Gethers v. McDonald et al

Filing 74

ORDER granting in part and denying in part Defendant's Motion in Limine [Dkt. 69 at 94] for the reasons set forth in the Memorandum of Decision attached. The Court also finds as moot Plaintiff's Motions to Allow all of Plaintiff's Exh ibits 70 and 71 as Plaintiff's Motions are based on Defendant's delay and this Order allows Plaintiff seven days from the date of this Order to respond to certain of Defendant's arguments. Signed by Judge Vanessa L. Bryant on 5/1/2017. (Hudson, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TERRY R. GETHERS,
Plaintiff,
v.
ROBERT A. McDONALD,
UNITED STATES OF AMERICA,
DEPARTMENT OF VETERANS
AFFAIRS VINS 1, OFFICE OF
EMPLOYMENT DISCRIMINATION
Defendants.

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3:15-cv-00177 (VLB)

May 1, 2017

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION IN LIMINE [DKT. 69 at 94]
I.

Introduction
Plaintiff Terry Gethers (“Gethers” or “Plaintiff”) brings this employment

discrimination action against the Secretary of the Department of Veteran’s
Affairs1 (“Defendant”) under Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq. The parties
submitted their Joint Trial Memorandum on April 25, 2017, in which Defendant
included a Motion in Limine challenging five categories of evidence offered for
trial. [Dkt. 69 at 94.] For the reasons that follow, Defendant’s Motion is GRANTED
in part and DENIED in part.
II.

Bystanders’ Opinions
Defendant first disputes the “variety of witnesses” Plaintiff offers to

“second-guess VISN-1 employment decisions in the aggregate.” [Dkt. 69 at 95.]
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Plaintiff initially brought this action against then-Secretary of Veterans Affairs
Robert McDonald, among other now-dismissed Defendants. Since Plaintiff
initiated this action, David Shulkin was appointed to replace Mr. McDonald as
Secretary of Veterans Affairs.
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Defendant asserts the Court may not second-guess an employer’s business
judgment, and witness testimony offered to support such second-guessing is
inadmissible. Id. at 95-96.
Opinion testimony by lay witnesses is only admissible if (a) rationally
based on the witness’s perception; (b) helpful to clearly understanding the
witness’s testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Rule
702.” Fed. R. Evid. 701. Absent an offer of proof that the witnesses in question
were present for Plaintiff’s and the successful candidate’s interviews or
participated in any aspect of the hiring process, their testimony regarding the
hiring decision cannot be “rationally based on the witness’s perception” as
required under Federal Rule of Evidence 701(a). For example, witnesses not
present at the candidates’ interviews did not observe the candidates’
expressions, intonation, timing, or other factors bearing on their suitability for the
job in question, and could not offer an opinion of the hiring decision based on
their own rational perceptions of the hiring process.
In addition, the Court does not currently have sufficient information to
determine that the lay opinions of witnesses regarding the propriety of
Defendant’s hiring decision would be “helpful to clearly understanding the
witness’s testimony or to determining a fact in issue.” Fed. R. Evid. 701(b). The
fact at issue in this case is whether the legitimate, non-discriminatory reason
Defendant has offered for his hiring decision is “mere pretext” for age or race
discrimination. [Dkt. 47 (Summary Judgment Decision narrowing issues for trial);

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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973) (stating the standard
for proving employment discrimination).] To establish mere pretext, Plaintiff may
offer evidence of the employer’s treatment of Plaintiff during his prior term of
employment, the employer’s reaction to Plaintiff’s legitimate civil rights activities,
the employer’s “general policy and practice with respect to minority employment”
(McDonnell Douglas Corp., 411 U.S. at 803-04), or “circumstantial evidence” that
“no reasonable person . . . could have chosen the candidate selected over the
plaintiff,” the employer’s hiring decision may not stand. Barry v. New Britain Bd.
of Educ., 300 F. App’x 113, 114 (2d Cir. 2008).
Conversely, Defendant is correct that the Court cannot supplant the
decision of an employer, notwithstanding the contrary judgment of other coworkers. While “an employer’s disregard or misjudgment of a plaintiff’s job
qualifications may undermine the credibility of an employer’s stated justification
for an employment decision,” a Court “does not sit as a super-personnel
department to reexamine a firm’s business decisions about how to evaluate the
relative merits of education and experience in filling job positions.” Byrne v.
Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) (superseded other
grounds); Newsom-Lang v. Warren Int’l, Inc., 80 F. App’x 124, 126 (2d Cir. 2003).
Plaintiff has not established that the witnesses in question would offer testimony
helpful to determining whether Defendant’s hiring explanation is mere pretext for
discrimination, as opposed to mere opinions offered to convince the Court to “sit
as a super-personnel department.”
Defendant’s Motion in Limine to exclude bystanders’ opinions of the hiring

