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Castelluccio v. IBM - Plaintiff's Motion to Preclude
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Castelluccio v. IBM - Plaintiff's Motion to Preclude

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61-year old employee claimed IBM's internal investigation by human resources should be precluded from introduction at trial because its probative value was far outweighed by its prejudicial effect and …

61-year old employee claimed IBM's internal investigation by human resources should be precluded from introduction at trial because its probative value was far outweighed by its prejudicial effect and its introduction to the jury would result in confusion and delay.

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  • 1. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 1 of 21 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT JAMES CASTELLUCCIO, Plaintiff vs INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant. : : : : : : : : : CIVIL ACTION NO. 3:09 CV 1145 (TPS) NOVEMBER 22, 2013 PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO PRECLUDE IBM’S OPEN DOOR EVIDENCE Plaintiff James Castelluccio (“Mr. Castelluccio”) seeks to preclude the introduction of any and all evidence concerning the investigation conducted by International Business Machines Corporation (“IBM”) in response to Mr. Castelluccio’s claim of age discrimination. The proposed evidence includes: handwritten notes prepared by IBM’s Human Resources personnel during interviews with IBM employees; a report that purports to summarize IBM’s investigation and make findings as to whether IBM discriminated against Mr. Castelluccio; and testimony of the investigation and findings (collectively the "Open Door Evidence"). The bases for Mr. Castelluccio’s Motion, as more fully set forth below, are that the probative value of the Open Door Evidence is far outweighed by its prejudicial effect, and its introduction to the jury will result in confusion and delay. Facts This facts section is divided into two parts. First, the background facts upon which Mr. Castelluccio’s civil rights claim is based are summarized. Thereafter, the facts pertinent to this Motion to Preclude the Open Door Evidence are discussed in detail.
  • 2. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 2 of 21 Facts Leading up to the Open Door Investigation Mr. Castelluccio was terminated by IBM after 40 years of employment – his entire professional career – when he was 61 years old. For approximately sixteen months prior to his termination in June 2008, Mr. Castelluccio endured repeated acts of unfair treatment by his direct supervisor, Joanne Collins-Smee, ("Ms. Collins-Smee") motivated by age discrimination. On or around February 22, 2007, in Mr. Castelluccio’s first face-to-face meeting with Ms. Collins-Smee, she began by asking Mr. Castelluccio his age, and then inquired as to whether he was old enough to bridge to retirement. Mr. Castelluccio strongly replied that he had no desire to retire and that he was committed to continuing to work. Despite the clarity of his response, Ms. Collins-Smee pressed Mr. Castelluccio on this question on two other occasions when she was meeting with him alone. At the time of Ms. Collins-Smee’s statements, Mr. Castelluccio had not considered retirement or discussed retirement with his prior supervisors. It is undisputed that under IBM’s own practices and procedures, it was inappropriate for Ms. Collins-Smee to ask Mr. Castelluccio his age. Indeed, Mr. Castelluccio testified that Ms. Collins-Smee’s conduct, especially after he had emphatically explained he wished to continue working, implied to him that she believed he was too old to do his job. At the time of Ms. Collins-Smee’s first statement, Mr. Castelluccio was approximately one week shy of his 60th birthday. While under Ms. Collins-Smee’s supervision, Mr. Castelluccio was removed from two positions by her without a single negative performance review. The first position from which Mr. Castelluccio was removed was Vice President of Public Sector Delivery. As the VP of Public Sector, Mr. Castelluccio was responsible for overseeing the delivery of IT service to over thirty 2
  • 3. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 3 of 21 IBM accounts. Ms. Collins-Smee determined to remove Mr. Castelluccio from this position in February of 2007, but did not disclose this fact to him until she had hired his successor four months later in June of 2007. Mr. Castelluccio was replaced in this position by Mr. Miguel Echavarria, ("Mr. Echavarria") who at the time was 49 years old. The second position from which Mr. Castelluccio was removed was Senior Delivery Project Executive (“DPE”) of the WellPoint account. He was first assigned to this position at the same time he was serving as VP of Public Sector. The WellPoint service contract was universally regarded at IBM as a deeply troubled contract on which IBM was losing tens of millions of dollars annually. In addition, Michael Morin (“Mr. Morin”), the DPE assigned to the WellPoint account prior to Mr. Castelluccio, had raised significant concerns about IBM’s handling of the WellPoint account and its failure to allocate the necessary resources for this account. As a result of the overwhelming strain that the position placed on Mr. Morin, a long-term IBM executive, resigned from IBM on March 20, 2007. Upon Mr. Morin’s resignation, Ms. Collins-Smee