Singh v. Bay Crane Service Inc.
MEMORANDUM AND ORDER: Defendant Bay Crane's 52 motion in limine is denied. Plaintiff Singh may admit into evidence the racial composition of Bay Crane's crane operators because (1) the evidence entails simple data that does n ot require expert analysis to be properly admitted, and (2) the evidence is relevant to claims of discriminatory intent in hiring for the Transit Project, and its probative value outweighs its prejudicial value. The parties shall review and modify t heir proposed jury instructions to ensure consistency with this opinion. Revised instructions shall be filed by 4/6/15. The parties are encouraged to enter into any stipulations of fact that could streamline the presentation of evidence and mitigate evidentiary disputes at trial. Ordered by Judge Raymond J. Dearie on 3/3/2015. (Chee, Alvin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
11 CV 720 (RJD) (RER)
- against BAY CRANE SERVICE INC.,
DEARIE, District Judge.
Before the Court is a motion in limine by defendant Bay Crane Service Inc. ("Bay
Crane"). The defendant Bay Crane contends that the plaintiff, Deochan Singh, should be
precluded from admitting into evidence the racial composition of Bay Crane's crane operators, as
(1) the evidence is statistical evidence requiring expert analysis to be properly admitted, and
(2) the evidence is not relevant, because the racial composition of the hiring pool for the crane
operators is determined by a union and "other realities of the industry." For the reasons set forth
below, the motion is denied.
Plaintiff Singh, a Guyanese man of Indian descent, commenced this action on February
14, 2011, bringing claims of unlawful discrimination against defendant Bay Crane, pursuant to
42 U.S.C. § 1981 and New York law. Complaint, ECF Docket# 1. Plaintiff Singh alleges that he
was employed by Bay Crane as a crane operator from 1997 until about 2000, during which time
he worked on Bay Crane's project for the New York City Transit Authority for the maintenance
and operation of the New York City subway system (the "Transit Project"). Id. at ifil 8, 10, 13. In
2000, Bay Crane lost the Transit Project contract to Southern Service Group ("Southern
Service"), but Southern Service hired all of the employees from Bay Crane who had worked on
the Transit Project, including Singh. Id. at iii! 14, 16-17. On September 1, 2010, Bay Crane won
the Transit Project contract back from Southern Service and, according to Plaintiff Singh, hired
back all of its crane operators from Southern Service, except for Singh. Id. at ifil 19, 21. Singh
was the only crane operator of Indian descent and one of only two non-White minority crane
operators working on the Transit Project at Southern Service. Id. at if 20. Accordingly, plaintiff
Singh alleges that Bay Crane refused to hire him as a construction crane operator on account of
his race and national origin. Id. at iii! 22-23, 25, 27.
Defendant Bay Crane moved for summary judgment on September 7, 2012, arguing that
Singh had failed to establish a prima facie case of discrimination and proffering a nondiscriminatory reason for its decision not to hire him (that it only hired the crane operators who
had been working at a certain location of the Transit Project). Motion for Summary Judgment by
Bay Crane Service Inc., ECF # 30. Singh countered by pointing to evidence in the record
suggesting that Bay Crane's justification was false, as well as additional circumstantial evidence
permitting the inference that Bay Crane refused to hire him on account of his race or national
origin. Memorandum in Opposition to Motion for Summary Judgment by Bay Crane Service
Inc., ECF # 32. On October 9, 2013, this Court denied Bay Crane's motion for summary
judgment, finding that, "if a fact-finder agreed that Singh was the only available crane operator
... not hired by Bay Crane, that fact, coupled with the evidence that forty-three of the forty-nine
other Bay Crane operators on the Transit Authority contract were white, would permit an
inference of discrimination." Singh v. Bay Crane Services, Inc., 11 CV 720(RJD)(RER), 2013
WL 5655931, at *3 (E.D.N.Y. October 11, 2013). The Court similarly denied Bay Crane's
motion to reconsider two months later. Singh v. Bay Crane Services, Inc., 11 CV
720(RJD)(RER), 2013 WL 6628961 (E.D.N.Y. December 16, 2013).
