Opinion
95-CV-0251E (Sc)
September 21, 2000
Attorney For Plaintiff: Emmelyn Logan-Baldwin, Esq., 400 Century Row, 171 State St., Rochester, N Y 14614
Attorneys For Defendant: Josephine A. Greco, Esq., c/o Offerman, Cassano, 1776 Statler Towers, Buffalo, N Y 14202
Robert A. Doren, Esq., c/o Bond, Schoeneck King, 135 Delaware Ave., Buffalo, N Y 14202
David C. Schubel, Esq., Orleans County Attorney, P.O. Box 606, Medina, N Y 14103
Colleen O'Connell Jancevski, Esq., c/o O'Connell McClaren, 484 Main St., East, Aurora, N Y 14052
MEMORANDUM and ORDER
Plaintiff commenced this action March 30, 1995 seeking to redress, inter alia, allegedly discriminatory employment practices perpetrated against her by the Sheriff's Department of Orleans County. A jury returned a verdict in favor of defendants June 17, 1998. Plaintiff now moves for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure ("FRCvP"), for a new trial pursuant to FRCvP 59(a), to alter or amend the judgment pursuant to FRCvP 59(e) or for relief from judgment pursuant to FRCvP 60(b)(6) (collectively "the post-verdict motions"). Also before the undersigned is defendants' motion to resolve the trial record and plaintiff's objections to Magistrate Judge Hugh B. Scott's July 27, 1999 Order ("the July 27th Order") awarding certain attorneys' fees to the Orleans County Defendants. Plaintiff's post-verdict motions will be denied, the motion to resolve the trial record will be granted but only insofar as indicated herein and plaintiff's objections to the July 27th Order will be overruled.
Knowledge of the underlying facts and events which are relevant to the post-verdict motions is presumed. In support of her post-verdict motions, plaintiff argues firstly that certain recent rulings by the United States Supreme Court and the Second Circuit Court of Appeals regarding sexual harassment and hostile work environment claims mandate the admission of certain evidence for plaintiff which was previously offered but excluded. Plaintiff's Brief at 3. Such rulings allegedly entitled plaintiff to have proven her claims by submitting for the jury's consideration "all the evidence offered at trial in whatever form or from whatever source, including, of course; proof of discrimination/retaliation against herself and others." Id. at 12. Secondly, plaintiff argues — by partially bootstrapping the previous argument — that the verdict rendered was against the weight of the evidence. Id. at 1-3. Thirdly, plaintiff argues that, because this Court "reserved [the] decision for itself" on breach of a consent decree between the parties, the undersigned "should now enter judgment" for plaintiff "because of the overwhelming evidence that defendants have repeatedly violated" such decree. Id. at 28. Fourthly, plaintiff argues that a new trial is required because the jury was confused, the jury instructions were inadequate and this Court abused its discretion in the conduct of the trial. Id. at 31-35. Fifthly, plaintiff argues that it was error to grant a directed verdict in favor of defendants on plaintiff's claim of discriminatory/retaliatory denial of a courthouse deputy position. Id. at 35. Sixthly, plaintiff argues that this Court should not have granted a directed verdict in favor of defendant Undersheriff Metz. Ibid.
Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993); Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998); Livingston v. Adirondack Beverage Co., 141 F.3d 434 (2d Cir. 1998); Schwapp Town of Avon, 118 F.3d 106 (2d Cir. 1997); Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997).
Plaintiff has also, by letter dated June 20, 2000, informed this Court of two recent decisions in this circuit — Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir. 2000), and Sidari v. County of Orleans, No. 95-CV-7250, (W.D.N.Y. June 14, 2000), (Siragusa, J.) (applying Cruz) — which may have application to the present matter.
FRCvP 52(b) allows this Court — under certain circumstances — to "amend its findings — or make additional findings" and to "amend the judgment accordingly."
It is noted that, for purposes of convenience and readability, it is the undersigned who has classified plaintiff's arguments into six discrete grounds.
As set forth in FRCvP 50(a), a party making a motion for judgment as a matter of law must "specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." If a court does not grant this motion at the close of all the evidence, such may be renewed after a verdict has been rendered. See FRCvP 50(b). Granting a renewed motion for judgment as a matter of law, however, is "inappropriate unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in his favor." Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 161 (2d Cir. 1998). In considering such a motion, the court "must give deference to all credibility determinations and reasonable inferences of the jury, and it may not itself weigh the credibility of witnesses or consider the weight of the evidence." Ibid. This necessarily implies that the undersigned should not grant judgment unless "(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [her]." Ibid. (citing Cruz v. Local Union No. 3 of Intern. Broth., 34 F.3d 1148, 1154 (2d Cir. 1994)). Moreover, a post-verdict motion for judgment as a matter of law "may be renewed only on grounds that were specifically articulated before submission of the case to the jury." Kirsch, at 164.
Preliminarily, it must be noted that, insofar as plaintiff now seeks "admission" of previously unsubmitted or excluded evidence to sustain her FRCvP 50 burden, her position must fail because this Court must limit its inquiry to the evidence admitted at trial. On the other hand, this Court is authorized to excise evidence "erroneously admitted" at trial when rendering a decision on plaintiff's FRCvP 50 motion, inasmuch as "[i]nadmissible evidence contributes nothing to a `legally sufficient evidentiary basis'" upon which to premise judgment as a matter of law. Weisgram v. Marley Co., ___ U.S. ___, 120 S.Ct. 1011, 1020-1022 (2000). With regard to this latter proposition, plaintiff submits that Dr. Oshrain should not have been allowed to testify because "he never furnished [plaintiff] the required [FRCvP] 26 expert materials." Logan-Baldwin Affirm. in Further Support ¶ 24; see also Logan-Baldwin Affirm. ¶¶ 262-267. This argument is, nevertheless, unavailing because such failure has already been attributed to plaintiff's refusal to continue discovery. See October 27, 1997 Order (Scott, U.S.M.J.) (defendants have no obligation to produce Dr. Oshrain for deposition because discovery deadline has passed).
