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Clukey v. Town of Camden

United States District Court, D. Maine

July 19, 2016

ALAN CLUKEY, Plaintiff[1]
v.
TOWN OF CAMDEN, Defendant

          MEMORANDUM DECISION ON MOTIONS IN LIMINE

          John H. Rich III United States Magistrate Judge.

         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.

         I. The Defendant’s Motion

         A. Medical Records

         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 records is 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.

         B. Dera Clukey

         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 “Dera Clukey’s testimony should not be limited by parsing the difference between the effects of ‘not obtaining the jobs, not the layoff itself.” Plaintiff’s Opposition at 5. He refers to an earlier portion of his opposition, which I take to be that, even though he concedes that his layoff “was contractually permissible[, ]” [t]he Town was obligated to mitigate or eliminate the adverse impact of Clukey’s unemployment.” 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 town to observe the plaintiff’s recall right, in which both this court and the First Circuit[2] 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.

         C. Other Employees

         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, the plaintiff’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.

         D. Settlement Discussions

         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.

         E. Alan Clukey

         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) (citing Knussman v. Maryland, 272 F.3d 625, 641 (4th Cir. 2001), for the proposition that “[g]enerally speaking, litigation-induced emotional distress is never a compensable element of damages.”). The plaintiff may not recover for the emotional distress caused by this litigation and, as a result, may not testify about it.

         F. Michael Weed

         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.

         G. Paul Spear

         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 ...


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