Facing trial-currently scheduled for May 4, 2015-defendant Bay Crane moves in
limine for the Court to preclude plaintiff Singh from admitting into evidence the racial ·
composition of Bay Crane's crane operators, as (1) the evidence is statistical evidence requiring
expert analysis to be properly admitted, and (2) the evidence is not relevant, because the racial
composition of the hiring pool for the crane operators is determined by a union 1 and "other
realities of the industry." Defendant's Motion In Limine, ECF Docket# 52. 2
STANDARD OF REVIEW
"Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the
practice has developed pursuant to the district court's inherent authority to manage the course of
trials." Luce v. United States, 469 U.S. 38, 41n.4 (1984). "The purpose of an in limine motion is
to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain
forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or
interruption of, the trial." Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.1996) (quotations
International Union of Operating Engineers Local 14-14B, AFL-CIO ("Local 14"), the relevant
union, is the collective bargaining representative of individuals who operate various types of
heavy equipment in the construction industry within New York City.
Notably, defendant Bay Crane was named in a separate suit, brought by plaintiff Singh's
attorneys, against Local 14 and several crane operating companies, alleging discrimination on the
basis ofrace concerning who became eligible to work in the crane operator industry. Morrison v.
Int'l Union of Operating Eng'rs Local 14-14B, AFL-CIO, et al., 12 CV 301(FB)(RER)
(E.D.N.Y.). All of the crane operating companies were dismissed from the action.by stipulation
on July 30, 2014, Morrison, 12 CV 301, ECF Docket# 136, which defendant Bay Crane states
was because "[t]here was no evidence that the contractors had any control over the composition
of the applicant pool," which was "largely controlled" by Local 14, Defendant's Reply
Memorandum of Law in Further Support of its Motion In Limine ("Def s Reply Memo"), ECF
Docket# 59, p. 4. The case against Local 14 is still pending before Judge Block.
"Evidence should be excluded on a motion in limine only when the evidence is clearly
inadmissible on all potential grounds. Wechsler v. Hunt Health Sys., Ltd., 381F.Supp.2d135,
140 (S.D.N.Y. 2003). The Federal Rules of Evidence provide that "[r]elevant evidence is
admissible unless any of the following provides otherwise: the United States Constitution; a
federal statute; these rules; or other rules prescribed by the Supreme Court." Fed.R.Evid. 402.
However, even relevant evidence should be excluded "if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence." Id. at 403.
1. The Admissibility of Statistical Evidence in Disparate Treatment Claims
Statistical evidence alone may not form the basis of a disparate treatment action;
however, statistical evidence may be used as circumstantial evidence to bolster such a claim.
Hudson v. Int'l Bus. Machs. Corp., 620 F.2d 351, 355 (2d Cir. 1980) ("[Plaintiff] has
failed to establish his case and the statistics standing alone do not create it."); Drake v. Delta Air
Lines, Inc., 94 CV 5944(FB)(RML), 2005 WL 1743816, at *6 (E.D.N.Y. July 21, 2005)
("Statistics alone are insufficient in a disparate-treatment claim because an individual plaintiff
must prove that he or she in particular has been discriminated against.") (citing Hudson, 620
F.2d at 355) (emphasis in original); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792,
805 (1973) (finding in a race discrimination disparate treatment action that "statistics as to [the
employer]'s employment policy and practice may be helpful to a determination of whether [the
employer]' s refusal to rehire [the employee] ... conformed to a general pattern of discrimination
In Luciano v. Olsten Corp., the Second Circuit determined that a district court had not
erred in admitting into evidence certain simple statistical evidence3 in a gender discrimination
disparate treatment case without an expert. 110 F .3d 210, 217-218 (2d Cir. 1997). The district
court's stated reasons in Luciano were as follows: "(l) the statistics were relevant for the limited
purpose offered by [the plaintiff], as one piece of circumstantial evidence supporting her claim of
pretext ... ; (2) the raw data was credible and reliable because it came from [the defendant
company]'s records and admissions ... ; (3) the data was probative of discriminatory intent
because a sufficiently relevant labor pool was identified ... ; (4) an expert was not necessary
because the data offered was not of a scientific nature but merely reflected existing conditions at
the [c]ompany at the time of [the plaintiff]'s termination; and (5) the evidence did not unduly
prejudice the defendants," largely because of a "cautionary instruction" to the jury regarding the
usefulness of statistics4 . Id.
