COSIMANO v. TOWNSHIP OF UNION et al

Filing 197

OPINION fld. Signed by Judge Jose L. Linares on 7/27/16. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT Of NEW JERSEY
MARYANNE COSIMANO,

Civil Action No.: 10-5710 (JLL)

Plaintiff,

OPINION

V.

TOWNSHIP OF UNION, et al.,
Defendants.

LINARES, District Judge.
Presently before this Court are various motions in limine filed by Plaintiff Maryanne
Cosimano and Defendants the Township of Union (the “Township”), Township Administrator

Frank Bradley (“Bradley”), and Police Director Daniel Zieser (“Zieser”). On June 15, 2016, this
Court heard oral argument on the pending motions. (ECF No. 189). The Court resolved some of
the issues on the record at the hearing, and reserved on others. (See ECF Nos. 189, 190). This
Opinion resolves the issues on which the Court reserved. An appropriate Order accompanies this
Opinion.

1. Preclusive Effect of the March 23, 2016 Arbitration Opinion and Award
a. Plaintiff is Not Permitted to Re-Litigate the Issue of her Entitlement to
Retiree Health Benefits under the CBA
The parties dispute the effect that a March 23, 2016 Arbitration Opinion and Award in a

grievance filed by PBA Local 69 (the “Union”) has on Plaintiffs ability to litigate her sex
discrimination and retaliation claims.

1

Defendants move to bar evidence offered in support of any claim of entitlement to retiree
health benefits pursuant to the CBA or alleging discrimination and/or retaliation based on the
denial of retiree health benefits. (ECf No. 176-1). Specifically, Defendants seek to exclude any
and all testimony, exhibits and the testimony of an expert witness to testify about Plaintiffs alleged
entitlement to retiree health benefits under the CBA and damages from the denial of such benefits.
(Id. at 1-2).
Defendants principally argue that Plaintiff is barred from introducing any of the abovereferenced evidence relating to her entitlement to health benefits on account of the March 23,2016
Opinion and Award of an arbitrator finding that she was not contractually entitled to retiree health
benefits, which decision has been affirmed and entered through a State Court Judgment by the
Superior Court of New Jersey. Defendants also note that Plaintiff is barred from re-litigating this
issue pursuant to Judge Hochberg’s determination that “Plaintiff may not re-litigate the issue of
what type of service qualifies for health benefits because that issue has been decided and affirmed
as to her claim.” (ECF No. 176-1, at 4, quoting ECF No. 85, Hochberg Opinion).
Although Plaintiffs opposition papers indicate that “Plaintiff has no intention of
challenging [the Arbitrator’s] interpretation,” (ECF No. 176-3 at 11), at oral argument, Plaintiffs
counsel argued that Plaintiff should not be precluded from re-litigating the arbitrator’s contractual
interpretation at trial. (ECF No. 196, “Hearing Tr.” at 18:17-22:11). In support of her position
that “the arbitrator’s determination [does not] ha[ve] any conclusive effect in this case concerning
her interpretation of the contract” (Id. at 18:17-20), Plaintiff principally relies on the seminal
Supreme Court decision of Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) and the Sixth
Circuit case of Nance v. Goodyear Tire and Rubber Co., 527 F.3d 539 (6th Cir. 2008).

2

The cases relied upon by Plaintiff stand for the proposition that a Plaintiff alleging a civil
rights violation should not be precluded from litigating her claim in court on account of an
arbitrator’s adverse ruling on a related contractual issue. This is so “[b]ecause the ‘specialized
competence of arbitrators pertains primarily to the law of the shop, not the law of the land.”
Barrentine et a!., v. Arkansas-Best Freight System, Inc., et al, 450 U.S. 72$, 742 (1981) (quoting
Gardner-Denver, 415 U.S. at 57). In Gardner-Denver, the Supreme Court held that plaintiffs

