United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT [DKT. 43] AND DEFENDANTS'
MOTION TO STRIKE [DKT. 52]
Vanessa L. Bryant United States District Judge
Robert Haughton, a police officer for the Cromwell Police
Department, brings this action under Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e et seq., against Defendants Town of
Cromwell (“Town”) and Cromwell Police Department
(“CPD”). For the reasons that follow,
Defendants' Motion for Summary Judgment [Dkt. 43] and
Defendants' Motion to Strike [Dkt. 52] are GRANTED.
November 25, 2013, Plaintiff filed a complaint with the
Connecticut Commission on Human Rights and Opportunities,
claiming that he was denied a promotion on the grounds of his
race, national origin, and because he had previously
complained of discriminatory conduct. [See Dkt. 1 at
13-14]. Plaintiff received a right to sue letter from the
Equal Employment Opportunity Commission on December 19, 2014,
and filed a complaint in this Court on December 30, 2014, in
which he alleged that in 2006 he “was not assigned to
School Resource officer due to accent and the town being
political” and that in 2013, he was “unfairly
denied promotion and special assignments because of [his]
race and ethnic background.” See Id. at 1-8.
Defendants filed a Motion to Dismiss on May 11, 2015, [Dkt.
18], which the Court granted in part and denied in part on
March 7, 2016, [Dkt. 30]. In this Order, the Court held that
the case could proceed “to the extent that the
Plaintiff's Complaint, liberally construed, alleges that
he was passed over for assignment to detective in 2013 as a
result of his race, national origin or ethnicity, and that
his employers' comments in 2006 are merely evidence of
discriminatory animus.” Id.
filed a Motion to Amend the Complaint on May 22, 2016,
seeking to add allegations of sex discrimination and
retaliation under Title VII. [Dkt. 35]. The Court denied this
motion on March 7, 2017 on the grounds that the Plaintiff did
not exhaust administrative remedies as to the sex
discrimination claim, and did not raise his retaliation claim
within ninety days of receiving a right to sue letter. [Dkt.
filed the instant Motion for Summary Judgment on October 14,
2016, arguing that the Plaintiff raised no material issue of
fact that the Defendants' decision not to make him a
detective occurred under circumstances that give rise to an
inference of discrimination or was motivated by
discriminatory animus. [Dkt. 43]. In his Opposition, the
Plaintiff filed witness statements from CPD officer James
Tolton and former CPD chief Edwin Kosinski that had not
previously been disclosed to the Defendants. [Dkt. 45-7; Dkt.
48-1]. Defendants moved to strike or preclude consideration
of these witness statements on December 6, 2016. [Dkt. 52].
Motion to Strike
discovery, Defendants served on Plaintiff an interrogatory
requesting that Plaintiff “[i]dentify all individuals
(other than your attorneys) with whom you have at any time
discussed this lawsuit, the grounds for this lawsuit, or your
belief that the defendants acted unlawfully or illegally
toward you, and describe in the detail the substance of each
discussion.” [Dkt. 52-4, Interrogatory 3]. Plaintiff
responded that he discussed “what steps [he] should
take in pursuing [his] lawsuit” and “expressed
[his] dissatisfaction with the manner in which [he] was
treated in the department due to [his] origin and
nationality” with Jason Tolton, Joseph DiMauro, David
Gorski, Frederick Gengler, and “co-workers, friends
and family.” Id. Defendants also served
requests for production in which they sought “written
and recorded statements of any witnesses or party identified
in response to the above interrogatories, or any notes,
diaries or chronologies that you prepared or maintained
regarding this dispute.” [Dkt. 52-4 at RFP 2].
Plaintiff produced no documents in response to this request,
and discovery closed on September 1, 2016.
