U.S. Equal Employment Opportunity Commission v. AZ Metro Distributors LLC

Filing 176

ORDER granting in part and denying in part Defendant's Motions in Limine 160 ; denying Plaintiff's motions in limine 150 , 151 , 156 , 158 ; denying as moot motion in limine 152 ; granting motions in limine 153 , 154 , 157 ; deferring ruling on motion in limine 155 , all for the reasons set forth herein. Ordered by Judge Eric N. Vitaliano on 9/9/2019. (Craft, Rachel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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EQUAL OPPORTUNITY EMPLOYMENT
:
COMMISSION,
:
:
Plaintiff,
:
:
-against:
:
AZ METRO DISTRIBUTORS, LLC,
:
:
Defendant.
:
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VITALIANO, D.J.

SHORT-FORM
MEMORANDUM & ORDER
15-CV-5370 (ENV) (PK)

Jury selection in this case is scheduled to begin on September 16, 2019. Plaintiff Equal
Employment Opportunity Commission (“EEOC”) and defendant AZ Metro Distributors, LLC
(“AZ Metro”) have filed numerous final pre-trial motions and motions in limine. Dkt. 150-58,
160. Having considered the submissions of the parties, the Court resolves the motions in the
manner and for the reasons as set forth below. 1
Request

Ruling
I.

Defendant’s Motions to Bifurcate

(A) Defendant moves to bifurcate the trial in
order to provide separate trials of the claims

claims of Archibald Roberts and Cesar

advanced on behalf of each claimant pursuant

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(A) Defendant moves to bifurcate trial of the

Fernandez pursuant to Federal Rule of Civil

Though AZ Metro styled its “Motions to Bifurcate” as motions in limine, the Court addresses

these pre-trial motions first.

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to Federal Rule of Civil Procedure 42(b).

Procedure 42(b), “[f]or convenience, to avoid

Def.’s Mem. (Dkt. 160) at 16-19. Practically

prejudice, or to expedite and economize, the

speaking, the request for bifurcation is in the

court may order a separate trial of one or

nature of severance.

more separate issues, claims, crossclaims,
counterclaims, or third-party claims.” See
also Def. Mem. at 16-17. In the Second
Circuit, it is well-established that bifurcation
rests “firmly within the discretion of the trial
court.” Katsaros v. Cody, 744 F.2d 270, 278
(2d Cir. 1984) (quoting In Re Master Key
Antitrust Litig., 528 F.2d 5, 14 (2d Cir.
1975)). Defendant’s arguments fall well short
of the standard in Federal Rule of Civil
Procedure 42(b). The bifurcation of the case
with separate juries empaneled for the claims
of Roberts and Fernandez would not serve the
interests of judicial economy and expedition.
The alleged termination of both claimants in
violation of the Age Discrimination in
Employment Act (“ADEA”) occurred on the
same day in the same department. Pl.’s Opp.
(Dkt. 160-42) at 16. Even the defense
asserted against each claim overlaps. Neither

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were fired, AZ Metro says, each resigned and
were not discharged. Id. Accordingly, there
is substantial overlap to be expected with
respect to evidence and legal issues. This is
hardly surprising where the claims are of coworkers working in the same department.
That’s why bifurcation in such situations, is
“thus the exception, not the rule, and the
movant must justify bifurcation on the basis
of the substantial benefits that it can be
expected to produce.” Lewis v. City of New
York, 689 F. Supp. 2d 417, 428 (E.D.N.Y.
2010). Here, defendant has not justified the
additional time and resources required to
bifurcate the trial with substantial benefits.
Defendant’s claims of potential prejudice and
alleged lack of evidence (Def.’s Mem. at 18)
do not outweigh the other factors.
Accordingly, the motion is denied.
(B) Defendant moves to bifurcate the trial

(B) The same rule, case law and

between the liability and damages phases

considerations apply as in I(A), supra.

pursuant to Federal Rule of Civil Procedure

Legion among arguments of the tort defense

42(b). Def.’s Mem. at 19-21.

bar, AZ Metro protests that any reference to

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damages before a determination of liability
would “prejudice defendant by confusing or
misleading the jury”, relying upon Katsaros v.
Cody, 744 F.2d at 278 (separating the
prudence of a bank loan from the amount of
money eventually lost).
Presumably, such an argument might be a
winning one in the rare case, but not here
where the issues of liability and damages are
intertwined and rely upon overlapping
testimonial and documentary evidence
including a potential finding of “willful”
action by defendant thereby triggering
liquidated damages. See Pl.’s Opp. at 16
(citing 29 U.S.C. § 626(b)). Stated in plain
terms, AZ Metro has not met its burden under
Rule 42. Its motion is denied.
II.

