Lluberes et al v. City of Troy et al

Filing 76

MEMORANDUM-DECISION and ORDER granting in part and denying in part 60 Motion for Summary Judgment; denying 62 Motion for Summary Judgment. ORDERED that plaintiffs' 62 motion for summary judgment is DENIED in its entirety. It is further ORDERED that defendants' 60 motion for summary judgment is GRANTED in part and DENIED in part. ORDERED that all claims against Anderson, Castle, Dean, Hoffman, Pirro, Negron, Evangelista, Salvatore, Sarris, Tutunjian, Troy PD, John and Jane Doe defendants, and individual defendants in their official capacities be dismissed from this action. ORDERED that Gillette's trial will proceed as scheduled on 4/28/2014 at 9:30 a.m. Upon the conclusion of that trial, the Court will set a dat e for Llubere's trial. Signed by Magistrate Judge Christian F. Hummel on 3/21/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (dpk)

Lewis v. Triborough Bridge and Tunnel Authority, Not Reported in F.Supp.2d (2000)
88 Fair Empl.Prac.Cas. (BNA) 1759

2000 WL 423517
United States District Court, S.D. New York.
Gwenda LEWIS and Kathleen Corke, Plaintiffs,
v.
TRIBOROUGH BRIDGE AND
TUNNEL AUTHORITY, Peter Senesi
and Michael Chin, Defendants.
No. 97 CIV. 0607(PKL).

|

April 19, 2000.

Attorneys and Law Firms
Christopher E. Chang, Esq., New York.
Frank P. Gangemi, Esq., Gangemi & Gangemi, Brooklyn.
Thomas P. Higgins, Esq., Higgins & Trippett LLP, New
York.
Daniel L. Saxe, Esq., Saady & Saxe, Tampa, FL.
Opinion
MEMORANDUM ORDER
LEISURE, District J.
*1 Plaintiffs Gwenda Lewis and Kathleen M. Corke
bring this action against defendants Triborough Bridge and
Tunnel Authority (“TBTA”), Peter Senesi, and Michael Chin.
Plaintiffs allege sexual harassment and retaliation in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. (“Title VII”), and the New York State Human
Rights Law, N.Y. Exec. Law § 296 (“HRL”). In addition,
Lewis claims that she was discriminated against on the basis
of her race. Defendants TBTA and Senesi (the “moving
defendants”) now move, pursuant to Fed.R.Civ.P. 42(b), for
separate trials of all claims asserted by Lewis based on
allegations of misconduct by Chin. For the following reasons,
the defendants' motion is denied.

BACKGROUND
The substantive facts and procedural history of this action
have been set forth in greater detail in this Court's prior
Opinion and Order, Lewis v. Triborough Bridge & Tunnel
Auth., 77 F.Supp.2d 376, 377-79 (S.D.N.Y.1999), and the

Report and Recommendation of the Honorable James C.
Francis, IV (the “Report”), dated December 10, 1998. The
Court presumes general familiarity with both decisions.
On November 17, 1999, this Court granted in part the moving
defendants' motion for summary judgment, dismissing claims
of negligent supervision against TBTA, as well as claims of
discrimination and retaliation under N.Y. Exec. Law § 296(1)
(a) and 296(7) against Senesi. See Lewis, 77 F.Supp.2d at
384 & n. 10. The Court denied summary judgment, however,
with respect to claims by both plaintiffs against Senesi under
N.Y. Exec. Law § 296(6). See id. at 376-84. Left remaining,
then, were seven claims by Lewis (four solely against TBTA,
two against both TBTA and Chin, and the § 296(6) claim
against TBTA, Chin, and Senesi) and six by Corke (five solely
against TBTA, plus the § 296(6) claim against both TBTA
and Senesi).
The parties dispute the extent to which Lewis's remaining
claims overlap with Corke's. Both plaintiffs are employed
by TBTA as toll collectors at the Manhattan Plaza of
the Triborough Bridge in New York City. See Lewis, 77
F.Supp.2d at 377. Corke's claims are based predominantly on
alleged acts of sexual harassment, purportedly committed in
1994 and 1995 by employees of Allside Service Corporation
(“Allside”), an independent cleaning company contracted by
TBTA, and the failure by TBTA and Senesi to respond to her
complaints. See id. at 377-78. Lewis's claims also implicate
Allside, yet arise primarily from alleged racial and sexual
harassment by defendant Chin from 1991 through 1997. See
Report at 6; Lewis Dep. at 56. Corke, on the other hand, does
not allege any misconduct on behalf of Chin.
The moving defendants seek a separate trial for Lewis on
her three claims against Chin and TBTA, pursuant to N.Y.
Exec. Law §§ 296(1), 296(6), and 296(7), insofar as such
claims are based on Chin's allegedly inappropriate conduct.
They contend that Lewis's claims arise from events separate
and unrelated to those that form the basis of Corke's claims.
Plaintiffs object, arguing that all of the allegations in the
Complaint are interrelated and connected to the central issue
of TBTA's discrimination against plaintiffs and other TBTA
employees, and thus reveal a pattern of discrimination. See
Pl. Opp. Mem. at 7.