If "new evidence" is discovered, it may be considered pursuant to FRCvP 59 or FRCvP 60 if plaintiff satisfies four criteria — viz., (1) that the evidence existed at the time of trial, (2) that due diligence could not have uncovered the evidence during trial, (3) that the evidence is material and admissible and (4) that, if the evidence been considered, a different result would have been likely. See, e.g., Geressy v. Digital Equip. Corp., 980 F. Supp. 640, 646-647 (E.D.N.Y. 1997). Insofar as plaintiff's motions seek to rely on affidavits submitted by Donald L. Stillwell and Paul L. Sidari, which almost exclusively pertain to events occurring post-verdict, the affidavits are disregarded because such evidence cannot be considered "new" under the aforementioned analysis.
Plaintiff also argues that Dr. Copley should not have been allowed to testify because "he never appeared for a deposition nor [sic] furnished any Rule 26 expert materials." Logan-Baldwin Affirm. in Further Support ¶ 25. However, a review of plaintiff's initial motion papers does not disclose the existence of such argument, despite the fact that a considerable portion thereof is dedicated to undermining Dr. Copley's credibility. See Logan-Baldwin Affirm. ¶¶ 275-284. That said, this Court declines to consider the merits of such argument inasmuch as defendants were not given an opportunity to respond to such. A reply paper is precisely that — i.e., an opportunity to respond to arguments and defenses raised in defendants' answering papers.
It should also be noted that plaintiff has made a proper analysis of her FRCvP 50 motion extraordinarily difficult because she fails to treat such motion in a fashion that makes it substantively distinct from the remainder of her motions. Oftentimes plaintiff bases FRCvP 50 relief on evidence that was never admitted at trial or evidence which requires a weighing of its credibility. Even if this Court were to assume, arguendo, that such evidence might have been admitted or was improperly excluded, the consideration of such evidence on this specific motion remains an impossibility. As indicated above, FRCvP 50 limits this Court's evidentiary inquiry to that evidence admitted at trial and, to the extent plaintiff's papers go beyond this closed universe, the undersigned declines to consider the "facts" therein. That said, the undersigned now turns to the core of plaintiff's FRCvP 50 motion.
In support of her FRCvP 50 motion, for example, plaintiff makes frequent reference to the indictment and conviction of Correction Officer John Walsh as well as investigations by the United States Department of Justice and/or the New York State Commission of Corrections. Such evidence was excluded and not submitted to the jury for its consideration. See Plaintiff's Brief at 18-21. In light of the extensive motion practice prior to and during trial wherein the admissibility of these materials was decided, it is surprising that plaintiff has now chosen, somewhat surreptitiously, to rely on such materials.
As is demonstrated by the character of plaintiff's post-verdict motions, the evidence in this trial demonstrated two very different versions of the pertinent facts and the resolution of such turned, in large measure, on the jury's assessment of the credibility of the various witnesses. One aspect of plaintiff's case-in-chief was demonstrating that defendant Dingman had told employees of the Corrections Division of the Orleans County Sheriff's Department not to associate with plaintiff and that she was a troublemaker. See Logan-Baldwin Affirm. ¶¶ 106-132. Testimony was admitted at trial, however, which effectively parried this line of attack. See June 8, 1998 Trial Transcript at 107-109, 113-114, 165-170, 183-188, 235-237, 265-275; June 9, 1998 Trial Transcript at 187-194. The "name plate incident" required the jury to assess the credibility of various witnesses. After the jury had been informed by the plaintiff that "her name plate was thrown into the trash as a part of the continuing retaliatory acts against her" — Logan-Baldwin Affirm. ¶ 10 —, the jury heard testimony that there was no ill motive underlying plaintiff's name plate having found its way into the trash and that defendants, after being told of the incident, acted to secure such to the door more firmly. See May 22, 1998 Trial Transcript at 216-218; June 10, 1998 Trial Transcript at 142-145.
