Thompson v. Spota et al

Filing 165

MEMORANDUM & ORDER, Plaintiff's MIL is GRANTED IN PART and DENIED IN PART, and Defendants' MIL is GRANTED IN PART and DENIED IN PART. So Ordered by Judge Nicholas G. Garaufis on 11/23/2022. (TL)

Case 2:14-cv-02473-NGG-AYS Document 165 Filed 11/28/22 Page 1 of 24 PageID #: 2631

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Ave Maria Thompson,
MEMORANDUM & ORDER

Plaintiff,

14-CV-02473 {NGG) (AYS)

-againstThomas J. Spota, Robert Ewald, and Suffolk County,
Defendants.

NICHOLAS G. GARAUFIS, United States DistrictJudge.
Plaintiff Ave Maria Thompson brings this employment discrimination action against her former employer, Suffolk County, and the
former District Attorney ("DA''), Thomas J. Spota. Jury selection is
scheduled to begin in this case on April 10, 2023. Pending before the
court are the parties' motions in limine. (See Pis.' Mot. in Umine (Dkt.
151) ("Pis.' Mil''); Defs.' Mot. in Umine (Dkt. 153) ("Defs.' Mil''); see
also Pis.' Opp. to Defs.' Mot. in Umine (Dkt. 159) ("Pis.' Opp.''); Defs.'
Opp. to Pis.' Mot. in Umine (Dkt. 158) ("Defs.' Opp."); Pis.' Reply (Dkt.
162); Defs.' Reply (Dkt. 163).)
For the reasons set forth below, Plaintiff's MIL is GRANTED IN
PART and DENIED IN PART, and Defendants' MIL is GRANTED IN PART
and DENIED IN PART.
I.

BACKGROUND

The court assumes the parties' familiarity with the factual background and procedural history in this matter and thus will summarize
only those facts relevant to the instant motions.
Thompson began working at the Suffolk County District Attorney's Office as an Assistant District Attorney ("ADA'') on August 4,
2003. (R&R on Summ. J. (Dkt. 115), adopted by Sept. 30, 2018 Order
(Dkt. 125) at 3.) She moved from the Case Advisory Bureau to the Narcotics Bureau in October 2009. (Id. at 7.) Thompson alleges that she
was discriminated against while working in the Narcotics Bureau. (Am.

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Compl. (Dkt. 46.) ,i 3.) This discrimination included being subjected to
co-worker's harassing and racist statements. (R&R on Summ. J. at 1113.) Thompson was also repeatedly disciplined by her superiors for
chronic lateness during this period. (id. at 14-19.) Thompson's employment was terminated by DA Spota on May 29, 2013, with the stated
reason being her habitual lateness. (id. at 22-23.) Upon notification of
her termination, Thompson told her superiors that she believed she
was being fired on account of her race. (id. at 23.)
Thompson filed a Complaint in this action alleging racial discrimination on April 17, 2014, naming Spota, Robert Ewald, and Kathleen
Wagner as Defendants. (See generally Compl. (Dkt. 1).) She filed an
Amended Complaint on July 24, 2015 dismissing Kathleen Wagner as
a Defendant but adding Suffolk County. (Am. Compl. ,i 1.) The
Amended Complaint contained claims under Title VII of the Civil Rights
Act of 1964 ("Title VII"), 42 U.5.C. § 1981, and 42 U.5.C. § 1983. (id. ,i,i
31-38.)
Following the court's adoption of the Magistrate Judge's Report
and Recommendation on Summary Judgment, the following claims remain at issue: (1) Thompson's race discrimination claim against Spota
and Suffolk County pursuant to § 1983; and (2) Thompson's race discrimination claim against Suffolk County under Title VII. (Sept. 30,
2018 Order at 3-4.)
II.

LEGAL STANDARD

"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). 1 "A court will exclude evidence
on a motion in limine only if it is clearly inadmissible on all potential

1

When quoting cases, unless otherwis~ noted, all citations and internal

quotation marks are omitted, and all alterations are adopted.

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grounds:' Laureano v. City of New York, No. 17-CV-181 (LAP), 2021 WL
3272002, at *1 (S.D.N.Y. July 30, 2021). "[C]ourts considering a motion

in limine may reserve decision until trial, so that the motion is placed
in the appropriate factual context." Ohio Cas. Ins. Co. v. Twin City Fire
Ins. Co., No. 14-CV-858 (NGG) (PK), 2019 WL 1365752, at *2 (E.D.N.Y.
Mar. 26, 2019). At trial, the court may also exercise discretion "to alter
a previous in limine ruling." Luce v. United States, 469 U.S. 38, 41-42
(1984).
Ill. DISCUSSION
A.

Plaintiffs' Motions in Limine
1.

Plaintiff's MIL# 1: Evidence Related to the Reasons for
Thompson's Termination

Thompson first asks the court to exclude evidence on and reference to topics related to her termination, arguing that they are
irrelevant under Federal Rules of Evidence ("Rules") 401 and 402, or
improperly prejudicial under Rule 403. (Pis: MIL at 3-6.) These topics
include Thompson's knowledge of criminal law, interpersonal relationships with co-workers, absence from work and vacation requests,
failure to complete time sheets, provision of financial disclosure forms
and expiration of her driver's license, and a prior lawsuit from over
twenty years ago. (id. at 2-3.)
Under Rule 401, evidence is relevant if "it has any tendency to
make a fact more or less probable than it would be without the evidence" and "the fact is of consequence." Fed. R. Evid. 401. The Second
Circuit . has described this as a "very low standard." United States v.

