Chery v. Enfield Police Dept.

• Court: District Court, D. Connecticut
• Decided: October 2, 2024
• Docket: 3:19-cv-01592
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT --------------------------------------------------------------- x ELISEE CHERY, : : Plaintiff, : MEMORANDUM : DECISION ON -against- : MOTIONS IN LIMINE : AND OBJECTIONS TO TOWN OF ENFIELD, : EXHIBITS AND : WITNESSES Defendant. : --------------------------------------------------------------- x 3:19-CV-1952 (VDO) VERNON D. OLIVER, United States District Judge: As discussed during the pretrial conference held on October 1, 2024 before this Court, the Court rules on the motions in limine and objections to witnesses and exhibits as follows. I. MOTIONS IN LIMINE A. Plaintiff’s Motion in Limine at ECF No. 118 Plaintiff’s motion in limine to preclude Defendant from “introducing evidence that contradicts or supplements Defendant’s proffered reasons for terminating Plaintiff’s employment beyond the reason articulated by Defendant in Court filings” at ECF No. 118 is DENIED. As Defendant correctly points out in its opposition, nowhere in Defendant’s Answer does Defendant admit any facts regarding the reasons for terminating Plaintiff’s employment. Moreover, Plaintiff’s reliance on Defendant’s Local Rule 56(a) Statement is misplaced because judicial admissions only arise where facts are admitted in a pleading and, in any event, the cited paragraphs in the Defendant’s Local Rule 56(a) Statement do not purport to set forth the reasons for Plaintiff’s termination. By seeking to preclude Defendant from providing additional or conflicting evidence to support its reason(s) for Plaintiff’s termination, Plaintiff is, in effect, improperly asking the Court to weigh the sufficiency of the evidence to support a particular claim or defense.

However, “[a]ssessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court[.]” Vital v. Interfaith Med. Ctr., 168 F.3d 615, 622 (2d Cir. 1999). B. Defendant’s Motion in Limine at ECF No. 129 Defendant’s motion in limine at ECF No. 129 to preclude Plaintiff “from offering any testimony, evidence or expert opinions regarding any diagnoses of adjustment disorder with mixed anxiety and depressed mood, and chronic post-traumatic stress disorder and/or that any

such diagnoses are causally related to the incidents which are the subject matter of this action” is GRANTED IN PART and DENIED AS MOOT IN PART. Defendant’s motion in limine as to Plaintiff’s Exhibit 102 is granted. Plaintiff may offer Exhibit 102 for the limited purpose of demonstrating that he sought mental health treatment after his termination, and not as evidence of any diagnoses, prognosis, or of causation, since Plaintiff’s treater, Gladys Anderson, is not available for cross-examination. Accordingly, Plaintiff shall redact from Exhibit 102 any mention of a diagnosis or prognosis

for inclusion in the finalized set of exhibits. Because Anderson has passed away and Plaintiff never sought to designate her as an expert, Defendant’s Daubert motion is denied as moot. C. Defendant’s Motion in Limine at ECF No. 130 Defendant’s motion to preclude Plaintiff from offering any testimony, argument, and/or evidence by the 23 newly disclosed witnesses at trial is GRANTED IN PART and DENIED AS MOOT IN PART.

Under Federal Rule of Civil Procedure 37(c)(1), a party’s non-compliance with the disclosure requirements of Rule 26 generally results in the preclusion of improperly disclosed witnesses, unless the Court finds that the non-compliance was “harmless.” When evaluating whether to preclude witness testimony, the Court considers “the following factors: (1) the party’s explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness(es); (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.” Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 269 (2d Cir. 1999). Considering these four factors, the Court concludes that Plaintiff’s non-compliance with the Rule 26(a) disclosure requirements was not “harmless” and thus, preclusion is necessary under Fed. R. Civ. P. 37(c)(1). Plaintiff’s argument in opposition that new counsel was retained in November 2023 upon which further investigation was made into additional witnesses is not a sufficient explanation for his failure to comply with Rule 26(a), as Plaintiff

nevertheless had the last ten months to supplement his initial disclosures. Plaintiff also argues in his responses to Defendant’s objections to Plaintiff’s witness list that he identified these 23 witnesses in supplemental IEDP responses and/or responses to Defendant’s interrogatories. However, these actions do not erase Plaintiff’s non-compliance with Rule 26(a). Nor has Plaintiff reasonably explained why these late-disclosed witnesses’ testimonies are important and not cumulative of the testimony of other witnesses Plaintiff intends to call at trial. Finally, in light of the fact that trial is scheduled to proceed in two weeks, the delay in disclosing these witnesses prejudices Defendant. Accordingly, the following four witnesses shall not be allowed to testify at trial:

Lieutenant Podpolucha, Elvin Rodriguez, Jonathan Rodriguez, and Pastor Elijah Oliver. Plaintiff filed an updated witness list on September 30 that excludes the following witnesses: Sergeant Edgar J. Ferreras, Carthon Danzinger, Kevin Magdycz, Alex Peck, Lamarre Davidson, Eddie Paul, Tonie Brown, Eric Rodriguez, Marvin Riviera, Kenya Allen, Charles Carvines, Michelle Perry, Elizabeth Rivera-Pirela, Wallesca Rivera, Denis Blan, Levon Freeman, Ernest Landers, Jason Walker, and Joe Willis. Therefore, Defendant’s motion in limine as to these nineteen witnesses is denied as moot.

D. Defendant’s Motion in Limine at ECF No. 131 Defendant’s motion to preclude Plaintiff’s Exhibits 104-159, 167-182, 192-216, and 235-238 on the basis of belated disclosure is DENIED. However, the Court makes the following additional findings regarding Defendant’s objections to these exhibits: • Defendant’s objections to Exhibits 104, 117, and 119-159 are overruled. These exhibits are highly relevant and probative under Federal Rules of Evidence 401 and 403 as to whether Officer Roche was similarly situated to Plaintiff.

• Plaintiff states Exhibits 167-182 will not be presented to the jury. Accordingly, Defendant’s objections to Exhibits 167-182 are denied as moot. • Plaintiff states that he withdraws Exhibits 105, 106, and 192; therefore, Defendant’s objections to these exhibits are denied as moot. • Defendant’s objections to Exhibits 193-216 are sustained except for Exhibits 197 and 216. • Defendant’s objection to Exhibit 237 is sustained except for the Bates-stamped

pages ending in 2199 and 2200. • Defendant’s objection to Exhibit 238 is sustained. Hall’s letter of reference does not provide any relevant or probative information related to Plaintiff’s allegations, including his qualifications, in this case. • The Court’s Initial Discovery Protocols at ECF No. 5 delineate the categories of discovery the parties must produce in Initial Discovery, which include

“Plaintiff’s current resume(s),” and “[w]orkplace policies or guidelines relevant to the adverse action in effect at the time of the adverse action.” The Initial Discovery Protocols further provide that “[t]his Initial Discovery is not subject to objections except upon the grounds set forth in F.R.C.P. 26(b)(2)(B).” (ECF No. 5-2 at 2.) Therefore, Defendant’s objections to Plaintiff’s current resume (Exhibit 235) and the Town’s Code of Ethics and Personnel Rules & Procedures

(Exhibit 236) are overruled. E. Defendant’s Motion in Limine at ECF No. 132 For the reasons stated in the Court’s decision overruling Defendant’s objections to Plaintiff’s Exhibits 167-182, supra, Defendant’s motion in limine to preclude these Records Disposition Authorization Forms is denied as moot. F. Defendant’s Motion in Limine at ECF No. 133 Defendant’s motion to preclude Plaintiff from presenting evidence of report-writing errors of non-similarly situated employees is DENIED. Under the McDonnell Douglas framework, the plaintiff is permitted to discharge his burden through the use of direct or circumstantial evidence or a combination of both. While the evidence sought to be admitted generally must involve treatment of employees who are

similarly situated to the plaintiff, Abdu-Brisson v. Delta Air Lines, Inc., 94-CV-8494 (HB), 1999 U.S. Dist. LEXIS 16050, at *12-15 (S.D.N.Y. Oct. 19, 1999), this Court has allowed Plaintiff to proceed on his discrimination claims under the “cat’s paw” theory of liability. See ECF No. 76 at 13-14. Under this theory, “an employee may hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision. . . . The cat’s paw metaphor refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory

motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action.” Id. (internal citations and quotation marks omitted). Accordingly, although the Court finds that Officer Magagnoli and Plaintiff’s FTOs were not similarly situated to Plaintiff because they were Plaintiff’s supervisors during FTEP, based on the cat’s paw theory of liability, Plaintiff may introduce evidence and/or testimony

of report-writing errors committed by Officer Magagnoli or other FTOs at trial as circumstantial evidence of their discriminatory animus and/or intent. G. Defendant’s Motion in Limine at ECF No. 134 Defendant’s motion to preclude Plaintiff from presenting evidence of stray remarks who were not directly involved in evaluating Plaintiff’s performance is GRANTED IN PART and DENIED IN PART. 1. Identified/Known Persons In Malarkey v. Texaco, Inc., 983 F.2d 1204 (2d. Cir. 1993), the Second Circuit affirmed the district court’s decision to admit statements about a plaintiff made by non-decisionmakers within the time frame of the alleged discriminatory actions. The Malarkey Court held that it