instructed Mr. Castelluccio to immediately assume Mr. Morin’s duties on a temporary basis while the search for his replacement ensued. IBM had great difficulty finding an appropriate candidate to replace Mr. Morin. Wellpoint’s CIO, Mark Boxer (“Mr. Boxer”), rejected four executives IBM recommended for the position, all between the ages of 44 and 55, for various reasons, including what he perceived to be a lack of qualifications. Accordingly, in addition to continuing to serve as VP of Public Sector, Ms. Collins-Smee formally designated Mr. Castelluccio as “acting DPE” for WellPoint in April of 2007. Mr. Castelluccio therefore continued to perform two full-time positions: VP of Public Sector and DPE of WellPoint, throughout April, May and part of June 2007. During this same time period, Mr. Castelluccio was also required to perform substantial 3
  • 4. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 4 of 21 work on two company-wide workforce reduction initiatives. These initiatives were complex and required a great deal of his time and energy during April and May of 2007. Ms. Collins-Smee was certainly aware of the extraordinary demands these multiple assignments placed upon Mr. Castelluccio. Indeed, one of her peers counseled Ms. Collins-Smee in an email stating that the work she had assigned to Mr. Castelluccio would cause him to “implode”. As of June 2007, Mr. Castelluccio believed that he had been assigned as the new DPE of WellPoint. However, discovery revealed that his assignment was viewed as “temporary” by Ms. Collins-Smee, IBM and WellPoint. In early September 2007, IBM considered Gordon Crawford, then 59 years old, for the WellPoint DPE position. WellPoint approved the selection of Mr. Crawford as its new DPE in mid-September 2007, which assignment was to be effective in January of 2008. Again, Ms. Collins-Smee elected not to share this decision with Mr. Castelluccio for months. On or about November 21, 2007, Ms. Collins-Smee informed Mr. Castelluccio for the first time that he was being replaced as DPE of WellPoint. When Mr. Castelluccio asked Ms. Collins-Smee about his future with IBM during this meeting, she again told him that he was eligible to bridge to retirement. Mr. Castelluccio again informed Ms. Collins-Smee that he wished to continue working, to which Ms. Collins-Smee responded that she would assist him in finding a new position at IBM. As of this date, Mr. Castelluccio was never given another assignment by Ms. Collins-Smee. He was considered “on the bench,” which is the term IBM applies to its executives who do not have a specific role or defined full time responsibility. On or about May 20, 2008, after Ms. Collins-Smee had demonstrated for months that she had no intention of helping Mr. Castelluccio find a position, Ms. Collins-Smee asked Mr. Castelluccio to meet with her. At this meeting, she informed Mr. Castelluccio that she had 4
  • 5. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 5 of 21 decided to terminate him effective June 30, 2008 unless he found a new position within IBM. Ms. Collins-Smee did not indicate that Mr. Castelluccio’s termination was due to poor job performance, in fact, just months prior, Mr. Castelluccio had been given a performance review in which Ms. Collins-Smee awarded him a “2”, designated as a “solid performer.” In this meeting, Ms. Collins-Smee unilaterally raised the issue of retirement and questioned Mr. Castelluccio for a third time about his interest in retiring. Despite never having received an unfavorable performance review, Mr. Castelluccio’s personnel records created at the time of his termination revealed that the reason for termination was poor job performance, not his alleged failure to find a position. IBM again took this position in its defense of Mr. Castelluccio’s age discrimination complaint filed with the EEOC and the New York Department of Human Rights. Subsequently, IBM revised its story and again claimed to have terminated Mr. Castelluccio for failure to find a position within IBM. The Open Door Investigation In or about June 2008, Mr. Castelluccio reported to the IBM Human Resources department that he perceived that he was being discriminated against on the basis of his age. (Ex. I). 1 Mr. Russell Mandel (“Mr. Mandel”), IBM’s Consulting Human Resources Professional, conducted an “Open Door” investigation into Mr. Castelluccio’s report of discrimination. According to IBM, “[t]he intent of the [Open Door] process is to ensure an objective and thorough review of the issues. The process will not make legal determinations. It will, however, determine whether the employee was treated fairly.” (emphasis added)(Ex. A at IBM00094690). At trial, IBM intends to introduce evidence related to the Open Door investigation. (Joint Trial Memorandum dated Sept. 13, 2013, Docket #133). This evidence includes: Mr. Mandel’s handwritten notes of interviews he conducted with IBM employees (Ex. B): Mr. Mandel’s Open 1 References to Exhibits contained herein are to Exhibits to the Affirmation of Mark R. Carta, filed herewith. 5