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process is GRANTED without prejudice to Plaintiff offering factual testimony
about the witnesses’ personal observations which would (i) tend to establish that
Defendant's stated reasons for its hiring decision were not Defendant’s true
reasons or (ii) help the Court to understand either the witness’s testimony or
determine a fact in issue under Federal Rule of Evidence 701(b). Plaintiff must
also establish that any such testimony would be based on the rational
perceptions of the witness regarding the hiring process under Federal Rule of
Evidence 701(a). Plaintiff is ordered to file any such offer of proof with the Court
within seven days of the date of this Order, styled as an Opposition to
Defendant’s Motion in Limine.
III. Qualifications and Experience not Presented to or Known by the

Decisionmakers
Defendants next challenge testimony regarding Plaintiff’s and the
successful candidate’s work performance which Defendant asserts was not
“known by or presented to the interview panelists or decisionmakers.” [Dkt. 69 at
97.]
As Defendant suggests, the issue in this case is limited to whether the
hiring decision-makers violated Plaintiff’s constitutional and statutory rights at
the time of their decision with the information at their disposal. However, The
Court cannot prejudge whether Plaintiff intends to offer evidence unknown to the
interviewers at the relevant time. To the extent Plaintiff does intend to offer such
evidence, it is irrelevant. Defendant’s Motion in Limine to exclude evidence
unknown to the hiring decision-makers at the time of their decision is GRANTED

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without prejudice to Plaintiff establishing its relevance in his Opposition to
Defendant’s Motion in Limine filed within seven days of the date of this Order.
IV.

“Me, Too” Witness Testimony
Defendant also moves to exclude testimony of witnesses who would

“recount their allegedly discriminatory experiences with the VA” as unduly
prejudicial and irrelevant. Defendant is correct that, to the extent Plaintiff seeks
to offer his coworkers’ experiences with alleged discrimination as evidence of a
pattern or practice of discriminatory employment practices, such evidence is
inadmissible. Anecdotal employment decisions do not in and of themselves rise
to the level of a general policy and practice. Leopold v. Baccarat, Inc., 174 F.3d
261, 270 (2d Cir. 1999) (finding evidence of other terminations of employees over
the age of 60 insufficient to establish a pattern or practice of discrimination
absent “a rather elaborate statistical analysis”). To establish a pattern or practice
of discrimination, a plaintiff must establish that “intentional discrimination was
the defendant’s standard operating procedure.” Reynolds v. Barrett, 685 F.3d
193, 203 (2d Cir. 2012). “[S]tatistics alone can make out a prima facie case of
discrimination in a pattern-or-practice suit.” Id. Plaintiff offers no such evidence
here.
Nor may Plaintiff offer evidence of Defendant’s other allegedly
discriminatory hiring decisions “to prove [Defendant’s] character in order to
show that . . . [Defendant] acted in accordance with the character” when filling the
May 7, 2012 job posting. Fed. R. Evid. 404(b). However, in certain situations
“[e]vidence of a person’s habit or an organization’s routine practice may be

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admitted to prove that on a particular occasion the person or organization acted
in accordance with the habit or routine practice.” Fed. R. Evid. 406. “[E]vidence
of discrimination by other supervisors is . . . neither per se admissible nor per se
inadmissible.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008);
see also Hazelwood Sch. Dist. v. U.S., 433 U.S. 299, 310 n.15 (1977) (“Proof that an
employer engaged in racial discrimination . . . might in some circumstances
support the inference that such discrimination continued, particularly where
relevant aspects of the decisionmaking process had undergone little change.”).
A party offering evidence of habit “must establish the degree of specificity
and frequency of uniform response that ensures more than a mere ‘tendency’ to
act in a given manner, but rather, conduct that is ‘semi-automatic’ in nature.”
Zubulake v. UBS Warburg LLC, 382 F. Supp. 2d 536, 542 (S.D.N.Y. 2005); see also
U.S. v. Al Kassar, 660 F.3d 108, 123 (2d Cir. 2011) (excluding evidence of
defendants’ prior good acts to establish proof of habit under Rule 406, explaining
a habit is “semi-automatic – it involves a person’s regular practice of meeting a
particular kind of situation with a specific type of conduct, such as the habit of
going down a particular stairway two stairs at a time.”). “It is only when
examples offered to establish such a pattern of conduct or habit are numerous
enough to base an inference of systematic conduct, that examples are
admissible.” Zubulake, 382 F. Supp. 2d at 542; see also McCarrick v. N.Y.C. OffTrack Betting Corp., 91 Civ. 5626, 1995 WL 261516, at *5 (S.D.N.Y. May 3, 1995)
(excluding testimony regarding “discrimination against several individuals under

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varying circumstances” as “not the sort of repeated conduct covered by Rule
406”).
To the extent Plaintiff impermissibly attempts to establish a pattern or
practice of discrimination or that Defendant’s character led him to discriminate
against Plaintiff, it is inadmissible. However, Defendant has not identified the
specific witnesses or testimony he asserts constitute impermissible “me too”
evidence. The Court cannot determine in a vacuum whether any evidence
Plaintiff offers will seek to establish a routine of discriminatory employment
decisions without the requisite “specificity and frequency of uniform response”
under Rule 406. Zubulake v. UBS Warburg LLC, 382 F. Supp. 2d 536, 542
(S.D.N.Y. 2005). Nor can the Court determine with the information available
whether such evidence would be more prejudicial than probative under Federal
Rule of Evidence 403, or whether it will serve to establish or disprove an element
of the race and age employment discrimination claims at issue in this case under
Rule 401. Defendant’s Motion in Limine to exclude “me too” testimony is
accordingly DENIED without prejudice to Defendant establishing its
inadmissibility upon its introduction at trial.
V.