DISCUSSION
*2 Federal Rule of Civil Procedure 42(b) states:

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Lewis v. Triborough Bridge and Tunnel Authority, Not Reported in F.Supp.2d (2000)
88 Fair Empl.Prac.Cas. (BNA) 1759

The court, in furtherance of
convenience or to avoid prejudice, or
when separate trials will be conducive
to expedition and economy, may order
a separate trial of any claim, ... or of
any separate issue or of any number of
claims ... or issues, always preserving
inviolate the right of trial by jury as
declared by the Seventh Amendment
to the Constitution or as given by a
statute of the United States.
The Second Circuit accords district courts broad discretion
in determining whether to grant separate trials. See Smith v.
Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir.1988).
Factors to be considered include: “(1) whether the issues
sought to be tried separately are significantly different from
one another; (2) whether the severable issues require the
testimony of different witnesses and different documentary
proof; (3) whether the party opposing the severance will be
prejudiced if it is granted; and (4) whether the party requesting
the severance will be prejudiced if it is not granted.” BD v.
DeBuono, Nos. 98 Civ. 910, 98 Civ. 972, 2000 WL 249115,
at *5 (S.D.N.Y. Feb. 28, 2000); see also Hatfield v. Herz, 9
F.Supp.2d 368, 373 (S.D.N.Y.1998) (Leisure, J.). Severance
requires the presence of only one of these conditions. See
Ricciuti v. New York City Transit Auth., 796 F.Supp. 84,
86 (S.D.N.Y.1992); Ismail v. Cohen, 706 F.Supp. 243, 251
(S.D.N.Y.1989), aff'd, 899 F.2d 183 (2d Cir.1990).
Notwithstanding these important considerations, “separate
trials remain the exception rather than the rule, regardless of
the nature of the action.” Monaghan v. SZS 33 Assocs., 827
F.Supp. 233, 245 (S.D.N.Y.1993), rearg. denied, 153 F.R.D.
60 (S.D.N.Y.1994). As the Supreme Court has recognized,
“[i]n actions at law the general practice is to try all the
issues in a case at one time; and it is only in exceptional
instances where there are special and persuasive reasons for
departing from this practice that distinct causes of action
asserted in the same case may be made the subjects of separate
trials.” Miller v. American Bonding Co., 257 U.S. 304, 307
(1921); see also Katsaros v. Cody, 744 F.2d 270, 278 (2d
Cir.1984). Accordingly, “the party moving for a separate trial
has the burden of showing that [separate trials are] necessary
to prevent prejudice or confusion, and to serve the ends of
justice.” Buscemi v. Pepsico, Inc., 736 F.Supp. 1267, 1271
(S.D.N.Y.1990).