  • 6. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 6 of 21 Door Report, which summarizes his investigation and states his findings (Ex. C); and Mr. Mandel’s testimony regarding the investigation and findings. (Joint Trial Memorandum dated Sept. 13, 2013, Docket #133, p. 11). The Open Door Evidence lacks sufficient indicia of trustworthiness. Not only was it not conducted by a neutral party, but Mr. Mandel had been informed during the investigation by Mr. Castelluccio that he was prepared to take additional action on his age discrimination claim depending on the outcome of the investigation. Although the investigation purported to address the issue of age discrimination, it is almost entirely focused on justifying Ms. Collins-Smee’s prior decision to terminate Mr. Castelluccio. The notes of his interviews prepared by Mr. Mandel reflect, at best, unreliable hearsay. They are cryptic and are neither acknowledged nor sworn to. As discussed in more detail below, the Open Door Investigation is further tainted by the absence of any proscribed procedures and the selective “evidence” considered by Mr. Mandel. Mr. Mandel did not interview any clients of Mr. Castelluccio’s, nor his previous manager. Mr. Mandel also failed to consider Mr. Castelluccio’s performance review, despite the fact that Mr. Castelluccio had complained that it was not handled properly. Mr. Mandel also indicated that he would discontinue his investigation if Mr. Castelluccio signed a release in favor of IBM. Finally, although he twice requested the opportunity to meet with Mr. Mandel, Mr. Castelluccio was denied the opportunity to address the criticisms aimed at him. As Judge Burns found in Duse v. Int’l Bus. Machines Corp. 748 F. Supp. 956, 963-64 (D. Conn. 1990), IBM’s Open Door investigations can in no way be characterized as a fair adjudication of an employee’s claim. Mr. Mandel’s Open Door report is divided into seven numbered sections. In section II, titled “PERSONS INTERVIEWED,” Mr. Mandel lists IBM employees, including Mr. Castelluccio and Ms. Collins-Smee, with whom he spoke during his investigation. Section III, 6
  • 7. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 7 of 21 titled “INVESTIGATION” is broken down into two subsections: “Performance” and “Placement.” These sections summarize Mr. Mandel’s investigation regarding Mr. Castelluccio’s job performance and the steps allegedly taken by Ms. Collins-Smee to help Mr. Castelluccio find a position within IBM. In section IV, titled “ISSUES,” Mr. Mandel concludes that none of Ms. Collins-Smee’s actions were the result of age discrimination. (Ex. C). According to the handwritten notes that Mr. Mandel made of his interviews with Ms. Collins-Smee, she claims that she did not raise the issue of retirement with Mr. Castelluccio. In over twenty pages of interview notes, that is the only reference arguably related to Mr. Castelluccio’s claim of age discrimination. Neither the phrase “age discrimination” nor the word "age" appears anywhere in Mr. Mandel's notes. Mr. Castelluccio’s last day at IBM was June 30, 2008. Mr. Mandel completed his investigation on or about August 5, 2008, approximately five weeks after Mr. Castelluccio’s last day at IBM, and eleven weeks after Mr. Collins-Smee advised him that he was to be terminated. Based on this investigation, Mr. Mandel concluded that Mr. Castelluccio was treated fairly. On August 11, 2008, Mr. Mandel sent Mr. Castelluccio a two sentence letter, advising him that he had concluded that management had treated Mr. Castelluccio “fairly” with respect to his termination. This decision was communicated to Mr. Castelluccio by letter dated August 11, 2008. Mr. Castelluccio was not provided with any details for the basis of this conclusion until IBM responded to his discovery requests in connection with this action. Legal Argument The Admissibility of the Open Door Evidence Should be Assessed According to the Standards Applied by the Second Circuit in its Paolitto Decision The admissibility of human resource department investigations in subsequently filed employment lawsuits is addressed in a limited number of cases. Although these decisions hold 7
  • 8. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 8 of 21 that such evidence is admissible, their analysis is generally limited to determining whether the reports and investigative notes are hearsay, and if so, whether they fall within the business records exception to the hearsay rule. See, e.g., Brauninger v. Motes, 260 Fed. Appx. 634, 637638 (5th Cir. 2007)(investigation documents are business records); Crimm v. Missouri Pacific R. Co., 750 F.2d 703, 709 (8th Cir. 1984)(investigation documents are not hearsay and/or are business records); Mendez-Nouel v. Gucci Am., Inc., 10 CIV. 3388 PAE, 2012 WL 5451189 (S.D.N.Y. Nov. 8, 2012) aff'd on other grounds, 12-4896-CV, 2013 WL 5584317 (2d Cir. Oct. 11, 2013)(investigation report is a business record); (Byrd v. Lynch, CV-10-0247 2011 WL 2680572 at *6 (D.N.J. 2010)(statements made to an investigator are not hearsay). The majority of the cases which address this issue do so in the context of deciding motions for summary judgment. However, in a case such as this, where the investigative reports and notes will be considered by the jury as opposed to a court, the danger of prejudice is greater. 