Oliver v. New York State Police

Filing 430

ORDER granting in part and denying in part 387 Motion in Limine. Signed by Judge Brenda K. Sannes on 3/29/22. (Copy served via regular mail)(egr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JEAN OLIVER,
Plaintiff,
v.
NEW YORK STATE POLICE; WAYNE OLSON, in his
individual and official capacity; MARTIN MCKEE, in his
individual and official capacity; PAUL KELLY, in his
individual and official capacity,
Defendants.
Appearances:
Plaintiff pro se:
Jean Oliver
Elma, NY 14059
For Defendants New York State Police,
Olson, and Kelly:
Daniel J. Moore
Joshua D. Steele
Daniel J. Palermo
Harris Beach PLLC
99 Garnsey Road
Pittsford, NY 14534
For Defendant McKee:
Lisa F. Joslin
Gleason, Dunn, Walsh & O’Shea
40 Beaver Street
Albany, NY 12207

1:15-cv-00444 (BKS/DJS)

Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Jean Oliver brings this employment discrimination action against Defendant

New York State Police (“NYSP”) and three NYSP employees. (Dkt. No. 37). A jury trial is
scheduled to begin on April 18, 2021. (Dkt. No. 369 (Trial Order)). The following claims remain
for trial: (1) a hostile work environment claim against Paul Kelly under 42 U.S.C. § 1983; (2) a
Title VII retaliation claim against NYSP regarding the removal of Plaintiff’s undercover duties
and her transfer to CTIU; (3) a NYSHRL retaliation claim against Wayne Olson regarding
Plaintiff’s transfer to Timothy Bour’s team and the removal of her undercover duties; and (4)
NYSHRL retaliation claims against Martin McKee regarding Plaintiff's transfer to Timothy
Bour’s team and her transfer to CTIU. (Dkt. No. 380). Presently before the Court are
Defendants’ motion in limine to exclude: (1) the findings of the United States Equal
Employment Opportunity Commission (“EEOC”); (2) the testimony of Plaintiff’s expert and
evidence relating to the recovery of Plaintiff’s firearms after her July 2015 termination; (3) and
evidence that is unrelated to Plaintiff’s remaining claims. (Dkt. No. 387). Plaintiff opposes
Defendants’ motion. (Dkt. No. 400). The Court heard oral argument on the Defendants’ motion
over the course of telephone and video conferences on February 25, 2022, March 15, 2022, and
March 22, 2022. For the reasons that follow, Defendants’ motion is granted in part and denied in
part.
II.

DISCUSSION
A.

EEOC Determination and EEOC Director John Thompson

Plaintiff seeks: (1) to introduce the EEOC Final Determination (Pl.’s Ex. 46); and (2)
requests the issuance of a subpoena to secure the presence of John Thompson, the Director of the
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Buffalo EEOC Office as a witness at trial. Defendants argue for exclusion of the EEOC
determination on the ground that any minimal probative value is substantially outweighed by the
danger of confusing the issues and unfair prejudice. (Dkt. No. 387-2, at 5–9). Defendants further
argue that Director Thompson has no “personal knowledge relating to the facts and
circumstances of Plaintiff’s claims” and as Plaintiff seeks to call Director Thompson to “provide
his opinion on the ultimate issue to be decided at trial,” admission of his testimony would be
“unduly prejudicial.” (Dkt. No. 426, at 4).
As relevant here, Plaintiff’s Charge of Discrimination alleged sexual harassment by
Defendant Paul Kelly and that the NYSP retaliated against her for complaining of sexual
harassment by transferring her to Investigator Timothy Bour’s team, removing her undercover
duties and transferring her to the CTIU. (Pl.’s Ex. 46). On January 29, 2015, Director Thompson
issued a Determination finding that the NYSP “did initially retaliate” against Plaintiff by
transferring her “to a different unit” and that there “is reasonable cause to believe that
Respondent has discriminated against [Plaintiff] on account of her gender and in retaliation for
engaging in a protective activity by filing her initial internal complaint of gender discrimination.”
(Id.). The Determination states, in relevant part:
The [EEOC]’s investigation reveals that Respondent did initially
retaliate against Charging Party. After Charging Party filed her
internal complaint she was immediately retaliated against by being
transferred to a different unit. Respondent admitted that it
transferred Charging Party as a direct result of her filing a covered
complaint. This is clearly retaliatory as it is a direct result of
Charging Party exercising her rights under Title VII.
...
Based on the above, Respondent’s asserted defense does not
withstand scrutiny and the Commission has determined that there is
reasonable cause to believe that Respondent has discriminated
against Charging Party on account of her gender and in retaliation
for engaging in a protected activity of filing her initial internal