White, 692 F.3d 235, 246 (2d Cir. 2012). All relevant evidence is admissible, unless otherwise provided by federal statute, the Federal Rules
of Evidence, or the Constitution. Fed. R. Evid. 402. Courts can, however, exclude relevant evidence where the probative value of the
evidence "is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403

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(emphasis added). "'Unfair prejudice' within [this] context means an
undue tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one." Advisory Committee's
Notes on Fed. R. Evid. 403. District courts have broad discretion in conducting a Rule 403 balancing test. See United States v. Bermudez, 529
F.3d 158, 161-62 (2d Cir. 2008).
Employment discrimination suits under § 1983 and Title VII are
governed by the burden-shifting framework set out in McDonnell
Douglass Corp.

v.

Green, 411 U.S. 792 (1973). See Littlejohn

v.

City of

New York, 795 F.3d 297, 307 (2d Cir. 2015). A plaintiff must first make

out a prima facie case for discrimination, which entails showing (1)
they are a member of a protected class; (2) they are qualified for employment in the position; (3) they suffered an adverse employment
action; and (4) the adverse employment action occurred in a context
giving rise to an inference that the employer acted with discriminatory
motivation. Id. at 307. The burden then shifts to the employer to provide a nondiscriminatory reason for the adverse employment action,
id., upon which it finally shifts back to the plaintiff to show that the

employer's proffered nondiscriminatory reason was a pretext for intentional discrimination. Id. at 307-08.
The Defendants have stated that, at trial, they will seek to show
Thompson was terminated due to her lateness, insubordination, and
unwillingness to change behavior, rather than racial discrimination.
(Joint Pretrial Order ("JPTO") (Dkt. 138) at 2; Defs.' Opp. at 4.) Evidence
tending to make these proffered nondiscriminatory reasons more or
less likely is relevant to the second step of the McDonnel Douglass
framework under Rule 401.
a.

Thompson's Knowledge of Criminal Law

Thompson first seeks to exclude evidence or arguments related
to her knowledge of the criminal law. (Pis.' Mil at 2.) She points to
deposition testimony where Defense counsel questioned her on various principles of criminal law as the type of evidence that should be
barred. (See Ex. B to Robinson Deel. (Dkt. 152-2).) Spota and Suffolk

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County assert that Thompson's knowledge of criminal law is relevant
to her qualification as an ADA. (Defs.' Opp. at 5.)
The court finds that the Defense is not permitted to use the questions from Thompson's deposition testimony as evidence about her
knowledge of the criminal law. The testimony that Defendants seek to
introduce lacks probative value. The fact of Thompson's hiring as an
ADA, her yearly performance reviews, and her promotion to Senior
ADA show her qualification for the job. (Pis.' 56.1 St. (Dkt. 91) ,i,i 14,
31, 58.) An impromptu quiz on criminal law during a deposition more
than a decade after her hiring, however, has little bearing on this topic.
It is not contemporaneous with the period in question and its effectiveness in assessing knowledge of criminal law is doubtful at best.
Introducing this evidence also risks confusing the jury or creating a
mini trial over Thompson's knowledge of the criminal law.
This testimony thus cannot be used as evidence of Thompson's
knowledge of the criminal law under Rules 401,402, and 403 .
.b.

Thompson's Interpersonal Relationships with
Colleagues at the Suffolk County DA's Office

Thompson also asks the court to bar evidence of her interpersonal relationships with colleagues at the Suffolk County DA's Office.
(Pis'. MIL at 2.) The Defendants contend that such evidence is relevant
to Thompson's job performance and the non-discriminatory reason
for which she was terminated. (Defs: Opp. at 5.)
The Defendants' stated explanation for Thompson's termination
at the time of her firing and at summary judgment was her perpetual
lateness in arriving at work. (Defs.' 56.1 St. (Dkt. 83) ,i 102; Defs.' Mot.
Summ. J. (Dkt. 85) at 16; R&R on Summ. J. at 45-46.) They now indicate
that at trial they will try to prove Thompson's termination was due in
part to "her insubordination and unwillingness to change behavior despite repeated counseling from her supervisors." (JPTO at 2.) This
represents an additional nondiscriminatory reason for her termination. Defendants in Title VII suits are allowed to present multiple

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nondiscriminatory reasons for the plaintiff's termination, though the
factfinder may view shifting explanations as evidence of pretext. See,
e.g., Zann Kwan v. Anda/ex Grp. LLC, 737 F.3d 834, 846-47 (2d Cir.

2013); Ehrbarv. Forest Hills Hosp., 131 F. Supp. 3d 5, 30 (E.D.N.Y. 2015).
It is not the court's role to bar a Defendants' additional nondiscriminatory explanation, but rather it is up to the factfinder to determine
whether this reason is persuasive.
Accordingly, evidence of Thompson's interpersonal relationships
is relevant under Rule 401, as it pertains directly to her "insubordination and unwillingness to change behavior." Though this evidence may
cast Thompson in a negative light, it is not sufficiently prejudicial to be
excluded under Rule 403. The Court therefore declines to bar this evidence.
c.

Thompson's Absence from Work and
Vacation Requests

Thompson further seeks exclusion of evidence of her absence
· from work and vacation requests. (Pis.' MIL at 2.) Thompson's absence
from work is one of the principal nondiscriminatory reasons that the
Defendants have proffered for her termination. (JPTO at 2; Defs.' Opp.
at 4.) Evidence on this topic is thus clearly relevant under Rule 401 and,
given its high probative value, not subject to exclusion under Rule 403.
Barring evidence on this topic would substantially impair the Defendants' ability to make out a nondiscriminatory reason. It is not the
court's role to prevent the Defendants from proffering such a reason;
rather, it is the Plaintiff's responsibility to show that the Defendants
failed to show such a reason or that the one they put forth is a pretext
for intentional discrimination.
The court will not exclude evidence of Thompson's work and vacation requests.

