The opinion of the court was delivered by: Conner, Sr. D.J.
Plaintiff Tina Roberts brought this action pursuant to the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601, et seq., the New York State Human Rights Law, EXEC. LAW §§ 296, et seq. ("NYSHRL") and the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. §§ 1161, et seq. ("COBRA") against her former employer, defendant Group Handling, Inc. ("GHI"). Plaintiff alleged that defendant: (1) interfered with her rights guaranteed under the FMLA; (2) discriminated against her on the basis of her disability in violation of NYSHRL; (3) failed to provide her with continuing group health plan coverage in violation of COBRA; and (4) retaliated against her for exercising her rights guaranteed under the FMLA. Defendant moved to dismiss plaintiff's first, third and fourth claims pursuant to FED. R. CIV. P. 12(b)(6), and in an Opinion and Order dated March 11, 2005, we granted defendant's motion with respect to plaintiff's third and fourth causes of action. Defendant then moved for summary judgment on plaintiff's remaining two claims, namely: (1) the first cause of action for interference with plaintiff's rights guaranteed under the FMLA; and (2) the second cause of action for disability discrimination in violation of NYSHRL. In an Opinion and Order dated March 30, 2007, we denied defendant's motion for summary judgment, and a jury trial was scheduled for October 1, 2007. Defendant now moves to preclude plaintiff from introducing evidence at trial relating to whether plaintiff's medical condition was worsened by defendant's alleged discriminatory acts, rendering her unable to work after June 30, 2003. For the following reasons, defendant's motion is granted.
The facts of this case are set forth extensively in our previous Opinion and Order, familiarity with which is presumed. See Roberts v. Ground Handling, Inc., No. 04 CIV 4955, 2007 WL 2071568 (S.D.N.Y. Mar. 30, 2007) (Conner, J.). Accordingly, we recite only the facts relevant to our resolution of the present issue and such background facts as are helpful in providing context.
Defendant is a New York corporation that provides various services to airlines that operate out of Westchester County Airport, including catering and cleaning services, ground crew assistance and gate boarding and bag loading services. See id. at *1. On April 21, 1986, GHI hired plaintiff as a customer service agent and promoted her to Operations Manager in January 1996. See id. In 1987, plaintiff was diagnosed with chronic renal failure which ultimately developed into end-stage renal disease. See id. John Barrella, plaintiff's supervisor, was responsible for handling plaintiff's requests for medical leave and other medical accommodations. See id. From 1987 to the spring of 2003, defendant repeatedly and consistently granted plaintiff's requests for accommodation, including substantial periods of leave. See id. at *2-4.
On March 18, 2003, plaintiff again requested medical leave due to her kidney condition, this time for three months. See id. at *3. Defendant granted her leave under the FMLA until June 18, 2003. See id. at *3-4. According to plaintiff, on April 22, 2003, she informed Barrella that she was ready to return to work. See id. at *4. She claims that he indicated that they "'need[ed] to talk'" and "'there were "other things [she] needed to do before [she] returned . . . ."'"*fn1 See id. Plaintiff alleges that she requested a meeting to discuss her employment situation and Barrella said that he first had to talk with GHI's individual owners. See id. Plaintiff claims that Barrella never contacted her, and that she called him on two occasions thereafter to follow up. See id. According to plaintiff, Barrella requested that she submit documentation from her treating physician providing her medical clearance to return to work. See id. She claims that Dr. Richard Pisano, her internist, sent defendant a letter, dated April 25, 2003, indicating that she was able to work part-time as of April 28, 2003. See id. Although it appears that Pisano wrote such a letter, there is no evidence that it was ever sent to defendant, except for plaintiff's unsubstantiated allegation that she called Barrella's office and was told that the office had received it. See id. Plaintiff, however, could not identify the person with whom she spoke, and neither plaintiff nor Pisano has personal knowledge that it was ever sent to defendant. See id. The letter itself is unaddressed. See id.
Barrella has a different recollection. According to him, on April 22, 2003, plaintiff called him and updated him on her health status and indicated that she might be able to return to work in a month. See id. at *5. He claims that he informed her that she would need to provide medical documentation clearing her to work. See id. According to Barrella, plaintiff never provided him with any medical documentation and did not indicate that she would be able to return to work at any specific time. See id. Barrella claims that plaintiff did not contact him again until June 30, 2003, approximately two weeks after her medical leave to June 18, 2003 had expired. See id.