2 Assuming, for the sake of argument, that IBM is able to lay a foundation sufficient to establish Mr. Mandel’s notes and report as business records, Mr. Castelluccio submits that this alone should not end the Court's inquiry as to whether this evidence is properly presented to the jury.3 In support of this contention, Mr. Castelluccio draws the Court’s attention to a line of 2 Some courts that have also ruled that human resources investigations are not hearsay when the evidence is not being offered to prove the truth of the statements therein, but to show what the decision makers believed when they made the decision to terminate the plaintiff. Vahos v. General Motors Corp., 06CV6783 (NGG)(SMG) 2008 WL 2439643 (E.D.N.Y. 2008); Barney v. Consolidated Evid. Co. of N.Y., CV 99-823 (DGT)(SMG) 2009 WL 6551494 (E.D.N.Y. 2009). These cases are inopposite. IBM’s Open Door investigation is not probative of what Ms. Collins-Smee believed when she decided to terminate Mr. Castelluccio because it was begun after Ms. Collins-Smee had already decided to terminate him. Ms. Collins-Smee advised Mr. Castelluccio on May 20, 2008 that he would be terminated on June 30, 2008, for his failure to find a position within IBM. Not only was Mr. Mandel’s investigation conducted after Ms. Collins-Smee’s decision was made, it did not address the grounds for Ms. Collins-Smee’s decision. As is clear from the Open Door Report, Mr. Mandel’s investigation focused on Mr. Castelluccio’s performance and Ms. Collins-Smee’s failure to help him find a position. This is evinced by the fact that Mr. Mandel interviewed numerous witnesses on the issue of job performance and dedicated nearly two single-spaced pages of the Investigation section of his report to this issue. (Ex. C). As IBM’s Open Door Report was both subsequent and unrelated to Ms. Collins-Smee’s decision, it cannot be said to be probative of why Ms. Collins-Smee made her decision to terminate Mr. Castelluccio. 3 Mr. Castelluccio acknowledges that evidence of IBM's Open Door process was considered by the court in the case of O'Brien v. Int'l Bus. Machines, Inc.[sic], CIV. 06-4864(FLW), 2009 WL 806541, n.17 (D.N.J. Mar. 27, 2009). Mr. Castelluccio asserts that this holding is not binding on this court for two reasons: (1) the case was decided outside of this District; and (2) the case is distinguishable in that the open door evidence was considered by the court in the context of a motion for summary judgment, as 8
  • 9. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 9 of 21 analogous cases that address the admissibility of Connecticut Commission on Human Rights and Opportunities (“CHRO”) findings. As detailed below, these courts scrutinized the proposed evidence to determine not only whether it qualified as a hearsay exception, but also whether its probative value exceeded its prejudicial effect. The Open Door Evidence should be scrutinized under this same standard. Fed. R. Evid. 403 states, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” In Paolitto v. John Brown E & C, Inc., 151 F.3d 60 (2d Cir. 1998), the Second Circuit applied this rule in deciding whether the district court had erred by excluding evidence of the findings and investigative file of the CHRO. The court began its review by stating that “the fact that evidence is within an exception to the hearsay rule does not by itself make it admissible per se.” Paolitto at 64. Rather, Judge Winter noted that district courts have discretion to exclude such hearsay evidence on the grounds that its probative value is substantially outweighed by the danger of unfair prejudice. Id. (citing Fed. R. Evid. 403). In affirming the district court’s exclusion of the evidence, the court stated: we believe that the district court is in the best position to consider the quality of the report, its potential impact on the jury, and the likelihood that the trial will deteriorate into a protracted and unproductive struggle over how the evidence admitted at trial compared to the evidence considered by the agency. Id. (citations omitted). The court observed that this level of analysis is consonant with the Eighth Circuit’s observation that “employment-agency determinations ‘are not homogeneous opposed to by a jury at trial, making the potential for prejudice much more significant. Further, the O’Brien court did not analyze the documents for indicia of reliability beyond their qualifications as business records. 9
  • 10. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 10 of 21 products; they vary greatly in quality and factual detail.’” Id. at 65 (quoting Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309 (8th Cir. 1984)). Recently, Magistrate Judge Margolis was called upon to consider the same issue in the case of Doe v. University of Connecticut, 3:09 CV 1071 JGM, 2013 WL 4504299 (D. Conn. Aug. 22, 2013). After reviewing the Paolitto decision, Judge Margolis additionally reviewed the decisions of three Connecticut District Courts and summarized the analysis that each court employed in their consistent rulings to exclude agency reports. Judge Margolis observed that in Keene v. Hartford Hosp., 208 F. Supp. 2d 238 (D. Conn. 2002) Judge Janet C. Hall’s inquiry into the admissibility of a CHRO reasonable cause determination included a careful review of the agency document for trustworthiness, considering the following, “(1) the timeliness of the investigation; (2) the special skill or experience of the official; (3) whether a hearing was held and the level at which conducted; [and] (4) [any motive of the investigator inconsistent with accuracy].” Keene at 243 (alteration in original). Judge Hall concluded her analysis noting that “[u]ltimately, the court has the discretion to determine ‘whether the hearsay document offered in evidence has sufficient independent indicia of reliability to justify its admission.’” Id. (quoting City of New York v. Pullman Inc., 662 F.2d 910, 914 (2d Cir. 1981)). Judge Margolis observed that the same type of scrutiny was applied by Judge Ellen Bree Burns in the case of Barlow v. State of Connecticut, 319 F. Supp. 250 (D. Conn. 2004)(aff’d on other grounds, 148 Fed. Appx. 31 (2d Cir. 2005)). Judge Burns disallowed a CHRO report on the grounds that it was “based largely on unreliable hearsay, and what plaintiff stated.” Id. at 258. Judge Burns further reasoned that, “because this court has all the same evidence before it that [the investigator] considered in making her reasonable cause determination, this court finds that 10