Later that same year, the Second Circuit again found that "[i]n view of the simple nature
of the statistical analysis, the district court's cautioning instruction, and the overall evidence in
The statistical evidence consisted of (a) a bar graph showing the percentage of women at the
defendant company at different levels of responsibility on the date the female plaintiff was
terminated and (b) a chart showing the number of women and men, together with their
percentage of the workforce, in certain executive positions and the average salaries for each of
those positions on the date the plaintiff was terminated. Luciano, 110 F.3d at 217.
That jury instruction, most of which this Court finds to be highly appropriate for this case, read
I caution you that the usefulness of statistics and numbers depends on all
the surrounding facts and circumstances. In other words, the statistics and
numbers offered must be compared with a number of factors, including, among
other factors, the relevant labor market, including the qualified applicant pool, the
relative numbers of men and women who were both qualified for and interested in
management jobs with the [defendant] company.
It is for you, the jury, to weigh all the statistical, numerical and graph
evidence presented by the parties and decide what weight and significance, if any,
you want to give to it.
Luciano, 110 F.3d at 218.
the case, the district court did not abuse its discretion by receiving ... into evidence" simple
statistical evidence 5 in an age discrimination disparate treatment case without an expert. Stratton
v. Dep't. for the Aging for the City of New York, 132 F.3d 869, 877 (2d Cir. 1997). The Stratton
court's stated reasons were as follows: (1) the "charts were reliable," because "[t]hey were [the]
defendants' own documents," and plaintiff had only added the ages, which were basic,
undisputed information taken from the defendants' own records; (2) no expert was required for
statistical evidence in disparate treatment cases where only "simple arithmetic was used" and
"[t]here were no sophisticated statistical theories that needed explanation"; (3) the defendants
"could have offered their own charts or statistics or called their own expert witness," to counter
plaintiffs interpretation of the information; (4) the drop in average age was relevant and
admissible "to support a claim of discrimination even in a disparate treatment case involving a
single plaintiff,"; (5) the plaintiff was not relying solely on the statistical evidence but merely
using it as circumstantial support; and (6) "the district court cautioned the jury" appropriately
"not to place undue reliance on the charts by giving [a jury] instruction." Id.
Following Luciano and Stratton, district courts in the Second Circuit have commonly
rejected statistical evidence in disparate treatment cases where that evidence required far more
complicated analysis, or was based on a much less credible foundation.
Walker v. City
of New York, 11CV2941(KPF), 2014 WL 1244778, at *8 n. 8 (S.D.N.Y. March 26, 2014)
("Plaintiff alleges that 'of the 136 applicants for reinstatement to the NYPD,' 81 % of white
males (49 out of 59) were reinstated, while only 50% of black females (3 out of 6) were
reinstated," but "[p]laintiffhas done nothing to separate these statistics by year, length of
The statistical evidence consisted of the defendant company's organizational charts, marked to
show each employee's age, representing that the average age had dropped from 50.3 to 45.9.
Stratton, 132 F.3d at 877.
application, time away from the NYPD, [etc.]," and "[p]laintiffhas not introduced these statistics
through an expert witness ... or applied any sort of rigorous analysis to increase the reliability of
these numbers."); LaMarch v. Tishman Speyer Properties, L.P., No. 03 CV 5246(CBA), Report
and Recommendation, ECF Docket# 58, at 29 (E.D.N.Y. July 12, 2006) ("[Plaintiff] names 20
individuals over the age of 40 who were terminated from 1996 through 2003, 14 of those in 2000
through 2002," but "[a]s plaintiff proffers no information as to the number of individuals over
the age of 40 who were employed ... during these time periods, it is impossible to determine
whether [these terminations] represent significant numbers.") (adopted by LaMarch v. Tishman
Speyer Properties, L.P., [hereinafter "LaMarch Opinion"] No. 03 CV 5246(CBA), 2006 WL
2265086, at *6 (E.D.N.Y. August 8, 2006)). However, Luciano and Stratton remain good law.
Albert v. New York City Sch. Constr. Auth., 99 Fed. Appx. 306, 311 (2d Cir. 2004)
(finding that a district court's instruction about the probative value of comparative salary charts
in a race discrimination disparate treatment case was proper because it "[wa]s not materially
different from a similar charge affirmed by" the Second Circuit in Luciano).