Defendant’s Motions in limine

(A) Defendant moves to exclude any claim or

(A) Any relevance (Fed. R. Evid. 401) and

evidence regarding defendant’s former

probative value of evidence regarding

employee Thomas Marigliano’s change of

defendant’s former employee Marigliano’s

position in February 2011 at AZ Metro, and

employment history and departure from AZ

his departure from AZ Metro on January 31,

Metro is outweighed by its potential prejudice

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2014. Def.’s Mem. at 2-16.

and risk of confusion for the jury. Fed. R.
Evid 403; see also Delaney v. Bank of Am.
Corp., 908 F. Supp. 2d 498, 504–05
(S.D.N.Y. 2012), aff'd, 766 F.3d 163 (2d Cir.
2014) (Excluding evidence of “two other
ADEA-covered employees in other groups at
BoA [who] were also laid off in 2010”.);
Leopold v. Baccarat, Inc., 174 F.3d 261, 271
(2d Cir. 1999). Defendant’s motion is
granted.

(B) AZ Metro moves to exclude any claim or

(B) Defendant has already acknowledged that

evidence regarding New York State

it told both Roberts and Fernandez it would

Department of Labor Unemployment

not, and ultimately it did not, contest their

Insurance Records as to Archibald Roberts

claims for unemployment insurance. See e.g.

and Cesar Fernandez. Def.’s Mem. at 21-22.

Def.’s Opp. to Pl.’s Motion #2 (Dkt. 151-1) at
3-4, 7. The jury’s time shall not be needlessly
wasted by the introduction of documents to
establish facts that are not disputed. These
facts should be the subject of a stipulation.
The Court anticipates that such a stipulation
will be submitted at the final pre-trial
conference scheduled for September 12, 2019

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and ruling on the motion is deferred until
then.
(C) Defendant moves to exclude evidence of

(C) The subject document is clearly an out of

any claim regarding the draft charge of

court statement and subject to exclusion under

discrimination of Archibald Roberts as “a

the hearsay rules. It may, of course, be

classic-out-of-court statement…inadmissible

offered if for a purpose recognized as an

to prove the truth of the matter asserted”.

exception to the hearsay rule or for some

Def.’s Mem. at 22-23.

purpose other than for the truth of the asserted
statement. The ruling must abide the proffer.

(D) AZ Metro moves for leave to offer

(D) For the reasons set forth in the Court’s

evidence regarding alleged “EEOC bias”.

rulings on Plaintiff’s motions in limine at

Def.’s Mem. at 24-30.

III(C) and (D), infra, defendant’s motion is
denied.

(E) Defendant moves to exclude “evidence of

(E) Defendant’s motion to exclude evidence

damages based upon the failure to mitigate

of damages based on the failure of claimants’

damages”. Def.’s Mem. at 30-35.

mitigation is denied. EEOC will have the
opportunity to offer proof of damages and AZ
Metro will have its opportunity to prove
failure to mitigate to the extent case law
permits.

(F) AZ Metro moves to exclude “any

(F) To the extent that this even qualifies as a

reference, statement, or argument related

motion in limine, without a specific showing

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undisclosed mitigations of damages”. Def.’s

of EEOC’s failure to comply with an

Mem. at 35-36.

appropriate discovery request, it is denied on
that basis. Without such a showing, it is
merely a restatement of the law whereby
damages evidence sought in discovery but not
produced is inadmissible. Either party is free
to object to any such attempted admission in
violation of this rule. See Fed. R. Civ. Pro 26;
37.

(G) AZ Metro moves to exclude “any

(G) Defendant’s motion is denied for the

reference, statement, or argument related to

reasons stated in the ruling in II(F), supra.

evidence not previously produced”. Def.’s
Mem. at 36.
(H) Defendant moves to exclude “any

(H) Evidence Rule 408 bars the admission of

reference, statement, or argument related to

evidence relating to settlement discussions.

any conciliation or settlement efforts”. Def.’s

This motion is unopposed and is granted for

Mem. at 36.

this reason.