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complaint of gender discrimination. Additional allegations were not
supported by the evidence available, occurred with different
supervisors and decision makers, and appear to be legitimate
concerns with the Charging Party’s performance.
(Id.).
“While it is well settled that administrative agency determinations may be admitted as
substantive proof on the merits of plaintiff’s discrimination or retaliation claims, whether to
admit an agency’s findings is left to the district court’s discretion.” Puglisi v. Town of
Hempstead Sanitary Dist. No. 2, No. 11-cv-445, 2014 WL 12843521, at *5, 2014 U.S. Dist.
LEXIS 206028, at *14 (E.D.N.Y. Jan. 27, 2014) (citing Paolitto v. John Brown E & C, Inc., 151
F.3d 60, 65 (2d Cir. 1998)). In Paolitto, the Second Circuit rejected the argument that “findings
of the EEOC or equivalent state agencies must, as a matter of law, be admitted” at trial, 151 F.3d
at 64, and instead left “the question of whether to admit EEOC or state-agency findings to the
sound discretion of the district court,” id. at 65. It explained that “employment-agency
determinations ‘are not homogeneous products; they vary greatly in quality and factual detail,’”
id. (quoting Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309 (8th Cir. 1984)), and that
“the district court is in the best position to consider the quality of the report, its potential impact
on the jury, and the likelihood that the trial will deteriorate into a protracted and unproductive
struggle over how the evidence admitted at trial compared to the evidence considered by the
agency.” Id. Applying these principles, the Second Circuit affirmed the district court’s decision
to exclude the state agency determination, noting, inter alia, that the party seeking to admit the
report “had a full opportunity to present to the jury all the evidence it had submitted to the state
agency.” Id.
The Court finds little probative value in the Determination. As relevant here, it recounts,
without factual detail, Plaintiff’s claims of sexual harassment and retaliation for complaining

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about gender discrimination and sexual harassment as well as the NYSP’s denial and contention
that any adverse employment action was taken for a legitimate business purpose. (Pl.’s Ex. 46).
The Determination finds the NYSP’s transfer of Plaintiff to a different unit was “clearly
retaliatory” and that there was “reasonable cause to believe” that the NYSP discriminated against
Plaintiff based on gender and retaliated against her for engaging in protected conduct. (Id.).
Plaintiff may present to the jury the evidence she submitted to the EEOC and may testify about
the sexual harassment and retaliation she allegedly experienced during the relevant time period—
providing the factual details the Determination lacks. Thus, the Determination offers no
information that could not be covered by Plaintiff’s testimony and documentary evidence. See
Paolitto, 151 F.3d at 65 (finding a party’s “full opportunity to present to the jury all the evidence
it had submitted to the agency” was a “legitimate[] reason[] to exclude” an agency determination
(citing Hall v. Western Prod. Co., 988 F.2d 1050, 1058 (10th Cir. 1993)). Indeed, the only noncumulative aspect of the Determination is its finding that there was “reasonable cause to believe”
that the NYSP engaged in gender discrimination and retaliation. This finding, however, poses a
danger of unfair prejudice to Defendants because it suggests “to the jury that it should reach the
same conclusion as the agency.” Dollman v. Mast Indus., Inc., No. 08-cv-10184, 2011 WL
3911035, at *1, 2011 U.S. Dist. LEXIS 99802, at *3 (S.D.N.Y. Sept. 6, 2011) (quoting Paolitto,
151 F.3d at 65); see Hall, 988 F.2d at 1058 (concluding district court did not abuse discretion in
excluding state agency report where “all the evidentiary matter before the [state agency] could be
presented to the jury” and, thus, sole purpose of admitting report “would be to suggest to the jury
that it should reach the same conclusion” as agency). Moreover, as the Second Circuit has
observed, when such findings are admitted, Defendants, as “the party against whom such a
determination is admitted must attempt to expose the weaknesses of the report, an effort that may

