United States District Court, D. Connecticut
Elisabeth Seieroe Maurer, Esq., Thomas Dargon, Esq. Christopher Avcollie, Esq. (For Plaintiff)
John-Henry McKim Steele, Esq. (For Defendant)
ORDER FOLLOWING EVIDENTIARY HEARING
Joan Glazer Margolis United States Magistrate Judge
Lengthy oral argument was held regarding the issues raised in counsel's letters, dated January 20 and 25, 2016. (Dkts. ##241-43; see also Dkts. ##223, 236).
1. By agreement of counsel, counsel will submit proposed jury instructions and verdict form differentiating the claims against defendant in his official capacity and in his individual capacity. Counsel's proposed language will be submitted forthwith.
2. No witnesses, including plaintiff, shall appear in Court in Fire Department issued uniforms.
3. The Ruling on Plaintiff's Motion in Limine, filed January 8, 2016 (Dkt. #234), concluded that plaintiff satisfied the second element of her First Amendment retaliation claim in that plaintiff was "undisputedly denied a promotion to the position of Deputy Chief[, ]" and such failure to promote "falls within 'the core activities encompassed by the term 'adverse actions.'" (At 7)(multiple citations omitted). Accordingly, at issue at the trial is whether "a causal relationship exist[s] between the constitutionally protected conduct and the retaliatory action" (at 3)(citation & internal quotations omitted), and damages therefrom.
4. To the extent that plaintiff seeks reconsideration of this Court's Ruling on Defendant's Motions In Limine, filed October 5, 2015 (Dkt. #219)["October 2015 Ruling"], such reconsideration is granted, but the Court adheres to its previous holding limiting plaintiff's compensatory damages claim for the reasons explained in the October 2015 Ruling.
As an initial matter, plaintiff's motion for reconsideration is untimely as motions for reconsideration "shall be filed within fourteen (14) days of the filing of a decision or order from which such relief is sought, and shall be accompanied by a memorandum setting forth concisely the matters or controlling decisions which counsel believes the Court overlooked in the initial decision or order." D. Conn. L. Civ. R. 7(c)1. Additionally, as the Second Circuit has held, "[t]he standard for granting [a motion for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked--matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995)(citations omitted). Moreover, "[t]he Second Circuit has explained that the major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Crawford v. Nat'l RR Passenger Corp., No. 15 CV 131 (JBA), 2015 WL 9239743, at *1 (D. Conn. Dec. 17, 2015), quoting Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)(internal quotations, alteration & citation omitted). Motions for reconsideration will not be granted where the party merely seeks to relitigate an issue that has already been decided. Shrader, 70 F.3d at 257.
The October 2015 Ruling described plaintiff's decision to offer her husband's pay statements, in lieu of her own, as evidence of the Assistant Chiefs' weekly wage during the relevant time period because she claimed that she "did not retain copies of her weekly paychecks from August 31, 2009 - June 15, 2010[, ]" as "specious particularly given the evidence before the Court." (At 15 & n.15)(internal citations omitted). As noted in the October 2015 Ruling, in addition to simply throwing away her own pay stubs, plaintiff also "did not calculate in her damages analysis the applicable retroactive increase in salary for Assistant Fire Chiefs in the Tentative Agreement, signed September 30, 2010." (At 16)(citations omitted)(footnote in original). Accordingly, the October 2015 Ruling held that "plaintiff is precluded from relying on plaintiff's husband's pay stubs, and she is precluded from relying on pay stubs that predate the execution of the Tentative Agreement." (Id.).
On January 20, 2016, nine business days before trial, plaintiff forwarded to the Court a copy of her own pay statement (Exh. 143), which her counsel "subsequently . . . ascertained . . . through discovery in an unrelated matter against the Town of Stratford." (January 20, 2016 Letter, at 2, n.2). Plaintiff now seeks reconsideration of the October 2015 Ruling in that the late disclosed pay stub, which predates the Tentative Agreement and retroactive pay increase, shows, just as her husband's pay stubs showed, that plaintiff earned an hourly rate of $37.80 as Assistant Fire Chief, which is less than the $43.58 hourly rate earned by Curtis Maffett. Plaintiff argues that, for the 41 pay periods at issue, the difference in pay between her position as Assistant Fire Chief and Maffett's position as Deputy Fire Chief was $8, 886.75, which, according to plaintiff, is the same calculation used in her Amended Damages Analysis, date February 23, 2015. (Dkt. #206, Exh. 1).
Had that been the case, the Court would agree that defendant has been on notice of the asserted difference in pay since February 2015, albeit without the requisite supporting pay stub until now. However, plaintiff's Amended Damages Analysis reflects a difference in earnings in the amount of $14, 929.12, with the Deputy Fire Chief position earning $47.51/hour. (Dkt. #206, Exh. 1).
The October 2015 Ruling addressed the applicability of the sanctions available under Rule 37(c) of the Federal Rules of Civil Procedure, holding that:
As this Court has already addressed in its previous rulings, Rule 37(c) of the Federal Rules of Civil Procedure provides that "[i]f a party fails to provide information . . . as required by Rule 26(a) . . ., the party is not allowed to use that information . . . to supply evidence . . . at trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c). While "the court does have discretion to impose other, less drastic sanctions[, ]" Design Strategy, Inc. v. Davis, 469 F.3d 284, 298 (2d Cir. 2006), "and can afford a party the opportunity to cure defects in a damages analysis rather than imposing the drastic sanction of precluding such evidence, " Garden Catering-Hamilton Ave., LLC v. Wally's Chicken Coop, LLC, No. ...