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d.

Thompson's Time Sheets

Thompson also asks the court to exclude her time sheets. (Pis.'
MIL at 2.) Again, timeliness is one of the Defendants' primary explanations for Thompson's termination. (JPTO at 2; Defs.' Opp. at 4.) To the
extent that time sheets will be used to show that Thompson failed to
arrive at work on time, or that she improperly recorded her time, they
are relevant to the issue of her timeliness. For reasons articulated su-

pra, the court refuses to bar evidence of Thompson's time sheets.
e.

Thompson's Financial Disclosure Form and
Driver's License Expiration

Next, Thompson seeks to disallow evidence of her financial disclosure forms and the expiration of her driver's license. (Pis.' MIL at 3.)
The Defense contends that Thompson's failure to file her financial disclosure form on time is pertinent to the question of her timeliness.
(Defs.' Opp. at 4.)
Thompson's delay in filing her financial disclosure forms can be
broadly construed as part of her larger timeliness problems at work.
This incident was contemporaneous with her repeated disciplining for
arriving late to work and may have contributed to a broader perception of lateness. (R&R on Summ. J. at 14-15.) Thompson has also failed
to show why any prejudice resulting from introduction of this evidence
would be unfair. The court therefore finds evidence on Thompson's financial disclosure forms to be relevant under Rule 401 and not overly
prejudicial under Rule 403.
Yet, evidence on Thompson's expired driver's license is not relevant. The renewal of a driver's license is a personal matter that does
not bear on qualifications for a job or satisfactory performance in that
role. It is therefore not relevant under Rule 401. The expired driver's
license may also be a form of impermissible character evidence if used
to establish Thompson's propensity for lateness. Under Rule 404(b)(l),
prior specific acts cannot be offered to show that a party possesses a
certain character trait and that they acted in accordance with that trait

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during the period at issue. Fed. R. Evid. 404(b)(1) ("Evidence of any
other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted
in accordance with the character:'). Introducing Thompson's expired
driver's license to establish her character for lateness would run afoul
of Rule 404(b)(1).
The court therefore excludes evidence on Thompson's expired
driver's license given its lack of relevance and potential to be used as
a form of improper character evidence.
f.

Thompson's Prior Lawsuit

Finally, Thompson seeks to bar evidence of her 2001 lawsuit related to a shark attack of her husband. (Pis: MIL at 3; Ex. J to Deel. of
Amy E. Robinson (Dkt. 152-10) at 1.) The facts and circumstances of
the prior lawsuit do not relate to the claims in this matter. Accordingly,
the suit is not relevant under Rule 401.
Moreover, to the extent that the prior suit would be introduced
to characterize Thompson as a "chronic litigant" -i.e. for propensity
purposes-it is subject to exclusion under Rule 404(b)(1). See Jean-

Laurent v. Hennessy, 840 F. Supp. 2d 529, 542 (E.D.N.Y. 2011) (citing
Outley v. City of New Yark, 837 F.2d 587, 591-93 (2d Cir. 1988)). Prior
lawsuits may be admissible if used for one of the proper purposes
listed in Rule 404(b), see Williams v. Geraci, No. 14-CV-5742 (SIL), 2020
WL 5848738, at *11 (E.D.N.Y. Sept. 30, 2020), yet the Defendants have
given no indication that they would use Thompson's 2001 lawsuit for
any such purpose. The court therefore disallows evidence of this prior
suit.
For these reasons's Plaintiff's first MIL is GRANTED IN PART and
DENIED in part.
2.

Plaintiff's MIL# 2: Thompson's Deposition Testimony

Thompson next asks the court to exclude her deposition testimony, because she we will be available to testify live and her

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deposition constitutes inadmissible hearsay. (Pis.' MIL at 7.) She walks
back this request in her reply brief to instead ask the court to exclude
her deposition testimony for non-impeachment purposes. (Pis: Reply
at 4.)
Hearsay is an out of court statement offered for the truth of the
matter asserted, Fed. R. Evid. 801(c), and is inadmissible unless otherwise allowed under statute, evidentiary rule, or the Constitution. Fed.
R. Evid. 802. There are numerous exclusions and exceptions to the
general prohibition on hearsay. See Fed. R. Evid. 801(d), 803, 804.
The Defendants correctly assert that Thompson's deposition testimony satisfies multiple Rule 801(d) hearsay exclusions, under which
the relevant out-of-court statements are not hearsay. (Defs.' Opp. at
5.) First, Thompson's deposition qualifies as a Rule 801(d)(2) party-opponent statement. Under this Rule, out-of-court statements made by
opposing parties can be used against them at trial. Fed. R. Evid.
801(d)(2)(A). Courts in this circuit have found an opposing party's deposition testimony to be admissible on this basis. See, e.g., United

States v. Pilitz, 17-CR-0053 (JS) (ARL), 2022 WL 14763150, at *2
(E.D.N.Y. Oct. 25, 2022); Rumain v. Baruch Coll. of City Univ. of N.Y., No.
06-CV-8256 (PKC) (MHD), 2009 WL 2905445, at *2 (E.D.N.Y. Sept. 2,
2009). Thompson's out-of-court deposition testimony properly qualifies as a party-opponent statement if introduced against her.
Next, prior inconsistent statements made by Thompson in deposition can be introduced to impeach her at trial under Rule
801(d)(l)(A). (See Defs.' Opp. at 5.) This Rule allows prior statements
made by a witness subject to cross-examination to be admitted when
the statements contradict the witness's in-court testimony and were
given under penalty of perjury at a trial, hearing, proceeding, or deposition. Fed. R. Evid. 801(d)(l)(A). Again, courts in this circuit have
recognized deposition testimony of a party who is present at trial as
falling within this exclusion. See, e.g., United States v. Truman, 688 F.3d
129, 142 (2d Cir. 2012); Jean-Laurent, 840 F. Supp. 2d at 543.