The moving defendants maintain that each of the
aforementioned four factors warrants a separate trial of
Lewis's claims insofar as they relate to Chin's misconduct.
First, they argue that the allegations of Chin's improper
behavior are substantively different from, and far broader
in scope and duration than, the allegations regarding
Senesi's mishandling of complaints regarding Allside. They
emphasize that Lewis's allegations against Chin involve
accusations of affirmative acts of race and sex discrimination,
while the charges against Senesi pertain to Senesi's alleged
failure or refusal to address complaints about Allside's
employees.
*3 This assertion is flawed, however, in that the
claims against Senesi do in fact relate to the allegations
against Chin. For example, Lewis maintains that Senesi
ignored her protestations about Chin's ongoing campaign
of sexual harassment and “dismiss[ed] his conduct as
merely disciplinary, not discriminatory, behavior.” Lewis, 77
F.Supp.2d at 378. Furthermore, BTO Benevolent Association
Union officer Neil Verton has testified that he communicated
Lewis's complaints regarding Chin to both Senesi and TBTA
EEO Chief Richard Smith, see Verton Dep. at 70-73,
although her grievances were never addressed. As the Court
recognized in its earlier decision, it is up to the jury to decide
whether Senesi's failure to take adequate remedial measures
in response to plaintiffs' complaints-including those against
Chin-rose to the level of “actual participation” in the unlawful
discrimination under N.Y. Exec. Law § 296(6). Lewis, 77
F.Supp.2d at 384. Thus, for a jury to determine whether
Senesi's response to Lewis's situation was appropriate, it
would have to hear evidence of Chin's alleged misbehavior.
Consequently, both plaintiffs allege that the same supervisor
“aided and abetted” unlawful discrimination at TBTA, albeit
based on conduct by different individuals. Cf. Blesedell v.
Mobil Oil Co ., 708 F.Supp. 1408, 1422 (S.D.N.Y.1989)
(“[M]ost significantly, all of the plaintiffs complain of
sexually discriminatory actions by ... their supervisor for
a nine-month period, in placing them on probation and in
decreasing their performance ratings. Again, all three of
the plaintiffs allege that they complained of this treatment
and received no response. Thus, all of the plaintiffs allege
that they had been injured by the same general policy of
permitting discrimination against women.”). It would be a
waste of judicial resources to have to rehash factual issues
regarding the timeliness and appropriateness of Senesi's
response to such complaints in two separate proceedings
before two different juries. Compare Morris v. Northrop

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Lewis v. Triborough Bridge and Tunnel Authority, Not Reported in F.Supp.2d (2000)
88 Fair Empl.Prac.Cas. (BNA) 1759

Grumman Corp., 37 F.Supp.2d 556, 581 (E.D.N.Y.1999)
(granting separate trials where plaintiffs were in separate
departments and had separate supervisors responsible for
making the allegedly discriminatory decisions), with Ward
v. Johns Hopkins Univ., 861 F.Supp. 367, 378 (D.Md.1994)
(denying severance where each plaintiff's case depended on
allegations that the same supervisors had notice of sexual
harassment, yet continuously failed to remedy it).
Second, the moving defendants note that the allegations
pertaining to Chin will require testimony from completely
different witnesses. For example, Louis Pignetti, a union
representative who is also Corke's husband, is expected to
testify regarding sexist remarks attributed to Senesi. Yet, his
testimony will not in any way implicate defendant Chin.
Likewise, TBTA's defense to Lewis's claims based on Chin's
misconduct will likely have nothing to do with the allegations
pertaining to Allside. See Def. Mem. at 7.
*4 Nevertheless, while Lewis's claims arising from her
allegations against Chin will undoubtedly require a jury
to consider many factual issues that seem unrelated from
the allegations regarding Allside's employees, the entirety
of the evidence offered to prove such claims will not be
“wholly distinct.” Vichare v. AMBAC Inc., 106 F.3d 457,
466 (2d Cir.1996). Nearly every trial involving multiple
defendants will involve some separate issues of fact that call
for testimony from different witnesses on entirely unrelated
matters. The more appropriate question, which the moving
defendants unsurprisingly ignore, is whether separate trials
will require substantial overlap of witnesses or documentary
proof. See Pavone v. Gibbs, No. CV 95-0033, 1997 WL
833472, at *1 (E.D.N.Y. Sept. 29, 1997); Bowers v. Navistar
Int'l Transp. Corp., No. 88 Civ. 8857, 1993 WL 159965, at *1
(S.D.N.Y. May 10, 1993) (Sotomayor, J.); Barr v. Dramatists
Guild, Inc., 573 F.Supp. 555, 561 (S.D.N.Y.1983); cf. Hal
Leonard Publ'g Corp. v. Future Generations, Inc., No. 93
Civ. 5290, 1994 WL 163987, at *4 (S.D.N.Y.1994) (granting
separate trials upon finding that documentary evidence and
witness testimony required to prove different legal claims
would not substantially overlap). Separate trials for Lewis
and Corke would certainly involve significant evidentiary
overlap. By way of example, TBTA would likely call the
same witnesses and introduce the same documents to explain
the practices and procedures it employs in dealing with
harassment complaints. Even if TBTA offered different
witnesses in separate proceedings, their testimony would
almost certainly be to the same effect. Likewise, were the
Court to order separate trials, Senesi would likely have to

