Naumovski v. Binghamton University, The State University of New York et al
Filing
93
DECISION and ORDER - That Defendants' motion in limine is GRANTED in part and DENIED in part as follows: 1. DENIED 2. DENIED 3. GRANTED 4. GRANTED 5. GRANTED 6. DENIED; and 7. DENIED. IT IS SO ORDERED. Signed by Judge David N. Hurd on 10/24/2019. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------ELIZABETH NAUMOVSKI,
Plaintiff,
-v-
3:11-CV-1097
BINGHAMTON UNIVERSITY, THE STATE
UNIVERSITY OF NEW YORK; and THE STATE
UNIVERSITY OF NEW YORK,
Defendants.
-------------------------------APPEARANCES:
OF COUNSEL:
BOSMAN LAW FIRM, LLC
Attorneys for Plaintiff
3000 McConnellsville Road
Blossvale, NY 13308
AJ BOSMAN, ESQ.
HON. LETITIA JAMES
Attorney General for the State of New York
Attorney for Defendants
The Capitol
Albany, NY 12224
ADRIENNE J. KERWIN, ESQ.
Ass't Attorney General
DAVID N. HURD
United States District Judge
DECISION and ORDER
I. INTRODUCTION
Plaintiff Elizabeth Naumovski, a former Women's Basketball Assistant Coach at
Binghamton University, the State University of New York, alleges that she was subjected to
discrimination, harassment, and retaliation on the basis of her sex in violation of federal law.
Trial on this mater is scheduled for Monday, October 28, 2019 in Utica, New York on
claims against the two remaining defendants.
Binghamton University, the State University of New York ("SUNY Binghamton") and
the State University of New York ("SUNY") (collectively "defendants") have filed a motion in
limine seeking evidentiary rulings in advance of the October 28, 2019 trial. Plaintiff opposes
all of defendants' requests. The motion was taken on its submissions and without oral
argument.
II. DISCUSSION
1.
Alleged rumors
Defendants contend plaintiff should be excluded from offering her own testimony or
that of others regarding rumors that she was having a relationship with J.W. They argue the
alleged rumors are hearsay and not permitted under Federal Rule of Evidence 801(c).
Plaintiff opposes and contends the evidence is admissible and will not be asserted for the
truth of the matter.
Hearsay is defined as a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted
in the statement. F.R.E. 801. However, hearsay evidence may be admissible for purposes
other than to prove the truth of the matter asserted. See e.g., United States v. Dupree, 706
F.3d 131, 136 (2d Cir. 2013). Evidence about the rumors is directly relevant to plaintiff's
discrimination, hostile work environment, and retaliation claims. She does not seek to prove
the truth of the rumors, only that the rumors existed. The alleged rumors are relevant to
show defendants' awareness of what plaintiff contends is unlawful conduct, as well as their
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response or lack thereof to plaintiff's concerns, and the effect that any rumors had on
plaintiff.
Defendants' request will be denied and evidence of the alleged rumors will be
admissible.
2.
Anonymous letter to J.W.'s family
Defendants seek to exclude the anonymous letter sent to J.W.'s family which
referenced the alleged relationship between plaintiff and J.W. in highly inflammatory and
discriminatory terms. They argue the letter is prejudicial, irrelevant, and lacks foundation,
particularly because it is anonymous. Plaintiff opposes and contends the letter should be
admitted not for its truth but to show its effect on defendants.
Again, hearsay evidence may be admissible for purposes other than to prove the truth
of the matter asserted. Plaintiff alleges the letter influenced Athletic Director James Norris
("Norris"); she was terminated shortly after he learned of it. Therefore, his receipt of the
letter is relevant to show any effect it had on him, and others involved in the decision to
terminate plaintiff. Further, the letter is admissible as a business record pursuant to Federal
Rule of Evidence 803(6); J.W.'s mother provided Norris a copy of the letter when she met
with him and he maintained a copy in his file, informed his supervisors, and reportedly did an
investigation into its authorship. Finally, to exclude the letter would be highly prejudicial to
plaintiff. Should a limiting instruction be necessary due to the inflammatory nature of the
letter, such will be given at the appropriate time.
Accordingly, defendants' request will be denied and anonymous letter will be
admissible.
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3.
James Norris' testimony about complaints re: plaintiff
Defendants assert Norris should be able to testify about complaints regarding plaintiff
made to him from student athletes and parents. Plaintiff opposes and argues any testimony
about alleged complaints, made by others to Norris, would be inadmissible hearsay and
further, unduly prejudicial.
Again, hearsay evidence that is otherwise inadmissible may be admissible for
purposes other than to prove the truth of the matter asserted in the statement. Defendants
contend they will offer this testimony not to establish the truth of any complaints, but rather,
for the effect these statements had on Norris' state of mind, knowledge, and subsequent
decisions. As with the anonymous letter, Norris' receipt of complaints by student athletes or
parents is relevant to establish what he had been told or not told, and to ex plain his
subsequent actions or inaction. Further, defendants may use any contemporaneous notes or
recordings about the complaints to establish the reliability of Norris' testimony on this topic.
As a result, this testimony is not hearsay when used for the aforementioned purpose.
Therefore, defendants' request will be granted and testimony by Norris regarding
complaints made about plaintiff will be admissible.
4.