Similarly, plaintiff's allegation that the "posting" of certain material created a sexually offensive working environment is unavailing because plaintiff never testified that she was offended by the materials and because the jury heard testimony that the presence of such materials in her workplace was not as pervasive as plaintiff alleged. May 7, 1998 Trial Transcript at 539-543; May 12, 1998 Trial Transcript at 71-72; June 9 1998, Trial Transcript at 180-182, 184-186. Moreover, insofar as plaintiff's good deal of effort trying to paint defendant Dingman as an individual who did not want women working in the male cellblock of the jail, the jury heard ample evidence that undermines this assertion. June 8, 1998 Trial Transcript at 112-115, 167-169, 179-189, 235-237, 270-274. Plaintiff has also indicated that defendants' discriminatory "motive and intent in their adverse conduct toward the plaintiff" is illustrated by her being reprimanded for being the "only employee in the Sheriff's Department to ever be disciplined for smoking in a no smoking area," being "the only employee who ever received a letter about not wearing her uniform hat" and being "the only employee in the Sheriff's Department who was given any letter about the police work" she performed regarding four separate incidents. Plaintiff's Brief at 17-19. On each of these points, nevertheless, the jury heard testimony traversing the veracity and/or impact of plaintiff's so-called "uncontradicted evidence." Id. at 17. For instance, not only does plaintiff not dispute that she was smoking in an unauthorized area but she also testified to the jury that other women at the Sheriff's department were treated more favorably than she when they violated the non-smoking policy. May 11, 1998 Trial Transcript at 835-841. Such testimony undermines her assertion that the warning was premised upon sex discrimination. Insofar as plaintiff was the only person who received a "letter" about not wearing her hat, the jury heard testimony that, not only was the letter not disciplinary in nature, at least one other employee received written notice regarding his failure to observe the hat policy. June 8, 1998 Trial Transcript at 53. Moreover, the jury heard conflicting testimony about which officers are not required to wear hats. Compare May 12, 1998 Trial Transcript at 101 (testimony indicating that correction officers do wear hats) with May 21, 1998 Trial Transcript at 125-126 (testimony indicating that correction officers do not wear hats). Such testimony undermines plaintiff's contention that the hat letter was based upon sex discrimination. The jury also heard testimony effectively countering plaintiff's assertion that defendants discriminated against her by investigating four police incidents in which she was involved. Particularly, the jury learned that such investigation was precipitated by staff and civilian complaints and by evidence that police procedure had not been followed during each incident. Moreover, testimony was also admitted which indicated that, while culminating in a letter and meeting, the investigation led to no disciplinary action, notwithstanding the fact that defendants purportedly could have done so. May 11, 1998 Trial Transcript at 812. Such testimony undermines plaintiff's assertion that the letter was based upon sex discrimination. Insofar as plaintiff seeks judgment as a matter of law regarding issues previously decided against her prior to the commencement of trial, her motion must also fail. The Second Circuit Court of Appeals has noted that
"parties and courts have an interest in finality with regard to the disposition of particular claims as well as the disposition of lawsuits as a whole. That is precisely why there is a law of the case doctrine. Particularly where extensive and expensive pre-trial discovery and other pre-trial proceedings are involved, the narrowing of issues can be of considerable importance to the parties and to considerations of judicial efficiency. Even if litigation of an action is ongoing, the reopening of previously dismissed claims is thus not lightly contemplated." Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 91 (2d Cir. 1996).
Internal citations omitted.
For example, plaintiff premises part of her motion on the claim that she was not assigned to the position of Lieutenant on the day shift. By Order dated February 10, 1997, this Court deemed such claim "groundless." Inasmuch as the "doctrine of the law of the case `applies to issues that have been decided either expressly or by necessary implication,'" this claim is once again rejected. DeWeerth v. Baldinger, 38 F.3d 1266, 1271 (2d Cir. 1994). A ruling otherwise would undermine any notion or concept of judicial finality.
Without belaboring the point, it suffices to state that — in light of this Court's lack of authority to weigh the credibility of the various witnesses who testified at trial — the jury's conclusion that there was insufficient evidence to support plaintiff's claim that she had suffered discrimination and/or retaliation at the hands of defendants because of her sex is supported by the record and, for this reason, plaintiff's renewed motion for judgment as a matter of law will be denied. Moreover and inasmuch as plaintiff maintains that this Court reserved judgment for itself on the issue of whether defendants had breached a December 17, 1991 Consent Decree and as this Court, by Memorandum and Order dated February 10, 1997, has already held that such breach "coextensively pleads and overlaps" the claims herein, awarding judgment in favor of plaintiff would not be proper because the jury's verdict precludes such finding — i.e., the jury's verdict requires this Court to determine that defendants did not violate the Consent Decree.
Plaintiff's motion for a new trial or to alter or amend the judgment is governed by a less stringent standard and it is entirely within this Court's discretion to grant such. Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir. 1987). Nevertheless, this Court "ordinarily should not grant a new trial unless it is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988). In addition, plaintiff cannot utilize FRCvP 59 as "a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a `second bite at the apple'" — Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) — and, where plaintiff challenges this Court's prior rulings and does not question the weight of evidence, FRCvP 59 relief is only proper where plaintiff demonstrates that this Court "erred and such error was `inconsistent with substantial justice.'" Bilezikjian v. Baxter Healthcare Corp., No. 92 CIV. 9498 (HB), 1999 WL 945522 at *1 (S.D.N.Y. Oct 18, 1999) (citing FRCvP 61); see also United States v. Various Articles of Obscene Merchandise, No. 95 CV 0583 (FB), 1995 WL 235216, at *1 (E.D.N.Y. Apr 11, 1995) (noting that FRCvP 59(e) requires a movant to "specifically identify those matters or controlling decisions which the Court has overlooked and explain why those matters or decisions render the Court's earlier decision erroneous"). That said, it should also be noted that it is within this Court's discretion, under a motion brought pursuant to FRCvP 59(e), to consider the effect of "an intervening change in the controlling law" on this action. See Atlantic States Legal Foundation v. Karg Bros., 841 F. Supp. 51, 53 (N.D.N.Y. 1993). Plaintiff principally argues that FRCvP 59 relief is required because recent Supreme Court and Second Circuit Court of Appeals precedents indicate that this Court should have permitted her to submit, for the jury's consideration, all the evidence which she had previously been unsuccessful in submitting, including that which was ruled inadmissible immediately prior to trial and that which was deemed inadmissible by the Court's previous Memoranda and Orders. This list includes, inter alia, "full testimony" about a prison inmate incident and inmate grievances, as well as a United States Department of Justice Report. Logan-Baldwin Affirm. ¶ 310. However, because plaintiff does not, in substance, challenge the weight of the evidence admitted at trial but —, as is indicated by the nature of the aforementioned items of "evidence" — wishes to relitigate issues previously dealt with by this Court, analysis is properly focused on whether the undersigned committed legal error in excluding such evidence and whether any such error requires a new trial or an alteration or amendment of judgment.