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well confuse or mislead the jury and result in an undue waste of time.” Paolitto, 151 F.3d at 65
(internal citation omitted) (citing Fed. R. Evid. 403). Accordingly, on balance, the Court finds
any probative value in the EEOC Determination is substantially outweighed by the danger of
unfair prejudice and confusing the issues. Fed. R. Evid. 403; see Dodson v. CBS Broad. Inc., 423
F. Supp. 2d 331 334–35 (S.D.N.Y. 2006) (excluding EEOC determination “[g]iven the low
probative value [of the document] compared to the risk that the jury will be unduly influenced,”
and the “‘likelihood that the trial will deteriorate into a protracted and unproductive struggle over
how the evidence admitted at trial compared to the evidence considered by the agency’” (quoting
Paolitto, 151 F.3d at 65)).
For many of the same reasons, the Court finds the proposed testimony of EEOC Director
John Thompson inadmissible and therefore declines Plaintiff’s request for the issuance of a
subpoena. In her proffer, Plaintiff asserts that Director Thompson “has direct knowledge
regarding what constitutes a protected class of citizens,” “a protected activity under Title VII,”
and “an act of retaliation under Title VII.” (Dkt. No. 420, at 4). These are issues of law reserved
for the Court and the Court will instruct the jury on the law at trial. It is the “[c]ourt’s exclusive
duty and province ‘to say what the law is.’” In re Initial Pub. Offering Secs. Litig., 174 F. Supp.
2d 61, 69 (S.D.N.Y. 2001) (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)). To the extent
Plaintiff seeks to adduce testimony from Director Thompson concerning his conclusions that
Plaintiff was part of a protected class, that Plaintiff’s activities were protected activities, 1 and
that the NYSP retaliated against Plaintiff, such testimony includes legal conclusions based on
many of the same facts that will be presented to the jury and therefore “impermissibly invades
the jury’s province to apply the applicable law to the facts of the case and reach ultimate legal

1

It does not appear that either of these facts are disputed.

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conclusions.” Rieger v. Orlor, Inc., 427 F. Supp. 2d 99, 103 (D. Conn. 2006). Director
Thompson’s testimony that he concluded the NYSP retaliated against Plaintiff “would ‘not aid
the jury in making a decision,” about whether she was retaliated against but would be offered for
the purpose of suggesting that the jury should reach the same conclusion. See, e.g., id.
(precluding expert’s opinion “that defendants could have accommodated plaintiff’s disability
without significant impact, but instead retaliated against plaintiff by moving her to a less
desirable position” because it included “two legal conclusions . . . and therefore impermissibly
invades the jury’s province to apply the applicable law to the facts of the case and reach ultimate
legal conclusions”). Any probative value in Director Thompson’s testimony regarding his
conclusion is substantially outweighed by the danger of unfair prejudice and confusing the
issues. Fed. R. Evid. 403.
Plaintiff further proffers that Director Thompson will testify (1) about his “direct
knowledge of Plaintiff’s EEO charge,” (2) the “timeliness of Plaintiff’s EEO charge,” (3) the
documents NYSP attorneys presented to the EEOC in opposition to Plaintiff’s charge, (4) that
NYSP had “full knowledge of Plaintiff’s EEO charge and retaliation reports,” and (5) that the
EEOC received copies of “multiple informal EEO complaints investigated within the NYSP
during the same time Francis Christensen and Daniel Penny falsely testified that these informal
processes did not exist.” (Dkt. No. 420, at 4). However, because Plaintiff may testify about her
filing of the EEOC charge, the timeliness of the filing of the charge is no longer at issue, Plaintiff
has provided no information regarding the relevance of the documents NYSP attorneys
submitted to the EEOC, and Defendants do not dispute knowledge of Plaintiff’s protected
activity, Director Thompson’s proposed testimony on these issues would be duplicative or
irrelevant. As to the informal EEO complaints, because Plaintiff offers no specifics regarding

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Director Thompson’s personal knowledge on this issue, and has not identified the informal EEO
complaints Director Thompson received, the Court has no basis on which to determine whether
such testimony is relevant. Further, none of the remaining issues on which Plaintiff seeks to elicit
testimony from Director Thompson, appear to implicate relevant, admissible evidence.
Accordingly, Plaintiff’s request for a subpoena is denied.
B.

Expert Testimony – Robert Baier

Defendants move to preclude Plaintiff’s proposed handwriting expert, Robert Baier, from
testifying on the ground that the “evidence examined by the expert is entirely unrelated to any of
the remaining claims.” (Dkt. No. 387-2, at 9). According to Baier’s expert disclosure, he
reviewed three documents concerning the “Acquisition or Disposition of a Firearm by a Division
Member” dated 2012 and 2013 and a NYSP receipt, “to determine . . . whether there were any
additions, deletions, cut-and-pastes, alterations and/or abnormalities.” (Dkt. No. 353, at 3). As
the Court stated previously, “[t]he Second Amended Complaint contains no allegations regarding
forged firearms transfer records and thus states no plausible claim for relief concerning these
records.” (Dkt. No. 380, at 5). As Baier’s testimony solely concerns alleged forged firearms
transfers, the Court finds it irrelevant and inadmissible. 2 For the same reason, any other
documentary evidence relating to firearms transfers is inadmissible. Accordingly, Defendants’
motion to preclude Baier’s testimony is granted.