  • 11. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 11 of 21 there is little probative value relying on [the CHRO’s] conclusions and therefore strikes [the] reasonable cause finding from the record.” Id. Finally, Magistrate Judge Margolis considered the case of Adams v. Yale New Haven Hospital, No. 3:06 CV 1166 HBF, 2008 WL 358644, at *1 (D. Conn., Feb. 8, 2008) where Magistrate Judge Holly B. Fitzsimmons likewise declined to consider a CHRO reasonable cause finding, because “no witnesses had been called, and because a final determination had not been made by the CHRO that discrimination occurred.” Adams at *3. Based on these decisions and the in-depth analyses that they employed, Magistrate Judge Margolis excluded from evidence a CHRO finding of no probable cause. Doe v. University of Connecticut, 3:09 CV 1071 (JGM), 2013 WL 4504299, at *19 (D. Conn. Aug. 22, 2013). IBM’s Open Door Evidence should, at a minimum, be subject to the same scrutiny that the above-referenced courts applied to CHRO findings. Despite the fact that CHRO proceedings are conducted by a neutral party and according to statutorily mandated procedures, courts in this district have repeatedly excluded CHRO findings based on a lack of reliability of the evidence, inclusion of hearsay, the absence of procedural regularity, and incompleteness of the investigation. IBM's Open Door process suffers from these deficiencies and more. As set forth more fully below, IBM's investigation is not carried out by a neutral party, and appears to be little more than an attempt to justify the earlier decision to terminate Mr. Castelluccio. Further, the Open Door Investigation was not conducted according to fixed procedures, applied no evidentiary standards or burdens of proof, and afforded no right of cross examination. The conclusions set forth in the Open Door Report are reached by an investigator who has complete discretion to determine the scope of the investigation and the information he selects to include in his report. The hearsay notes he takes of his ex parte interviews are neither verified, nor sworn 11
  • 12. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 12 of 21 to by the interviewees. IBM's Open Door Evidence lacks all indicia of a meaningful adjudication, and as such lacks probative value and should be excluded from evidence. Mr. Castelluccio anticipates that IBM will seek to distinguish the CHRO cases on the grounds that they apply the Public Records exception to the rule against hearsay (Fed. R. Evid. 803(8)) whereas the Open Door documents are potentially admissible under the Business Records exception (Fed. R. Evid. 803(6)). However, the Second Circuit addressed this issue squarely, stating that “[t]he principal precondition to admission of documents as business records pursuant to Fed.R.Evid. 803(6) is that the records have sufficient indicia of trustworthiness to be considered reliable.” Saks Int'l, Inc. v. M/V Exp. Champion, 817 F.2d 1011, 1013 (2d Cir. 1987) and “[a]ny exception to the rule against hearsay … is to be applied in a commonsense manner, subject to the district court’s sound exercise of discretion in determining whether the hearsay document offered in evidence has sufficient independent indicia of reliability to justify its admission.” City of New York v. Pullman Inc., 662 F.2d 910, 914 (2d Cir. 1981)(citations omitted). Mr. Castelluccio requests that the court exercise its discretion and carefully review IBM’s Open Door Evidence to determine its reliability and admissibility. The Prejudice that Mr. Castelluccio will Suffer as a Result of the Open Door Evidence Outweighs its Probative Value The Open Door Evidence lacks sufficient indicia of trustworthiness to be considered reliable. At the outset, it is important to note that the investigation was not conducted by a neutral party and there was an obvious potential bias in the investigation. Not only was it conducted by an IBM employee, but there is reason to believe that he was motivated by something other than accuracy. The investigation of Mr. Castelluccio's claim was begun after Ms. Collins-Smee had already made a decision to terminate Mr. Castelluccio and was not concluded until months after Mr. Castelluccio had left IBM. While Mr. Mandel was still in the 12