To the extent that plaintiff does challenge the weight of the evidence, such motion will be denied for the reasons articulated in the previous FRCvP 50 discussion.
Succinctly stated, plaintiff contends that the jury was entitled to hear all evidence relating to the "totality of the circumstances" surrounding her employment. As applied to her case, this would include evidence not only relating to her individual sex discrimination and retaliation claims but also evidence relating to any kind of discrimination perpetrated by any individual against any other individual at defendants' workplace. The undersigned disagrees.
Plaintiff's belief that the Second Circuit Court of Appeals' recent decision in Cruz v. Coach Stores, Inc., supra note 1, supports her position is illustrative of her misplaced reliance. The Hispanic female plaintiff in Cruz brought an employment discrimination action against her former employer for, inter alia, "tolerating an environment of discriminatory harassment" based on her race and sex. Cruz, at 564, 569. In reversing the lower court's determination that the plaintiff had not met her burden with regard to such claims, the appellate court noted that "[d]etermining whether workplace harassment was severe or pervasive enough to be actionable depends on the totality of the circumstances." Id. at 570. Moreover,
By letter dated June 21, 2000, defendants have objected to this Court's "consideration of Cruz with regard to [plaintiff's] pending post-trial motions" and, in the event such case is considered, they request an opportunity to submit a brief to the undersigned with regard to the same. Inasmuch as the undersigned may not normally disregard the guidance set forth in relevant authoritative circuit court opinions and as the undersigned is capable of independently assessing the impact of the Cruz decision on the present matter, defendants' "objections," while well-taken, are of no consequence and a briefing is not required.
"[b]ecause the crucial inquiry focuses on the nature of the workplace environment as a whole, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim. Nor must offensive remarks or behavior be directed at individuals who are members of the plaintiffs own protected class. Remarks targeting members of other minorities, for example, may contribute to the overall hostility of the working environment for a minority employee. See Schwapp v. Town of Avon, 118 F.3d 106, 111-112 (2d Cir. 1997) ***." Id. at 560.
Emphasis added and internal citations omitted.
The court concluded by stating that, even though Cruz had adduced sufficient evidence independently supporting both her race- and sex-based hostile work environment claims, these claims find "further support *** in the interplay between the two forms of harassment" and, "[g]iven the evidence of both race-based and sex-based hostility, a jury could find that *** racial harassment [by a particular male employee of the defendant] exacerbated the effect of his sexually threatening behavior and vice versa." Id. at 572.
In rendering this decision, however, the Second Circuit Court of Appeals did not — contrary to plaintiff's apparent belief — redefine the rules of evidence or lessen the burden of proof a plaintiff carries as to her hostile work environment claims. Rather, Cruz stands for the proposition — as do many of the cases indicated in footnote 1 — that a plaintiff may support a hostile work environment claim by presenting evidence of discrimination which is related to the type (or types) of discrimination that the plaintiff is actually asserting. In this regard, Cruz breaks no new ground. See, e.g., Schwapp, at 111-112 (court stating that derogatory comments aimed at one racial group may have probative value in establishing a racially-hostile working environment for a member of a different racial group). It is also important to note that the appellate court expressly declined to answer "whether a plaintiff may aggregate evidence of racial and sexual harassment to support a hostile work environment claim where neither charge could survive on its own," in contrast to the opinions of other circuit courts of appeals. Cruz, at 572 n. 7; cf. Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999) (while plaintiff had failed to "demonstrate a triable issue over whether he was subjected to a hostile work environment based on religion," his remaining hostile work environment claim based on race may still be supported by evidence showing that "the racial animus of [the plaintiff's] co-workers was augmented by their bias against his religion"); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416-1417 (10th Cir. 1987) (where the evidence showed that the defendant "did not maintain a work environment openly hostile to blacks," such evidence may still be aggregated with plaintiff's sexual harassment evidence). But, even assuming that such aggregation would have been proper, there still remains no basis upon which the Gavenda's argument prevails — i.e., to the undersigned's best knowledge, neither any circuit court of appeals nor the highest court has ever held that a plaintiff could advance a hostile work environment claim based solely on gender by submitting at trial evidence of discrimination aimed at co-workers based on race, color, religion, national origin, age or disability. Consequently and inasmuch as plaintiff has never claimed — or has been allowed to claim — that anything but gender prompted her hostile work environment claim, all evidence regarding unclaimed and unrelated categories of alleged discrimination were properly excluded by this Court. See also Federal Rules of Evidence ("FRE") 402 ("Evidence which is not relevant is not admissible.").
The plain language of Title VII lends support to this position. "It shall be an unlawful employment practice for an employer *** to discriminate against any individual with respect to his *** term, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis added).