testify in both to justify his handling of each plaintiff's
complaints. 1
Furthermore, unlike the majority of cases in which courts
have deemed separate trials appropriate, see, e.g., Amato v.
City of Saratoga Springs, 170 F.3d 311, 316 (2d Cir.1999);
Daniels v. Loizzo, 178 F.R.D. 46, 48-49 (S.D.N.Y.1998);
Ricciuti, 796 F.Supp. at 86-87, in the instant action, “the
resolution of ... one issue will in no way limit or streamline the
remaining issues.” Dayton Monetary Assocs. v. Donaldson,
Lufkin & Jenrette Sec. Corps ., No. 91 Civ.2050, 1999
WL 159889, at *2 (S.D.N.Y. Mar. 22, 1999) . 2 Hence,
the “inefficiencies to all the parties that would result if two
trials were held” would outweigh any convenience gained by
extracting Lewis's claims against Chin. Id..
With regard to the issue of prejudice, the moving defendants
contend that while plaintiffs will not be hampered by separate
trials, 3 a consolidated trial would cause Senesi undue
prejudice. Specifically, they claim that evidence of Chin's
misconduct would be inflammatory and may have a “spillover” effect on Senesi and his defense strategy. Although they
do not specify how such evidence might prejudice Senesi's
defense, presumably they believe that remarks attributed to
Chin, such as “I am the slave master and you are the slaves,”
Lewis, 77 F.Supp.2d at 378 n. 4 (citing Compl. ¶ 16(a)), would
contaminate the minds of jurors considering the liability of
Senesi, Chin's supervisor, see Ricciuti, 796 F.Supp. at 86;
Ismail, 706 F.Supp. at 251.
*5 Yet, while an unguided jury might improperly award
money damages against Senesi solely on account of Chin's
actions, any prejudice or confusion can be remedied by
a carefully drafted jury instruction. See New York v.
Hendrickson Bros., Inc., 840 F.2d 1065, 1082-83 (2d
Cir.1988); Dayton, 1999 WL 159889, at *2; see also Agron
v. Trustees of Columbia Univ., No. 88 Civ. 6294, 1997 WL
399667, at *3 n. 2 (S.D.N.Y. July 15, 1997) (“[T]he potential
prejudice here is not substantially different from ‘the potential
prejudice which is normally and customarily dealt with
through an appropriate charge and curative instructions where
necessary.” ’) (quoting Aldous v. Honda Motor Co., No. 94CV-1090, 1996 WL 312189, at *2 (N.D.N.Y. May 30, 1996)).
The Court has faith in the jury's ability to keep Lewis's claims
separate from Corke's and to distinguish Chin's behavior from
that of Senesi.
Finally, the Court notes that separate trials would be
inappropriate given the broad nature of each plaintiff's hostile

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Lewis v. Triborough Bridge and Tunnel Authority, Not Reported in F.Supp.2d (2000)
88 Fair Empl.Prac.Cas. (BNA) 1759

work environment cause of action. See Compl. ¶¶ 20, 29.
Despite factual differences in their respective claims, Lewis
and Corke allege a similar pattern of sexual harassment that
was exacerbated by their supervisor's continued indifference
to their situation. Thus, their claims are sufficiently similar
to justify joinder and obviate the need for separate trials.
See Streeter v. Joint Indus. Bd. of the Elec. Indus., 767
F.Supp. 520, 529 (S.D.N .Y.1991); see also Puricelli v. CNA
Ins. Co., 185 F.R.D. 139, 142-43 (N.D.N.Y.1999); Fong
v. Rego Park Nursing Home, No. 95 Civ. 4445, 1996 WL
468660, at *3 (E.D.N.Y. Aug. 7, 1996); Ward, 861 F.Supp.
at 378-79. Furthermore, in a hostile workplace case, the
trier of fact must examine the totality of the circumstances,
including evidence of harassment directed at employees other
than the plaintiff. See Schwapp v. Town of Avon, 118 F.3d
106, 111-12 (2d Cir.1997); Perry v. Ethan Allen, Inc., 115
F.3d 143, 150-51 (2d Cir.1997). Because the facts in this
case suggest that the harassment at TBTA was not limited
to these two women, see Compl. ¶¶ 16(b)-(f), 20, 23, 29,
32, it may be characterized as a “a pervasive or continuing
pattern of conduct,” Perry, 115 F.3d at 151. In separate trials,
either plaintiff would be permitted to introduce evidence of
harassment directed at the other to establish the existence
of a hostile work environment on her own claim. Logically,
then, since the evidence relating to both plaintiffs' allegations