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Thompson's deposition could also be admissible under Rule
801(d)(l)(B) to rehabilitate her credibility. Rule 801(d)(l)(B) allows witnesses subject to cross-examination to introduce prior statements
consistent with their in-court testimony to rebut charges of fabricating
in-court testimony. Fed. R. Evict. 801(d)(l)(B). "The prior consistent
. statement exclusion privileges statements made by a declarant before
any motive to fabricate arose, versus those made after!' '!Simpson v.
City of New York, No. 12-CV-6577 (KBF), 2015 WL 5918182, at *3

(S.D.N.Y. Oct. 9, 2015).
Plaintiff's MIL #2 is therefore DENIED. Thompson's deposition testimony can be introduced by the Defendants, either as a partyopponent statement or prior inconsistent statement, or by Thompson
as a prior consistent statement to rehabilitate credibility after a charge
of fabricated testimony. Use of the deposition must also comport with
Rule 613 and Federal Rule of Civil Procedure 32.
In sum, Plaintiff's Mils are GRANTED IN PART and DENIED IN
PART.
B.

Defendants' Motions in Limine
1.

Defendants' MIL# 1: Spota's Criminal Indictment, Trial,
Conviction and Sentencing

The Defendants first seek to exclude evidence of Spota's criminal
indictment, trial, conviction, and sentencing for use in Thompson's
case-in-chief under Rules 401, 402, and 404, and for impeachment
purposes under Rules 609 and 403. (Defs! MIL at 4.) Spota was convicted in 2019 of conspiracy to tamper with witnesses and obstruct an
official proceeding, witness tampering, obstruction of a grand jury investigation, and being an accessory after the fact to a Suffolk County
Police Chief's deprivation of civil rights. (id.)
Starting with use of this evidence in Thompson's case-in-chief, the
Defendants are correct that Spota's convictions in no way bear on
Thompson's employment discrimination claim. The allegations in this

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matter do not overlap with the conduct leading to Spota's convictions-covering up a police officer's assault of an arrestee. Though the
cover-up was ongoing when Thompson was terminated, (Defs.' 56.1
St.

'!I'll 4-5), there is no indication that the two are related. As such,

Spota's convictions are irrelevant to Thompson's case-in-chief under
Rule 401.
These convictions can, however, be used to impeach Spota. Prior
crimes in which liability requires proof of a dishonest act or false statement are admissible against a witness for impeachment purposes.
Fed. R. Evid. 609(a)(2). Here, Spota was charged with witness tampering under 18 U.S.C. § 1512(b), obstruction of justice under 18 U.S.C. §
1503(a), conspiracy to engage in witness tampering and obstruction
of justice under 18 U.S.C. § 1512(k), and accessory after the fact to
deprivation of civil rights per 18 U.S.C. § 3. See Indictment, United
States v. McPartland, No. 17-CR-0587, 2017 WL 4838319 (E.D.N.Y. Oct.
25, 2017).
These charges involve proof of a dishonest fact or false statement.
Starting with witness tampering, § 1512(b) imposes liability for those
who "knowingly use[] intimidation, threats, or corruptly persuade[]
another ... to engage[] in misleading conduct toward another person,
with intent to (1) influence, delay or prevent the testimony of another
person in an official proceeding; [or] (2) cause or induce any person to
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding." § 1512(b). Similarly, § 1503(a)
creates obs~ruction of justice liability for those who "corruptly ... endeavor[] to influence, intimidate, or impede any grand or petit juror,
or officer in or of any court of the United States ... [or] the due administration of justice." § 1503(a). Because both charges, and
conspiracy to commit them, involve corruptly persuading another to
lie to or withhold information from the authorities, they require proof
of a "dishonest act or false statement" to establish liability. The Indictment also alleged that Spota was an accessory after the fact to the
deprivation of civil rights by "knowingly and intentionally receiv[ing]

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and assist[ing] one or more offenders, in order to hinder and prevent
the offenders' apprehension, trial and punishment." Indictment,

McPart/and, 2017 WL 4838319. This charge also involves an act of dishonesty-intentionally preventing the apprehension and punishment
of someone known to have committed a crime.
The Defendants assert that even if the charges against Spota are
within the purview of Rule 609, they should still be excluded as unduly
prejudicial under Rule 403 because Spota's criminal charges have no
bearing on Thompson's employment discrimination claims. (Defs! MIL
at 5.) Yet, this assertion confuses admission of Spota's charges for
Thompson's case-in-chief with admission for impeachment purposes.
The probative value of Spota's criminal charges when admitted pursuant to Rule 609 is their insight into Spota's credibility as a witness.
Whether or not they bear on his having committed intentional racial
discrimination is immaterial. The Defendants' argument that a Rule
403 balancing test advises exclusion of the criminal charges, due to
their low probative value, is therefore flawed, as Defendants misunderstand the probative value of the evidence. In any event, crimes that
qualify under Rule 609(a)(2) are per se admissible and not subject to
exclusion under Rule 403. See Fed. R. Evid. 609(a)(2); United States v.

Estrada, 430 F.3d 606, 615 (2d Cir. 2005).
Accordingly, Spota's convictions for witness tampering, obstruction of justice, conspiracy to tamper with witnesses and obstruct an
official proceeding, and accessory after the fact to a deprivation of civil
rights are admissible for impeachment purposes under Rule 609(a)(2).