Similarly, plaintiff also indicates that this Court was required to admit evidence regarding the indictment and conviction in state court of Correction Officer John Walsh. Walsh, who is not a defendant named in this action, was convicted for committing acts of brutality against inmates of the Orleans County Jail. Specifically, plaintiff argues that, in establishing her hostile work environment claim, "[f]ormer C.O. Walsh's criminal conviction for torturing inmate Fowlks has collateral estoppel effect in this case." Plaintiff's Brief at 18. Leaving aside questions of relevancy and the failure of plaintiff to have made an appropriate offer of proof at trial, it is simply beyond cavil to suggest that collateral estoppel somehow bars the instant defendants from "relitigating" issues in the present action which may have been resolved by the Walsh criminal conviction. Inasmuch as "a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered" — Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 81 (1984) —, New York law controls and requires that plaintiff show "an identity of issue which has necessarily been decided in the prior action and is decisive of the present action" and that the party to be estopped had "a full and fair opportunity to contest the decision now said to be controlling." Gilberg v. Barbieri, 53 N.Y.2d 285, 291 (1981). Due process, moreover, "would not permit a litigant to be bound by an adverse determination made in a prior proceeding to which he was not a party or in privity with a party." Ibid. Here, it cannot be disputed that none of the defendants was a party to the Walsh criminal proceedings and, therefore, did not have a full and fair opportunity to contest the matter. Indeed, it is notable that plaintiff's papers never allege that defendants "controlled" Walsh's criminal litigation and such control being a sufficient opportunity to fully contest Walsh's indictment — by itself, a highly dubious proposition. The mere fact that "defendants paid criminal defendant Walsh his salary and benefits *** after his indictment," that "[d]efendants paid for criminal defendant Walsh's attorney fees and costs for his criminal defense" and that "[d]efendant Sheriff Green and defendant (then Captain) Dingman attended [his] criminal trial" is of no consequence. Logan-Baldwin Affirm. ¶ 19. Inasmuch as it is plaintiff's burden to establish the propriety of collateral estoppel and plaintiff nowhere indicates how the elements thereof are satisfied, such argument must fail.
Plaintiff claims that Walsh's conviction precludes defendants from defending against plaintiff's hostile work environment claim, but the undersigned fails to see any interconnection. See April 15, 1996 Order (denying intervention in the instant action where the putative intervener's allegations were "significantly based on cruel and unusual treatment and racial discrimination of a jail inmate" and not based on gender discrimination).
Plaintiff also states that a "United States Justice Department civil investigation of the Orleans County Jail between 1996 and January 1998 separately [from the Walsh indictment and conviction] establishes the hostile work environment in which defendants forced plaintiff to work." Plaintiff's Brief at 20. For the reasons previously stated, not only does this Court fail to see the relevancy of such report but also in what manner and to what degree it "establishes" the veracity of plaintiff's gender-based discrimination claims and why defendants should be estopped from disputing the presence of a gender-based hostile work environment.
In addition to challenging this Court's exclusion of evidence unrelated to plaintiff's sex-based hostile work environment and retaliation claims, plaintiff argues — in omnibus fashion — that this Court should have admitted every item of evidence which was arguably relevant to her claims. Plaintiff repeatedly — and correctly — notes that "[t]here is neither a threshold `magic number' of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim." Plaintiff's Brief in Further Support at 5 (citing Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993)); see also Plaintiff's Brief at 12. Nonetheless, plaintiff apparently believes that, in endeavoring to carry her burden at trial, her submissions are not subject to any limitation — including, for example, FRE 403 which states "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Plaintiff's argument is without merit.
It is well-established that a trial court has considerable discretion in determining whether to admit or exclude evidence. See Barrett v. Orange County Human Rights Comm'n, 194 F.3d 341, 346 (2d Cir. 1999). Moreover, "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected" and that party has made a timely objection or an appropriate offer of proof. FRE 103(a); see also FRCvP 61 ("No error in either the admission or the exclusion of evidence *** by the court *** is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice."). As applied to the instant case, plaintiff has failed to show that this court committed error justifying FRCvP 59 relief. For example, plaintiff's contention that this Court improperly restricted the testimony of Paul Sidari, Zina Baker and Donald Stillwell is unavailing. As stated during the trial, each could only properly testify to that of which she or he had personal knowledge and pertaining to the matter at hand. See May 14, 1998 Trial Transcript at 126-128. Turning to the proposed testimony of Ms. Allport-Baron and Marracco, plaintiff does not specify how this Court erred in limiting their testimony and merely states that such witnesses should have been allowed to "testify to their respective expertises." Logan-Baldwin Affirm. at 89 n. 67. Without more, this Court finds no error in limiting such testimony to the extent actually allowed. Moreover, even assuming that additional testimony would have supported plaintiff's claim for compensatory damages, no error may be claimed inasmuch as the jury returned a verdict of no cause for action and in favor of defendants. With regard to the proposed testimony of Tim Bourke, plaintiff did not indicate — and has not indicated — how his proposed testimony was going to be materially different from that previously admitted. See May 12, 1998 Trial Transcript at 981-988. The admission of such was accordingly deemed unnecessary. In short, plaintiff has failed to set forth error by the undersigned in excluding evidence at trial.
As an alternative to the above, plaintiff argues that a new trial is warranted because the jury was confused, the jury instructions were inadequate and this Court abused its discretion in conducting the trial. In support of these arguments, plaintiff has set-forth a litany of alleged trial-related infirmities, including (1) declining "to strike from the jury pool for cause a [prospective] juror, Mr. Strabel, who had an application for a job with defendant Green pending"; (2) declining to remove juror Bittner after he had "disclosed that his employer had an important contract with defendant Orleans County"; (3) dismissing prospective juror LaPres after she had advised "that she could change her family vacation plans to permit her to sit longer than she originally indicated she could"; (4) not allowing the jury to take notes; (5) failing to strike "defense counsel Doren's improper opening — which the court correctly dubbed a `summation' and the jury instructed to ignore it"; (6) failing to strike "defense counsel Greco's improper opening which falsely described defendant Dingman's demotion from jail captain to [correction officer] as `voluntary'"; (7) not permitting the "jury to see plaintiff's demonstrative evidence to the same extent that it permitted the jury to view defense counsel's demonstrative evidence"; and (8) not instructing the jury "as requested in plaintiff's charge," not using "a verdict form like that requested by plaintiff" and not allowing the jury to hear "from plaintiff's counsel last on closing." Logan-Baldwin Affirm. ¶ 310.
