United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION IN LIMINE (DKT. #227)
Joan Glazer Margolis United States Magistrate Judge
Familiarity with this litigation and particularly, with this Court's rulings on motions in limine (see Dkt. #153, Ruling on Multiple Motions in Limine ["July 2014 Ruling"], 2014 WL 3700982 (D. Conn. July 25, 2014); Dkt. #219, Ruling on Defendant's Motions in Limine ["October 2015 Ruling"]) is presumed. Consistent with this Court's Memorandum of Final Pretrial Conference, filed on October 30, 2015 (Dkt. #223; see Dkts. ##216, 222), plaintiff filed her Third Amended Complaint on November 13, 2015 (Dkt. #224), and on December 2, 2015, plaintiff filed the pending Motion in Limine. (Dkt. #227; see Dkts. ##225-26). On December 23, 2015, defendant filed his brief in opposition (Dkt. #228), and on January 6, 2016, plaintiff filed her reply brief. (Dkt. #232). A jury trial is scheduled to commence on February 2, 2016. (Dkt. #223).
For the reasons set forth below, plaintiff's Motion in Limine (Dkt. #227) is granted such that defendant is precluded from presenting evidence or argument that the failure to promote plaintiff to Deputy Chief was not an adverse action.
A. PROCEDURAL BACKGROUND
In the parties Amended Joint Trial Memorandum, filed on August 7, 2015 (Dkt. #207), defendant proposes that as part of the jury instructions on liability, the jury must decide, inter alia, "whether the failure to offer the job of Deputy Fire Chief was an adverse employment action" (id. at 101), as "plaintiff cannot support such a determination unless she can show by a preponderance of the evidence that an alleged act of retaliation is more than just de minimis." (Id. at 102-03)(footnote omitted). Defendant continues:
Facts relevant to this inquiry involve comparing the terms and conditions of employment between the positions of Assistant Fire Chief that the plaintiff held with the Town of Stratford and the Deputy Fire Chief position at the Town of Stratford to which the plaintiff claims she should have been promoted, including the relative pay, benefits, and job security. If you conclude that the plaintiff has failed to prove by a preponderance of the evidence that the relative terms and conditions of employment, pay, benefits, and job security between the two positions was more than de minimis, then you must find for the defendant.
If you find that the failure to offer the plaintiff the Deputy Fire Chief job was more than a de minimis adverse employment action, you must then consider whether the plaintiff has proven by a preponderance of the evidence that this failure to offer the plaintiff the Deputy Fire Chief job adversely influenced plaintiff's constitutionally protected conduct. If you find that the failure to offer the Deputy Fire Chief job to the plaintiff did not adversely influence her constitutionally protected conduct, then you must find for the defendant. If you find that the plaintiff has proven by a preponderance of the evidence that not being offered the job of Deputy Fire Chief adversely affected her constitutionally protected conduct, then you must consider whether not being offered the job of Deputy Fire Chief was causally related to the defendant['s] conduct.
(Id. at 103)(footnote omitted). Plaintiff objected to this instruction in the Amended Joint Trial Memorandum (id. at 103-04), and raised this issue at the final pretrial conference on October 30, 2015, at which time this Magistrate Judge asked the parties to submit in limine briefs on this issue. (See Dkt. #223, ¶ 2).
In the present motion, plaintiff seeks an order from the Court precluding defendant from presenting "evidence or argument that the failure to promote [p]laintiff to Deputy Chief was not an adverse employment act because it caused [p]laintiff no economic harm, and . . . finding that [p]laintiff suffered an adverse employment action as a matter of law." (Dkt. #227, at 1). Plaintiff seeks "resol[ution]" of the issue of "whether a failure to promote qualified as an adverse employment action without regard to the economic impact of the would-be promotion." (Id. at 4). Plaintiff contends that the promotion from Assistant Chief to Deputy Chief is a "substantial expansion in duties, authority and prestige[, ]" (id. at 8), and is an "elevation from unionized labor to the management team." (Id. at 9)(footnote omitted). Additionally, such promotion includes the "use of a Town-owned vehicle for personal use[.]" (Id. at 10).
B. PENDING MOTION
"To succeed on [a] First Amendment retaliation claim brought pursuant to Section 1983, [plaintiff] must 'demonstrate that (1) the conduct at issue was constitutionally protected, (2) the alleged retaliatory action adversely affected [her] constitutionally protected conduct, and (3) a causal relationship existed between the constitutionally protected conduct and the retaliatory action.'" Murray v. Town of Stratford, 996 F.Supp.2d 90, 115 (D. Conn. 2014)["February 2014 Ruling"], quoting Wrobel v. County of Erie, 692 F.3d 22, 27 (2d Cir. 2012). In the scope of a retaliation action, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)(citations & internal quotations omitted). "In the context of a First Amendment retaliation claim, " such as exists in this case, the Second Circuit has held that "only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action." Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225-26 (2006)(citations & internal quotations omitted), cert. denied, 549 U.S. 1342 (2007). In such a context, "adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand[, ]" however, as the Second Circuit explained, this list is "certainly not exhaustive, " and "lesser actions may also be considered adverse employment actions." Id. (citation & internal quotations omitted).
Importantly, the Second Circuit observed that "[w]hile our cases have thus recognized a number of employment actions that we have characterized as adverse, we are guided by the general rule that whether an undesirable employment action qualifies as being adverse is a heavily fact-specific, contextual determination." Id. at 226 (citation & internal quotations omitted).
Among the employment actions that the Second Circuit has characterized as adverse, is "discriminatory failure to promote[.]" Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002), citing Morris v. Landau, 196 F.3d 102, 110 (2d Cir. 1999). Specifically, the Second Circuit has characterized the failure to promote as "fall[ing] within the core activities encompassed by the term 'adverse actions.'" Id., quoting Morris, 196 F.3d at 110 (defining adverse action to include "discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand."); see also Mandell v. County of Suffolk, 316 F.3d 368, 383 (2d Cir. 2003)("Similarly meritless is defendants' contention that plaintiff suffered no adverse action. Adverse employment actions include both refusals to promote and demotions. It is undisputed that defendants refused to promote plaintiff[.]"), citing Morris, 196 F.3d at 110. "Moreover, [the Second Circuit has] made clear that adverse employment actions are not limited to 'pecuniary emoluments[, ]'" as "[l]esser actions such as negative employment evaluation letters may also be considered ...