Noel v. Incorporated Village of Lake Success et al

Filing 78

ORDER granting, in part, and denying, in part 61 Motion in Limine. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 2/24/2016. (Roman, Joshua) Modified on 2/24/2016 (Ryan, Mary).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FRITZ NOEL,
Plaintiff,
ORDER
- against CV 13-211 (AKT)
INCORPORATED VILLAGE OF LAKE
SUCCESS, ROBERT JOHNSTON, and
SCOTT CURRY,
Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
The Incorporated Village of Lake Success (the “Village”), Robert Johnston and Scott
Curry (collectively, the “Defendants”) move in limine for an Order excluding certain evidence,
witnesses and testimony from trial based on claims which (1) were dismissed in the Court’s
March 31, 2015 Memorandum and Order, granting in part and denying in part Defendants’
motion for summary judgment and/or (2) pre-date the June 3, 2010 Settlement Agreement and
release (the “Agreement) entered into by the parties. See DE 61, 62. Defendants claim that the
Plaintiff improperly seeks to re-litigate barred claims and to introduce evidence for a third time
at trial.

In opposing the motion, Plaintiff states that notwithstanding the Court’s March 31,

2015 decision [DE 47] that it would not consider “facts pre-dating the June 2010 Settlement
Agreement as ‘background evidence’ for the post-settling claims being pursued in this action,”
this Court “retains discretion to admit or preclude any evidence at trial and the court did not state
in its decision that background evidence would not be admissible at trial to prove intent or
discriminatory and retaliatory animus.” DE 67.

The Court has carefully reviewed and considered the arguments set forth by respective
counsel in the papers both supporting and opposing the motion to preclude. 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.” Gorbea v. Verizon New York, Inc., No. 11-CV-3758,
2014 WL 2916964, at *1 (E.D.N.Y. June 25, 2014) (citing Luce v. United States, 469 U.S. 38,
40 n.2 (1984)). Highland Capital Mgmt., L.P. v. Schneider, 379 F.Supp.2d 461, 467
(S.D.N.Y.2005). When a party moves to preclude evidence by means of an in limine motion, the
court is required to determine preliminarily under Fed.R.Evid. 104 whether the evidence is
admissible. See Highland Capital Mgmt., L.P., 379 F.Supp.2d at 467 (citing Commerce Funding
Corp. v. Comprehensive Habilitation Servs., Inc., No. 01–CV–3796, 2004 WL 1970144, at *4
(S.D.N.Y. Sept.3, 2004). “[O]nly when the evidence is clearly inadmissible on all potential
grounds” should such evidence be excluded on a motion in limine. Commerce Funding Corp.,
2004 WL 1970144 at *4 (citing Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94–CV–
5520, 1998 WL 665138, at *3 (S.D.N.Y. Sept.25, 1998)); accord Sec. Exch. Comm'n v. U.S.
Envtl, Inc., No. 94–CV–6608, 2002 WL 31323832, at *2 (S.D.N.Y.Oct.16, 2002). It should be
noted that an in limine ruling “is subject to change when the case unfolds, particularly if the
actual testimony differs from what was contained in the ... proffer.” Highland Capital Mgmt.,
L.P., 379 F.Supp.2d at 467 (quoting Luce v. United States, 469 U.S. at 41).
By contrast, the purpose of a motion in limine is not to provide a party with another
opportunity to introduce facts and make arguments that were advanced and dismissed at
summary judgment. In particular, the Court points out that in its determination of the summary
judgment motion, the Court stated that the claims which will proceed to trial are:

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(1)

Plaintiff’s disparate treatment claims under Title VII (race/color and national
origin), NYSHRL (race/color and national origin), and 42 U.S.C. § 1981 (race)
stemming from his November 2011 suspension, and

(2)

Plaintiff’s retaliation claims under Title VII, NYSHRL, and 42 U.S.C. § 1981
arising from his November 2010 internal complaint to the Village and his
subsequent November 2011 suspension.

DE 47 at 58. Among other things, Plaintiff’s failure to promote claim and hostile work
environment claims were dismissed. In reaching this decision, the Court addressed at some
length what could and could not be introduced at trial based upon the rulings on the individual
claims.
At the outset, the Court points out that Plaintiff did not raise a claim for breach of the
June 2010 Settlement Agreement in this litigation, nor did Plaintiff move for reconsideration of
the Court’s decision on Defendants’ motion for summary judgment. Likewise, Plaintiff did not
seek an interlocutory appeal of that decision. Consequently, Plaintiff is not in a position to
attempt to bring forth trial testimony which is precluded by the Court’s summary judgment
determination nor to raise at this juncture any issues concerning the validity of the Settlement
Agreement.
Plaintiff’s disparate treatment claims under Title VII, Section 1981 and the NYSHRL for
trial purposes are limited to the events surrounding his November 2011 suspension. Defendants
maintain that because the Plaintiff has listed witnesses and documents in the proposed Joint PreTrial Order (“JPTO”) which predate the June 2010 Agreement -- which they believe contravenes
the Court’s ruling on summary judgment -- the Defendants have been forced to include witnesses
and exhibits in the JPTO to address the Plaintiff’s posture. As such, the Defendants seek a
formal order of preclusion. See Memorandum of Law in Support of Defendants’ Motion in
Limine (“Defs.’ Mem.”) [DE 62] at 3. Although the Plaintiff acknowledges the Court’s citation