(I) AZ Metro moves to exclude “any

(I) Defendant’s motion is denied, in principal

reference, statement, or argument related to

part, for the reasons set forth in the ruling in

an undisclosed methodology as a measure of

II(F), supra.

damages, including a specific amount related

Ultimately, the damages scheme set forth in

to compensatory or punitive damages”.

29 U.S.C. § 626(b) is controlling of the

Def.’s Mem. at 36-38.

propriety of evidence on this score. In the

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connection, the Court observes that, although
“the Second Circuit has not prohibited parties
from suggesting particular damages amounts
to the jury, [but] it has cautioned against this
practice.” Bermudez v. City of New York, No.
15-cv-3240 (KAM) (RLM), 2019 WL
136633, at *10 (E.D.N.Y. Jan. 8, 2019)
(citing Ramirez v. N.Y.C. Off-Track Betting
Corp., 112 F.3d 38, 40 (2d Cir. 1997)). The
question of whether to permit such argument
by counsel is “left to the discretion of the trial
judge.” Lightfoot v. Union Carbide Corp.,
110 F.3d 898, 912-13 (2d Cir. 1997).
Therefore, the Court cautions that plaintiff
will only be permitted, and solely in the
context of closing argument, to state what
liability the evidence has established, what
damages it has caused and to submit a
specific dollar amount that plaintiff contends
is the summation of any claims of lost wages,
prejudgment interest and a potential award of
liquidated damages (but not punitive
damages). The Court will instruct the jury, as

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it does in every case, that statements by
lawyers in closing are nothing more than
argument. See Edwards v. City of New York,
No. 08-2199 TLM, 2011 WL 2748665, at *2
(E.D.N.Y. July 13, 2011); see also Lightfoot
v. Union Carbide Corp., 110 F.3d 898, 912
(2d Cir. 1997).
(J) Defendant moves to exclude “hearsay”.

(J) This request, essentially, duplicates

Def.’s Mem. at 36-38.

defendant’s request in II(C), supra. The
ruling is the same.

(K) AZ Metro moves to exclude “any

(K) Although it is hard to fathom why there

reference, statement, or argument related to

might be any issue, there will be no

defendant’s Motions in Limine”. Def.’s

discussion at any time before the jury

Mem. at 38-39.

regarding any motion or ruling by the Court,
regardless when made.
III.

Plaintiff’s Motions in Limine

(A) EEOC moves to exclude evidence not

(A) The motion duplicates defendant’s

previously provided in response to a

request at II(F), supra. The ruling is the

discovery request. Dkt. 150.

same.

(B) EEOC moves to exclude evidence of job

(B) Since the basis for the request is not

performance. Dkt. 151.

attributed to a specific rule, it is presumed that
plaintiff contends that job performance is not
relevant (Fed. R. Evid. 401), but, if so, its

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prejudice outweighs its probative value (Fed.
R. Evid 403). At any rate, evidence
concerning the facts and circumstances
around the time of the end of employment is
relevant to allegations of age discrimination,
regardless of whether the defense is one of
“improper discharge” or “resignation”. Pl.’s
Mot. (Dkt. 151) at 1. The Second Circuit has
found job performance to be a relevant factor
in assessing whether discrimination occurred.
See e.g. Delaney v. Bank of Am. Corp., 766
F.3d 163, 169 (2d Cir. 2014) (Affirming a
summary judgment grant in favor of the
employer in an age discrimination case where
“the evidence supports BoA’s assertion that
Delaney was terminated because of his poor
performance” and noting “we do not sit as a
super-personnel department that reexamines
an entity's business decisions.”
(quoting Scaria v. Rubin, 117 F.3d 652, 655
(2d Cir.1997))). To be precise, evidence of
job performance is “relevant probative
evidence” in unfair discrimination or

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retaliation claims. McPartlan-Hurson v.
Westchester Cmty. Coll., No. 13-cv-2467
(NSR)(LMS), 2018 WL 4907610, at *4
(S.D.N.Y. Oct. 9, 2018). Accordingly, the
plaintiff’s motion, on these grounds, to
exclude evidence relating to the job
performance of Roberts and Fernandez is
denied.
(C) EEOC moves to exclude evidence relating (C) In line with the case law, see E.E.O.C. v.
to “the scope or substance of the EEOC’s

Sterling Jewelers Inc., 801 F.3d 96, 101 (2d

investigation”. Dkt. 152.

