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MORGENSTERN v. COUNTY OF NASSAU
GEORGINA MORGENSTERN, Plaintiff,
v.
COUNTY OF NASSAU, THOMAS R. SUOZZI, ANTHONY M. CANCELLIERI, PATRICIA BOURNE, and JOHN P. DONNELLY, Defendants.
04-CV-0058(JS)(ARL).
United States District Court, E.D. New York.
September 29, 2008.
Scott Browning Gilly, Esq., Douglas Holden Wigdor, Esq., Kenneth P. Thompson, Esq. Jihee Gillian Suh, Esq. Thompson, Wigdor & Gilly LLP, New York, New York, For Plaintiff.
Esther D. Miller, Esq., Joanne L. Oweis, Esq, Bethany Bresnaider O'Neill, Esq, Erica Michelle Haber, Esq, Nassau County Attorney's Office Mineola, New York, For Defendants.
MEMORANDUM AND ORDERSEYBERT, District Judge: Plaintiff Georgina Morgenstern filed a Complaint on January 8, 2004 alleging that the County of Nassau ("County"), Thomas R. Suozzi ("Suozzi"), Anthony M. Cancellieri ("Cancellieri"), Patricia Bourne ("Bourne"), and John P. Donnelly ("Donnelly") (the "Individual Defendants") (collectively, the "Defendants") violated Plaintiff's right to due process and freedom of speech, breached their employment contract with Plaintiff, violated the New York Civil Service Law, defamed Plaintiff, and retaliated against Plaintiff for complaining of sexual harassment in the workplace. Pending before the Court is Defendants' motion for summary judgment and Plaintiff's motion to strike the affidavits of Lorna Goodman, Donald Hohn, and Edward Mellina. For the reasons stated below, the Court GRANTS Defendants' motion for summary judgment in part and DENIES it in part, DENIES Plaintiff's motion to strike Goodman and Hohn's Affidavit, and GRANTS Plaintiff's motion to strike Mellina's Affidavit. I. Motion To Strike Affidavits Defendants submit the affidavits of Lorna Goodman, Donald Hohn, and Edward Mellina in support of their Rule 56.1 Statement of Material Facts. Plaintiff moves to strike the affidavits on the ground that Defendants did not disclose these three affiants pursuant to Federal Rule of Civil Procedure 26(a) as persons with knowledge of the claims and defenses in this case. Because Defendants rely on the affidavits in support of their motion for summary judgment, the Court addresses Plaintiff's motion to strike as a preliminary matter. A. Standard Of Review Federal Rule of Civil Procedure 37(c)(1) states, "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, . . . unless the failure was substantially justified or is harmless." The purpose of Rule 37(c)(1) "is to prevent the practice of 'sandbagging' an adversary with new evidence." Ventra v. United States, 121 F.Supp.2d 326, 332 (S.D.N.Y. 2000) (citingJohnson Electric North America v. Mabuchi Motor America Corp., 77 F.Supp.2d 446, 458 (S.D.N.Y. 1999)). However, it is well recognized that "preclusion of evidence pursuant to Rule 37(c)(1) is a drastic remedy and should be exercised with discretion and caution." Ebewo v. Martinez, 309 F.Supp.2d 600, 607 (S.D.N.Y. 2004).
1. This incident is discussed in greater detail in the "Background" portion of this Order. 2. This decision is without prejudice to Plaintiff making a motion pursuant to Rule 5-102(c) in the event that this case proceeds to trial and Defendants utilize Goodman as trial counsel. 3. The Court notes that Plaintiff has made a cursory argument on the last page of her opposition papers that summary judgment should be denied because of Defendants' spoilation of key e-mails. The Court rejects this argument. The destruction evidence is a serious claim, and can result in sanctions such as denial of a summary judgment motion. See Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93 (2d Cir. Conn. 2001). Nonetheless, the Court finds that Plaintiff has failed to meet her burden of showing that a spoilation occurred. Plaintiff does not allege who wrote or sent the e-mails, what the e-mails were about, and why they are relevant to Plaintiff's case. Plaintiff's four sentence argument that Defendants deleted key e-mails, without more, is insufficient to show spoilation. It is entirely unclear that any relevant e-mails were destroyed, and therefore the Court cannot deny summary judgment based on spoilation. See Alaimo v. TWA, Inc., No. 00-CV-3906, 2005 U.S. Dist. LEXIS 1530, at *9 (S.D.N.Y. Feb. 1, 2005) ("Since plaintiff has not establish[ed] that the records and documents she sought ever existed, there can be no finding of spoilation of evidence."). 4. Kampe provided the following deposition testimony:
Q. [W]hat are the [probationary] week durations? A. I believe it's eight to 26 weeks. Q. Eight weeks being the minimum, 26 weeks being the maximum? A. Correct. Q. So depending on the nature of the position, just to clarify, an employee can be given a probationary period between eight weeks and 26 weeks, is that correct? A. That's correct. Q. Do you know if there's a standard probationary period for a position of urban planner? A. I would assume for the moment, without looking at the rules, that that comes under the general eight to 26 weeks. Corr testified: A. Well, there's a Section 10 of the collective bargaining agreement talks about employee must serve 26 weeks before they — I'd have to read it. I'd have to pull it out and read it. It talks about 26 weeks of service before they become- I don't know if it says permanent, but I know it's before they get their disciplinary protections. Q. Is there any provision in that rule that provides exceptions to the 26 weeks? A. Yes. Q. What are those exceptions? A. It says unless longer or fewer, something like that. Q. So that rule provides there can be a probationary period that is less than 26 weeks, correct? A. It looks that way. Q. Twenty-four weeks can be a probationary period, correct? A. Correct. 5. Once the Court determines, as a matter of law, that an employee's speech relates to a matter of public concern, "defendants may nevertheless escape liability if they can demonstrate that . . . the public employee's expression was likely to disrupt the government's activities and that the harm caused by the disruption outweighs the value of the public employee's expression." Skehan, 465 F.3d at 106 (citing Cobb v. Pozzi, 352 F.3d 79, 91 (2d Cir. 2003). The Court, however, does not undertake this analysis as the Defendants have made no argument in support thereof. Seeid.; Reuland, 460 F.3d at 418-19. 6. Cancellieri testified as follows:
Q. Did you ever have any discussions with Mr. Suozzi about [the December 4, 2003 microphone] incident that the people reported to you? A. Yes. Q. When did you first have a discussion with Mr. Suozzi about it? A. I don't know if it was a few days later, I informed him of what had transpired, and that I had ordered that this employee, because of the misconduct and the misuse of the property, of the County property, be terminated. So it was more of an informational thing. Cancellieri Dep. 93:19-94:6.
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