Title VII claim of race discrimination was not barred by an arbitrator’s determination that plaintiff
had been fired for ‘just cause.” 415 U.S. at 49. The Court noted that “[a]rbitral procedures, while
well suited to the resolution of contractual disputes, make arbitration a comparatively inappropriate
forum for the final resolution of rights created by Title VII.” Id. at 56. Similarly, in Nance, the
Sixth Circuit determined that an arbitrator’s finding that plaintiffs employer had properly treated
plaintiff as having “resigned without notice” under the terms of the CBA did not preclude plaintiff
from re-litigating that same issue in her lawsuit alleging a violation of the ADA. 527 F.3d at 548.
The Sixth Circuit stated that “a prior arbitration over a contractual issue [does not] preclude[] (or
‘collaterally estop[]’) a plaintiff from re-litigating that same issue in federal court.” Id.
This case, however, is distinguishable from Gardner-Denver and Nance, because
Plaintiffs sex discrimination and retaliation claims are sufficiently distinguishable from the
underlying contractual issue of whether Plaintiff was or was not entitled to retiree health benefits
based on the CBA. In fact, as Plaintiff herself has conceded: “the contract is essentially irrelevant.
All the arbitration decision means is that Cosimano can no longer assert that she is entitled to
health benefits under the contract. It has nothing to do with the sex discrimination claim[.]” (ECF
No. 176-3 at 11). Therefore, the Court finds no reason to depart from earlier rulings of this Court
that Cosimano “may not re-litigate the issues of what type of service qualifies for health benefits

3

[under the contract], because that issue has been decided and affirmed as to her claim.” (ECF No.
$5 at 5).

F or the above reasons, the Court will not permit Plaintiff to re-litigate the issue of her
entitlement to benefits under the terms of the CBA.

b. Plaintiff is Permitted to Introduce Evidence of Male Employees who
Retired Under the May 1999 Patrol Agreement and the December 2007
Superior Officer’s Agreement (“SOA”)

In support of her sex discrimination claim, Plaintiff intends to “present evidence of male
police officers and police superiors who presently receive health insurance at retirement fully paid
for by the Township with the same level of service as Cosimano” regardless of the particular
contract under which the male employees retired. (ECF No. 194 at 2). Plaintiffs argument is
grounded in her belief that despite a language change in Article VII of the CBA in the revised May
1999 Patrol Agreement, the “Insurance” provision of the CBA has remained unchanged throughout
the years. (Id.).
Defendants originally argued that “any proposed witnesses and/or exhibits relating to

.

the years of service of other retired officers should be barred as irrelevant to any claims to be heard
at trial” because the Arbitrator already determined that there was insufficient evidence to support
a “past practice” of giving male employees benefits to which they were not contractually entitled.
(ECF No. 176-1 at 11). In their supplemental briefing, Defendants note that on account of the
change in contract language which was discussed at length in Arbitrator Zauzer’s Opinion, “the
only patrol officers who could possibly be similarly situated to Plaintiff are those who retired after
May 1999, while the only Superior Officers who could be similarly situated are those who retired
after December 2007.” (ECF No. 195 at 7).
4

Although the Court notes the Arbitrator’s finding that “[t]he practice is equivocal at best”
(ECF No. 176-3, Arbitration Opinion, “Arb. Op.” at. 23), Defendants’ treatment of similarly
situated male employees is integral to Plaintiffs sex discrimination case. Thus, under GardnerDenver, Plaintiff shall be permitted to introduce evidence of similarly situated male employees
who Plaintiff alleges were treated preferentially.

The pertinent question, however, is which

employees are “similarly situated.” At this point, the Court finds that men who retired under the
CBA applicable to patrol persons after May 1999 (the CBA under which Plaintiff retired) and
superior officers who retired under the Superior Officer’s Agreement (“SOA”) after December 29,
2007 (the date that the $OA contracts began to incorporate the language contained in the updated
Patrol Agreement), are clearly “similarly situated” to Plaintiff.

Therefore, Plaintiff shall be

permitted to introduce evidence and testimony related to patrol persons who retired with health
benefits after May 1999 and superior officers who retired with health benefits after December 29,
2007, regardless of any determination may by Arbitrator Zauzer with respect to those individuals.
The Court recognizes Plaintiffs position that there should be no demarcation between
employees who retired before or after the effective date of the May 1999 Patrol Agreement, and
that under Nance and Gardner-Denver, Plaintiff should be permitted to re-litigate the effect of the
contract change before this Court with respect to her argument that similarly situated male
employees were treated differently.

