Gorbea v. Verizon NY Inc
ORDER granting 48 Motion in Limine; granting in part and denying in part 49 Motion in Limine; denying 50 Motion in Limine. For the reasons stated in the attached Memorandum and Order, plaintiff's motion in limine is denied, defendant 39;s motion in limine to exclude previously dismissed claims is granted, and defendant's motion in limine to exclude certain claims on the basis of res judicata or collateral estoppel is granted in part and denied in part. Only the following cl aims will, therefore, be tried in this case: 1) whether defendant failed to accommodate plaintiff's alleged disability related to her back, in violation of the Americans with Disabilities Act (ADA) and New York City Human Rights Law (NYCHRL) (th e court previously determined that plaintiff is not disabled due to back-related limitations in the major life activity of working); and 2) whether plaintiff was suspended from her job in October of 2010 in retaliation for requesting certain accommod ations, in violation of the ADA only. The final pre-trial conference in this case will take place, as previously scheduled, on July 9, 2014. The parties shall submit joint revised proposed jury charges consistent with the remaining claims no later than July 1, 2014.. Ordered by Judge Kiyo A. Matsumoto on 6/25/2014. (Keefe, Reed)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-againstVERIZON NEW YORK, INC.,
MATSUMOTO, United States District Judge:
Presently before the court are the parties’ motions in
Defendant moves to exclude from trial evidence
regarding claims previously dismissed by the court in ruling on
the parties’ cross-motions for summary judgment and claims that
plaintiff presented to the New York State Workers’ Compensation
(ECF Nos. 48-49.)
Plaintiff moves to preclude defendant
from asserting an affirmative defense (and evidence thereof) of
undue hardship to plaintiff’s disability accommodation claims.
(ECF No. 50.)
For the reasons set forth below, defendant’s
motion to exclude from trial claims previously dismissed by the
court is granted.
Defendant’s motion to exclude evidence
regarding claims presented to the Workers’ Compensation Board is
granted in part and denied in part, and plaintiff’s motion to
exclude the undue hardship defense is denied.
decided, and as will be discussed below, only the following
The parties have presented their motions to preclude certain claims and
related evidence as motions in limine, and neither party has objected. The
court therefore considers the motions and the relief sought as presented by
claims will be tried in this case: 1) whether defendant failed
to accommodate plaintiff’s alleged disability related to her
back, in violation of the Americans with Disabilities Act
(“ADA”) and New York City Human Rights Law (“NYCHRL”) (the court
previously determined that plaintiff is not disabled due to
back-related limitations in the major life activity of working);
and 2) whether plaintiff was suspended from her job in October
of 2010 in retaliation for requesting certain accommodations, in
violation of the ADA only.
The NYCHRL retaliation claims are
barred by the prior decision of the Workers’ Compensation Board.
Motion in Limine Standard
The purpose of a motion in limine is to allow the
trial court to rule in advance of trial on the admissibility and
relevance of certain forecasted evidence.
See Luce v. United
States, 469 U.S. 38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d
136, 141 (2d Cir. 1996); Nat’l Union Fire Ins. Co. v. L.E. Myers
Co. Grp., 937 F. Supp. 276, 283 (S.D.N.Y. 1996).
should be excluded on a motion in limine only when the evidence
is clearly inadmissible on all potential grounds.”
States v. Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001).
Further, the court’s ruling regarding a motion in limine is
“subject to change when the case unfolds, particularly if the
actual testimony differs from what was [expected].”
U.S. at 41.
Defendant’s Motion to Exclude Evidence of Previously
On March 10, 2014, the court issued an order denying
plaintiff’s motion for summary judgment and granting in part and
denying in part defendant’s motion for summary judgment.
& Order,” ECF No. 46.)
In its order, the court made the
following rulings: 1) that plaintiff’s lumbosacral sprain did
not substantially limit the major life activity of working (Mem.
& Order at 18-20); 2) that plaintiff’s asthma did not constitute
a disability as defined by the ADA (Mem. & Order at 21-22); and
3) that plaintiff’s current medical leave is not retaliatory
(Mem. & Order at 31-33).
In addition, the court declined to
analyze whether plaintiff’s asthma would be considered a
disability under the NYCHRL because, having dismissed
plaintiff’s federal claim regarding her asthma, it would not
exercise supplemental jurisdiction over plaintiff’s related
asthma claims under the NYCHRL.