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to Awolesi v. Shinseki, No. 10-CV-6125, 2012 WL 527631, at *2-3 (W.D.N.Y. Feb. 16, 2012) in
holding that it would not consider “facts pre-dating the June 2010 Settlement Agreement as
‘background evidence’ for the post-settlement claims being pursued in this action,” DE 47 at 1617, plaintiff nevertheless asserts that the Court did not state in its decision that “background
evidence would not be admissible at trial to prove intent or discriminatory and retaliatory
animus.” Plaintiff’s Memorandum of Law in Opposition to Motion in Limine (“Pl.’s Opp’n”)
[DE 67] at 3. As such, Plaintiff argues that the Settlement Agreement should not extend to “a
blanket preclusion of the evidence of Plaintiff’s former co-workers, whose testimony is key to
certain aspects of Plaintiff’s surviving claims pertaining to his suspension.” Pl.’s Opp’n at 4-5.
In fact, Plaintiff’s counsel urges the Court to parse the language of the 2010 Settlement
Agreement under the factors set forth in Livingston v. Adirondack Beverage Co., 141 F.3d 434
(2d Cir. 1998) -- including, for example, the plaintiff’s education, whether plaintiff consulted
with an attorney at the time, what consideration was provided, etc. That ship has long sailed and
Plaintiff took no action to address or timely challenge the agreement or any breach of the
agreement. Moreover, Livingston is distinguishable on its facts. There, the plaintiff challenged
the validity of the release he entered into with his employer in settling charges that he had filed
with the then New York State Division on Civil Rights. Livingston, 141 F.3d at 436-37. The
question arose whether the plaintiff lacked the mental capacity to enter into a binding settlement
agreement and release since plaintiff thereafter claimed that he was “forced” to sign the
agreement and was threatened with retaliation if he did not resign. Id. at 437. That is not the
case here. The Court further points out that Plaintiff Noel certified by signing the Settlement
Agreement that he had had a full and fair opportunity to consult with a representative of his

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choice before executing the agreement, and that he read it carefully and understood its contents.
See Settlement Agreement and Release [DE 63-1], ¶ 9.
Federal Rule of Evidence 402 states that “[i]rrelevant evidence is not admissible.” The
Federal 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 excluded.” Gorbea, 2014 WL 2916964, at *2 (quoting Fed. R. Evid. 401); see also Hamza v. Saks Fifth Ave., Inc., No. 07-CV5974, 2011 WL 6187078, at *7 (S.D.N.Y. Dec. 5, 2011) ( pursuant to Rules 401 and 402,
excluding evidence of previously dismissed disability discrimination claims where only
plaintiff’s retaliatory discharge claims were at issue at trial). The Plaintiff asserts substantive
discrimination claims that were addressed by the Settlement Agreement. The Court has already
determined that those claims are precluded by that agreement. DE 47 at 16. Likewise, the Court
has determined that it will not consider testimony offered by the Plaintiff as to background
evidence which pre-dates the June 3, 2010 execution of the Settlement Agreement. Id. at 17.
Accordingly, Defendants’ motion to preclude previously dismissed claims and evidence of the
same is GRANTED.
However, that is not the end of the discussion. On summary judgment, the Court
declined to consider the affidavits of various co-workers of the Plaintiff who proffered sworn
statements (some of which contained elements of both hearsay and opinion) as to all of the
claims being pursued by the Plaintiff since most of these co-workers’ terms of employment
ended prior to the June 2010 Settlement Agreement. However, on the limited issue of the
Plaintiff’s disparate treatment claims stemming from the Plaintiff’s November 2011 suspension,

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Plaintiff has the right to introduce testimony as to comparators. This means that Plaintiff will be
permitted to introduce evidence, through his own testimony and/or the testimony of former coworkers, to support his claim that other similarly situated non-Black and non-Haitian employees
who had damaged the golf course, either by spills or other means, and who had not filed any
complaints of discrimination, were treated differently from the Plaintiff. This evidence may be
introduced through relevant documents (to the extent such documents exist) as well as the
testimony of witnesses with first-hand knowledge of such incidents occurring both prior to and
after the June 2010 Settlement Agreement. Their testimony is limited to their knowledge of such
incidents and any purported disparate treatment associated with them. For the reasons stated in
the Court’s summary judgment decision, such witnesses will not be permitted to testify as to
other areas such as the alleged hostile work environment, the alleged failure to promote the
Plaintiff and the allegedly inferior work assignments given to the Plaintiff (see DE 47 at 28-29)
since these claims have been dismissed.
As to Plaintiff’s retaliation claims under Title VII, the NYSHRL, and 42 U.S.C. § 1981
arising from his November 2010 internal complaint to the Village and his subsequent November
2011 suspension, several issues need to be addressed. Based upon the retaliation claims, the
Court cannot categorically preclude all mention of Plaintiff’s June 11, 2009 complaint to the
New York State Division of Human Rights alleging discrimination and retaliation. As noted in
the summary judgment decision, the record is clear that Plaintiff engaged in protected activity on
two separate occasions -- first by filing his 2009 SDHR complaint, and second, by lodging an
internal complaint with the Village on November 16, 2010. DE 47 at 53. There is no dispute
that the NYSDHR complaint comprises some of the protected activity upon which Plaintiff relies
to prove his retaliation claim. As such, counsel for both sides will need to confer and come up