  • 13. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 13 of 21 process of conducting his investigation, Mr. Castelluccio sent him an email inquiring as to the status of the investigation and requesting for the second time that he be given an opportunity to respond to any information that Mr. Mandel had received during his witness interviews. In this email, Mr. Castelluccio made it clear that he was prepared to take “additional actions” depending upon the results of the investigation. He stated: I think this period is significant and the non-actions very relevant to my claim of wrongful termination with an underlying age discrimination. The actions during this entire 18 month period were in direct conflict of long established practice/policy as has been preached to management throughout my 30+ years with IBM. I am awaiting your response before considering what, if any additional actions I may need to take. (Ex. F) Mr. Mandel was therefore, aware that Mr. Castelluccio might file an age discrimination lawsuit against IBM, and accordingly, had a motive to conclude that Mr. Castelluccio’s claims of age discrimination were unfounded. The very procedures by which IBM conducts its Open Door investigation also call into question the trustworthiness and probative value of the Open Door Evidence. IBM describes its Open Door Program as follows: The Open Door process reviews actions or inaction by management which directly related to and affect an employee. All issues, except policy decisions and operational business issues, are eligible for review under this process….The intent of the process is to ensure an objective and thorough review of the issues. The process will not make legal determinations. It will, however, determine whether the employee was treated fairly. (Ex. A at IBM00094690 ). The Connecticut District Court has had the opportunity to review IBM’s Open Door procedure to evaluate its ability to provide parties with a method of adjudicating disputes. Judge Ellen Bree Burns concluded as follows: IBM's Open Door process does not provide for any similar adjudicatory-style hearings in which an employee's grievances are resolved. IBM's Open Door 13
  • 14. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 14 of 21 process provides for only a limited investigation into an alleged grievance, in which a senior level manager conducts informal, ex parte interviews with persons who may have knowledge concerning an employee's complaint, obtains relevant information from other sources, and determines on the basis of such information whether the employee has been treated appropriately under the company's policies. There are no hearings. No evidence is offered, and there is no opportunity for an employee to conduct direct or cross-examination of witnesses. Such a procedure can hardly be called a ‘method of adjudicating disputes’…. Duse v. Int'l Bus. Machines Corp., 748 F. Supp. 956, 963-64 (D. Conn. 1990). This criticism of IBM’s Open Door Investigation is validated by a review of IBM’s own documents outlining the Open Door procedures. According to IBM’s U.S. Concerns and Appeals Program, “the individual responsible for the process has sole discretion to determine the scope of any investigation which may be required.” (Ex. A at IBM00094691). It states further, “under normal circumstances, the investigator should interview both the employee initiating the Open Door and his/her management…[and that] the investigator should consider interviewing others who may have relevant first-hand knowledge of the facts and circumstances…[h]owever, the investigator reserves the right to determine with whom he/she will speak during the investigation.” (emphasis added). (Ex. A at IBM00094692). Not only is the entire process left up to the discretion of a biased party, but there are no real procedural requirements, merely recommendations as to what the investigator “should consider” doing under “normal circumstances.” These undefined procedures undermine both the integrity of the Open Door process, and the conclusions reached under it. With regard to the investigation of Mr. Castelluccio's age discrimination claim, Mr. Mandel's findings were based on his notes of unsworn statements by interviewees of his choosing. Significantly, despite the fact that Mr. Mandel focused his investigation primarily on Mr. Castelluccio's job performance, as opposed to Ms. Collins-Smee's age bias, he neglected to interview Mr. Castelluccio's previous manager or a single client. Moreover, the individuals that 14
  • 15. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 15 of 21 he did interview had involvement in only two of the thirty accounts over which Mr. Castelluccio had responsibility. Other than unsworn statements, there was no evidence received. Most conspicuously missing were Mr. Castelluccio's formal annual performance reviews, including the one prepared by Ms. Collins-Smee. The significance of Mr. Castelluccio’s reviews was acknowledged in the testimony of Patricia O'Malley, who was produced by IBM as a Fed. R. Civ. P. 30(b)(6) witness knowledgeable on IBM's policies and procedures relating to discrimination complaints and Open Door procedures. She testified that if an employee expressed a concern regarding his performance review, it would be appropriate for an investigator to consider the review as part of the Open Door investigation. (Ex. D). Mr. Castelluccio was not given an opportunity to question the employees who Mr. Mandel interviewed, nor was he permitted to know what they discussed. Twice during the pendency of the investigation, Mr. Castelluccio contacted Mr. Mandel to inquire as to its progress and request an opportunity to respond to any criticisms leveled against him. (Exs. E, F). He was never given this opportunity. The disingenuousness of the Open Door process is evident in many respects, but perhaps most markedly in IBM's policy to discontinue the investigation if the complaining employee agrees to sign a release in favor of IBM. (Ex. A at IBM00094691).4 In the case of Mr. Mandel’s investigation of Mr. Castelluccio’s age discrimination claim, Mr. Mandel stated he intended to discontinue his investigation if Mr. Castelluccio agreed to provide IBM with a general release. Specifically, Mr. Mandel’s email states, “if he signs the release, he gets the money, and I stop investigating.” (Ex. G). If the goal of IBM's Open Door investigation were truly to ferret-out 4 IBM's U.S. Concerns and Appeals Program states, "[h]owever, any employee that has fully executed a separation or other agreement releasing IBM from all claims is not eligible to use any of the appeals process for any issues that occurred before they signed the separation agreement.” (Ex. A at IBM00094691). 15
