Opinion
No. CV 02 0463081
January 7, 2004
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO OPEN
The plaintiff, Cost Management Incentives, Inc., brought this action in April of 2002 against the two defendants Yolanda London-Osborne and Kristen Herman, former employees, seeking to enjoin the defendants from engaging in competitive business activity or using certain information they gained while in the plaintiff's employ. The plaintiff sought such relief based on Restrictive Covenant Agreements it claimed were validly signed by the defendants. After a trial on the merits the court (Munro, J.) found that the Agreements were not enforceable because 1) they were executed without adequate consideration; 2) they were overly restrictive in violation of public policy; and 3) the plaintiff had engaged in such offensive sexual harassment directed specifically at the two defendants that it would be inequitable to afford such relief to the plaintiff.
The matter was tried over multiple days concluding on July 25, 2002. Thereafter the matter was recessed for the preparation and submission of post-trial memoranda in September 2002, and then again for a mediation session that concluded unsuccessfully in October 2002. The court rendered its comprehensive memorandum of decision on December 5, 2002. On December 23, 2002, the plaintiff appealed the judgment to the Appellate Court. That appeal is still pending. On April 3, 2003, the plaintiff moved to open and modify the judgment, requesting that the court delete its subsidiary finding that two principal executives of the plaintiff, David Hallen and Alan Gold, had engaged in offensive sexually harassing conduct toward the defendants.
In support of this request, the plaintiff has offered documents it says it has now recovered from the hard drives of the work computers used by the defendants, consisting of some sexually explicit emails and photographs, along with some vulgar web humor exchanged by the defendants with one another or with acquaintances; and affidavits from two co-workers stating that the defendants either 1) occasionally engaged in sexually explicit workplace banter, or 2) did not complain about such banter when it occurred in the workplace. The plaintiff asks this court essentially to re-edit the memorandum of decision authored by Judge Munro by deleting from her memorandum her findings that the plaintiff's principals engaged in specific offensive sexually harassing conduct toward these defendants. This court declines to open and modify the existing judgment, for several reasons.
The court notes that the defendants deny that certain of the documents downloaded from the work computer hard drives are attributable to them. For purposes of this motion and in light of the court's finding that the judgment should not be opened, the court accepts as true that the plaintiff could present persuasive evidence from an expert in the recovery of computerized material that these defendants were likely to have been the authors or the welcome recipients of some or all of this material. In light of the denial of the defendants that some of this material is attributable to them however, were the court inclined to open the judgment, the court would need to hold an evidentiary hearing with a requirement that the plaintiff present expert testimony as to how the material was recovered and how it can be attributed to the defendants.
1. The plaintiff offers no plausible explanation for the lack of an earlier discovery of the offered material.
The plaintiff's motion to open and vacate the subsidiary finding of sexual harassment in the judgment is wholly based on new evidence which the plaintiff desires the court to consider. Where a party seeks to present new or additional evidence,
[w]hether the plaintiff's motion is treated as a motion to open judgment or as a petition for a new trial is immaterial. The granting or denial of such motions rests in the sound discretion of the trial court, reviewable only in the case of abuse. [citations omitted.] One of the essential requirements for the granting of either motion is that the evidence which the party seeks to offer could not have been known and with reasonable diligence produced at trial.
Corbin v. Corbin, 179 Conn. 622, 626, 427 A.2d 432 (1980).
The work computers used by the defendants were always in the possession of the plaintiff during the many months that the matter was in litigation before the court. The plaintiff does not aver that the recovery of the offered emails and attachments from the computer hard drives was a difficult or elaborate process or could not have been promptly undertaken when the defendants were terminated from employment. The plaintiff offers no explanation at all for not having interviewed other employees as to their observations of the conduct of the defendants. The court finds that all of the newly discovered evidence could easily have been uncovered in time for trial if the plaintiff and its counsel had decided to engage in the trial preparation process with greater diligence.