Defendant Bay Crane cites a litany of cases to support its position that plaintiff Singh
may not admit into evidence the racial composition of Bay Crane's crane operators without the
assistance of expert testimony. Defendant's Motion In Limine at 2;
2006 WL 2265086, at *6 (finding inadmissible statistical evidence about termination of
employees older than 40 because it was not supported by any expert analysis and would be
anecdotal "speculation and hearsay"); Saenger v. Montefiore Medical Center, 706 F.Supp.2d
494, 515-516 (S.D.N.Y. 2010) (noting that "statistical evidence, such as it is in this [age
discrimination] case, must be supported by expert analysis," but citing, for this position,
LaMarch Opinion and a Seventh Circuit case, both of which required expert analysis for
complex statistical evidence offered to show age discrimination). Additionally, defendant Bay
Crane places the blame for the whitewashed racial composition of its crane operators on Local
14 and "other realities of the industry," noting that while "[i]t may well be that the [c]rane
[o]perator business is very white[,] ... that is an industry wide fact having nothing to do
specifically with Bay Crane's hiring practices," Defendant's Motion In Limine at 3, and, at any
rate, the racial composition of the applicant pool was "largely controlled," by the union, Def s
Reply Memo at 4. This Court rejects both arguments.
First, the defendant Bay Crane's selective citations on expert analysis are a red herring,
which overstate the requirement for expert testimony in situations such as this. Defendant Bay
Crane is correct that complicated statistical analysis, especially which derived from anecdotal
evidence or numbers collected independently from the defendant's own records, would likely
require expert analysis in order to be properly introduced in court. However, the Court agrees
with plaintiff that, "an expert [i]s not necessary because the data offered [i]s not of a scientific
nature but merely reflect[ s] existing conditions at [Bay Crane] at the time," Luciano, 110 F .3d at
217, and "[t]here [a]re no sophisticated statistical theories that need explanation," Stratton, 132
F.3d at 877.
Second, defendant Bay Crane's finger pointing at Local 14 and "other realities of the
industry," is a relevant counterpoint as to the weight that the evidence on the racial composition
of Bay Crane's crane operators should be given by the jury at trial. However, such arguments are
not factors that should (or even could) reasonably be expected to be incorporated by the plaintiff
into any statistical analysis of the racial composition of Bay Crane's employees. See Stratton,
132 F.3d at 877 (noting that the defendants "could have offered their own charts or statistics or
called their own expert witness," to counter plaintiffs interpretation of the statistical evidence
and, at any rate, the district court provided an appropriate instruction to the jury about the proper
weight to be given to such statistical evidence); Luciano, 110 F.3d at 217 (approving of the
district court's jury instruction that "I caution you that the usefulness of statistics and numbers
depends on all the surrounding facts and circumstances," such as "the relevant labor market,
including the qualified applicant pool"); but see Lomotey v. Connecticut-Dept. of Transp., 355
Fed.Appx. 478, 481 (2d Cir. 2009) (affirming summary judgment for employer in race
discrimination disparate treatment suit because "[plaintiff]'s evidence that only Caucasians were
selected ... amount[ ed] to nothing more than raw numbers which, without further information
on key considerations such as the racial composition of the qualified labor pool, [could] not
support an inference of discrimination," but not discussing whether such statistics are appropriate
where used only as circumstantial support).
Additionally, this Court is not persuaded by defendant's argument that the more
appropriate parallel to Stratton would be the racial composition of Southern Service's crane
operators, not Bay Crane's. Given plaintiffs allegations that the crane operators staffed on the
Transit Project were passed back and forth between Southern Service and Bay Crane, along with
the contract, it seems clear to this Court that the racial composition of both companies is relevant
to allegations of discriminatory intent in hiring for the Transit Project. See Complaint, ECF
Docket# 1, iii! 14-17, 19, 21. Furthermore, the racial composition of Bay Crane's crane operators
is not being offered by plaintiff Singh as the basis for his entire case. Rather, it is "relevant for
the limited purpose offered by [the plaintiff], as one piece of circumstantial evidence supporting
h[is] claim of pretext." Luciano, 110 F.3d at 217. Moreover, any prejudice to Bay Crane in
/s/ Judge Raymond J. Dearie
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