November 5, 2016, Plaintiff filed his Opposition to
Defendants' Motion for Summary Judgment [Dkt. 46],
attaching two statements: one signed by Tolton and dated June
30, 2016, and a second signed by Kosinski and dated May 24,
2016. [Dkt. Nos. 45-7, 46-1]. Plaintiff offers Tolton's
and Kosinski's statements as evidence that (1) the
Plaintiff was denied assignment to CPD's Detective
Division under circumstances giving rise to an inference of
discrimination because Tolton heard Officer Pamela Young
state, “well the chief don't like black people
anyway”; and (2) Young, who was awarded the detective
assignment that Plaintiff wanted, was unqualified because she
“did not pass the psychological screen required by the
Cromwell Police Department when she was hired . . . [and]
Denise Lamontagne . . . gave Young a pass despite her failure
of the psychological screen.” See Id. Neither
of these statements were signed under the penalties of
perjury or notarized. Defendants object to the consideration
of these statements on summary judgment because Plaintiff
failed to disclose them during discovery, and because the
statements reference information that is inadmissible or
Failure to Disclose
to Federal Rule of Civil Procedure 37(c), “if a party
fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence on a
motion . . . unless the failure was substantially justified
or is harmless.” Rule 26(a) requires, inter
alia, the disclosure of individuals likely to have
discoverable information, Fed.R.Civ.P. 26(a)(1)(A), and Rule
26(e) requires parties to correct or supplement their Rule
26(a) disclosures and their discovery responses, upon
learning “that in some material respect the disclosure
is incomplete or incorrect, ” Fed.R.Civ.P. 26(e)(1)(A).
There is nothing in the record indicating that Plaintiff ever
disclosed Kosinski as a potential witness, and Plaintiff did
not produce to Defendants either Kosinski's or
Tolton's statement upon obtaining it.
determine whether excluding undisclosed evidence is
warranted, the Court must consider “(1) the party's
explanation for the failure to comply with the [disclosure
requirement]; (2) the importance of the testimony of the
precluded witness; (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.”
Haas v. Delaware & Hudson Ry. Co., 282 F.
App'x 84, 86 (2d Cir. 2008) (quoting Patterson v.
Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (alteration
in original)). “The purpose of the rule is to prevent
the practice of ‘sandbagging' an opposing party
with new evidence.” Id. (quoting Ebewo v.
Martinez, 309 F.Supp.2d 600, 607 (S.D.N.Y. 2004)). No
showing of bad faith is required to exclude evidence under
Rule 37. Id. (citing Design Strategy, Inc. v.
Davis, 469 F.3d 284, 296 (2d Cir.2006)) (holding that
exclusion was appropriate where late discovery was due to
unexplained neglect and not bad faith).
only explanation Plaintiff offers for his failure to produce
the statements is “simple inadvertence.” [Dkt. 54
at 1]. Inadvertence does not constitute substantial
justification for failure to disclose. See Haas, 282
F. App'x at 86 (upholding district court determination
that plaintiff “failed to offer any justification for
the delay” where the failure to disclose was “an
unintentional oversight due to [plaintiff's] lack of
appreciation of [the witness's] knowledge”). The
first prong of the analysis therefore weighs in favor of
respect to the second prong, the proffered evidence is of
limited importance, given that it provides only tenuous
evidence that the Plaintiff was denied a promotion under
circumstances giving rise to an inference of discrimination
and that the woman who received the promotion was less
qualified than the Plaintiff. The weakness of this evidence
is discussed further in the Court's discussion of the
statements' admissibility. See Section III.B.,
third prong also supports exclusion. While Tolton was
disclosed as an individual with knowledge of the case, his
assertions regarding Lamontagne's attitude toward African
Americans were unknown to the Defendants when they moved for
summary judgment. Had Defendants been aware of these
assertions during the discovery period, they could have
deposed Tolton or conducted other related discovery.
Similarly, Kosinski was never disclosed during discovery, and
in the absence of disclosure, the Defendants did not have the
opportunity to seek discovery relating to Young's
qualifications from him. Plaintiff's failure to disclose
the statements is therefore prejudicial.
the fourth prong, granting a continuance at this stage of
litigation to permit discovery relating to the two statements
would cause substantial delay and inefficiency-discovery has
now been closed for months and reopening it would require
amending all remaining dates in the scheduling order. Taken
together, these four factors counsel in favor of excluding
Tolton's and Kosinski's statements under Rule
37(c)(1). Because Plaintiff's failure to disclose was
neither substantially justified nor harmless, Plaintiff may
not rely on these statements to support his opposition to
the statements had been disclosed during discovery,
Tolton's comment regarding Lamontagne's feelings
about African Americans is inadmissible, Kosinki's
information regarding Young's psychological evaluation is
irrelevant, and the statements ...