The parties do not dispute that it is the undersigned's responsibility to "remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence." Rosales-Lopez v. U.S., 451 U.S. 182, 188 (1981). That said, plaintiff has set forth no valid reason why a new trial should be granted on the basis that the jury lacked impartiality. Indeed, plaintiff has not even explicitly argued that the empaneled jury was incapable of rendering an impartial verdict. With regard to juror Strabel, even if the undersigned incorrectly evaluated his ability to deliberate fairly and impartially — a notion the record does not support —, plaintiff can claim no prejudice inasmuch as she exercised a peremptory challenge to remove him. See U.S. v. Morales, 185 F.3d 74, 84 (2d Cir. 1999) ("so long as the jury which was ultimately selected was fair and impartial," the right to an impartial jury has not been violated). Plaintiff's objections regarding juror Bittner are similarly unavailing. The undersigned's voire dire colloquy revealed that his employer's business relationship with defendant Orleans County would not affect such juror's duty to decide fairly. See, e.g., Bainlardi v. SBC Warburg, Inc., No. 97 Civ. 2861 KTDHBP, 1998 WL 872487, at *4 (S.D.N.Y. Dec. 14, 1998) ("a commercial relationship between a juror's employer and a party — does not constitute a sufficient basis for a challenge for cause where the juror expressly affirms [his or] her ability to sit fairly"). Error may also not be premised on the removal of juror LaPres before the close of all the evidence. Succinctly stated, it is entirely within this Court's power — for good cause — to "excuse a juror from service during trial or deliberation." FRCvP 47(c). Juror LaPres was excused for reasons she had previously articulated at her voir dire — i.e., that a scheduled family vacation might interfere with her service as a juror, if the trial should last longer than anticipated. "The hardship or inconvenience imposed upon a juror when a trial runs past its anticipated ending date and concern for the appropriate functioning of the jury's deliberative process, free of the distractions of a participant angry and resentful at his or her unexpected and compulsory presence, are exactly the sort of considerations that a trial court must consider in these circumstances." Interpool Ltd. v. Patterson, 874 F. Supp. 616, 617 (S.D.N.Y 1995).
Whether or not a jury can take notes during a trial, as well as take those notes into deliberations, is entirely within the province of the Court to determine. See U.S. v. Bertolotti, 529 F.2d 149, 159 (2d Cir. 1975) ("It has been long established in this Circuit that it is within the trial court's discretion to allow the jury to take notes and use them in the course of their deliberations.") In this regard, plaintiff can claim no error. As a point of clarification, moreover, the record clearly indicates that this Court did not prohibit the jurors from taking notes but rather only from taking any such notes into their deliberation. See May 4, 1998 Trial Transcript at 100.
Turning to the undersigned's "failure" to strike certain aspects of defense counsel Doren's and defense counsel Greco's opening statements, the issue to be decided "is not whether defense [counsels'] remarks were improper, but whether they were so prejudicial as to deny [plaintiff] a fair trial." Testa v. Village of Mundelein, 89 F.3d 443, 446 (7th Cir. 1996). Contrary to plaintiff's contentions, the record reveals no such prejudice. In this regard, this Court notes that it cautioned the jury during opening arguments to remember that each counsel's statement was not to be considered as evidence, only a statement indicating what each opined the evidence would show. See May 5, 1998 Trial Transcript at 26.
Plaintiff's argument that this Court erred in failing to allow the jury to see plaintiff's demonstrative evidence during closing is likewise unavailing. By way of example, plaintiff argues that the "jury should have been permitted to see plaintiff's Important Dates and Exhibits in Evidence while plaintiff's counsel gave her closing argument just as defense counsel was permitted to use a [chalk] board." Logan-Baldwin Affirm. ¶ 310. Ignoring for the moment the fact that plaintiff was granted the opportunity to use the chalkboard during her closing arguments, an examination of the contents of plaintiff's proposed "aid" reveals that it was of a fundamentally different nature than that offered by defendants — i.e., it was not merely a recitation of important dates and exhibits but also a document which summarized various incidents and contained language such as "[p]unitive — send a message — not happen again — deterrence for illegal conduct." Jancevski Aff. Ex. B. Dissemination of this document would clearly have been more prejudicial to the defense than it would have been helpful to the jury by presenting a somewhat one-sided summary of pertinent events and the undersigned properly declined plaintiff's request to do so.
Plaintiff also claims that this Court erred in charging the jury and preparing the verdict sheet. FRCvP 51 states, in relevant part, that "[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." Inasmuch as plaintiff failed to timely direct the undersigned's attention to her specific objections prior to the jury's retiring, the plaintiff waived her right to appeal such jury instructions. Moreover, even if such objections had been timely and appropriately registered, plaintiff sets forth no good reason why the jury "should have been instructed as requested in plaintiff's charge." Logan-Baldwin Affirm. ¶ 310. Even if correct, this Court "is not obligated to charge the jury using the exact words proposed by a party." Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 446 (2d Cir. 1994). Quite simply, the record does not support plaintiff's apparent contention that the jury was given a "misleading or inadequate impression of the law." Ibid. Similarly, there are no grounds which support plaintiff's argument that the verdict sheet utilized herein by the jury was misleading or inadequate. Not only did plaintiff not register a timely objection thereto, but she fails to indicate precisely how this Court erred in constructing such sheet. Finally, while plaintiff claims that the undersigned erred in not allowing the jury to hear from plaintiff's counsel last during closing arguments, the record indicates that exactly the opposite occurred — i.e., the jury did hear from plaintiff's counsel last and in rebuttal to defendants' closings. See May 15, 1998 Trial Transcript at 143. Accordingly, plaintiff has not tenably alleged error.