(Mem. & Order at 22.)
also, e.g., Thomas v. City of New York, 953 F. Supp. 2d 444, 462
(E.D.N.Y. 2013) (“Especially in light of the Second Circuit's
decision in Mihalik v. Credit Agricole Cheuvreux North America,
Inc., 715 F.3d 102 (2d Cir. 2013), recognizing that the NYCHRL
has a lower threshold of proof than its federal counterparts,
comity suggests that the state courts should resolve these local
This is particularly appropriate since this
heightened standard has been applied primarily at the
intermediate appellate level of the state courts, with limited
opportunity for the New York Court of Appeals to construe it,
and thus there is no reason for a federal court to apply the
statute [to a claim over which] it no longer has original
Accordingly, the court, in the March 10, 2014
Memorandum and Order, granted defendant’s summary judgment
motion regarding plaintiff’s disability due to her asthma and
dismissed plaintiff’s asthma accommodation claim.
(See Mem. &
Order at 22.)
Except as provided herein, claims that were dismissed
or determined by summary judgment, including the alleged failure
to accommodate plaintiff’s asthma, the finding that plaintiff’s
alleged back disability does not limit the major life activity
of working, and the determination that plaintiff’s current
medical leave is not retaliatory, may not be tried, and evidence
relating thereto may not be introduced at trial.
of Evidence 402 states that “[i]rrelevant evidence is not
The Rules define evidence as relevant if: “(a) it
has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of
consequence in determining the action.”
Fed. R. Evid. 401.
previously dismissed claims, and evidence thereof, are not “of
consequence in determining the action” and therefore will be
Id.; see also Hamza v. Saks Fifth Ave., Inc., No. 07-
CV-5974, 2011 WL 6187078, at *7 (S.D.N.Y. Dec. 5, 2011)
(excluding, pursuant to Federal Rules of Evidence 401 and 402,
evidence of previously dismissed disability discrimination
claims where only plaintiff’s retaliatory discharge claims were
at issue at trial).
Accordingly, defendant’s motion to preclude
previously dismissed claims and evidence thereof is granted.
III. Defendant’s Motion to Preclude Claims Presented to the
Workers’ Compensation Board
Defendant moves to exclude certain of plaintiff’s
claims that she previously presented to the Workers’
Compensation Board on the grounds that they are barred by the
doctrines of collateral estoppel and res judicata.
reasons set forth below, defendant’s motion is granted in part
and denied in part.
On October 21, 2010, plaintiff was suspended for
thirty days for, according to her supervisor, being “off the
job” without permission on October 18, 2010.
21, 2010, ECF No. 49-2, at 34.)
(Ltr. dated Oct.
Plaintiff filed a complaint
with the Workers’ Compensation Board stating that she left work
to get fresh air because she was having difficulty breathing,
due to a recent fumigation after work hours in the building.
(Discrimination Compl., ECF No. 49-2, at 36.)
On April 27,
2011, the Board found that plaintiff’s “lost time claimed was
due to her being suspended and unrelated to her medical
condition” and that her suspension was “for nondiscriminatory
purposes” and that defendant did not act with retaliatory intent
in suspending plaintiff.
(Notice of Bd. Decision, Pl. Summ. J.
Ex. 9, ECF No. 29-9; Bd. Decision., ECF No. 49-2, at 39.)
decision was affirmed by an administrative panel on appeal.
(Bd. Panel Decision, ECF No. 49-2, at 41.)
Defendant argues that the Workers’ Compensation
Board’s decision bars this court’s consideration of plaintiff’s
claim that her suspension was in retaliation for protected
activities under the ADA.
It is, however, “well established
that state administrative proceedings not reviewed by state
court do not have preclusive effect on an ADA claim.” 2
v. N.Y.C. Trans. Auth., 336 F. Supp. 2d 225, 242-43 (E.D.N.Y.
2004) (holding that a Workers’ Compensation Board decision did
not have preclusive effect in an ADA action and noting the
differences between retaliation claims under the ADA and
Workers’ Compensation Law); see also Kosakow v. New Rochelle
Radiology Assocs., P.C., 274 F.3d 706, 735 (2d Cir. 2001)
To the extent that plaintiff seeks to argue that she was suspended in
retaliation for requesting an ergonomic chair and keyboard, however, that
argument would be barred by virtue of the fact that plaintiff requested the
ergonomic equipment after she was suspended. (See Mem. & Order at 7 (citing
Pl. 56.1 Stmt. ¶ 19).)
(noting that an administrative decision by the New York State
Division of Human Rights “would have . . . no effect on
subsequent federal litigation.”).
Although plaintiff’s federal ADA retaliation claim is
not precluded by the decision of the Workers’ Compensation
Board, the Board’s decision is nonetheless relevant to
plaintiff’s federal retaliation claims at trial.
give “great weight” to findings of fact made during state
Ragusa v. United Parcel Serv., No.
