none of these documents were produced by the defendant, although they should have been. Certainly the details of the complaints could have been used to test the credibility of Captains Kelley and Valade at trial. However, as noted in Burr v. Lichtenstein, supra, at p. 355; "[n]ew trials are not granted upon newly discovered evidence which discredits a witness unless the evidence is so vital to the issues and so strong and convincing that a new trial would probably produce a different result."
After reviewing the evidence at trial and the complaints in question, the court finds that these documents are cumulative of other evidence that was presented at trial. Lieutenant Osten attended the trial and testified concerning her complaint against Captains Kelley and Valade. The jury had before it the facts, based on her testimony, of what took place and the conduct complained of. This was the most salient part of the complaint and the most telling, had the jury concluded that it was a pattern of discriminatory conduct that Captain Kelley regularly engaged in.
The previously unknown information, the gravamen of the after-discovered evidence, was not the complaint itself, but only the action that the DOC took after investigation. The subsequent investigation of this complaint by the DOC initially concluded that there was discriminatory conduct, but that this conclusion was overridden by the Commissioner and other administrators reporting directly to her. It is also apparent that the ultimate outcome of the investigation was not known until after the trial was completed and could not have previously been produced. The action taken by the DOC, the court finds, is secondary to Captain Kelley's conduct, which Lieutenant Osten herself described in detail at trial. The documents also support the testimony of Captain Kelley that he had never been disciplined for such conduct. The complaint filed by Lieutenant Jackson is also cumulative of other evidence at trial.
The court concludes from reviewing this after-discovered evidence that it, too, should have been produced during the discovery phase (except for the outcome of Lieutenant Osten's complaint, which only became known later) and had been properly requested. The court also notes that the plaintiff was not dilatory in her efforts to secure all information she needed for the trial. Nonetheless, both complaints are cumulative of other evidence in this trial. They also do not discredit the testimony of the two captains. As noted, where the alleged "new" evidence is similar to that introduced at an earlier hearing, no new trial is required. Shelton Sewer Authority v. DeFilippo, 2 Conn.App. 355, 356, 478 A.2d 623 1984).
II CONCLUSION
The court denies the motion for a new trial based on after-discovered evidence and alleged discovery misconduct. The court concludes after detailed examination, assuming there was misconduct for purposes of analysis, that the after-discovered evidence does not meet the tests the law has established to permit a new trial. Equity does not compel a new trial where the new evidence is merely cumulative of other evidence already presented at trial.
None of the above discussion is meant to suggest that discovery misconduct, if demonstrated, is to be condoned by the court or to be treated lightly. A recent case involving discovery misconduct in our state court involved a plaintiff and flagrant abuse of the court processes by that plaintiff. In Stanley Shenker Associates, Inc. v. World Wrestling Federation Entertainment, Inc., 48 Conn.Sup. 357 (October 16, 2003), Complex Litigation Docket at Stamford, Rogers, J.), Judge Rogers, now Chief Justice Chase Rogers, dismissed the plaintiff's case with prejudice because the plaintiff deliberately concealed and/or otherwise refused to produce critical documents and repeatedly committed perjury during his deposition testimony. "It is a long and well established principle, both in Connecticut courts and in state and federal courts throughout the country, that where a litigant's conduct abuses the judicial process, whether through flagrant discovery violations or through other serious litigation misconduct, dismissal is an appropriate sanction." See generally National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).
Connecticut Practice Book Section 13-14 also provides in pertinent part: "(a) If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production . . . or has failed to comply with a discovery order, made pursuant to Section 13-13 or has failed otherwise substantially to comply with any discovery order made pursuant to Section 13-6 through 13-11, the judicial authority, may, on motion, make such order as the ends of justice require. (b) Such orders may include the following: (1) the entry of a nonsuit or default against the party failing to comply . . . (5) if the party failing to comply is the plaintiff, the entry of a judgment of dismissal."
Plaintiff has stated that she is not seeking this ultimate remedy; an entry of judgment in her favor based on her claims of discovery misconduct. But she fervently believes that the evidence under review to which she points should be presented to a new jury for its consideration with all the other evidence. In reviewing her claims in detail above, the court did not determine through an evidentiary hearing that her claims of misconduct were, in fact, demonstrated. And nothing in this decision is meant to imply that the defendant engaged in such conduct. Nonetheless, as previously stated, the after-discovered evidence does not rise to the level legally required to compel, in all fairness, a new trial. It is merely cumulative of other evidence at trial.
It is for all the foregoing reasons, that the court denies the motion for a new trial.