FRCvP 60(b)(6) states, in relevant part, that "the court may relieve a party *** from a final judgment" for any "reason justifying relief from the operation of the judgment." Such rule may be "properly invoked when there are extraordinary circumstances *** or where the judgment may work an extreme and undue hardship." Matter of Emergency Beacon Corp., 666 F.2d 754, 759 (2d Cir. 1981). Nevertheless, "a change in decisional law is [generally] not grounds for relief under Rule 60(b)(6)." Travelers Indem. Co. v. Sarkisian, 794 F.2d 754, 757 (2d Cir. 1986); see also Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir. 1986) (noting that "[a] postjudgment change in the law having retroactive application may, in special circumstances, constitute an extraordinary circumstance warranting vacation of a judgment"). Notwithstanding the fact that final judgment has yet to be entered in this matter — thus rendering the following discussion little more than an academic exercise —, considering what already has been stated above, plaintiff's claim that she is entitled to relief from judgment is unavailing and deserves little elaboration. Not only does recent, post-trial case law not require such relief, but plaintiff can point to no extraordinary circumstance or undue hardship which will ensue should the judgment remain undisturbed. Accordingly, FRCvP 60 provides plaintiff no avenue for relief.
Citations omitted.
Citations omitted.
Plaintiff has also alleged that it was error for this Court to dismiss her claim that she had been denied assignment at the Orleans County Courthouse. Plaintiff's Brief at 35. Plaintiff asserts that "the evidence is overwhelming that defendants denied plaintiff the Court House Deputy [position] as [a] further [act of] discrimination/retaliation" and that "[d]octors for both plaintiff and defendants concluded that plaintiff should be given the opportunity to perform the job." Logan-Baldwin Affirm. ¶ 311. Moreover, plaintiff asserts, not only did this Court err "when it summarily dismissed" this claim but "plaintiff was entitled to a directed verdict on this claim." Id. ¶¶ 312-313. The undersigned disagrees. Succinctly stated, plaintiff was not entitled to a directed verdict on this claim because, as was amply demonstrated by evidence in the record, she failed to timely respond to requests from Orleans County Personnel Department for medical information and a medical clearance prior to her return from a medical leave of absence. Indeed, the lack thereof compelled the undersigned to direct a verdict in favor of defendants. Similarly, plaintiff argues that it was error for this Court to grant a directed verdict in favor of defendant Metz. She argues that "the jury could have found for plaintiff" because defendant Metz "did nothing and/or took no effective action" to "investigate and remedy the unlawful acts against plaintiff" and therefore "adopted and condoned the unlawful conduct." Plaintiff's Brief in Further Support at 10. Conclusory statements aside, however, the plaintiff has failed to direct this Court's attention to anything in the record which demonstrates that there was a "legally sufficient evidentiary basis for a reasonable jury" to find for plaintiff on that issue. FRCvP 5O(a).
Plaintiff took a medical leave of absence from her position in the Orleans County Sheriff's Department in mid-1996 after she had been diagnosed with having suffered a heart attack. When plaintiff requested that she be returned to work — under medical certain restrictions — at a position in the County Courthouse, the Orleans County Personnel Department requested that plaintiff submit to various medical exams which would verify her capacity to perform the attendant duties. Plaintiff's conclusory allegations aside, there is simply no evidence in the record that she "took and passed" and timely forwarded to defendants "every test defendants discriminatorily required of her to return to work." Plaintiff's Brief in Further Support at 9.
In sum, plaintiff's post-verdict motions do not raise any grounds that are redressable by this Court under FRCvP 50, 52, 59 or 60. Furthermore, any argument not explicitly dealt with by this Memorandum and Order is meritless. Accordingly, her post-verdict motions will be denied in their entirety.
Also before this Court is defendants' motion to resolve the trial record. This motion was precipitated by plaintiff's unilateral "supplementation" of the record. Plaintiff is currently under the impression that certain "materials provided to the court just prior to the start of trial and during trial and/or which the court provided to counsel" should have been docketed and took it upon herself to docket such materials. Logan-Baldwin Affirm. ¶ 2 (Oct. 6, 1999). This supplementation includes, but is not limited to, various pieces of correspondence exchanged between the parties and sent to the undersigned, exhibits and objections not offered at trial and miscellaneous items which can only be classified as attorney work-product. "To avoid later confusion and ensure the integrity of the trial record," the defendants then brought the instant motion to resolve the trial record. Jancevski Aff. ¶ 2 (Dec. 1, 1999).
FRCvE 5(d) states, in relevant part, that "[a]ll papers after the complaint required to be served upon a party, together with a certificate of service, shall be filed with the court within a reasonable time after service ***." Rule 7.1(b) of this Court's Local Rules of Civil Procedure ("LRCvP") adds that "[a]ll orders *** together with the papers on which they were granted, shall be filed forthwith." Apparently latching onto the words "papers on which [orders] were granted," plaintiff believes that this is a license to file, carte blanche, "supplementary" material, so long as it somehow relates to "substantive arguments on issues that were presented to the court on this case" because the "federal filing system guarantees that [it] *** be made part of the record." Logan-Baldwin Affirm. ¶¶ 13, 14 (Jan. 27, 2000). This position is patently untenable and goes far beyond what may be deemed a reasonable reading of either the FRCvP or the LRCvP and deserves little comment. A "paper," as used under the aforementioned rules, is generally construed to include only those items which are "required to be served upon a party," such as an answer or a response to a motion and, to the undersigned's knowledge, no court has ever stated — by way of example — that "papers" shall include mere correspondence exchanged between litigating parties.