See also United States v. Jefferson, 623 F.3d 227, 234 (5th Cir. 2010);
Martinov. Karch, 131 F. Supp. 2d 313, 315 (D. Conn. 2000). These convictions involve acts of dishonesty that a jury may find useful in
weighing Spota's credibility. To minimize this risk of prejudice to Spota,
though, Thompson will be limited to inquiring only about the nature

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of the convictions, the date of their disposition, and the sentences imposed. See Martino, 131 F. Supp. 2d at 315. 2
Defendants' MIL# 1 is thus GRANTED IN PART and DENIED IN
PART.
2.

Defendants' MIL# 2: Referring to Spota as a Felon,
Prisoner or Disbarred Attorney

Relatedly, the Defendants ask the court to prohibit Thompson
from referring to Spota as a "felon," "prisoner," or "disbarred attorney"
because these terms are not probative and are unfairly prejudicial to
the Defendants under Rules 401, 402, and 403. (Defs.' MIL at 6.)
Some courts in this circuit have limited prosecutors' ability to refer to criminal defendants as "convicted felon[s]," as to avoid biasing
juries. See, e.g., United States v. Belk, 346 F.3d 305, 311 (2d Cir. 2003);

United States v. Scott, No. 21-CR-429 (AT), 2022 WL 1026725, at *3
(S.D.N.Y. Apr. 5, 2022). Yet, others have done the opposite. See United
States v. White, No. 08-CR-0682 (NGG), 2009 WL 4730234, at *3
(E.D.N.Y. Dec. 4, 2009). These cases all occurred in the context of criminal trials, however, where there is potential for improper criminal
conviction on the basis of felon status, and may not be analogous to a
witness testifying in a civil trial.
As discussed supra, Spota's convictions are admissible for impeachment purposes inasmuch as they pertain to his credibility as a
witness. To that end, the court will allow references to Spota as a
"felon;' "prisoner," and "disbarred attorney" when impeaching him
through disclosure of the crimes discussed supra. Because of the risk
that this language could be inflammatory, however, Thompson should
cabin use of these terms, and any similar ones, to discussions of
Spota's credibility as a witness. The court further instructs Thomson
not to overuse these characterizations and retains authority to strike
2

Thompson is also permitted to reference Spota's June 2020 disbarment as a consequence of his conviction. (See Deel. of Mary Ellen Donnelly (Dkt.
155) at 1.)

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references of this nature at trial. These protections should limit the
prejudice to Spota, if any, from Thompson's use of the contested
terms.
Therefore, the court DENIES Defendants' second MIL, but places
restrictions on the use of the terms "felon," "prisoner;' and "disbarred
attorney!'
3.

Defendants' MIL# 3: Evidence, Testimony, or
References to Dismissed Claims

The Defendants next argue that evidence, testimony, or references to Thompson's dismissed claims should be excluded under
Rules 401, 402, and 403. A number of Thompson's claims have been
dismissed throughout the course of this litigation. Thompson named
Kathleen Wagner as a Defendant in her initial Complaint but dropped
Ms. Wagner from the Amended Complaint. (See generally Campi.
(Dkt. 1); Am. Campi.) Thompson's claims against Robert Ewald, as well
as her retaliation and hostile work environment claims against Spota
and Suffolk County, were dismissed at summary judgment. (Sept. 30,
2018 Ord. at 3-4.) The Defendants ask the court to bar evidence or
reference to these claims.
The Defendants are correct that a plaintiff may not introduce previously dismissed claims, or evidence thereof, at trial under Rules 401
and 402. See Gorbea v. Verizon N.Y., Inc., No. 11-CV-3758 (KAM) (LB),
2014 WL 2916964, at *2 (E.D.N.Y. June 25, 2014); Ham v. Klusek, No.
19-CV-5355 (RPK) (TAM), 2022 WL 6778671, at *3 (E.D.N.Y. Oct. 10,
2022). Accordingly, the court GRANTS the Defendants' motion to exclude evidence, testimony, or reference to any claims against Kathleen
Wagner or Robert Ewald, or claims of retaliation and hostile work environment against Spota or Suffolk County. 3

3

The court declines to grant Defendants' Mils on the basis that the
Plaintiff failed to address the MIL in its briefing. The Defendants repeatedly cite
Castro v. City of New York, No. 05-CV-593 (KTD) (MHD), 2010 WL 11586591, at

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4.

Defendants' MIL# 4: Evidence or References to the
"Monkey in a Suit" Comment

The Defendants' MIL# 4 asks that court to exclude evidence or
references to ADA Wagner's "monkey in a suit" comment under Rules
401, 402, and 403 (Defs.' MIL at 8; Defs.' Reply at 5.) They point to a
line in the R&R on Summary Judgment that "no reasonable jury could
infer discriminatory intent" from the "monkey in a suit" comment to
argue that it has no probative value. (Id. (quoting R&R on Summ. J. at
48).) Thompson responds that the "monkey in a suit" comment is integral to her case for intentional discrimination and that the
Defendants put the comment at issue by listing documents in the JPTO
that reference it. (Pis.' Opp. at 5-6.)
The court DENIES the Defendants' MIL# 4 because the comment
is clearly relevant to Defendants' discriminatory intent. Thompson alleges that the Defendants engaged in intentional racial discrimination,
and the comment is purportedly evidence giving rise to an inference
of discriminatory intent. The comment has a tendency to make the alleged intentional racial discrimination more or less probable. See Fed.
R. Evid. 401. The relevance inquiry ends there.
The line in the R&R on Summary Judgment that Defendants cite
does not imply that the comment is irrelevant. (R&R on Summ. J. at 8.)
The R&R concludes that Thompson had produced sufficient evidence,
*7 (S.D.N.Y. Aug. 11, 2010), for the proposition that the court should grant motions in limine where an opposing party fails to address the motion in its
opposition brief. (Defs.' Reply at 4, 5, 6, 11). Yet, the case that Castro cites involves granting a defendants' motion to dismiss where the plaintiff had not
opposed dismissal in its briefing. See Castro, 2010 WL 11586591, at *7 (citing
Katz v. Image Innovations Holdings, Inc., 542 F. Supp. 2d 269, 275 (S.D.N.Y.
2008)). Failure to oppose a motion to dismiss is not analogous to failure to oppose a motion in limine, the latter of which is granted or denied to aid the trial
process by enabling the court to rule on admissibility of evidence in advance of
trial. Palmieri, 88 F.3d at 141. As at trial, the court may or may not sustain evidentiary objections without hearing argument. The court will therefore not grant
Defendants' Mils solely because the Plaintiff has not opposed the motion in her
briefing.