was within a district court’s discretion to admit statements made by non-decisionmakers because they were probative of a “pervasive corporate hostility towards” the plaintiff “and supported her claim that she did not receive a promotion due to her employer’s retaliatory animus.” Id. at 1210. Additionally, even if the stray remarks were from a non-decisionmaker, it is possible that that the individual may have influenced the employees who were responsible in their decision to terminate Plaintiff.

The Court therefore finds that the probative value of stray remarks from FTOs or other identified Enfield police officers about Plaintiff is NOT outweighed by undue prejudice under Federal Rule of Evidence 403. Because the requested relief includes precluding remarks about the plaintiff during the time period at issue, the motion in limine is denied as to these individuals. 2. Unknown Persons Defendant’s motion to preclude Plaintiff from presenting evidence of stray remarks from unidentified individuals is granted without prejudice to Plaintiff’s identification at trial

of the individuals to whom the remarks can be attributed. H. Plaintiff’s Motion in Limine at ECF No. 135 Plaintiff’s motion to preclude Defendant’s witnesses “from testifying as to their opinions regarding decisions made regarding Plaintiff’s termination when such individuals and/or their observations were not part of the decision-making process leading to the termination of Plaintiff’s employment” at ECF No. 135 is DENIED WITHOUT PREJUDICE. A lay witness may testify in the form of an opinion, provided such testimony “is limited

to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or the determinations of a fact in issue.” Fed. R. Evid. 701. To the extent that Defendant elicits testimony from witnesses “that amounts to a naked speculation concerning the motivation for [the] adverse employment decision,” Federal Rule of Evidence 701(b) bars such testimony. See Hester v. BIC Corp., 225 F.3d 178, 185 (2d Cir. 2000) (holding that the admission of opinion testimony as to the defendant’s ultimate motivations was error). Defendant may elicit testimony from witnesses

as to their opinions regarding Plaintiff’s termination so long as they have personal knowledge of the facts that form the basis of their opinion and their testimony focuses solely on those objective facts. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (holding that Rule 701 allowed a former employee to opine at trial that age played a factor in the plaintiff’s termination where the witness had been defendants’ employee for almost twenty years, had worked directly under the named defendants, had been personally involved in the

procedures that led to the plaintiff’s termination, and had been present when the decision to terminate was made). Since Plaintiff merely speculates about the scope and nature of Defendant’s witness testimony at this time, Plaintiff’s motion in limine is denied without prejudice to particularized renewal during trial. I. Defendant’s Motion in Limine at ECF No. 136 Defendant’s motion to preclude “[P]laintiff from introducing testimony regarding Plaintiff’s professional qualifications from individuals who did not work with Plaintiff at the Enfield Police Department” is DENIED WITHOUT PREJUDICE.

Pursuant to Federal Rule of Evidence 403, relevant evidence may be excluded if its probative value is substantially outweighed by, among other things, a danger of unfair prejudice or needlessly presenting cumulative evidence. Under McDonnell Douglas, a plaintiff establishes a prima facie case of discrimination by showing that (1) he is a member of a protected class; (2) he is qualified for his position; (3) he suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination. Bart v. Golub

