United States District Court, D. Connecticut
RULING ON MOTION IN LIMINE AND EVIDENTIARY
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE
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
pay and front pay
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.
Kellogg letter and testimony
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.
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.
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).
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.
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.
revision of plaintiff's job description
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.
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”).
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 ...