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Haughton v. Town of Cromwell

United States District Court, D. Connecticut

July 5, 2017



          Hon. Vanessa L. Bryant United States District Judge

         I. Introduction

         Plaintiff 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.

         II. Procedural History

         On 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.

         Plaintiff 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. No. 57].

         Defendants 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].

         III. Motion to Strike

         During 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-worker[]s, 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.

         On 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 irrelevant.

         A. Failure to Disclose

         Pursuant 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.

         To 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).

         The 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 exclusion.

         With 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., infra.

         The 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.

         As to 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 summary judgment.

         B. Admissibility

         Even if 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 ...

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