05-CV-6187, 2008 WL 612729, at *5 (S.D.N.Y. Mar. 3, 2008)
Therefore, defendant’s motion is denied to
the extent defendant seeks to preclude plaintiff from asserting
federal retaliation claims at trial but evidence of the Workers’
Compensation Board decision may be presented at trial.
The Workers’ Compensation Board’s decision, however,
precludes plaintiff’s NYCHRL retaliation claims based on
plaintiff’s alleged asthma and back sprain.
must give a state agency acting in a judicial capacity ‘the same
preclusive effect to which it would be entitled in the State’s
courts’ as long as ‘the parties have had an adequate opportunity
Rahman v. Museum of Natural History, No. 10-CV-
921, 2012 WL 1077679, at *8 (E.D.N.Y. Mar. 30, 2012) (quoting
DeCintio v. Westchester Cnty. Med. Ctr., 821 F.2d 111, 116 (2d
An administrative agency’s ruling collaterally
estops the plaintiff from relitigating her NYCHRL claim when
“(1) the issue sought to be precluded is identical to a material
issue necessarily decided by the administrative agency; and (2)
there was a full and fair opportunity to contest the issue.”
Id. (citing Jeffreys v. Griffin, 1 N.Y.3d 34, 39 (2003)).
The court agrees with defendant that the Workers’
Compensation Board decision has a preclusive effect under New
York law on plaintiff’s NYCHRL claims.
The issues and
retaliation claim presented to the Workers’ Compensation Board
are identical to those before the court under the NYCHRL, to the
extent plaintiff claims that her suspension was based on
The provision of the Workers’
Compensation Law under which plaintiff brought her claim is
Section 120, which provides that it is unlawful
[F]or any employer . . . to discharge or in any other
manner discriminate against an employee as to his or
her employment because such employee has claimed or
attempted to claim compensation from such employer,
. . . and no other valid reason is shown to exist for
such action by the employer.
Workers’ Comp. L. § 120.
Plaintiff had a full and fair
opportunity to challenge her suspension based on alleged
retaliation and discrimination before the Workers’ Compensation
The Workers’ Compensation Board found that defendant
presented a valid reason for plaintiff’s suspension based on a
work-time violation, and not because of retaliatory
discrimination based on her alleged medical condition.
extent plaintiff does seek to argue at trial that she was
suspended in retaliation for seeking workers’ compensation, this
claim is also barred.
Therefore, defendant’s motion to preclude
plaintiff’s federal ADA claims previously presented to the
Workers’ Compensation Board is denied, and defendant’s motion to
preclude plaintiff’s NYCHRL claims previously presented to the
Workers’ Compensation Board is granted.
Plaintiff’s Motion to Preclude Defendant from Presenting
Its Affirmative Defense of Undue Hardship
In her motion in limine, plaintiff argues that,
because defendant did not explicitly plead “undue hardship” as
an affirmative defense to plaintiff’s disability accommodation
claims, defendant may not present this defense at trial.
court finds that it is unnecessary for defendant explicitly to
plead undue hardship as an affirmative defense and that, in any
event, defendant did adequately plead this defense.
Accordingly, plaintiff’s motion is denied for the reasons that
Both the ADA and NYCHRL provide for an undue hardship
defense to disability accommodation claims.
The ADA forbids
discrimination on the basis of disability if an employer does
“not [make] reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a
disability . . ., unless [the employer] can demonstrate that the
accommodation would impose an undue hardship on the operation of
the business of such [employer].”
42 U.S.C. § 12112(b)(5)(A).
The NYCHRL similarly provides that a reasonable accommodation
for an employee’s disability is one that “shall not cause undue
hardship in the conduct of the [employer’s] business.”
Admin Code § 8-102(18).
Under both the federal and city laws,
the employer has the burden of demonstrating that an
accommodation would cause undue hardship.
See McMillan v. City
of New York, 711 F.3d 120, 128 (2d Cir. 2013) (“If a plaintiff
suggests plausible accommodations, the burden of proof shifts to
the defendant to demonstrate that such accommodations would
present undue hardships and would therefore be unreasonable.”);
N.Y.C. Admin Code §8-102(18) (“The [employer] shall have the
burden of proving undue hardship.”).
The courts in the Second Circuit that have considered
whether undue hardship must be pled as an affirmative defense
under the ADA and NYCHRL have determined that it does not.