At this time, the Court will reserve with respect to the

admissibility of evidence pertaining to male employees who retired prior to May 1999 (under the
patrol agreement) and December 29, 2007 (under the SOA). To the extent that Plaintiff seeks to
introduce evidence pertaining to these individuals, the Court will hold a hearing outside the
presence of the jury at the time the Plaintiff seeks to introduce that evidence. At that time Plaintiff
will be required to make a proffer as to the exact situation pertaining to the evidential value of

5

those individuals that makes them similarly situated and the evidential value of same to her
discrimination claim.
To be clear, to the extent permissible under the Federal Rules of Evidence, Plaintiff may
introduce evidence of male officers who retired under the patrol agreement after May 1999 and
under the SOA after December 29, 2007.. The Court reserves on Defendants’ motion to bar
evidence of male employees who retired prior to these dates. To the extent Plaintiff wishes to
introduce evidence of males retiring prior to May 1999 (under the patrol agreement) and prior to
December 29, 2007 (under the SOA), the Court will penriit Plaintiff to make her argument as to
the relevancy of this evidence at trial during a proffer hearing outside the presence of the jury.

c. The Cosimano and Garretson Arbitration Opinions and Awards are Not
Admissible into Evidence

Plaintiff seeks to exclude the Garretson and Cosimano arbitration awards and decisions,
arguing that such decisions are irrelevant because “[t]he arbitrator considered only whether the
contract was violated” and are likely to confuse the jury. (ECf No. 18 1-2 at 12-14).
Defendant, on the other hand, argues that “[t]he decision of the Arbitrator is controlling on
the issue of the proper interpretation of the contract, and must come into evidence in order to avoid
confusion or a conflicting resolution of the proper determination of the contract language.” (ECF
No. 18 1-9 at 15). Defendant also argues that if both sides intend to introduce the CNA into
evidence, it is critical that both the Cosimano and Garretson awards be entered into evidence so as
not to mislead the jury (Id. at 19), and moreover, that Defendants would be unfairly prejudiced if
they cannot introduce evidence that the Township was under no obligation to provide Plaintiff
with benefits (id. at 22).

6

Federal Rule of Evidence 403 compels a court to weigh the probative value of evidence
against the danger that the evidence will, inter a/ia, confuse the jury. This same standard applies
when considering the admissibility of an arbitration award. See, e.g., Garden-Denver, 415 U.S. at
60 (“The arbitral decision may be admitted as evidence and accorded such weight as the court
deems appropriate.”) (emphasis added); see also Blakey v. ContinentalAirlines, No. 93-cv-2 194,
1997 WL 152479, *9 (D.N.J. Sept. 9, 1997) (“There is no requirement that a court must allow an
arbitration decision to be admitted at all.”). Given the overlapping nature of the arbitration awards
and the claim at issue in this matter, the Court finds that introduction of the arbitration awards
would only serve to confuse the jury. Accordingly, the Court will bar both the Garretson and
Cosimano arbitration awards and opinions from being marked into evidence for the jury’s review.
This is not to say, however, that if relevant and appropriate, Defendants will be barred from
informing the jury of the award in another manner that complies with the rules of evidence.
Moreover, because the Court has already ruled that Plaintiff will not be permitted to re-litigate the
issue of her entitlement to health benefits under the contract, the majority of Defendants’
arguments as to the admissibility of the arbitration opinions are moot. As to Defendants’ concern
that they will not be permitted to put on a defense without introducing the contract into evidence,
the Court simply notes that there are more manageable ways, as for example a jury instruction
from the Court, to advise the jury of the arbitrators’ detenriination without introducing the opinion
and award itself into evidence.
In summary, the Court will bar the introduction into evidence of the arbitration opinions or
awards document pertaining to Officers Garretson and Cosimano.

