Grewcock v. Yale-New Haven Health Services Corp

          RULING ON MOTION IN LIMINE AND EVIDENTIARY OBJECTIONS

          JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE

         Plaintiff Jill Grewcock worked for defendant Yale-New Haven Health Services Corporation until the termination of her employment in April 2015. Plaintiff alleges claims for gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and the Connecticut Fair Employment Practices Act. The factual background of this case has been described in detail in the Court's ruling on defendant's motion for summary judgment. See Doc. #30; Grewcock v. Yale New Haven Health Servs. Corp., 2017 WL 6459501 (D. Conn. 2017). Now on the eve of trial, defendant has filed a motion in limine (Doc. #35) and has raised a number of objections to plaintiff's evidence as described in the parties' joint trial memorandum (Doc. #48). I will first address defendant's motion in limine and then address each of defendant's objections to plaintiff's evidence.

         Back pay and front pay

         Defendant moves to preclude any evidence or argument at trial before the jury related to back pay or front pay. At the pretrial conference, the parties agreed that the Court-rather than the jury-should determine any entitlement of plaintiff to front or back pay and that plaintiff will present evidence of front pay and back pay in a separate proceeding before the Court in the event that the jury finds defendant liable to plaintiff. Accordingly, I will grant defendant's motion in limine by agreement of the parties. Because evidence of back pay and front pay will not be presented to the jury, defendant's objection to plaintiff's seeking to admit job search materials (Plaintiff Ex. 27) is overruled as moot.

         Dr. Kellogg letter and testimony

         Defendant objects to the proposed testimony of plaintiff's physician, Dr. Mary Griffin Kellogg, and to the admission of an undated letter she wrote to defendant on plaintiff's behalf (Plaintiff Ex. 17) requesting that plaintiff be allowed to use her own office for expressing breast milk. The letter was “cc” to plaintiff and two other hospital supervisors. I will largely sustain defendant's objection, except to the extent that I will allow plaintiff and any other necessary witness to testify about the fact that the letter was sent, the fact that it was a letter of complaint about the restrictions on plaintiff's pumping, and the fact that it requested relief for plaintiff.

         The letter recites a detailed version of facts that is apparently based on what plaintiff told Dr. Kellogg about her working conditions and how she was denied the right to use her office for breast pumping activity. There is nothing in the letter to suggest that Dr. Kellogg has any firsthand knowledge of the events. For reasons I have elsewhere discussed at length, a plaintiff's own out-of-court statements are inadmissible hearsay if offered by a plaintiff for the truth of the matters stated and even if a plaintiff is available at trial to be cross-examined about her out-of-court statements. See DeAngelis v. City of Bridgeport, 2018 WL 429156, at *6 (D. Conn. 2018). Moreover, Dr. Kellogg's out-of-court statements in the letter about plaintiff's out-of-court statements are double hearsay. In addition, Dr. Kellogg's letter makes policy and legal arguments about plaintiff's right to pump breast milk. Such policy and legal arguments by a doctor are not proper evidence for a jury to consider at trial. Nor was Dr. Kellogg ever designated as an expert witness in this case.

         Although the specific contents of the letter itself are not admissible for these reasons, the fact of a complaint letter being sent is relevant to a non-hearsay purpose of showing that plaintiff (whether directly or through her doctor) was complaining about the hospital's restrictions. Accordingly, plaintiff may testify that she asked Dr. Kellogg to write the letter requesting that plaintiff be permitted to use her office to pump breast milk. To corroborate plaintiff's claim that such a letter was indeed written, plaintiff's counsel may mark the letter as an exhibit for identification purposes only and have plaintiff identify the exhibit (and/or to show the document for identification purposes to Patricia Burke or other witnesses as well).

         The fact of the complaint letter being sent and the request that it made on plaintiff's behalf is relevant to plaintiff's retaliation claim. It is, however, of limited probative value for plaintiff's retaliation claim, because the complaint does not predicate plaintiff's retaliation claim on the basis of Dr. Kellogg's letter. Instead, the complaint predicates the retaliation claim solely on plaintiff's own filing of a grievance in December 2014. Doc. #1 at 4 (¶ 20), 5 (¶ 29). Nevertheless, to the extent that the jury must ultimately decide why the hospital terminated plaintiff's employment, any complaint she made about restrictions on her breast pumping activity is relevant evidence at trial.