As discussed during the pretrial conferences, although “extrinsic evidence,” i.e., the firearms transfer records, are
“not admissible, the Court may, on cross-examination, allow Plaintiff to inquire into the alleged fraudulent firearms
transfer records, if “they are probative of the character for truthfulness or untruthfulness of . . . the witness.” Fed. R.
Evid. 608(b).
2

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C.

Non-Party Personnel Complaint Files

Defendants argue that, except for the files relating to Defendant Paul Kelly and Plaintiff’s
retaliation allegations, the personnel complaints identified on Plaintiff’s Exhibit List should be
excluded as irrelevant to the remaining issues. (Dkt. No. 387-2, at 11). Plaintiff’s Exhibits 66 to
75 are personnel complaints regarding multiple NYSP employees who, as Plaintiff explained
during the pretrial conferences, allegedly received minimal punishment in comparison to the
punishment Plaintiff received, i.e., termination. Plaintiff further argues “that she has direct
knowledge of the intentional mishandling and misrepresentation of the Personnel Complaints
identified in her Exhibit list, which Plaintiff requires to establish Plaintiff’s hostile work
environment claim and the retaliation claims against the NYSP.” (Dkt. No. 400, at 12). The
documents contained in these exhibits vary widely, and include letters of censure, including at
least one letter of censure from 2002, memoranda, charges, and determinations concerning
NYSP employees from other units in different parts of New York State, and a disciplinary
document from 1990. While there appear to be documents from on or about the relevant time
period that refer to Plaintiff, (see, e.g., “Personnel Complaint Tracking” dated June 2, 2014,
concerning Plaintiff’s allegations against Investigator Toney Palmer), these documents bear no
obvious relation to the remaining issues for trial. As Plaintiff’s termination is no longer a part of
this case and the proposed exhibits do not appear to contain any information relevant to the
remaining claims or Defendants, Defendants’ motion to preclude these personnel complaints is
granted.

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D.

Evidence Relating to Plaintiff’s Termination

Defendants argue that because the claims “surrounding Plaintiff’s termination . . . are no
longer at issue in this case,” Plaintiff “should not be permitted to continue relitigating her
termination claims” and “any evidence relating to Plaintiff’s termination proceeding . . . should
be excluded.” (Dkt. No. 387-2, at 12). Specifically, Defendants seek to preclude Plaintiff’s
Exhibits 77 and 78, the NYSP “Hearing Board’s Findings and Recommendations against Jean
Oliver” and the “Notice of Termination signed by Joseph D’Amico.” (Dkt. No. 397, at 4). In
addition to containing the Hearing Board’s Findings and Recommendations, Plaintiff’s Exhibit
77 contains emails regarding the writing and revision of the Findings and Recommendation.
During the pretrial conferences, the Court advised the parties of the general parameters of the
remaining issues for trial and directed Plaintiff to file an amended exhibit list, revised to conform
to the remaining claims, which do not include any claims relating to Plaintiff’s termination. In
addition, Plaintiff is precluded from relitigating facts confirmed by the Appellate Division,
Fourth Department in the Article 78 proceeding. See Oliver v. New York State Police, No. 15444, 2020 WL 1989180, at *27, 2020 U.S. Dist. LEXIS 73284 (N.D.N.Y. April 27, 2020).
Accordingly, the Court denies Defendants’ motion without prejudice to renewal after Plaintiff
has filed an amended exhibit list.
E.

Plaintiff’s Witness List

Defendants request that the “Court prohibit Plaintiff from calling any witnesses not
included in the Defendants’ witness list unless she can demonstrate that the witness will provide
relevant testimony.” (Dkt. No. 387-2, at 13). The matter of Plaintiff’s witness list has been
briefed and discussed extensively at the pretrial telephone and video conferences, (Dkt. Nos.
398, 403, 405, 408, 409, 410, 411, 412, 415, 420, 421, 422, 424, 425, 426, 427), and subpoenas

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have been issued as to those witnesses for whom Plaintiff has appeared to proffer relevant
testimony, (Dkt. Nos. 415, 423, 428). The Court need make no further determination at this time.
III.

CONCLUSION
For these reasons, it is hereby
ORDERED that Defendants’ motion in limine (Dkt. No. 387) is GRANTED in part

and DENIED in part.
IT IS SO ORDERED.
Dated: March 29, 2022
Syracuse, New York

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