2. Defendants are Not Permitted to Introduce Evidence of their Treatment of Officer
Garretson
7

Aside from Plaintiffs motion to bar admission of the Garretson arbitration award
(discussed above), Plaintiff seeks to “exclude all testimony, exhibits, and any other evidence
concerning any events subsequent to the date Cosirnano filed her Complaint.” (ECF No. 181-2 at
17). Plaintiff cites to several cases in support of her position that “non-discriminatory actions
taken by Defendants, subsequent to the filing of a discriminatory Complaint is not admissible”
because “{s]uch actions have no probative value.” (ECF No. 18 1-11 at 21). Thus, Plaintiff
maintains that Defendants’ treatment of Officer Garretson (and the resulting arbitration award in
the Township’s favor) have “no probative value and is misleading” since the Garretson grievance
was filed after Plaintiff initiated this action, thereby putting Defendants on notice that their actions
were subject to scrutiny.
At oral argument, the Court asked Defense counsel how the Garretson evidence is relevant
to whether or not Plaintiff was discriminated against. (Hearing Tr. at 50:15-16). Defense counsel
responded that “it is relevant to the issue of did the Township correctly interpret the contract, which
was that plaintiff was not eligible for benefits at the time she retired and to which we’re treating
everybody consistently, yes, we are, we’re treating everyone consistently.” (Id. at 50:17-22).
Stated differently, Defendants argue that “the evidence that Defendants seek to introduce will
confirm that the Township was both correct and consistent in its interpretation of the contract and
in its treatment of all officers who sought retiree health benefits.” (Id. at 34).
Because the Court has already determined that Plaintiff will be precluded from re-litigating
the issue of her entitlement to retiree health benefits under the tenTis of the CBA, Defendants’
argument that the Garretson award is relevant to the contractual interpretation issue is moot. The
remaining question is whether Defendants shall be permitted to offer the treatment of Officer
Garretson to support their position that they treated all officers, regardless of their sex, consistently.
8

The Court has reviewed the cases cited by Plaintiff and finds same support the general
proposition that subsequent non-discriminatory actions taken by an employer after the employer
becomes alerted to a pending discrimination action are rarely relevant circumstantial evidence.
Lam v. Univ. of Hawai’i, 40 F.3d 1551, 1561 n. 17 (9th Cir. 1994) (“[I]t is clear that

nondiscriminatory employer actions occurring subsequent to the filing of a discrimination
complaint will rarely even be relevant as circumstantial evidence in favor of the employer.”);
C/wang v. Univ. of California Davis, Bd. of Trustees, 225 f.3d 1115, 1129-30
Gonzalez v. Police Dep’t, City ofSan Jose, 901 F.2d 758, 76 1-62

(9th

(9th

Cir. 2000);

Cir. 1990)). Citing to some

of the case law relied upon by Plaintiff in this action, the Third Circuit recently spoke to the
probative value of a defendant’s post-filing, non-discriminatory actions. Patterson v. Strippoli,
2016 WL 231532 (3d Cir. Jan. 20, 2016). In Patterson, an inter-racial couple filed a 1983 claim
against a councilman alleging that the councilman enforced an ordinance against them on account
of their inter-racial relationship. In denying the defendants’ motion for summary judgment, the
Court found that evidence offered by the defendant that he enforced the ordinance against noninterracial couples after Plaintiffs filed their complaint was “not probative of whether the
Pattersons were treated differently before the suit was filed.” Id. at *4

As in Patterson where the Third Circuit found the defendant’s similar treatment of non
interracial couples after the complaint was filed to be “non-probative,” this Court finds that the
Defendants’ treatment of Officer Garretson over a year after this action was filed is similarly non
probative as to Plaintiffs sex discrimination claim. Thus, the Court will not permit Defendants to
offer any evidence as to their decision to deny Officer Garretson retiree health benefits.