Cir. 2015), the parties agree that “evidence
concerning the scope, substance and merits of
the EEOC’s investigation of this lawsuit is
irrelevant”. Def.’s Opp. (Dkt. 152-1) at 1.
This request is denied as moot.

(D) Plaintiff moves to exclude evidence

(D) The Court has previously ruled that

relating to Monique Roberts. Dkt. 153.

discovery and affirmative defenses regarding
Monique Roberts are both irrelevant and
inappropriate. See Dkt. 58; 77; 119;
September 15, 2017 Minute Order. Any such
evidentiary purpose would be contrary to the
law of the case, and moreover, in the unlikely
event it is relevant, its prejudice would

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swamp any probative value. See Fed. R. Evid
401-403. Accordingly, the motion to
preclude such evidence is granted and
defendant is barred from referring to Monique
Roberts’ employment at EEOC or suggesting
that her role or actions played any role in the
case or investigation.
(E) EEOC moves to exclude evidence of

(E) Plaintiff requests an order excluding “all

“lack of internal complaints”. Dkt. 154.

evidence, remarks and questions in the
presence of the jury concerning the lack of
internal complaints” by Fernandez and
Roberts. Pl.’s Mot. (Dkt. 154) at 1.
Defendant argues such evidence is relevant as
it relates to the framework of cases where
workplace harassment or constructive
discharge is claimed. Def.’s Opp. (Dkt. 1541) at 1-2.
Whether an exception exists in such cases
relates to an argument of constructive
discharge. EEOC has not and represents that
it will not at trial proceed on any such theory.
Here, plaintiff has specifically claimed
unlawful discharge due to age of two former

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employees of AZ Metro in violation of
Section 4 of the ADEA, 29 U.S.C. § 623(a).
Complaint (Dkt. 1) ¶ 12. Plaintiff has not
made a complaint of “constructive discharge”.
Id.; see generally Pennsylvania State Police v.
Suders, 542 U.S. 129, 147, 124 S. Ct. 2342,
2354, 159 L. Ed. 2d 204 (2004) (Explaining a
constructive discharge claim as one where
plaintiff must show “working conditions so
intolerable that a reasonable person would
have felt compelled to resign.”) Therefore,
evidence of the lack of internal complaints is
not relevant, and, if relevant, is likely to
mislead or confuse the jury and the evidence
running afoul of either Rule 401 or Rule 403
will be excluded. EEOC’s motion is granted.
(F) EEOC moves to exclude evidence

(F) To the extent the motion seeks to exclude

“regarding any source of income other than

evidence of unemployment received or sought

earned income”. Dkt. 155.

by claimants, ruling is deferred pending
resolution of the request at II(B), supra.
To the extent this motion seeks a ruling on a
potential “offset” of a potential damages
award, given that such evidence is not

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appropriate for consideration by the jury, see
Dailey v. Societe Generale, 108 F.3d 451, 460
(2d Cir. 1997); Meling v. St. Francis Coll., 3
F. Supp. 2d 267, 275 (E.D.N.Y. 1998)
(declining to offset a damages award
following a jury verdict), the Court defers
consideration at this time.
(G) EEOC moves for a ruling of evidence “of

(G) The motion is denied for the reasons set

Thomas Marigliano’s termination” to be

forth in the ruling in II(A), supra.

relevant. Dkt. 156.
(H) EEOC moves for authentication of A&T

(H) The records produced by AT&T have

phone records as business records. Dkt. 157.

been properly authenticated by AT&T. The
redactions are covered by a protective order
(Dkt. 97) entered by Magistrate Judge Kuo.
See June 15, 2017 minute order. No appeal
was taken. That ruling is the law of the case.
Plaintiff’s motion (Dkt. 157) is granted. See
Fed. R. Evid. 803(6); 902(11); 902(13).

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(I) EEOC moves for a ruling that “evidence of (I) Plaintiff’s motion (Dkt. 158) is denied as
prior consistent statements of Fernandez and

duplicative of Federal Rule of Evidence 801

Roberts” is not hearsay. Dkt. 158.

and premature. The request is cut from the
same cloth as AZ Metro’s request at II(C),
supra. The ruling is the same.

So Ordered.
Dated: Brooklyn, New York
September 9, 2019

/s/ Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge

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