Turning directly to the forty or so documents plaintiff has sought to include as part of the record, it is notable that over half thereof is correspondence pertaining to such matters as a complaint levied against defense counsel for "impugning the integrity of [plaintiff] in the jury's presence" — October 6, 1999 Logan-Baldwin Affirm. Ex. 4 — and a request that "defendants advise *** via fax *** the witness or witnesses they plan to have to testify tomorrow." Id. Ex. 20. Regarding such materials, not only is it clear that much of the correspondence did not precipitate any particular order from this Court, but they are irrelevant and not properly included as part of the record. As to the remaining materials, insofar as the record is already reflective of, inter alia, the order of witnesses, evidentiary issues raised and argued by the parties and plaintiff's motion for judgment as a matter of law, supplementation of the record with these kinds of materials is duplicative and unnecessary. Accordingly, the Clerk of this Court will be directed to strike from the record all exhibits attached to each parties filings as included in docket item numbers 389-392 and the Clerk of this Court will be further directed to return such stricken materials to the filing party. Further, if — at any time in the future — a party wishes to supplement the record, such party is cautioned to heed the language of LRCvP 7.1(a)(3) which states that "[a] party seeking to include in a record on appeal material which was not previously filed shall apply to the Court for an order requiring the Clerk to file such material. The party may make such application by motion or stipulation of counsel."
Emphasis added. Defendants have also docketed their letter which is referenced in footnote 9. For the reasons set forth in the body of this Memorandum and Order, such will also be ordered stricken from the record.
Finally, plaintiff has filed objections to Magistrate Judge Scott's July 27th Order calculating certain attorneys' fees to be awarded defendants. This Court may reconsider the July 27th Order if "it has been shown that the [Magistrate Judge's] order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). To the extent that her objections are relevant, plaintiff argues that the Orleans County defendants should not have been awarded fees and costs in an amount of $2,086.50 because (1) the affidavit of costs dated March 19, 1998 was prepared by someone other than the attorney who has "responsibility for this case," (2) such affidavit is not supported by contemporaneous time records, (3) "[a]ll time claimed for ex parte contact *** should have been excluded" and (4) the hourly rate claimed is excessive. See Plaintiff's Notice of Appeal at 9-13. Plaintiff's objections are unavailing and will be overruled.
Plaintiff's counsel has devoted much energy rearguing the merits of prior orders. See March 6, 1998 Order (Scott, U.S.M.J.) (granting defendants' motion for an award of attorney's fees and costs and directing defendants to submit affidavits of fees and costs); April 20, 1998 Order (Elfvin, J.) (affirming the March 6, 1998 Order). Inasmuch as the only issue properly before the undersigned is the appropriateness of Magistrate Judge Scott's July 27th Order, which ordered plaintiff "to pay defendants' attorneys fees in the amount of $2,086.50," this Court will confine its analysis to the relevant objections raised in response thereto.
In the Second Circuit an application for fees and costs may be supported by affidavit, so long as the affidavit and summary are clearly based on contemporaneous time records. Cruz v. Local Union, at 1160 (2d Cir. 1994); see also New York Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983) (stating that contemporaneous time records "should specify, for each attorney, the date, the hours expended, and the nature of the work done"). Contrary to plaintiff's assertion, there is no explicit requirement that the affidavit of costs summary be prepared by the attorney who has responsibility for a particular case, although such practice would undoubtedly be the better. All that is required is that the billing be clearly based on contemporaneous time records. Ibid. Even assuming that more is required, plaintiff's argument in the instant motion would nonetheless fail inasmuch as the Orleans County defendants indicate that the affidavit challenged "was reviewed with [the attorney who has responsibility for this case] by telephone prior to its submission." Jancevski Aff. ¶ 15 (Sept. 1, 1999). Similarly, the argument that the affidavits submitted are not properly supported is without foundation. The itemization submitted in and by the McClaren and Jancevski affidavits is sufficiently detailed as to comport with the requirements of Cruz and Carey. Moreover and as indicated in the July 27th Order, any ex parte communication with Magistrate Judge Scott's chambers regarding procedural matters was not inappropriate and plaintiff has advanced no substantive reason why such is not compensable. Finally, plaintiff's objection as to the requested hourly rate of $145 is unpersuasive. Such amount is reasonable based upon the experience of the attorneys and the services provided. See Jancevski Aff. ¶ 3 (July 13, 1998). Having found no clear error in the July 27th Order, therefore, plaintiff's objections are overruled and such Order will be affirmed.
Indeed, by direction of Magistrate Judge Scott, the Orleans County defendants were directed to supplement this March 19, 1998 Affidavit and, in response thereto, Colleen O'Connell Jancevski, Esq., filed a "Supplemental Affidavit Pursuant to Award of Costs." See Jancevski Aff. (July 13, 1998).
Accordingly, it is hereby ORDERED that plaintiff's post-verdict motions are denied in their entirety, that the Consent Decree is held not to have been violated, that the Clerk of this Court is directed to enter judgment accordingly, that the Clerk of this Court is directed to strike from the record all exhibits attached to docket item numbers 389-392, that the Clerk of this Court is directed to strike from the record docket item number 393, that the Clerk of this Court shall return such stricken materials to the filing party and that plaintiff's objections to Magistrate Judge Scott's July 27th Order are overruled and such Order is affirmed.