In fact one of the claims for relief in the initial complaint of the plaintiff was a request to investigate the hard drives of the home computers of the defendants. It is entirely disingenuous of the plaintiffs to claim that they could not anticipate that some computer information stored by the defendants might yield relevant information for this litigation when that was one of the initial concerns expressed in the prayer for relief of the plaintiff.
"If a party upon the filing of a decision unfavorable to him upon an issue which has been litigated at the trial has a right to have the judgment reopened to enable him to offer further testimony upon that issue, which might equally well have been offered at the trial, litigation would be prolonged beyond the requirements of a sound public policy." Zuboff v. Solomon, 120 Conn. 693, 694, 180 A. 295 (1935).
2. The proffered material is not relevant.
This is not a situation in which the defendants' theory of defense is that they were bystanders in a workplace where sexually offensive banter among co-workers was frequent or pervasive. Rather, the evidence offered by the defendants was that their supervisors directed unwelcome sexual comments and unwelcome physical contact directly to them. The response of the plaintiff was not that the defendants welcomed such conduct, but rather that the conduct did not occur. The new evidence appears to encompass a change in the litigation theory of the plaintiff.
That the defendants may have on occasion consented to engage in sexually oriented conversations with one another or other co-workers or acquaintances, or may have privately traded sexually explicit humor with other persons or even with Gold or Hallen is no more relevant to the claims and defenses here than is evidence that the victim of a non-consensual sexual assault may on occasion have consented to sexual intercourse with another person. One can engage in private consensual sex talk in the workplace and elsewhere without consenting to have one's employer put his tongue in one's ear or consent to his announcing that she should consider closing a deal by sleeping with a client.
One example of the plaintiff's proffered evidence is a set of e-mails containing fairly tame sexual references that one defendant exchanged with a person who appears to be a former boyfriend. Such a consensual conversation has no relevance whatsoever to the claims or defenses in this case. Rather the fact that the plaintiff has chosen to include it as an example of potentially relevant evidence tends to show the plaintiff's continuing disregard of the offensiveness of Hallen's and Gold's actions toward the defendants.
Moreover the very fact that the plaintiff denies that its principals engaged in such conduct further bolsters the argument that this evidence would not be relevant in any further proceedings. The case law cited by the plaintiff indicates that such evidence may be relevant if it shows that the claimant engaged in behavior similar to that which she claimed was unwelcome or offensive. See, e.g., Beard v. Flying J. Inc., 266 F.3d 792, 798 (8th Cir. 2001). When one person directs sexual words or conduct to a specific individual, as opposed to the workplace at large, there is simply no "similar behavior" analysis that applies; the only question is whether the recipient considers such specific and direct sexual references to her as welcome or unwelcome considering their source. Id., 798. None of the proffered material remotely suggests that either defendant consented to the type of conduct directed at them by Hallen and Gold, conduct which both Hallen and Gold deny occurred.
3. The plaintiffs have cited no authority that persuades the court that it can or ought to modify a subsidiary finding made by a fact finder.
The plaintiff does not seek to have the court vacate the judgment. Rather, the plaintiff is concerned with the collateral effect of one of the findings made by the trier of fact. The plaintiff asks the court to delete one of its subsidiary findings of fact to prevent that finding from having a collateral effect in a related administrative proceeding, arguing that such a deletion will have no effect on the underlying judgment. The plaintiff has cited no authority whatsoever for the proposition that a court is empowered to open a judgment and modify a subsidiary finding of the trial court once the case has gone to judgment. In fact there exists a line of cases that caution a court not to alter final judgments, particularly while an appeal is pending. See, e.g., Rosato v. Rosato, 40 Conn. App. 533, 671 A.2d 838 (1996). The court considering this motion (Pittman, J.) is not the court that heard the evidence at trial (Munro, J.) In this court's view, it would be unwise and unprecedented to accede to a losing party's request for a post-judgment "do-over" once a rotation of judges has occurred.
The plaintiffs have failed to persuade the court that there is any merit to any of their claims. Accordingly, the Plaintiff's Motion to Open and Modify Judgment is denied.
PATTY JENKINS PITTMAN, JUDGE.