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taken as a whole, to show a prima facie case of discrimination. (Id. at
47.) The line that Defendants cite notes that individual statements put
forth by Thompson, including the "monkey in a suit" comment, did
not on their own meet this burden. (Id. at 47-48.) The court will not
exclude individual statements because they do not create an inference
of discrimination taken on their own. The jury will have the opportunity to assess whether the "monkey in a suit" comment, in the
context of Thompson's entire body of evidence, suggests Defendants
acted with discriminatory intent. Though the comment could be
harmful to the Defendants' case, as all inculpatory evidence necessarily is, it is not "unduly prejudicial" such that it warrants exclusion
under Rule 403. See United States v. Gelzer, 50 F.3d 1133, 1139 (2d Cir.
1995) ("[T]he prejudice that Rule 403 is concerned with involves some
adverse effect ... beyond tending to prove the fact or issue that justified its admission into evidence.").
5.

Defendants' MIL# 5: Evidence or References to Other
Legal Actions or Claims of Discrimination Against
Defendant

The Defendants further move to exclude evidence or reference to
other legal actions or claims of discrimination against them. (Defs.' MIL
at 9.)
Courts in this circuit generally exclude evidence of related lawsuits, due to concerns of confusing the jury and unfairly prejudicing
defendants. See Crawford v. Ex/Service.com, LLC, No. 16-CV-9137
(LAP), 2019 WL 6284228, at *1 (S.D.N.Y. Nov. 25, 2019); Figueroa v.
Boston Sci. Corp., No. 00-CV-7922 (DC), 2003 WL 21488012, at *4

(S.D.N.Y. June 27, 2003); Bd. of Trustees of AFTRA Ret. Fund v. JPMorgan Chase Bank, N.A., 860 F. Supp. 2d 251, 254-55 (S.D.N.Y. 2012).

There is, however, a narrow exception to this rule for plaintiffs asserting a claim of hostile work environment, a pattern of discrimination,
or of retaliation stemming from participation in an earlier lawsuit
against an employer. See Puglisi v. Town of Hempstead Sanitary Dist.

Co. 2, ll-CV-445 (PKC), 2014 WL 12843521, at *3 (E.D.N.Y. Jan. 27,

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Perry v. Ethan Allen, Inc., 115 F.3d 143, 151 (2d Cir. 1997);
Gaffney v. Dep't of Info. Tech. and Telecomm., 579 F. Supp. 2d 455, 45960 (S.D.N.Y. 2008); DeCintio v. Westchester Cnty. Med. Ctr., 821 F.2d
2014);

111, 115 (2d Cir. 1987).
Here, the narrow exception to the general prohibition of evidence
on related lawsuits does not apply. Thompson's hostile work environment and retaliation claims were dismissed at summary judgment.
(Sept. 30, 2018 Order at 3-4.) In any event, her retaliation claim did not
pertain to retribution for participating in a lawsuit. (Am. Com pl.

'11'1137-

38). Nor has Thompson provided any reason to believe that the various discriminatory acts against her and her former colleagues were so
similar as to possibly constitute a practice of discrimination. Accordingly, any evidence or reference to other legal actions or claims of
discrimination against Defendants will be barred.
The court will therefore GRANT this MIL.
6.

Defendants' MIL# 6: Testimony From or Evidence
About Rashika Hettiarahchi

The Defendants ask the court to exclude the testimony of Rashika
Hettiarahchi because she lacks the relevant personal knowledge of the
facts leading up to Thompson's termination to qualify as a witness,
and because her testimony would be irrelevant and overly prejudicial
under Rules 401 and 403. (Defs.' MIL at 11.) Ms. Hettiarahchi was an
ADA in the Suffolk County DA's Office who was terminated and has
brought a lawsuit against Spota and Suffolk County alleging race and
national origin-based discrimination. (Defs.' Reply to Pfs.' 56.1 St. (Dkt.
94) at 19; Defs.' MIL at 11.)
Under Rule 602, a witness may testify on a matter only if "evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter.'' Fed. R. Evid. 602. The Defendants
have not shown that Ms. Hettiarahchi lacks the personal knowledge
needed to qualify as a witness. Neither party has noted the specific
topics that Ms. Hettiarahchi would discuss if called to testify. The court

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cannot discern whether Ms. Hettiarahchi possesses sufficient personal
knowledge to support her testimony without this information. Working in a different Bureau than Thompson also does not imply that Ms.
Hettiarahchi categorically lacks sufficient personal knowledge to testify at all in this matter. (See Defs.' MIL at 11.) She still could have been
made aware of the circumstances leading to Thompson's firing by virtue of working for the same employer. Though Ms. Hettiarahchi's
testimony may also raise hearsay issues, the court can police these at
trial.
That being said, testimony on Ms. Hettiarahchi's lawsuit against
Spota and Suffolk County is inadmissible for the reasons discussed su-

pra in response to Defendants' MIL# 5.
For these reasons, the court GRANTS IN PART and DENIES IN PART
Defendants' MIL# 6.
7.