Brooklyn Ctr. for Independence of the Disabled v. Bloomberg, 980
F. Supp. 2d 588, 2013 WL 5943995, at *63 (S.D.N.Y. Nov. 7, 2013)
(holding, in an ADA public accommodation case, that it was
unnecessary for defendants to plead undue hardship because
plaintiffs had not proposed specific accommodations); Schnitzer
v. Bank Leumi USA, No. 09-CV-3173, 2010 WL 3069646, at *5
(S.D.N.Y. July 29, 2014) (holding, in an NYCHRL case, that the
NYCHRL does not create an affirmative defense of undue hardship
but rather “allocates the burden of proof on the issue of the
reasonableness of an accommodation when it implicates ‘undue
But cf. LeBlanc v. United Parcel Serv., No. 11-
CV-6983, 2014 WL 1407706, at *18 (S.D.N.Y. Apr. 11, 2014)
(holding that, under the NYCHRL, undue hardship is an
affirmative defense but not addressing the question of whether
it must be pled in the Answer).
The court can find no authority
in this Circuit, and plaintiff has identified none, for the
proposition that a defendant must plead undue hardship in order
to assert that defense at trial.
See also Bloomberg, 2013 WL
5943995, at *63 (“The Court has not found—and Plaintiffs have
not cited—any case in which a court has held that failure to
plead a[n] . . . undue hardship defense waived that defense”).
Even if, pursuant to Federal Rule of Civil Procedure
8, defendant was required to plead undue hardship as a defense
against plaintiff’s accommodation claims, the court finds that
defendant has pled this defense adequately.
In the Answer,
defendant pleads the following affirmative defenses, among
others: that Verizon “acted in good faith and has not violated
any rights which may be secured to Plaintiff under any federal,
state or local laws, rules, regulations or guidelines;” and “all
actions taken by Defendant with respect to the Plaintiff were
undertaken in good faith and for legitimate business reasons.”
(Answer ¶¶ 5-6, ECF No. 10.)
These defenses provide plaintiff
with adequate notice that defendant would claim that any failure
to accommodate plaintiff did not have a discriminatory basis but
rather complied with the law and was based on defendant’s
See Saks v. Franklin Covey Co., 316 F.3d
337, 350 (2d Cir. 2003) (citing Blonder-Tongue Labs., Inc. v.
Univ. of Ill. Found., 402 U.S.. 313, 350 (1971)) (“One of the
core purposes of Rule 8(c) is to place the opposing parties on
notice that a particular defense will be pursued so as to
prevent surprise or unfair prejudice.”).
adequately apprised plaintiff of the fact that Verizon would
defend against plaintiff’s accommodation claims by asserting
that it was unduly burdensome for the company to accommodate
Moreover, to the extent that plaintiff complains that
defendant failed to provide discovery regarding undue hardship,
plaintiff identifies no discovery request that specifically
seeks discovery regarding undue hardship.
however, request documents regarding defendant’s affirmative
defenses to which defendant objected.
Request 46, ECF No. 50-6, at 13.)
(Pl. Mot. Ex. 4, Doc.
There is also no indication
in the record that defendant provided documents relevant to the
undue hardship defense as part of its disclosure obligations
pursuant to Federal Rules of Civil Procedure 26(a) and (e).
Accordingly, defendant may not proffer documents at trial that
bear specifically on its undue hardship defense.
See Fed. R.
Civ. P. 37(c)(1) (“If a party fails to provide information . . .
as required by Rule 26(a) or (e) [regarding initial disclosures
and the duty to supplement those disclosures], the party is not
allowed to use that information or witness to supply evidence
. . . at a trial, unless the failure was substantially justified
or is harmless.”); see also, e.g., Quiles v. City of New York,
No. 11-CV-5613, 2014 WL 1918635, at *3, *6 (S.D.N.Y. May 8,
2014) (precluding the defendant from presenting evidence
pertaining to its affirmative defense because the relevant
documents were disclosed “one and one-half years after the close
of fact discovery and mere months before trial”).
For the reasons set forth above, plaintiff’s motion in
limine is denied; however, defendant may not proffer documents
at trial that bear specifically on its undue hardship defense.
For the foregoing reasons, plaintiff’s motion in
limine is denied, defendant’s motion in limine to exclude
previously dismissed claims is granted, and defendant’s motion
in limine to exclude certain claims on the basis of res judicata
or collateral estoppel is granted in part and denied in part.
Only the following claims will, therefore, be tried in this
case: 1) whether defendant failed to accommodate plaintiff’s
alleged disability related to her back, in violation of the ADA
and NYCHRL (the court previously determined that plaintiff is
not disabled due to back-related limitations in the major life
activity of working); and 2) whether plaintiff was suspended
from her job in October of 2010 in retaliation for requesting
certain accommodations, in violation of the ADA only. The final
pre-trial conference in this case will take place, as previously
scheduled, on July 9, 2014.
The parties shall submit joint
revised proposed jury charges consistent with the remaining
claims no later than July 1, 2014.
June 25, 2014
Brooklyn, New York
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York
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