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with a Stipulation which the Court can ultimately read to the jury regarding the extent of the
information which shall be introduced concerning that complaint and its ultimate resolution.
Counsel are directed to provide the proposed Stipulation to the Court by noon on February 26,
2016.
The Court agrees that generally speaking, in employment discrimination cases, evidence
even of time-barred acts of discrimination may provide relevant background for purposes of
establishing a defendant’s discriminatory and retaliatory animus. This is not a statute of
limitations issue in this case. Rather, for all of the reasons set forth in the Court’s decision on
summary judgment, the Settlement Agreement releasing the Plaintiff’s claims against the
Defendants in 2010 set this case apart. Plaintiff’s attempt to distinguish Awolesi v. Shinseki is
unavailing and does not change that fact. The Court finds the following passage in Awolesi
persuasive:
Plaintiff, however, argues that the facts that were the subject of the settlement
should be considered as background evidence in this case. See Pl. Mem. of Law
at 10, citing Jute v. Hamilton Sunstrand Corp., 420 F.3d 166 (2d Cir. 2005).
Jute relates to a court’s consideration of time-barred conduct, for which a plaintiff
can no longer seek relief, as background evidence in a retaliation claim. In
contrast, here, Plaintiff requests that this Court consider facts that were the subject
of a settlement agreement, which Plaintiff knowingly and willingly entered into,
and for which Plaintiff already received relief, in the form of the settlement
agreement. Therefore, Jute’s reasoning is not applicable to the instant case.
Awolesi, 2012 WL 527631, at *2; see LaCourse v. HallKeen Management, Inc., No. 2:10-cv420-GZS, 2011 WL 3857149, at *13 (D. Me. Aug. 31, 2011), report and recommendation
adopted, 2011 WL 4860058 (D. Me. Oct. 13, 2011) (complained of retaliatory acts predated and
are subsumed in the Settlement Agreement and, hence, cannot serve as actionable adverse
employment actions).

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The Court has already found that an unpaid suspension qualifies as a “materially adverse”
employment action sufficient to dissuade a reasonable worker from engaging in protected
activity. See DE 47 at 54. Based on the evidence in the record, the Court held that Plaintiff has
raised a sufficient inference that Defendants’ actions in suspending him were at least partially
motivated by retaliatory animus. Plaintiff will now have to provide proof of such motivation at
trial. “Courts have consistently held that one way to establish a claim of retaliation is to show
that the complaining employee is treated differently than other employees who did not engage in
a protected activity.” Conklin v. Cnty. of Suffolk, 859 F. Supp. 2d 415, 433 (E.D.N.Y. 2012)
(internal citation omitted); see also Knight v. City of New York, 303 F. Supp. 2d 485, 498-99
(S.D.N.Y. 2004); DeCintio v. Westchester Cty. Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987)
(holding that discrimination can be established “through other evidence such as disparate
treatment of fellow employees who engaged in similar conduct”). Therefore, Plaintiff will be
permitted to introduce evidence to support this contention. The areas Plaintiff’s counsel is free
to inquire about include, for example, Superintendent Johnston’s acknowledgement that he
covertly recorded his post-gas spill conversation with Plaintiff; Village Administrator Pogrell’s
testimony concerning that recording; Johnston’s testimony that he spoke with Plaintiff’s
comparators following their respective incidents in leaking gasoline or spilling oil but not
recording those conversations; Pogrell’s testimony that this was the first instance where a spill
had ever been investigated by the Village during her career, etc. Plaintiff will not be permitted to
conduct an inquiry into Pogrell’s May 2008 investigation nor may Plaintiff introduce any notes
compiled during that investigation. These precluded matters apply equally to the Defendants.
Should Defendants “open the door” on these issues, they do so at their own risk.

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The Court expects that issues will arise regarding admissibility of certain documents or
testimony as the trial progresses and those will be handled as they arise. In preparing their
respective cases for presentation, however, counsel are expected to comply with the above
directives to minimize any interruptions during the presentation of evidence.

SO ORDERED.
Dated: Central Islip, New York
February 24, 2016
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge

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