Defendants' MIL# 7: Evidence of or References to
Disciplinary History of Other Coworkers Outside the
Relevant Time Period

The Defendants next seek to exclude the disciplinary history of
other coworkers "outside the relevant time period." (Defs.' MIL at 12.)
More specifically, they argue that evidence of ADAs being counseled
on performance issues from 2003 to 2007 should be inadmissible because a different standard was in place than when Thompson was
terminated. (Id.) Thompson responds that the disciplinary history of
other ADAs is relevant comparator evidence to illustrate discrimination against her, and that the change in disciplinary policies was, in
part, the mechanism through which discrimination operated. (Pis.'
Opp. at 7-8.) Thompson also argues that whether a plaintiff is similarly
situated in all material respects to a comparator is a question of fact
for the jury. (Id. at 7.)
Thompson is correct that the appropriateness of a comparator is
a question for the jury. See Graham v. Long Island R.R., 230 F.3d 34, 39

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(2d Cir. 2000) ("Whether two employees are similarly situated ordinarily presents a question of fact for the jury."); Matusick v. Erie Cnty.

Water Auth., 757 F.3d 31, 54 (2d Cir. 2014) ("[Plaintiff's] evidence of
comparators, although not overwhelming, is sufficient for a reasonable jury to have ruled in his favor on this claim."); Ucar v. Conn. Dep't

of Transp., No. 14-CV-0765 (JCH), 2017 WL 4022798, at *3 (D. Conn.
Sept. 11, 2017). "[W]here a plaintiff seeks to establish the minimal

prima facie case by making reference to the disparate treatment of
other employees, those employees must have a situation sufficiently
similar to plaintiffs to support at least a minimal inference that the difference of treatment may be attributable to discrimination:' Wallen v.

Teknavo Grp., No. 12-CV-6196 (MKB) (SJB), 2018 WL 1278317, at *17
(E.D.N.Y. Feb. 22, 2018). Where the comparators are insufficiently similar, though, some courts have refused to admit proffered comparator
evidence before it is seen by a jury under Rule 403. (See Defs: Reply at
8 (citing Boger v. N.Y. State Off. of Parks., No. 17-CV-289 (MAD) (TWO),
2019 WL 6038545, at *5 (N.D.N.Y. Nov. 14, 2019).)
Here, there was a finding at summary judgment that Thompson,
by showing disparate treatment through comparison to the disciplinary history of other co-workers, met her de minimus prima facie
burden to show an inference of discrimination. (R&R on Summ. J. at
44.) Thompson therefore made a sufficient showing that other ADAs
are a relevant comparator to survive summary judgment. This preliminary finding does not take the determination of comparator status
away from the jury; to the contrary, it suggests that evidence on other
ADAs is relevant under Rule 401, and allows the jury to consider
whether the other ADAs are sufficiently similar to give rise to an inference of discrimination. This conclusion also distinguishes the present
case from Hettiarachchi v. County of Suffolk, where the court rejected
the proposed comparators at summary judgment. (See Ex. A to Supp.
Deel. of Mary Ellen Donnely (0kt. 164-1) at 2-3.) The court will not at
the motion in limine stage disturb the summary judgment holding and
take the ultimate determination of the comparator's appropriateness
away from the jury.

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Therefore, the court DENIES the Defendants' MIL# 7 to exclude
evidence ofor references to the disciplinary history ofother coworkers
outside the relevant time period.
8.

Defendants' MIL# 8: Testimony From Krishna
Thompson, Carl Francis, Hershel! Martin, or Camille
Sanches

The Defendants' MIL# 8 calls for the court to exclude Krishna
Thompson, Carl Francis, and Hershel! Martin as witnesses to discuss
Thompson's emotional distress because they are not experts qualified
to discuss her emotional condition. (Defs.' MIL at 13-14.) Thompson
responds that Krishna Thompson, Carl Francis, and Hershel! Martin
will testify as lay witnesses about Thompson's "mood, conduct, and
behavior," per Rule 701, and that their credentials to testify as experts
is therefore irrelevant. (Pis.' Opp. at 9.)
Under Rule 701, lay opinion testimony is proper if it is "(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. The first
two factors under Rule 701 depend on the specific nature of the testimony offered by these witnesses and cannot be evaluated at this
stage. The third factor, however, turns on the broader topic to which
they will testify.
Thompson has stated that she is seeking "garden variety" emotional damages in the instant action. (Status Report (Dkt. 41) at 1.) In
this circuit, garden variety emotional distress awards are those based
on injury described in "vague or conclusory terms;' and "are not supported by any medical corroboration." Olsen v. Cnty. of Nassau, 615 F.
Supp. 2d 35, 46 (E.D.N.Y. 2009); see also United States v. Asare, 476 F.
Supp. 3d 20, 37 (S.D.N.Y. 2020). Claims of this nature can therefore be
made out through non-scientific or non-technical testimony by lay witnesses. Thompson's mood, conduct, and behavior are therefore
proper subjects for lay testimony, as they go to showing garden variety