  • 16. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 16 of 21 acts of discrimination, its investigations would terminate upon its determination of whether illegal wrongdoing had occurred, not upon its determination that it would not be sued. IBM's Open Door investigation lacks procedural and evidentiary integrity, provides no right of cross examination or hearing, and is conducted by the very entity accused of wrongdoing. Any and all evidence of IBM's investigation and the conclusions reached lacks all indicia of trustworthiness and accordingly, has no probative value. Although IBM may be able to establish that the Open Door Evidence falls within an exception to the hearsay rule, "[t]he district court generally has discretion to exclude such hearsay on other grounds, such as where the probative value is substantially outweighed by the danger of unfair prejudice." Paolitto v. John Brown E. & C. Inc., 15 F.3d 60, 64 (2d Cir. 1998). Such is the case here. As set forth more fully below, Mr. Castelluccio will be prejudiced by the introduction of this meaningless, misleading and confusing evidence. Mr. Castelluccio respectfully request that this Court consider the decisions of other Courts within this District and subject the Open Door Evidence to the same scrutiny that has been applied to CHRO findings. The Open Door Evidence should not be put before the jury. IBM will likely argue that it requires the Open Door Evidence to show: Mr. Castelluccio’s performance; that an investigation was conducted into Mr. Castelluccio’s claim; that Ms. Collins-Smee made efforts to assist Mr. Castelluccio find a position; and that Ms. Collins-Smee was counseled for “having confused issues in her assessment of Mr. Castelluccio’s performance.” These are all issues that can be addressed by IBM at trial. In the parties Joint Trial Memorandum, IBM identified three witnesses it intends to call to testify regarding Mr. Castelluccio’s performance, Joanne Collins-Smee, Keenie McDonald and David Liederbach. (Joint Trial Memorandum dated Sept. 13, 2013, Docket #133, pp. 9-11). Mr. Castelluccio is willing to stipulate to the fact that IBM investigated Mr. Castelluccio’s claim. Ms. Collins-Smee 16
  • 17. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 17 of 21 and Keith Holmes were identified as witnesses who will testify regarding efforts that were allegedly made to assist Mr. Castelluccio find a new position. (Joint Trial Memorandum dated Sept. 13, 2013, Docket #133, pp. 9-11). Lastly, Ms. Collins-Smee is well-suited to testify as to how she may have confused issues in her performance review of Mr. Castelluccio. As Judge Burns suggested in Barlow v. State of Connecticut, 319 F. Supp. 250, 258 (D. Conn. 2004)(aff’d on other grounds, 148 Fed. Appx. 31 (2d Cir. 2005)), IBM is at liberty to present at trial the same evidence considered by Mandel. This would result in allowing the jury to hear all the relevant facts in the proper context of a trial with its time-honored safeguards. The Open Door Evidence will Confuse the Issues at Trial and Mislead the Jury Evidence is also properly excluded under Fed. R. Evid. 403 where it can be shown that it will confuse the jury by leading it to believe that an adjudication has already been made on the issue before it. Guidi v. Inter-Cont'l Hotels Corp., 95 CIV. 9006 (LAP), 2003 WL 1907904 at *1 (S.D.N.Y. Apr. 16, 2003)("Rule 403 is also properly utilized to prevent the jury from reaching its decision based on a prior finding—in essence, ratifying the earlier decision—instead of basing its verdict on the evidence presented in the instant case.")(citations omitted). IBM intends to offer the Open Door Evidence to bolster its position that Mr. Castelluccio was not the subject of age discrimination. This proffer goes to the very issue which the jury will have to decide in this action. "Evidence which invades the exclusive province of the jury should be excluded." McClain v. Pfizer Inc., 3:06CV 01795 (VLB), 2010 WL 746777 (D. Conn., March 1, 2010)(excluding OSHA decision on plaintiff’s “whistleblower” complaint on the grounds that it will cause jury confusion). According to IBM’s Concerns and Appeal Program, the Open Door Process "will not make legal determinations." (Ex. A at IBM00094690). Yet the Open Door Report purports to 17
