United States District Court, N.D. New York
JILL L. TERRY, Plaintiff,
COUNTY OF CAYUGA, Defendant.
MEMORANDUM-DECISION and ORDER
LAWRENCE E. KAHN, District Judge.
In this employment case, Plaintiff Jill L. Terry ("Plaintiff") alleges that she was terminated by Defendant County of Cayuga ("Defendant") in retaliation for taking leave pursuant to the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-2654. See generally Dkt. No. 1 ("Complaint"). Presently before the Court are Defendant's Motion for leave to file an amended answer and Motion in limine to strike the Second Report of expert witness Matthew McCabe ("McCabe"). Dkt. Nos. 40 ("Motion to Amend"); 41 ("Motion in limine "); 41-4 ("Second Report"). For the following reasons, the Motions are denied.
The Court presumes the parties' familiarity with the facts and history of this case, a full account of which is contained in the Court's Memorandum-Decision and Order of September 30, 2013. Dkt. No. 29 ("Order").
Plaintiff filed her Complaint in November 2011, alleging that Defendant terminated her employment in October 2010 in retaliation for taking FMLA leave. Compl. Defendant filed an Answer on December 2, 2011. Dkt. No. 9 ("Answer"). The period for amending pleadings expired on March 30, 2012, and discovery closed on November 16, 2012. Dkt. No. 11; Aug. 23, 2012 Text Order. On December 18, 2012, Defendant filed a Motion for summary judgment, which the Court denied in the Order. Dkt. No. 23; Order. A bench trial is scheduled for June 3, 2014. Dkt. No. 36.
A. Motion to Amend
On March 28, 2014, Defendant filed its Motion to Amend its Answer to assert an affirmative defense that after-acquired evidence of misconduct by Plaintiff limits the availability of backpay and reinstatement. Mot. Am.; Dkt No. 40-9 ("Motion to Amend Memorandum"). More specifically, Defendant alleges that it discovered in June 2013 that Plaintiff appeared before then-Judge Peter Corning at least twice in late 2004 despite their involvement in a romantic relationship. See Mot. Am. Mem. at 1-2. Defendant contends that this was a terminable offense, and so Plaintiff cannot be reinstated and cannot recover lost wages accruing after the discovery of this evidence. See id. at 3 (citing McKennon v. Nashville Banner Publishing Co. , 513 U.S. 352 (1995)); Dkt. No. 40-8 ("Westphal Affidavit"). Plaintiff filed a Response in opposition. Dkt. No. 44-3 ("Response to Motion to Amend").
B. Motion in Limine
On or about July 24, 2012, Plaintiff served on Defendant an expert witness report regarding Plaintiff's potential economic losses resulting from her termination. Dkt. Nos. 41-5 ("Motion in limine Memorandum") at 1; 41-2 ("First Report"). The First Report included estimates of Plaintiff's earnings as an Assistant County Attorney had she not been terminated, and her post-termination earning potential based on the mean salary for Syracuse-area private practice attorneys. First Report at 5. The First Report used a single long-term growth rate of 2.82% to estimate future increases in Assistant County Attorney and private practice salaries. Id . at 7, 9.
Plaintiff later served an updated version of the Report dated October 29, 2013. Mot. in limine Mem. at 4; Second Report. Whereas the First Report used the mean salary of Syracuse-area private practice attorneys to estimate Plaintiff's post-termination earnings potential, the Second Report used the median. Compare First Report at 9 with Second Report at 9. The Second Report used two different long-term growth rates to estimate projected increases in Plaintiff's posttermination earnings potential and the Assistant County Attorney salary, respectively. Second Report at 7, 9.
On March 31, 2014, Defendant filed its Motion in limine seeking to strike the Second Report. Mot. in limine. Plaintiff responded by submitting a Third Report that seeks to remedy the objections raised by Plaintiff's Motion in limine. Dkt. Nos. 43-4 ("Response to Motion in limine "); 43-3 ("Third Report").
III. MOTION ...