3. Evidence Relating to Other Alleged Acts of Discrimination Against Plaintiff
9

Defendants move to bar evidence and testimony pertaining to the following alleged acts of
harassment or discrimination against Plaintiff:
(1) the allegation that since Cosirnano became a Union Township Police Officer in 1990,
she has been the only Officer who did not receive a properly fitting bullet-proof vest despite
making frequent complaints, and the allegation that all males received properly fitting
vests;
(2) on february 29, 2000, Cosimano’s supervisor was required to drafi a memorandum
explaining the basis for the superior rating of Cosimano and this had never been done to a
superior supervising a male;
(3) on January 30, 2001, Cosimano was asked to drafi a memorandum concerning her need
to relieve herself in the bathroom while on police surveillance and no male police officer
had ever been required to do so; and
(4) in 2012 Cosirnano was discriminatorily stripped of her title as Detective, despite
positive evaluations and work performance.
Defendants maintain that the prior incidents of alleged discrimination are not relevant to
Plaintiffs case or otherwise inadmissible because: (1) the decision-makers involved in those
incidents were different decision-makers than those involved in the decision to deny Plaintiff
retiree health benefits and therefore do not show Defendants’ intent; (2) the incidents are too
remote in time to be relevant; (3) they are not bearing on discriminatory intent since they do not
clearly (that is, unambiguously) evidence a discriminatory state of mind; (4) Plaintiff does not
offer any evidence other than her own testimony to support the discriminatory nature of these
incidents; and (5) the incidents are improper propensity evidence.
In response, Plaintiff argues that these incidents are highly relevant as circumstantial
evidence of Defendants’ discriminatory animus.1

As to Defendants’ remaining arguments,

Plaintiff retorts that these issues go to the weight of the evidence rather than admissibility, and
notes that Defendants will be able to flesh out any weaknesses through cross-examination.

At oral argument, Plaintiffs counsel conceded that incidents in which the Individual Defendants Zieser and
Bradley were not involved carmot be used to prove their intent. (Hearing Ir. at 64:23-65:6).

10

Only “relevant” evidence is admissible at trial. See fed. R. Ev. 401. Relevant evidence
is any evidence that “has any tendency to make a fact more or less probable than it would be
without the evidence” and “the fact is of consequence in determining the action.” Id. “Rule 401
does not raise a high standard.” Harley v. Atlantic City Police Dep ‘t, 174 f.3d 95, 109-110 (3d
Cir. 1999).
first, the Court finds that evidence relating to Cosimano’s demotion is relevant to her sex
discrimination claims. Unlike the other incidents which occurred as long as ten years prior to
Plaintiffs retirement and prior to the Individual Defendants’ employment, Plaintiffs demotion
was the event immediately precipitating her retirement, and was a decision issued while the
Individual Defendants were employed by the Township. Therefore, Defendants cannot seriously
dispute that Plaintiffs demotion and the facts surrounded that demotion are relevant to her instant
claims.

Accordingly, to the extent such evidence is appropriate under the federal Rules of

Evidence, Plaintiff shall be permitted to offer evidence pertaining to her belief that her demotion
from the Detective position was an act of sex discrimination.
With regards to the remaining three incidents identified above, the Court notes at the outset
that to the extent these incidents cannot be tied to the Individual Defendants Zieser and Bradley,
Plaintiff may not use these incidents as evidence of their discriminatory animus. See, e.g., Ezold
v. Woif Black Schoor and Solis-Cohen, 983 f.2d 509, 547 (3d Cir. 1993) (holding that “several

stray remarks by a nondecisionmaker over a period of five years, while inappropriate, were
[in]sufficient to prove that [defendant law firm’s] associate evaluation and partnership admission
process were so infected with discriminatory bias that such bias more likely motivated [the law
firm’s] promotion decision than its articulated legitimate reason”). Plaintiffs counsel conceded
this point at oral argument. (See Hearing Tr. 64:23-65:6).

11

What is less clear is the relevance of the three other incidents to Plaintiffs sex
discrimination claim as against the Township. Plaintiff is entirely correct that she is entitled to
support her claim of sex discrimination by pointing to circumstantial evidence that the Township
discriminated against her based upon her sex. However, circumstantial evidence in the context of
an NJ LAD claim must “support an inference of discrimination.” Brown v. Cottnty of Passaic,
2014 WE 2533768, *5 (N.J. Super. Ct. App. Div. June 6, 2014).

