The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #34.
Currently before the Court is defendants' motion in limine. Dkt. #72. Specifically, defendants seek to exclude any testimony, evidence or argument suggesting that:
(1) plaintiff was forced to retire or constructively discharged as a result of defendants' alleged retaliation;
(2) plaintiff suffered lost wages as a result of his assignment to manhole inspections; and
(3) plaintiff suffered physical or emotional damages.
Dkt. #73, p.2. For the following reasons, defendants' motion is granted in part and denied in part.
Defendant argues that plaintiff should not be allowed to change the theory of his case to include a claim of constructive discharge in an attempt to circumvent the Court's determination that plaintiff could not demonstrate that he was misinformed as to the prospect of continued employment with the Town in retaliation for his picketing.
Plaintiff responds that his amended complaint affords defendants sufficient notice of his claim of ongoing harassment in retaliation for his picketing and notes that he informed defendants during the course of discovery that he chose retirement as an alternative to "an atmosphere wrought with retaliatory and harassing behavior against me." Dkt. #75, pp.4-5. As a result, he argues that he should be permitted to claim the lost wages resulting from his early retirement as damages. Dkt. #75, p.4.
To claim the lost wages resulting from his early retirement as damages, plaintiff must be able to demonstrate that his decision to retire was involuntary, i.e., that he was constructively discharged. "Constructive discharge occurs when an employer, rather than acting directly, deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation." Morris v. Schroder Capital Mgmt Int'l, 481 F.3d 86, 88 (2d Cir. 2007) (internal quotation omitted). "Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 73 (2d Cir. 2000).
The record before the Court on the previous motion for summary judgment does not contain evidence from which a rational trier of fact could conclude that a reasonable person in plaintiff's shoes would have felt compelled to resign. Plaintiff testified that during the course of his picketing between October 23, 2001 and November 13, 2001, the Director of Labor Relations for the Town of Tonawanda, Norman J. Stocker suggested that plaintiff should be seeing someone, a comment plaintiff interpreted as suggesting plaintiff would not be picketing unless he was suffering from a mental or other illness. Dkt. #43, ¶ 27. On November 13, 2001, plaintiff was reassigned from his duties of construction inspection to manhole inspections, which was more physically demanding and required less skill than a construction inspection. Dkt. #37, ¶ 35; Dkt. #43, ¶ 36. Plaintiff also claims that on December 21, 2001, he was greeted rudely and verbally attacked by Mr. Stocker at a health care arbitration he was attending in his capacity as Vice Chairman of the Grievance Committee. Dkt. #44-3, ¶ 55.
More than one year later, on January 23, 2002, plaintiff alleges that he attended a meeting with Mr. Stocker, Mr. Rowland, Mr. Scherer, Mr. Camilleri, Mr. Moffitt and Ms. Jividen at which he was questioned about his address and compliance with the Town's residency law; acceptance of a jacket from a contractor; and payroll records. Dkt. #44-3, ¶ 60-61. Mr. Stocker and Mr. Scherer affirm that Mr. Stocker asked plaintiff to provide an updated address to personnel but plaintiff refused and the matter was not pursued further; Mr. Stocker asked plaintiff about time sheets which had been completed by someone else, at which point Mr. Scherer advised that he routinely completed time sheets for the Construction Inspectors; and that after Mr. Stocker inquired about a jacket with a contractor logo which plaintiff was wearing, Mr. Scherer advised that he and plaintiff had each received a jacket from the contractor as gifts, prompting Mr. Stocker to advise them that he felt that was inappropriate and directed ...