Evidence Regarding Subsequent Job Selections

Defendant also objects to evidence regarding vacancies that were filled
after the hiring decision at issue. [Dkt. 69 at 97.] Defendant reasons “events
arising after the selection at issue, particularly when they do not involve the same
decisionmakers, do not shed any light on the other person’s earlier motivations.”

Id. at 98.

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As with Defendant’s argument against evidence of subsequent hiring
decisions, Defendant has not identified which specific witness or witnesses he
seeks to preclude through this argument regarding subsequent job selections.
Even if Defendant had identified disputed witnesses by name, Defendant’s
argument is predicated on facts not on record in this case, such as each disputed
witness’s role, if any, in the hiring decision at issue or any overtly discriminatory
statements made by or to the disputed witness during any other hiring process.
In addition, to the extent Plaintiff offers testimony of subsequent job selections to
establish a routine practice of discrimination, the Court cannot yet determine
whether Plaintiff’s witnesses will establish a “regular practice of meeting a
particular kind of situation with a specific type of conduct” under Rule 406. Al
Kassar, 660 F.3d at 123; see also supra, Section IV. The Court does not have
sufficient information to evaluate Defendant’s argument, and it is accordingly
DENIED without prejudice to Defendant establishing the inadmissibility of the
evidence upon its introduction at trial.
VI. Evidence of Preselection

Lastly, Defendant asserts “Plaintiff should be precluded from arguing that
the defendant’s consideration of the successful candidate’s voluntary early
participation in the ARK/CIS initiative was discriminatory.” [Dkt. 69 at 99.]
Defendant is correct that the Court granted summary judgment as to Plaintiff’s
preselection claim, and determined that “[i]t would not be discriminatory
preselection to choose . . . [the successful candidate] based on his initiative and
familiarity with relevant technology.” [Dkt. 47 at 27-28.] That is especially true

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where, as here, the opportunity to participate was offered in a meeting to which
the Plaintiff was invited to and chose not to attend. The fact that the successful
candidate took advantage of an opportunity to obtain experience which enhanced
his suitability for the promotion and the Plaintiff did not was not indicative of
discrimination on the part of Defendant. Defendant’s Motion in Limine to
preclude Plaintiff from arguing that Defendant should not have considered
Plaintiff’s early participation in the ARK/CIS initiative is GRANTED.
VII. Other Evidentiary Disputes Throughout the Joint Trial Memorandum

In addition to Defendant’s Motion in Limine, the parties have each raised
relevance objections to witnesses and exhibits offered for trial. [Dkt. 69 (Joint
Trial Memorandum).] The parties are reminded that the question for trial is
whether Defendant discriminated against Plaintiff on the basis of his age and/or
race in deciding not to appoint Plaintiff to the position posted on May 7, 2012 job
posting. [Dkt. 47 at 28.] The Court determined on summary judgment that
Plaintiff established a prima facie case of age and race discrimination and
Defendant offered a legitimate, non-discriminatory reason for the hiring decision.
[Dkt. 47 at 17-18.] The only remaining issue for trial is whether Defendant’s
legitimate, non-discriminatory justification for the hiring decision based on the
May 7, 2012 job posting was mere pretext for discrimination. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973) (stating the elements of a race
discrimination claim); Byrne v. Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir.
2001) (superseded other grounds) (stating the McDonnell proof framework
applies race discrimination claims under Title VII as well as age discrimination

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claims under ADEA). The Plaintiff can establish mere pretext through the types
of evidence addressed above in Section II of this Decision. The parties are
reminded that only evidence tending to prove or disprove mere pretext, with
narrow exceptions, are relevant. Only relevant evidence may be admitted at trial.
Fed. R. Evid. 402 (“Irrelevant evidence is not admissible.”).
Before trial, the parties are instructed to review the Federal Rules of
Evidence, including but not limited to Rule 403 regarding unduly prejudicial
evidence, Rules 404, 405, and 406 regarding the admissibility of character
evidence, and Rule 701 regarding opinion testimony by lay witnesses. The
parties are to be prepared at trial to support arguments regarding the
admissibility of evidence with citations to the Federal Rules of Evidence.
VIII. Conclusion

For the foregoing reasons, Defendant’s Motion in Limine is GRANTED in
part and DENIED in part. Plaintiff may respond to the Court’s decision to exclude
evidence of bystanders’ opinions and evidence of job candidates’ qualifications
and experience in an opposition filed on the docket within seven days of the date
of this Order. Defendant may raise the inadmissibility of evidence regarding
subsequent job selections and “me too” evidence upon its admission at trial.
IT IS SO ORDERED.
____/s/_________________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: May 1, 2017

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