  • 18. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 18 of 21 conclude that Ms. Collins-Smee's actions were not the result of age discrimination – a purely legal determination. Given this evidence, the jury will understandably misconstrue it to mean that a legal conclusion was reached. As a result, Mr. Castelluccio will suffer prejudice and will need to assume the burden of disabusing the jury of this incorrect notion. IBM acknowledges that the principal function of the Open Door process is to “determine whether the employee was treated fairly.” (Ex. A at IBM00094690). Fairness is not an issue relevant to the adjudication of Mr. Castelluccio’s age discrimination claim. IBM itself has proposed a jury instruction whereby the jury would be told, “[s]o far as you are concerned in this case, an employer may transfer, terminate or take other actions against an employee for any other reason, good or bad, fair or unfair, and you must not second-guess that decision….” (IBM’s Proposed Jury Charge, dated Sept. 13, 2013, Docket # 133-6)(emphasis added). Juror confusion is inevitable if the jurors are to be instructed that they should not consider whether Mr. Castelluccio was treated fairly, while at the same time being asked to consider the significance of evidence that functions solely to establish that Mr. Castelluccio was treated fairly. If the jury is permitted to see the Open Door Report, they will learn that IBM conducted an investigation and that it concluded that none of Ms. Collins-Smee's actions were the result of age discrimination. (Ex. C at IBM00092521). What the jury will not learn however, is that while Mr. Mandel purportedly conducted an “investigation,” his attempt to uncover age discrimination was almost nonexistent. In the notes that he made of his interview with Ms. Collins-Smee, Mr. Mandel reports that she “didn’t bring up retirement.” (Ex. B at IBM00092228). 5 This appears to be the sum total of Mr. Mandel's inquiry into age discrimination. There is also no indication that Mr. Mandel investigated whether there had been 5 Ms. Collins-Smee would later contradict this statement in her deposition. (Ex. H, p. 299). 18
  • 19. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 19 of 21 any other claims of age discrimination charged against Ms. Collins-Smee. Remarkably, Ms. Collins-Smee does not even recall discussing age discrimination with Mr. Mandel in the context of his investigation. She recalls only discussing Mr. Castelluccio's job performance. (Ex. H at pp. 270-271) This is consistent with the biased manner in which Mr. Mandel conducted his investigation. The Open Door Report centered on Mr. Castelluccio’s alleged shortcomings on two of his thirty accounts on the basis of various interviews with Mr. Castelluccio’s peers and other individuals. The report was created with an eye toward discrediting Mr. Castelluccio’s job performance on the basis of complaints that had never been raised in any of his performance reviews. It is evident that IBM targeted Mr. Castelluccio’s performance in the Open Door Report in order to refute his threatened age discrimination complaint. The report was drafted after Mr. Castelluccio’s termination and cannot be viewed as either independent or objective. Allowing the jury to consider the Open Door Evidence will necessitate that Mr. Castelluccio demonstrate its weaknesses to the jury. This too will result in jury confusion and result in an undue waste of time and judicial resources. As stated by Judge Winter, district courts can properly consider whether the evidence in question will cause “the trial to deteriorate into a protracted and unproductive struggle over how the evidence admitted at trial compares to the evidence considered by the agency.” Paolitto v. John Brown E. & C., Inc., 151 F.3d 60, 65(2d Cir. 1998). The Open Door Evidence will have precisely this result, and no corrective jury charge will effectively avoid the harm that Mr. Castelluccio will suffer. Mr. Castelluccio will need to conduct a thorough and time consuming cross examination of Mr. Mandel, to educate the jury as to the stark differences between the legal proceeding in which they are participating and IBM’s “investigation.” Specifically, Mr. Castelluccio will need to help the jury to understand that IBM’s Open Door procedure makes no effort toward adjudicating an 19
  • 20. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 20 of 21 employee’s claims, but instead comprises a perfunctory review of issues by a biased individual, whose investigation is guided by his subjective discretion as opposed to established procedures. Mr. Castelluccio will need to point out the ineffectiveness of an investigation that has no evidentiary standards, burdens of proof, right of cross examination, or hearings. This burden can and should be avoided. Conclusion Based on the foregoing, Mr. Castelluccio respectfully requests that the Court exclude all evidence pertaining to IBM’s Open Door Investigation of Mr. Castelluccio’s age discrimination claim. THE PLAINTIFF JAMES CASTELLUCCIO BY: ____________/S/(ct06645)_____________________ MARK R. CARTA(ct06645) MARGARET A. TRIOLO (ct08618) Carta, McAlister & Moore, LLC 1120 Post Road, Post Office Box 83 Darien, Connecticut 06820 (203) 202-3100 (phone) - (203) 202-3102 (facsimile) margaret@cmm-law.com 20
  • 21. Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 Page 21 of 21 CERTIFICATE OF SERVICE I hereby certify that on November 22, 2013, a copy of the foregoing Plaintiff’s Memorandum of Law Regarding the Admissibility of IBM’s Open Door Evidence was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF system. THE PLAINTIFF JAMES CASTELLUCCIO BY: ____________/S/(ct06645)_____________________ MARK R. CARTA (ct06645) Carta, McAlister & Moore, LLC 1120 Post Road, Post Office Box 83 Darien, Connecticut 06820 (203) 202-3100 (phone) - (203) 202-3102 (facsimile) margaret@cmm-law.com 21