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emotional damages. Accordingly, the court denies the Defendants'
motion to exclude the testimony of Krishna Thomas, Carl Francis, and
Hershel! Martin under Rule 702. Their testimony on garden variety
emotional damages is proper lay opinion testimony. Moreover, any issues regarding admissibility if this trial were bifurcated into liability
and damages stages, (Defs.' Reply at 10), can be addressed after a motion for bifurcation is considered by the court.
The Defendants also ask the court to exclude the testimony of Camille Sanches, a paralegal in the office of Thompson's counsel, on the
grounds that it is based on hearsay and that her methodology has not
been authenticated. Sanches is expected to testify on her calculation
of average entry times of ADAs in the Narcotics Bureau. (Defs.' MIL at
14-15.) The Defendants assert that Ms. Sanches has no special skills
for which the jurors would need her testimony and that the jurors can
review time entry records themselves. (Id.)
Starting with the hearsay issue, the key card entries on which Ms.
Sanches bases her testimony may be properly admissible as business
records. Rule 803(6) provides an exception to the general prohibition
on hearsay for records ofregularly conducted activity if: (1) the records
are made at or near the time of the event they record by someone
with knowledge; (2) the records are kept in the course of regularly conducted business activity; (3) making the record was a regular practice
of that activity; (4) the foregoing conditions are shown by testimony
of the records custodian or another qualified witness; and (5) the opponent does not show that the source of the information and method
of preparation indicates a lack of trustworthiness. Fed. R. Evid. 803(6).
This court recently admitted an employer's time sheets under this exception. See United States v. Chang, 574 F. Supp. 3d 94, 100-01
(E.D.N.Y. 2021) (admitting a city fire department's time sheets under
Rule 803(6)). lfThompson can put forward a records custodian or qualifying witness to testify that the requirements of Rule 803(6) are met,
then the key card entries will be admissible on this basis.

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Turning to reliability and usefulness, Ms. Sanches' testimony may
be admissible as summary testimony of voluminous writings. Under
Rule 1006, a party can use a "summary, chart, or calculation to prove
the content of voluminous writings ... that cannot be conveniently
examined in court." Fed. R. Evid. 1006. Summaries prepared pursuant
to this Rule are themselves admissible evidence. United States v.
White, 737 F.3d 1121, 1135 (7th Cir. 2013). The offering party must,

however, lay a proper foundation for admissibility of the underlying
materials and show that the summary is accurate before the summary
can be admitted. 6 WEINSTEIN'S FEDERAL EVIDENCE§ 1006.05. There is also
no requirement that the witness be an expert, though expertise may
go to weight of their testimony. Id.; United States v. Lebedev, 932 F.3d
40, 50 (2d Cir. 2019) (noting the distinction between expert testimony
and summary testimony under Rule 1006.)
Ms. Sanches's testimony may be admissible along this basis. The
records that her calculation summarizes are indeed voluminous. The
JPTO notes that the document on key card entries is 150 pages long.
(JPTO at 11.) Having the jury examine these records on their own
would be impracticable, despite the Defendants' contention otherwise. (See Defs.' MIL at 15.) Ms. Sanches's summary calculation and
testimony would help avoid this. Moreover, a simple average of the
entry times is a basic tabulation that qualifies as a summary. See e.g.,
Brandv. Comcast Corp., 302 F.R.D. 201,212 (N.D.111. 2014) (finding that

a tabulation of total training hours for each employee was a proper
summary under Rule 1006); Dorowski v. Wojewoda, No. 15-CV-803
(MPS), 2017 WL 11506877, at *3, n.1 (D. Conn. Dec. 19, 2017) (leaving
open the possibility of admission of a simple average calculation under
Rule 1006). Thompson will have to show at trial that Ms. Sanches's
calculations rest on a proper foundation and are accurate. If these
showings are made, and withstand the Defendants' cross-examination, Ms. Sanches's summary calculation can be introduced into
evidence.

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Alternatively, if the Defendants stipulate to the average arrival
times of the ADAs in the Narcotics Bureau, Ms. Sanches's testimony
will be unnecessary. The Defendants' nonresponse to Thompson's
previous attempts to agree to a stipulation does not, however, qualify
as a tacit admission of fact. The parties must agree to a stipulation, or
Ms. Sanches will have to testify subject to the conditions of Rule 1006.
For the foregoing reasons, the Defendants' MIL# 8 is DENIED.
9.

Defendants' MIL# 9: Hearsay Evidence of
Discrimination by Spota or Suffolk County

Lastly, the Defendants ask the court to issue a blanket exclusion
of "hearsay evidence of discrimination against Mr. Spota and the
County." (Defs.' MIL at 15.) The court declines to do so. Numerous
hearsay exceptions and exclusions exist, which could make admissible
certain out-of-court statements that the Defendants seek to bar. For
example, Spota's out of court statements may meet the Rule 801(d)(2)
party-opponent exclusion and be admissible on this basis. See Fed. R.
Evict. 801(d)(2). The court must be apprised of the specific out-of-court
statement that Thompson seeks to use against the Defendants before
determining whether it is inadmissible hearsay.
The court therefore DENIES the Defendants' motion to issue a
blanket exclusion of all hearsay evidence of discrimination made by
Spota or Suffolk County.
Accordingly, the Defendants' Mils are GRANTED IN PART and
DENIED IN PART.
IV. CONCLUSION

For the reasons set forth above:

Plaintiff's Motion No. 1 is GRANTED IN PART and DENIED IN
PART
Plaintiff's Motion No. 2 is DENIED

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Defendants1 Motion No. 1 is GRANTED IN PART and DENIED IN
PART
Defendants' Motion No. 2 is DENIED
Defendants' Motion No. 3 is GRANTED
Defendants' Motion No. 4 is DENIED
Defendants' Motion No. 5 is GRANTED
Defendants1 Motion No. 6 is GRANTED IN PART and DENIED IN
PART
Defendants' Motion No. 7 is DENIED
Defendants' Motion No. 8 is DENIED
Defendants' Motion No. 9 is DENIED.
SO ORDERED.

Dated:

Brooklyn, New York
November~ 2022

s/Nicholas G. Garaufis

kcHoLAs G_-GARAUF1s U
United States District Judge

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