Palma v. Pharmedica Communications, Inc., Civil No. 3:00CV1128(AHN) (D. Conn. 3/27/2002), Civil No. 3:00CV1128(AHN).
| Decision Date | 27 March 2002 |
| Docket Number | Civil No. 3:00CV1128(AHN). |
| Court | U.S. District Court — District of Connecticut |
| Parties | RENE M. PALMA, v. PHARMEDICA COMMUNICATIONS, INC. |
In this action, the Plaintiff, Rene M. Palma ("Palma"), alleges that her employer, Pharmedica Communications, Inc. ("Pharmedica"), violated her rights under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.
Presently pending before the court are Pharmedica's motion for summary judgment [doc. #25] and Palma's motion to strike the affidavits attached to Pharmedica's motion for summary judgment [doc. #32]. For the following reasons, Palma's motion to strike is DENIED and Pharmedica's motion for summary judgment is GRANTED in part and DENIED in part.
Rene Palma began working for Pharmedica in December 1990 as an Administrative Assistant to the company's President and CEO, Lawrence Timmerman ("Timmerman"). Shortly thereafter, she assumed the duties and title of bookkeeper as well. In 1995, Pharmedica promoted her to the position of Assistant Accounting Manager. From 1990 until her termination in 1998, Palma's salary increased steadily from $28,000 to $46,000.
When Palma started working at Pharmedica, the company employed less than 50 people and thus was not subject to the requirements of the FMLA. The company grew over the years and became subject to the provisions of the FMLA in 1998.
In September 1998, Palma's doctor told her that she needed gall bladder surgery. She informed her supervisor of her need for the surgery and that she would have to take time off to recuperate. At that time, Palma also asked if it would be possible for her to work three half days a week after she returned from surgery until she was fully recuperated. Palma's supervisor told her that she could not work reduced hours because it would set a precedent for the whole company. Later, the day before her surgery, Palma again asked if she could work half days when she returned to work after her surgery, but her supervisor turned down her request.
Palma underwent surgery on November 20, 1998. On December 2, 1992, her doctor gave her a note stating that she was sufficiently recovered to return to "light duty" work for half days for approximately two weeks. At that point, Palma contacted the U.S. Department of Labor ("DOL") to ascertain her rights. The DOL told her that her employer would violate the FMLA if it did not permit her to work reduced hours.
Palma returned to work on December 7, 1998. She gave her supervisor the doctor's note, and again requested that she be permitted to work three half days a week. When her supervisor denied the request, Palma suggested she contact the DOL.
According to Palma, her supervisor consulted counsel, and Palma was allowed to work half days. Because she was intimidated and concerned, she refrained from working additional half days after December 11, 1998 even though her doctor recommend she do so.
On January 22, 1999, Palma was terminated. Palma alleges that Pharmedica interfered with the exercise of her rights under the FMLA and terminated her employment in retaliation for seeking leave under the FMLA.
Pharmedica writes at length about its accomodation of Palma's requests for time off for health reasons and to care for her parents prior to her surgery in 1998. Pharmedica repeatedly allowed Palma to borrow time from an upcoming year when she had exhausted all of her leave time for the current year. Pharmedica also details problems and dissatisfaction with Palma's job performance throughout her employment.1 Pharmedica states that Palma refused to take courses in accounting even though her supervisors repeatedly asked her to do so. Also, Pharmedica alleges that Palma was often a "difficult" and insubordinate employee who did not get along with her supervisors.
Palma moves to strike the affidavits (the "Affidavits")2 attached to the Defendant's motion for summary judgment on the grounds that they were not disclosed to Plaintiff until Defendant moved for summary judgment on July 12, 2001, even though Plaintiff had requested such documents in earlier discovery requests.3 Further, Plaintiff claims the affidavits differ substantially from deposition testimony given by the same individuals who submitted the affidavits. Plaintiff has also moved to strike John Datsko's affidavit because it is not based on personal knowledge.
Pharmedica responded initially to the discovery requests in January 2001, but did not disclose these affidavits until moving for summary judgment a month after discovery ended. Plaintiff argues that under Rule 37(c)(1), "a party that without substantial justification fails to disclose information required by Rule 26(a) or Rule 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed." Plaintiff argues that allowing Defendant to use these affidavits in support of the summary judgment motion would result in "ambush" which courts shun. See Allen v. Bake-Line Products, Inc., 2001 WL 883693 *7 (N.D. Ill. Aug. 6, 2001); Suber v. Pitney Bowes Inc., 1999 WL 102815 n. 6 (S.D.N.Y. Feb. 26, 1999).
Defendant argues that the affidavits "were not clearly encompassed" within the scope of the document requests. Defendant further argues that even if the affidavits did fall within the discovery requests, it complied by making a timely disclosure. Most of the affidavits were executed just days before being disclosed to the Plaintiff. Two of the affidavits, however, were executed in March and June of 2001.
Defendant reads the document requests as asking for documents which were a factor in the termination and, Pharmedica maintains, would only encompass documents in existence prior to or at the time of termination. This is a misreading of the requests. It is clear that the requests asked for documents relating to the incidents that were a factor in the termination and thus, the affidavits would be included among those documents. Defendant is correct that it "seasonably" amended its discovery responses. This does not appear to be a situation where the defendant was withholding documents in order to ambush the plaintiff. It is likely that the documents were created solely to support the summary judgment motion and would not have existed but for that motion. Furthermore, the Plaintiff deposed the affiants and had a full opportunity to explore the facts known to each.
In McNerney v. Archer Daniels Midland Company, 164 F.R.D. 584, 587 (W.D.N.Y 1995), the court held that preclusion under Rule 37(c)(1) is "a drastic remedy and should only be applied in cases where the party's conduct represents flagrant bad faith and callous disregard of the federal rules." That is not the case here.
The court also finds unpersuasive Plaintiff's argument that the Affidavits should be stricken because they differ from the affiants' previous deposition testimony. Although "it is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment," Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987), striking the affidavits would be inappropriate here. Any alleged discrepancies between the deposition testimony and the affidavits do not reach the level of inconsistency cited in Mack and the Defendant has put forth sufficient explanation of any possible discrepancies. The court also finds it significant that the cases cited by Plaintiff involve inconsistent affidavits submitted by the non-moving party. In those cases, the courts refused to allow the conflicting affidavits to create subsequent issues of fact in order to survive summary judgment. That differs substantially from the situation here.
Palma's additional objection to Datsko's affidavit likewise lacks merit. She offers no examples of statements in the affidavit that were not based on personal knowledge. Moreover, in his affidavit, Datsko specifically refers to his presence in the Pharmedica office, thus establishing first hand knowledge of the facts to which he swears.
In a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A court will grant summary judgment if a review of the record "`show[s] that there is no genuine issue as to any material fact.'" Miner v. City of Glen Falls, 999 F.2d 655, 661 (2d Cir. 1993) (citation omitted). "A dispute regarding a material fact is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson, 477 U.S. at 248), cert. denied, 506 U.S. 965, 113 S.Ct. 440 (1992). Summary judgment is appropriate if the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court resolves "all ambiguities and draw[s] all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide." Aldrich, 963 F.2d at 523. Thus, "[o]nly when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
Pharmedica moves for summary judgment on Counts One and Two of Palma's complaint, which allege interference with the exercise of rights under the FMLA and retaliatory discharge under the FMLA.4 At oral argument, Palma agreed not to pursue the interference/entitlement...
To continue reading
Request your trial