Corp., 96 F.4th 566, 570 (2d Cir. 2024). Because testimony about Plaintiff’s prior employment is probative of whether he is qualified for the position at issue, and such testimony is not outweighed by a danger of unfair prejudice, Defendant’s motion in limine is denied without prejudice to particularized renewal at trial. II. RULINGS ON DEFENDANT’S OBJECTIONS TO PLAINTIFF’S EXHIBITS1 EX. DESCRIPTION RULING 2 Benefit checklist for terminating employee – E. Chery OBJECTION WITHDRAWN 79 9/28/16 MPD Commendation – E. Chery ORR 94 Sergeant Lefebvre Memo re Plaintiff’s Expired Plates ORR (subject to overcoming hearsay objection – business record) 95 Sergeant Parent’s Affidavit iso Def’s MSJ SUS (unless used pursuant to FRE 613) 97 Plaintiff’s Resume (as submitted for employment with EPD) OBJECTION WITHDRAWN 98 MPD Record of Chery ORR 99 8/12/15 MPD Memo re Chery’s Certification of Probation ORR 100 10/13/15 MPD Rating Form – Chery ORR 101 11/01/16 MPD Rating Form – Chery ORR 102 Chery Therapy Records SUS (subject to redaction or satisfaction of FRE 803(6) (A-E)) 104 Dennis Roche Job Application for EPD ORR 105 Nicholas King Job Application and Resume for EPD EX. WITHDRAWN 106 Kevin Ragion Job Application for EPD EX. WITHDRAWN 107 List of EPD officers and demographics ORR 108 2016-17 Insurance Rates: Police Union ORR 109 2017-18 Insurance Rates: Police Union ORR 110 2018-19 Insurance Rates: Police Union ORR 111 2019-20 Insurance Rates: Police Union ORR 112 Vanessa Magagnoli Salary Record ORR 113 Keith Parent Salary Record ORR 114 Steven Prior Salary Record ORR 115 Nicholas King Salary Record ORR 116 Kevin Ragion Salary Record ORR 117 Dennis Roche Salary Record ORR 118 Timothy Gerrish Salary Record ORR 119 Roche Weekly Report: Week 1, Phase 1 ORR 120 Roche Weekly Report: Weeks 2 & 3, Phase 1 ORR 121 Roche Weekly Report: Weeks 4 & 5, Phase 1 ORR 122 Roche Weekly Report: Weeks 8 & 9, Phase 2 ORR 123 Roche Weekly Report: Weeks 11 & 12, Phase 2 ORR