Both parties agree, however, that, on June 30, 2003, plaintiff informed Barrella that she had become extremely ill again and required an indefinite period of medical leave. See id. At that time, defendant terminated plaintiff's employment. See id. Since the commencement of this litigation, plaintiff has conceded that she was unable to work from June 30, 2003 to July 2004. (See, e.g., Krakower Decl. Supp. Def. Mot. In Limine, Ex. A (Pl. Ltr. 6/25/07).)
After the close of discovery, defendant moved for summary judgment seeking dismissal of plaintiff's claims under the FMLA and NYSHRL. In our prior Opinion and Order, we held that, as of April 28, 2003, plaintiff was on authorized medical leave under the FMLA and would have been entitled to reinstatement if she had been able to resume work at that time See Roberts, 2007 WL 2071568,at *11. Accordingly, we denied defendant's summary judgment motion because a genuine issue of material fact existed as to whether plaintiff requested and was able to return to work in April of 2003. See id. at *12. In addition, plaintiff's NYSHRL claim survived summary judgment because a genuine issue of material fact existed as to whether defendant's alleged failure to reinstate plaintiff in April 2003 was discriminatory. See id. at *14. However, we dismissed plaintiff's claims under the NYSHRL arising from her termination on June 30, 2003, as defendant did not have a legal obligation to provide plaintiff with an indefinite period of leave. See id. at *14-15.
Thereafter, defendant requested that the Court limit plaintiff's damages for lost wages to the time period of April 28, 2003 to June 30, 2003, after which time plaintiff was unable to work. In a letter dated June 25, 2007, plaintiff objected to defendant's request, contending that her claim under the NYSHRL "seeks damages for lost wages throughout the period of time whe[n] she was both able and unable to work under the theory that the impact of [d]efendant's unlawful action worsened her medical condition rendering [her] unable to work." (See Krakower Decl. Supp. Def. Mot. In Limine, Ex. A (Pl. Ltr. 6/25/07).) She maintained that, "[b]ut for [d]efendant's actions[, p]laintiff would have been able to continue her employment."*fn2 (See id.)
Defendant thereafter requested permission to file this motion in limine seeking to preclude plaintiff from submitting evidence at trial pertaining to this damage theory. Defendant argues that plaintiff had ample opportunity to determine her damage theory, failed to do so throughout the course of discovery and the extensive motion practice, and only raised the theory shortly before a scheduled trial. Defendant argues that it would be severely prejudiced if plaintiff were allowed to introduce evidence of this theory at trial. We agree.
When determining whether a plaintiff may introduce at trial evidence of a newly advanced damagetheory, courts in this Circuit have applied the same factors relevant to a request for leave to amend a complaint pursuant to FED. R. CIV. P. 15(a). See Point Prods. A.G. v. Sony Music Entm't, Inc., No. 93 Civ. 4001, 2002 WL 31856951, at *3 (S.D.N.Y. Dec.19, 2002) (citing Gateway Coal Co. v. Int'l Union, United Mine Workers of Am., 849 F. Supp. 398, 406 (W.D. Pa. 1994); see also Austrian Airlines Oesterreichische Lufverkehrs A.G. v. UT Fin. Corp., No. 04 Civ. 3854, 2005 WL 977850, at *2 (S.D.N.Y. Apr. 28, 2005). Such factors include undue delay, prejudice to the opposing party, bad faith on the part of the party asserting the theory and the futility of the damage theory sought to be proved. Cf. Foman v. Davis,371 U.S. 178, 182 (1962); McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200-01 (2d Cir. 2007). In the present case, these factors militate in favor of precluding plaintiff from introducing evidence at trial of her new damage theory.
Plaintiff waited until shortly before trial to claim that defendant's alleged discriminatory acts caused her medical condition to worsen, thereby rendering her unable to work after June 30, 2003. See UT Fin. Corp., 2005 WL 977850, at *2 ("The Court will not allow plaintiff . . . to assert this new, additional damage theory at the eleventh hour."). Plaintiff filed her Complaint on June 24, 2004, and it was not until June 25, 2007 -- three years later and approximately three months prior to trial -- that plaintiff asserted this new theory. It was not alleged in the ...