To that end, where the

discriminatory nature of proposed circumstantial evidence is ambiguous at best, the Third Circuit
has affirmed the court’s decision excluding that evidence. See Martin v. Port Authority, 115 Fed.
Appx. 556, 558-59 (3d Cir. 2004) (holding that magistrate judge did not abuse her discretion in
excluding testimony relating to an alleged discriminatory remark made by the father of plaintiffs
supervisor and where the “comment did not contain any derogatory racial epithets; [and] in fact.
did not even mention race”); see also Lee v. Jackson, Civ. No. 11-195, 2013 WE 2062246, *10
(E.D. Pa. May 14, 2013) (“Plaintiffs personal opinion that the comments show anti-Chinese bias
is simply insufficient.”).
In this case, Plaintiff has not identified any evidence to support her testimony that the first
three incidents identified above could support an inference of sex discrimination. That is, Plaintiff
has not pointed to any facially derogatory statement by any individual whose actions can be
attributed to the Township, nor has she offered any evidence that males were in fact not subjected
to the same treatment. Plaintiff would ask the jury to infer, based solely on her own testimony,
that each of the first-three incidents happened to her and her alone because she is a woman. The
Court finds this logic to be too attenuated to support an inference of discrimination.
Even if these incidents presented clear evidence of sex discrimination as against the
Township, the Court finds that the prejudice that such evidence would have on the Individual

12

Defendants—even with the benefit of a limiting instruction—would be great. Moreover, given the
remoteness of these incidents, the Court credits Defendants’ argument that it would be unfeasible
to cull together witnesses or other evidence tending to discredit the alleged discriminatory nature
of these incidents.
For the above reasons, to the extent such evidence is otherwise appropriate under the
Federal Rules of Evidence, the Court will permit Plaintiff to present evidence and testimony
pertaining to the reasons for her demotion in her case-in-chief but will bar Plaintiff from
introducing evidence or testimony in her case-in-chief pertaining to: (1) whether she was denied a
properly fitted bullet proof vest because of her sex; (2) the requirement that her supervisor explain
the reason for Plaintifrs high marks; or (3) the memorandum explaining her need to take a
bathroom break.

4. Evidence of Alleged Harassment/Retaliation of Other Individuals

Defendants have moved to bar any “testimony and evidence pertaining to other alleged
harassment, retaliation, discrimination and mistreatment of individuals other than Plaintiff.” (ECF
No. l$01).2 Specifically, Defendant has moved to bar evidence pertaining to: (1) “an e-mail
drafied by the Deputy Chief Landolfi in 2007 concerning meetings about a management program”
and (2) “generalized claims of retaliation allegedly made by Officer DiGena.” (Id. at 1). In
summary, Defendant asserts that this evidence is irrelevant, unduly prejudicial, inadmissible
character evidence, and too speculative to be probative. (Id. at 2).

2

Defendants had also moved to bar all testimony and evidence pertaining to other legal proceedings; however,
Plaintiffs counsel has withdrawn any request to introduce evidence pertaining to an earlier litigation. (Hearing Tr.
at 56:9-11). Accordingly, Plaintiff will not be permitted to introduce any evidence pertaining to the matter of
Gilteece v. Twsp of Union, Civ. No. 08-2795 (D.N.J. 2010).

13

According to Plaintiff, this evidence pertains to her claim for retaliation under Section
1983—specifically, that she was denied retiree health benefits out of retaliation for filing a
grievance with respect to her 2010 demotion.
Plaintiff argues that under the McDonnell Dottglas burden shifting test, applicable to
Section 1983 claims, the above “[e]vidence of past retaliation towards employees due to union
activity is circumstantial evidence that makes it more likely that Defendants harbored retaliatory
intent in [hen case.” (ECF No. 180-3 at 4-5). Moreover, Plaintiff alleges that because this
evidence is indicative of Defendants’ retaliatory intent (and not, as Defendants allege, to show
Defendants’ propensity to act a certain way) it is probative of her retaliation claim. The Court
addresses both pieces of proposed evidence, below.

a. The 2007 Landolfi E-Mail

Plaintiff seeks to introduce an e-mail from Police Captain Richard Landolfi to PBA
President David Dougherty dated November 10, 2007 in support of her retaliation claim. Plaintiff
identifies this e-mail, which the Court has reviewed (ECf No. 180-2 at 4) as “describ[ing] the poor
treatment and hostile work environment of the police department in regards to union activity.”
(ECF No. 180-3 at 5). According to Plaintiff, “Landolfi’s statement shows that the Department
harbored resentment for employees who engaged in union activity.

.

.

.“

(IcL).

