Wanamaker v. Westport Board of Education et al

Filing 84

ORDER granting 82 Plaintiff's Motion to Strike Defendant's Supplemental Reply Brief 81 and granting in part and denying in part 83 Defendant's Motion for Leave to File a Supplemental Reply Brief. Defendant may file that portion of its supplemental reply brief limited solely to the applicability of the Supreme Courts decision in the University of Texas case. Plaintiff shall have ten days to file a response limited to this single issue. Signed by Judge William I. Garfinkel on 7/16/2013. (Smith, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SALLY J. WANAMAKER,
Plaintiff,
vs.
TOWN OF WESTPORT BOARD OF
EDUCATION,

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No. 3:11cv1791(MPS)(WIG)

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Defendant.
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RULING ON PLAINTIFF’S MOTION TO STRIKE [Doc. # 82] AND
DEFENDANT’S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL REPLY [Doc. # 83]
Without first obtaining leave of Court, on July 15, 2013, Defendant filed a Supplemental
Reply Memorandum in further support of its Motion for Summary Judgment [Doc. # 81]. As
Plaintiff correctly points out in its Motion to Strike, neither the Local Rules of this Court nor the
Federal Rules of Civil Procedure allow a party to unilaterally file a supplemental reply without
first obtaining leave of Court. Thus, this document [Doc. # 81] will be stricken.
Apparently realizing the error of its ways, Defendant then filed a Motion for Leave to File
a Supplemental Reply [Doc. # 83], attaching the very same eight-page supplemental brief and 20
pages of exhibits that had previously been filed. As before, Defendant has attached the entire
transcript of a January 29, 2013, hearing before Judge Shea, relating to discovery issues and a
spoilation of evidence issue that has minimal, if any, relevance to the pending summary judgment
motion. The only possible relevance to the summary judgment motion is found on page 16 of
Plaintiff’s Memorandum in Opposition to the Motion for Summary Judgment, in which she
states, “Though Bayers testified that he and Landon communicated by email frequently,
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Landon’s response to this memorandum has not been produced, and it [sic] has admitted to
destroying a computer he used some time in 2010.”1 Defendant responded to this statement at
length in its Reply Brief (Def.’s Reply at 18-19), attaching supplemental exhibits addressing this
matter. There is absolutely no reason for further briefing on this issue.
The other matter raised by Defendant’s Supplemental Reply Brief is the United States
Supreme Court’s decision dated June 24, 2013, in University of Texas Southwestern Medical
Center v. Nassar, — U.S. —, 133 S. Ct. 2517, 2013 WL 3155234 (June 24, 2013), which
addressed the standard to be applied in a Title VII retaliation case. Defendant maintains that the
“but-for” causation standard for retaliation claims under Title VII should also be applied to
FMLA claims.
The preferred procedure for bringing supplemental authority to the Court’s attention is
through a motion for leave to file supplemental authority. However, the Court will not require
Defendant to refile its motion. Instead, Defendant will be granted leave to file that portion of its
supplemental brief relating solely to this Supreme Court decision. Plaintiff will then be given ten

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Defendant had initially responded to an interrogatory that Landon’s home computer,
one of three computers issued to Landon by the BOE, had been replaced in 2010 and the hard
drive should have been scrubbed by the company disposing of the old computer (Pl.’s Ex. 37).
Defendant further stated that this computer was used primarily for email and was not used to
generate personnel documents (Pl.’s Ex. 37). According to the transcript of the hearing before
Judge Shea, which Defendant now seeks to introduce, defense counsel later determined that the
computer had not been discarded, Defendant amended its answers to interrogatories, and Plaintiff
was offered an opportunity to inspect the computer (Def.’s Ex. ZZ at 17-18). All of this
information, however, is set forth at length in the discussion and exhibits to Defendant’s Reply
Brief. Plaintiff has continued to claim prejudice and the entitlement to a jury instruction on
spoilation of evidence. However, that has no bearing on the pending summary judgment motion.
As Judge Shea so aptly pointed out, “I don’t think this is a discovery motion. I think it’s a
motion in limine. . . .” (Def.’s Ex. ZZ at 18).
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days to respond to this single issue.
Accordingly, the Court GRANTS Plaintiff’s Motion to Strike [Doc. # 82] and orders that
Document # 81 be stricken from the record. The Court GRANTS IN PART AND DENIES IN
PART Defendant’s Motion for Leave to File a Supplemental Reply [Doc. # 83]. Defendant may
file that portion of its supplemental reply brief limited solely to the applicability of the Supreme
Court’s decision in the University of Texas case. Plaintiff shall have ten days to file a response
limited to this single issue.
SO ORDERED, this

16th day of July, 2013, at Bridgeport, Connecticut.

/s/ William I. Garfinkel
WILLIAM I. GARFINKEL
United States Magistrate Judge

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