1 The Court uses the following abbreviations: EX. = exhibit, ORR = overruled and SUS = sustained. 124 Roche Weekly Report: Weeks 13 & 14, Phase 3 ORR 125 Parent 12/11/17 Memo to (CC) Sferrazza re Roche ORR 126 Roche 7/31/17 DOR ORR 127 Roche 8/1/17 DOR ORR 128 Roche 8/2/17 DOR ORR 129 Roche 8/3/17 DOR ORR 130 Roche 8/5/17 DOR ORR 131 Roche 8/6/17 DOR ORR 132 Roche 8/7/17 DOR ORR 133 Roche 8/8/17 DOR ORR 134 Roche 8/13/17 DOR ORR 135 Roche 8/14/17 DOR ORR 136 Roche 8/15/17 DOR ORR 137 Roche 8/16/17 DOR ORR 138 Roche 8/17/17 DOR ORR 139 Roche 8/20/17 DOR ORR 140 Roche 8/21/17 DOR ORR 141 Roche 8/22/17 DOR ORR 142 Roche 8/23/17 DOR ORR 143 Roche 8/24/17 DOR ORR 144 Roche 8/29/17 DOR ORR 145 Roche 8/30/17 DOR ORR 146 Roche 8/31/17 DOR ORR 147 Roche 9/1/17 DOR ORR 148 Roche 9/4/17 DOR ORR 149 Roche 9/5/17 DOR ORR 150 Roche 9/6/17 DOR ORR 151 Roche 9/7/17 DOR ORR 152 Roche 9/8/17 DOR ORR 153 Roche 9/12/17 DOR ORR 154 Roche 9/13/17 DOR ORR 155 Roche 9/14/17 DOR ORR 156 Roche 9/28/17 End of Phase 1 Evaluation Summary ORR 157 Roche 10/20/17 End of Phase 2 Evaluation Summary ORR 158 Roche 11/20/17 End of Phase 3 Evaluation Summary ORR 159 Roche 11/5/17 End of Phase: Traffic Evaluation Summary ORR 166 Mitigation Summary SUS subject to redactions as to extraneous/irrelevant pages 167 5/3/18 Records Disposition Authorization Form by MOOT Community Development 168 3/21/18 RDA Form by Town Clerk MOOT 169 5/9/17 RDA Form by Public Safety/Police MOOT 170 4/28/17 RDA Form by Town Manager MOOT 171 2/7/17 RDA Form by Town Manager MOOT 172 11/9/17 RDA Form by Town Manager MOOT 173 7/28/20 RDA Form by Dir. Of Development Services MOOT 174 1/17/20 RDA Form by Town Manager MOOT 175 1/2/20 RDA Form by Town Clerk MOOT 176 1/2/20 RDA Form by Town Clerk MOOT 177 11/29/18 RDA by Town Clerk MOOT 178 12/4/23 RDA Form by Town Clerk MOOT 179 6/19/23 RDA Form by Finance/Treasure MOOT 180 10/28/22 RDA Form by Social Services MOOT 181 5/9/22 RDA Form by Town Manager MOOT 182 5/9/22 RDA Form by Town Manager MOOT 183 Plaintiff’s 2015 Tax Return EX. WITHDRAWN 184 Plaintiff’s 2016 Tax Return EX. WITHDRAWN 185 Plaintiff’s 2017 Tax Return SUS except as to W-2 188 Plaintiff’s 2020 Tax Return SUS without prejudice to being produced 189 Plaintiff’s 2021 Tax Return SUS without prejudice to being produced 191 Plaintiff’s 2023 Tax Return SUS without prejudice to being produced 192 10/23/19 Reservation of Rights Letter from Travelers EX. WITHDRAWN 193 Dept of VA BELT Assessment Certification of Training SUS 194 Dept of VA ESB Written Exam Certificate of Training SUS 195 Dept of VA OC Training Certificate of Training SUS 196 Dept of VA Bi-Annual Use of Force Certificate SUS 197 Dept of VA Standardized Training Course Certificate ORR 198 Dept of VA In Service Transcript – Police Response to SUS Sexual Assault 199 Dept of VA In Service Transcript – Duty to Intervene SUS 200 Dept of VA In Service Transcript – Crisis Intervention SUS 201 Dept of VA In Service Transcript – Fair and Impartial SUS Policing 202 Dept of VA In Service Transcript – Firearms Safety SUS 203 Dept of VA In Service Transcript FY24 OC Training SUS 204 Dept of VA In Service Transcript – FY24 ESB Written SUS Exam 205 Dept of VA In Service Transcript – FY24 Biannual use of SUS force Part 2 206 Dept of VA In Service Transcript – FY24 BELT SUS Assessment 207 Dept of VA In Service Transcript – BELT Union SUS 208 Dept of VA In Service Transcript – BELT Uniform SUS 209 Dept of VA In Service Transcript – BELT Stress Mgmt SUS 210 Dept of VA In Service Transcript – Belt Roles of VA and SUS Situational Law Enforcement 211 Dept of VA In Service Transcript – BELT First Amendment SUS Auditors 212 Dept of VA In Service Transcript – BELT Duty to Intervene SUS 213 Dept of VA In Service Transcript – BELT Biohazards SUS 214 Dept of VA In Service Transcript – BELT AB3 Intro SUS 215 Dept of VA In Service Transcript – LETC Training SUS 216 Dept of VA – Law Enforcement Training Center – Student ORR Class Transcript 235 Current Resume ORR 236 Town of Enfield Code of Ethics and Personnel Policies and ORR Procedures 237 Enfield Department of Public Safety Police Division – 2017 SUS with exception of Special Orders 2199-2200 238 Letter of Reference from F. Hall SUS 239 Affidavit of F. Hall SUS (unless used pursuant to FRE 613) III. RULINGS ON PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EXHIBITS EX. DESCRIPTION RULING 503 Officer Performing Rating 10/1/14- 9/30/15 SUS subject to production of complete document. May be offered on rebuttal. 504 Performance Management System Conference Report ORR if offered on rebuttal 505 Email between Jansen and Plaintiff, 1/3/17 ORR if offered on rebuttal 508 Letter from W. Tanner to C. Sferrazza, 5/11/17 ORR 509 Record of Training, 6/17/17 ORR IV. RULINGS ON PLAINTIFF’S OBJECTIONS TO DEFENDANT’S WITNESSES WITNESS RULING Keith Parent SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence. Carl Sferrazza SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence. Fred Hall SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence. Kevin Ragion SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence. Nicholas King SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence. Vanessa Magagnoli SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence. Steven Prior SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence. Timothy Gerrish SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence. Michael Emons SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence. Gary Collins SUS as to matters about which the witness has no personal knowledge, in the absence of an exception found within the Federal Rules of Evidence. Captain Golden ORR WITHOUT PREJUDICE to the extent that any FTEP requirements/ evaluation criteria & POST requirements are identical and necessary for Plaintiff’s certification as a police officer and witness has personal knowledge about these matters. Ralph Jensen ORR if witness is offered on rebuttal. Kelly Bolduc ORR if witness is offered on rebuttal. William Tanner ORR V. RULINGS ON DEFENDANT’S OBJECTIONS TO PLAINTIFF’S WITNESSES WITNESS RULING Pastor Sean Brown SUS Shelor Cejour ORR Christine Chambers SUS Francis Montano ORR based on new proffer and limits on testimony as contained in Plaintiff’s updated witness list. Tyesha Reese SUS Kelly Burgess SUS

SO ORDERED.

Hartford, Connecticut October 2, 2024

/s/Vernon D. Oliver VERNON D. OLIVER United States District Judge