Defendants argue that Plaintiff mischaracterizes the content of this e-mail. (ECF No. 1804 at 1). That is, Defendants state that “the statement itself makes no reference to union activity,”
that “there is not one word in the entire e-mail referencing union activity or hostility toward union

14

activity,” and that “the author of the e-mail testified that the e-mail does not reference or relate to
any claim of anti-union animus or hostility.” (Id. at I -2).
Having reviewed the e-mail, the Court agrees with Defendants that the e-mail does not
reference any discrimination or hostility towards a union member based on union activity.4 The
Court also notes that Plaintiff has not refuted Defendants’ point that the e-mail’s author has
testified that the e-mail does not refer to any discriminatory treatment on account of union activity.
Further, Plaintiff has not proffered any evidence supporting her position that this e-mail in any
way sheds light on Defendants’ alleged discriminatory animus. In fact, in the Final Pretrial Order,
Plaintiff has indicated that she intends to call Landolfi in her case-in-chief, but has not indicated
that he will testify as to the contents or meaning of this e-mail. (ECf No. 161-1 at 94,

¶ 10).

For these reasons, the Court finds that this evidence suffers from the same ailment as
several of Plaintiffs proposed evidence of prior acts of discrimination against her as discussed
above—specifically, this e-mail does not tend to show Defendants’ discriminatory animus towards
union members, and therefore cannot be relevant to Plaintiffs retaliation claim. Accordingly, the
Court will grant Defendants’ motion to bar evidence and testimony pertaining to the 2007 Landolfi
e-mail in Plaintiffs case in chief.

b.

Testimony of Officer DiGena

This Court has already ruled with respect to some of PBA President, Officer Leonardo
DiGena’s statements.5 (ECF No. 57, 3-4). According to Plaintiff, “Officer DiGena testified in his

Defendants cite to the deposition testimony of Landolfi and indicate that same is attached to the Certification of
Robert J. Menyman at Exhibit A. (ECF No. 180-1). The Court has not been able to locate an Exhibit A on the docket.
The e-mail complains “[e]ven after being treated as we have, no contract, job-in-blue taken away and just generally
being treated poorly and working in a hostile [indecipherable].” The e-mail also states that Landolfi is “proud of what
the Union has done and proud to continue to be a member.” However, the e-mail does not reference retaliatory or
discriminatory conduct based upon union activities.
On January 24, 2012, Judge Shwartz wrote: “[a]s to Mr. DiGena, the witness may testify consistent with his
deposition on the subjects about which he was deposed.”

15

deposition that he experienced animosity and hostility due to his union activity. He also testified
that he had knowledge that other employees experienced similar animosity and hostility due to
union activity.” (ECF No. 180-3 at 7). Although conceding that “DiGena did testify that it was
his belief that the administration has expressed animosity towards the positions taken by the
union,” Defendants argue that “the specific instances [DiGena’s deposition] addressed.

.

.

did not

result in any adverse action against DiGena personally; did not result in DiGena filing any
complaint with the Police Department, initiating the grievance process, or making any formal
allegation against Defendants or any other individual; and did not involve allegations of any
harassment, retaliation, discrimination, or mistreatment.” (ECF No. 180-4 at 4).
Plaintiff maintains that “[i]t is well within Officer DiGena’s personal knowledge to testify
as to how his union activity affected the way in which his supervisors treated him.” (ECF No. 1803 at 13).

The Court agrees.

As to Defendants’ arguments that DiGena’s testimony is

unsubstantiated, Defendants are free to address said weaknesses through counsel’s argument and
during their cross-examination. Thus, to the extent permitted by Magistrate Judge Shwartz (see
ECf No. 57, at 3-4), the Court will permit the introduction of this evidence in Plaintiffs case in
chief, so long as that testimony is otherwise appropriate under the Federal Rules of Evidence.
For the above reasons, the Court grants in part and denies in part both Parties’ Motions in
Limine.6 An appropriate Order accompanies this Opinion.

IT IS SO ORDERED.

DATED:

July_‘2016

6

The Court notes that the final request in Plaintiffs motion (that “Plaintiff [sic] should not be permitted to un
stipulated facts previously stipulated to and produce all documents concerning retired employees who receive health
benefits and a list of their prior employment”) has been referred to Magistrate Judge Dickson.

16

I