Plaintiff's damages
Defendants contend plaintiff's trial evidence relating to damages should be limited to
information disclosed in discovery in this case. Specifically, they assert plaintiff should be
precluded from offering any evidence that she has suffered any economic or reputation
related damages attributable to SUNY Binghamton since she was hired as Head Coach at
Queens College. Plaintiff opposes and argues she is entitled to present evidence regarding
the impact her termination from SUNY Binghamton has had on her career and her distress to
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the extent it has continued to harm her. She contends evidence relating to damages is
disfavored and should not be curtailed.
During discovery in this case, plaintiff provided the following disclosure: "Plaintiff
claims damages based upon emotional injury and harm, physical pain and suffering, damage
to reputation, financial loss, medical expenses, and legal fees. Plaintiff will supplement this
disclosure with regard to the computation of damages." She later supplemented other parts
of her Federal Rule of Civil Procedure 26 initial disclosures, but provided no further
information regarding damages nor otherwise provided a computation of damages. Plaintiff
testified that she was hired as the Head Women's Basketball Coach at Queens College in
August 2011, but that she applied for and was not offered three Assistant Coach positions at
three other colleges. However, she has failed to offer evidence connecting defendants'
actions to any college's decision not to hire her. Further, plaintiff has not disclosed the
particulars of any financial losses, whether loss of earnings, medical expenses, or other
economic loss. Therefore, she will be precluded from offering evidence of economic
damages.
Accordingly, defendants' request will be granted and plaintiff's evidence on damages
will be limited, subject to any developments at trial, to information disclosed during discovery
and limited to non-economic damages such as emotional injury and harm, physical pain and
suffering, and damage to reputation.
5.
Evidence at summary judgment
Defendants assert that during trial, they plan to offer exhibits which plaintiff submitted
in opposition to their motion for summary judgment. They contend plaintiff should be
precluded from objecting to the admission of those exhibits that she, herself, submitted
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during motion practice. Plaintiff opposes and contends such documents are not
automatically admissible.
The party moving for summary judgment bears the initial burden of showing, through
the production of admissible evidence, that no genuine issue of material fact exists.
Palencar v. New York Power Auth., No. 5:15-CV-1363, 2019 W L 4918426, at *13 (N.D.N.Y.
Oct. 4, 2019) (emphasis added) (citing Salahuddin v. Good, 467 F.3d 263, 272–73 (2d Cir.
2006)). Once the movant meets this initial burden, the non-moving party "must come forward
with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid
summary judgment" Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)
(emphasis added). Plaintiff has not and cannot dispute that evidence submitted in
connection with a motion for summary judgment must be in admissible form. Therefore, she
has waived any objections to the admissibility of evidence which she herself submitted.
Accordingly, defendants' request will be granted and plaintiff will be precluded from
objecting to the admissibility of evidence which she submitted in connection with summary
judgment.
6.
Relationships between coaches and student athletes
Defendants anticipate that plaintiff will attempt to question witnesses at trial about
alleged heterosexual relationships between coaches and student athletes that did not result
in a coach's termination or continuos rumors. They assert that plaintiff should be prohibited
from questioning any witness on this topic without first offering admissible evidence to that
effect. Plaintiff opposes and contends she should be allowed to question witnesses
regarding evidence of disparate treatment. She asserts that there is admissible evidence of
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discriminatory employment practices at SUNY Binghamton, including male coaches guilty of
misconduct.
Evidence regarding defendants' alleged disparate treatment of female employees is
relevant to plaintiff's claims of discrimination and retaliation. A showing that her employer
treated her less favorably than a similarly situated employee outside her protected group is
certainly relevant to her claims. As defendants contend there exists no such admissible
evidence, they are free to object to the basis for a witness's testimony, including lack of
personal knowledge. Questioning on this topic will be permitted.
Defendants' request will be denied and plaintiff may, if she wishes, question
witnesses regarding evidence of disparate treatment.
7.
Plaintiff's post-SUNY Binghamton record
Finally, defendants contend plaintiff should be excluded from offering evidence about
her post-SUNY Binghamton basketball record or accolades. They urge that any evidence or
testimony concerning plaintiff's employment at Queens College should be limited to (1) dates
of her employment, (2) the position(s) held; and (3) salary and benefit information. Plaintiff
opposes and argues that her post-SUNY Binghamton record and accolades are relevant to
her performance as a coach and her damages and should not be precluded.
Lost opportunities, harm to reputation, and value as a coach are relevant to plaintiff's
damages. She will be permitted to testify as to these topics but will be precluded from
offering evidence of specific loss of earnings as no such proof or evidence has been
presented.
Accordingly, defendants' request will be denied but plaintiff's testimony will be limited
as described herein.
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III. CONCLUSION
For all of the above reasons, defendants' motion in limine will be granted in part and
denied in part. Counsel are directed to appear at 9:00 a.m . on Monday, October 28, 2019 for
a pre-trial conference before jury selection begins.
Therefore, it is
ORDERED that
Defendants' motion in limine is GRANTED in part and DENIED in part as follows:
1.
DENIED
2.
DENIED
3.
GRANTED
4.
GRANTED
5.
GRANTED
6.
DENIED; and
7.
DENIED.
IT IS SO ORDERED.
Dated: October 24, 2019
Utica, New York.
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