castelluccio v. ibm - plaintiff's motion to preclude

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

JAMES CASTELLUCCIO, : CIVIL ACTION

: NO. 3:09 CV 1145 (TPS)

Plaintiff :

vs :

:

INTERNATIONAL BUSINESS :

MACHINES CORPORATION, :

:

Defendant. : 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.

Case 3:09-cv-01145-TPS Document 155 Filed 11/22/13 of 21

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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


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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


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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


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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.


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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,


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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


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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, 637-

638 (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


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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.


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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


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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


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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


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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


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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


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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).


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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


17

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


18

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).


19

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


20

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)

[email protected]


mailto:[email protected]

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)

[email protected]


mailto:[email protected]

castelluccio v. ibm - plaintiff's motion to preclude

Business

joanne collinssmee

collinssmee pressed

ibm employees

executives ibm

ibm accounts

collinssmees statements

collinssmees supervision

collinssmees conduct