         As to whether Dr. Kellogg should be permitted to testify as a trial witness, the Court will not permit Dr. Kellogg to testify about plaintiff's specific hearsay version of events as set forth in the letter. Nor may Dr. Kellogg testify about any of the policy or legal arguments she recites in the letter. Unless Dr. Kellogg's testimony is shown to be needed for any other purpose and on the assumption that defendant will not contest the fact that the complaint letter was sent by Dr. Kellogg, the Court will preclude Dr. Kellogg's testimony as cumulative.

         Post-termination revision of plaintiff's job description

         Defendant objects to the admission of a revised version of plaintiff's job description (Plaintiff Ex. 3) on the ground that the job description was revised after plaintiff's termination and constitutes a subsequent remedial measure that is not admissible under Fed.R.Evid. 407. According to defendant, it fired plaintiff because she improperly accessed the medical file of a patient who was a relative of a hospital supervisor and who was admitted to the hospital for psychiatric reasons. Plaintiff contends that it was within her then-existing job description as a clinical bed manager to access that patient's medical file. Plaintiff's job description at the time of her termination stated that a “Clinical Bed Manager is responsible for oversight of all patient admissions, discharges and transfer activity while monitoring capacity both currently and prospectively” and “is the liaison between all points of entry, [various staff], and inpatient bed resources throughout the institution.” Doc. #22-7 at 7, 12 (emphasis added). About three months after plaintiff was terminated, however, defendant amended the job description for the Clinical Bed Manager position to exclude from the job description responsibility for the psychiatric department to which the patient in question was set to be transferred. Id. at 18 (stating that Clinical Bed Manager's duties extended “throughout the institution with the exception of YPH/Psych”) (emphasis added). As part of her effort to show that the hospital's reasons for her termination were pretextual, plaintiff intends to argue that the hospital's decision to amend the job description is inconsistent with its position at the time that she was terminated that she did not have authority to view the patient's record.

         Rule 407 is entitled “Subsequent Remedial Measures, ” and it provides in relevant part that “[w]hen measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove” that the defendant engaged in “negligence” or other “culpable conduct.” Importantly, the rule does not purport to bar a plaintiff from introducing any evidence at all about a defendant's inconsistent positions or conduct after it has engaged in the action that forms the basis for a plaintiff's lawsuit. Instead, the rule more narrowly requires a court to focus on whether evidence of the subsequent conduct “would have made an earlier injury or harm less likely to occur.” See also Kenneth W. Graham, Jr., 23 Fed. Prac. & Proc. Evid. § 5284 (1st ed. Apr. 2017 update) (noting that “[a]lthough Rule 407 uses the phrase ‘remedial measures' in its title . . . the nature of the activities within the scope of the rule is defined by the clause ‘measures . . . which, if taken previously, would have made the event less likely to occur'” and that “while ‘remedial measures' may be adequate as a shorthand description of the rule, its true scope can only be determined by a careful analysis of the text of the defining clause”).

         Although the rule has its most obvious application in cases of personal tort injury, the rule may also apply in discrimination cases like this one, because “[i]t would be perverse indeed if attempts to reverse discrimination could be used to condemn a defendant.” McLaughlin v. Diamond State Port Corp., 2004 WL 3059543, *3 (D. Del. 2004). On the other hand, if a defendant in a discrimination case takes a subsequent measure that does not make the injury or harm from discrimination less likely to occur, then Rule 407 does not bar evidence of the defendant's subsequent action. Cf. Graham, 23 Fed. Prac. & Proc. Evid. § 5284 (noting, for example, that Rule 407 would not bar evidence that a defendant took out insurance after an accident because such a measure would not make the accident less likely to occur and “is undertaken to protect the defendant, not to advance the safety of ...