Clukey v. Town of Camden
| Decision Date | 19 July 2016 |
| Docket Number | No. 2:11-cv-372-JHR,2:11-cv-372-JHR |
| Parties | ALAN CLUKEY, Plaintiff v. TOWN OF CAMDEN, Defendant |
| Court | U.S. District Court — District of Maine |
The parties have submitted motions in limine for my consideration before the trial of this matter begins on July 25, 2016. The defendant has filed one motion that addresses 13 different issues. The plaintiff has submitted two motions.
The defendant "seeks to exclude any and all medical records." Defendant's Motion at 1-4. The plaintiff responds that he "conditionally concedes the Town's bid to exclude medical records][,]" so long as the town does not refer to or offer into evidence any of his medical records. Plaintiff's Opposition to Defendant's Motions in Limine ("Plaintiff's Opposition") (ECF No. 91) at 5. Plaintiff's concern notwithstanding, I see no suggestion by the defendant in its motion that it will "attempt to cherry pick records and information helpful to its burden of proof while excluding medical records that aid the plaintiff." Id. The motion to exclude the plaintiff's medical recordsis GRANTED without objection. Should either party, nonetheless, attempt to use any portion of the medical records at trial, I will deal at that time with any objections that may be raised.
The defendant seeks to bar any testimony from Dera Clukey, the plaintiff's wife, regarding the effects on her of the events of which the plaintiff complains. The plaintiff does not respond to this request, which accordingly is GRANTED without objection.
The defendant also states, without elaboration, that "[a]ny observations by [Dera Clukey] of Plaintiff must establish [that] they are related to not obtaining the jobs, not the layoff itself." Defendant's Motion at 4. The plaintiff objects to this, and asserts that Id. at 2.
To the contrary, the collective bargaining agreement (CBA) that is the basis of the plaintiff's claims cannot reasonably be read to require the defendant to "mitigate or eliminate" any adverse effects of the plaintiff's layoff, which was the cause of his unemployment. The CBA specifically contemplates layoffs. Agreement Between Town of Camden and Camden Police Benevolent Association (ECF No. 1-2) Article 19 § 3. The only obligation imposed on the town after an employee covered by the CBA is laid off is to abide by that employee's recall rights for 12 months from the date of the layoff. Id. The layoff itself was not a violation of the CBA, nor of the plaintiff's property interest in his dispatcher job. See, e.g., Dunn v. County of Erie, No. 92-CV-0511E(M), 1993 WL 499694, at *3 (W.D.N.Y. Nov. 24, 1993). The alleged failure of the townto observe the plaintiff's recall right, in which both this court and the First Circuit2 have held that he had a constitutionally-protected property interest, is the injury in this case, and the only cause of damages about which the plaintiff may offer evidence.
The defendant next seeks to exclude "any testimony relating to any other employee and whether or not that employee was recalled[.]" Defendant's Motion at 4. The fact that all of the town's police dispatchers, of which the defendant was one, were laid off at the same time appears to me to be quire relevant, as is the possible fact that neither of the others was recalled or that one or more of them was recalled. Beyond that, the extent of the defendant's request is unclear. The plaintiff says that one of the other dispatchers did provide the town with his address in writing, which the plaintiff admittedly did not do. Plaintiff's Opposition at 6. Such testimony also appears to be relevant.
If the defendant means that other dispatchers, or other unidentified town employees, should not be allowed to testify about their own attempts to find work after being laid off and the effect on them of not being recalled, the motion appears to have merit. In any event, because the intended scope of the motion is unclear, I will reserve ruling until the employees are presented, if they are in fact presented, to testify at trial. When and if such a witness is to be called by the plaintiff, theplaintiff's attorney shall approach sidebar before initiating questioning of the witness so that this issue may be resolved before any testimony is heard by the jury.
Without discussion, the defendant asserts that it "seeks to exclude any settlement documents/discussions including any request by Plaintiff as part of a settlement to rehire the employee." Defendant's Motion at 4. The plaintiff responds that he intends to offer a letter written in 2009 from his attorney to the town asking that he be hired as a parking enforcement officer and offering in exchange to forbear from suing the town. Plaintiff's Opposition at 7. He contends that this was not an attempt to settle a claim because "[a]t the time, there was nothing to settle." Id.
Federal Rule of Evidence 408(a) prohibits admission of evidence "either to prove or disprove the validity . . . of a disputed claim or to impeach . . . furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim[.]" The language of the letter as described by the plaintiff fits easily within this description. He says that the letter will be proffered as "evidence of his attempt to find comparative work," Plaintiff's Opposition at 7, but that is not all that the letter shows. The fact that the letter came from his attorney and that it offered not to sue in exchange for being rehired makes the letter precisely what the Rule prohibits. The plaintiff can testify that in 2009 he asked the town in writing to hire him as a parking enforcement officer and that the town did not do so. That establishes the existence of "an attempt to find comparative work" without the objectionable trappings found in the letter itself. Should the town attempt to impeach the plaintiff's testimony, the plaintiff may renew his motion to admit the letter.
The defendant contends that the plaintiff "should not be allowed to discuss how the litigation of his recall rights affected him emotionally." Defendant's Motion at 4. The plaintiff responds that the emotional distress that he has suffered due to the litigation was foreseeable when the town failed to honor his right to recall and that he can, therefore, "explain the emotional burden [that] the litigation has imposed upon him." Plaintiff's Opposition at 7.
The defendant correctly states the law applicable to this claim by the plaintiff. E.g., Soto-Lebrón v. Federal Express Corp., 538 F.3d 45, 60 n.15 (1st Cir. 2008) (). The plaintiff may not recover for the emotional distress caused by this litigation and, as a result, may not testify about it.
The defendant seeks to bar any testimony from Michael Weed. Defendants Motion at 5. The plaintiff says that Weed "will not be on the plaintiff's final witness list." Plaintiff's Opposition at 7. I take that to mean that the plaintiff will not call Wood to testify. The defendant's motion is therefore moot.
The defendant seeks to exclude any testimony from Paul Spear, a former dispatcher who was given the parking enforcement position to which the plaintiff contends that he was entitled "without filing an application for employment in order to allow the transfer of the fire dispatcher . . . to a police dispatcher without filing a job application." Defendant's Motion at 5. This event apparently occurred six years before the plaintiff was laid off. Id. The fire department is notcovered by the CBA at issue here. Id. The defendant asserts that testimony about this event is irrelevant. Id.
The plaintiff responds that Spear's anticipated testimony "would establish recent fabrication by the Town of its unilateral interpretation of the CBA provisions[,]" and that the plaintiff's knowledge of these events "was a contributing factor to Clukey's perception of not be[ing] valued as an employee and to his diminished self-esteem." Plaintiff's Opposition at 8.
It is only the town's failure to recall the plaintiff after the layoff that may be considered by the jury as a cause of the plaintiff's emotional distress; events that occurred six years previously are not relevant to this claim.
It is not clear whether the CBA under which the plaintiff was employed was also in effect at the time of Spear's transfer; if it was not, the anticipated testimony is not relevant to the plaintiff's claim for that reason and too attenuated in time as well. It may be relevant that the town has in the past allowed transfers between departments, but that testimony could be provided by a current town official without the need to call Spear. There is the potential for the specific details of that transfer to confuse the issue before the jury and outweigh their possible relevance. If such testimony were allowed, it would be up to counsel for the town to make the point that what might be allowed under the contracts is not the same as what the current CBA requires the town to do.
In any event, given the lack of necessary information in the parties' submissions, counsel are directed to approach sidebar if and when the plaintiff wishes to call Spear to testify so that I may rule on the...
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