would be admissible at the trial of either's claims, it would
not be in any way prejudicial to try the two plaintiffs'
claims together. Accordingly, there is insufficient prejudice
to warrant separate trials. See Monaghan, 827 F.Supp. at 246
(“[T]he fundamental presumption which favors the trial of all
issues to a single jury and underlies the assumption of Rule
42(b) [is] that bifurcation ... is reserved for truly extraordinary
situations of undue prejudice.”).

CONCLUSION
*6 Because the Court concludes that a single proceeding in
which both plaintiffs' allegations are addressed at the same
time is the more appropriate course, the defendants' motion
for separate trials is HEREBY DENIED. The parties are
ordered to submit their proposed Pre-Trial Order to this Court
within thirty days of the date of this Memorandum Order.

SO ORDERED.
Parallel Citations
88 Fair Empl.Prac.Cas. (BNA) 1759

Footnotes

1

2

3

The moving defendants suggest that evidence of Chin's misconduct “would have a chilling effect on Senesi's decision to testify on his
own behalf,” due to the likelihood that plaintiffs' counsel would subject Senesi to an aggressive cross-examination regarding Chin's
behavior. Def. Mem. at 8. It is their contention that requiring Senesi to undergo cross-examination with regard to the Chin events
would be “extremely unfair to Senesi.” This odd assertion rings hollow, however, since Senesi has no right-constitutional or otherwiseto refrain from testifying in this case simply to avoid civil liability, embarrassment, or discomfort. See United States v. Apfelbaum,
445 U.S. 115, 125 (1980); G.D. Searle & Co.v. Interstate Drug Exchange, Inc., 117 F.R.D. 495, 506 (E.D.N.Y.1987). Unless he can
demonstrate that he is “ ‘confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination,” ' In re
Corrugated Container Antitrust Litig., 644 F.2d 70, *74 (2d Cir.1981) (quoting Apfelbaum, 445 U.S. at 128), he may be called as a
witness by the plaintiffs despite his reluctance to testify on his own behalf.
In fact, the majority of cases in which separate trials are granted for employers and employees involve 28 U.S.C. § 1983 claims, which
require that the employee's personal liability be established before considering whether a Monell claim will lie against the municipal
employer. See Amato, 170 F.3d at 320 (“Section 1983 actions are particularly well suited for bifurcation .... [I]f a plaintiff fails to
show that a constitutional violation occurred in the suit against the individual official, the corresponding cause of action against
the municipality will be mooted since a claim of negligent training is only actionable where some constitutional violation actually
occurred.”). Put simply, in a § 1983 action, the municipality's liability is derivative of the conduct and liability of its employee. By
contrast, under the HRL, employer liability is a predicate for the imposition of liability against an individual employee. See Lewis,
77 F.Supp.2d at 382 n. 8; see also DeWitt v. Lieberman, 48 F.Supp.2d 280, 293 (S.D.N.Y.1999) (“[P]laintiff cannot prevail against
[her supervisor] individually ... unless she can first establish the liability of [the employer].”). Hence, unlike the typical § 1983 case,
a separate trial will not promote efficiency here, for it would neither dispose of any other charges nor establish a necessary element
of any other claim.
The Court obviously recognizes that, notwithstanding the moving defendants' assertion that separate trials will not prejudice either
plaintiff, in fact, Lewis may be prejudiced by having to endure the delay and expense of two separate trials. See Dayton Monetary
Assocs., 1999 WL 159889, at *2 (“[B]ecause having two trials would necessitate two sets of pretrial motions, two sets of pretrial

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Lewis v. Triborough Bridge and Tunnel Authority, Not Reported in F.Supp.2d (2000)
88 Fair Empl.Prac.Cas. (BNA) 1759
orders, two sets of jury charges, and the possibility of having to select two different juries, extracting this one issue out of the ‘main’
trial may in fact lead to greater delay and expense.”).

End of Document

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