Peck v. County of Onondaga, New York et al

Filing 154

MEMORANDUM-DECISION AND ORDER granting in part and denying in part and reserved in part re 145 Motion in Limine: The Court hereby ORDERS that Defendants' supplemental motions in limine (Dkt. No. 145) is GRANTED in part, DENIED in part, an d RESERVED on in part; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 01/28/25. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
KAMILLA S. PECK,
Plaintiff,
vs.

5:21-CV-651
(MAD/TWD)

COUNTY OF ONONDAGA, NEW YORK;
EUGENE CONWAY, Onondaga County Sheriff;
KATHERINE TRASK, Chief; JONATHAN
SEEBER, Sergeant; KATHY SEEBER, Deputy;
SUSAN DEMARI, Chief Deputy; DAWN CURRYCLARRY, Director of Employee Relations; PAUL
SMITH, Human Resources Manager; PAULA
PELLIZZARI, Captain; and ESTEBAN
GONZALEZ, Chief,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

BOSMAN LAW FIRM, LLC
3000 McConnellsville Road
Blossvale, New York 13308
Attorneys for Plaintiff

AJ BOSMAN, ESQ.
ROBERT J. STRUM, ESQ.

MANCUSO BRIGHTMAN PLLC
16 Oswego Street – Suite 2
Baldwinsville, New York 13027
Attorneys for Defendants

SHANNON T. O'CONNOR, ESQ.
ZACHARY T. RUETZ, ESQ.

BOLANOS LOWE PLLC
16 S. Main Street – Suite B
Pittsford, New York 14534
Attorneys for Defendants

WILLIAM Q. LOWE, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION

Plaintiff commenced this employment discrimination action concerning her time working
in the Onondaga County Sheriff's Office. Following an August 19, 2021 Order,1 see Dkt. No. 20,
which dismissed several claims (as well as Defendant Undersheriff Jason Cassalia), Plaintiff filed
an amended complaint. See Dkt. No. 24. The amended complaint asserted nine causes of action
under Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights
Law ("NYSHRL"), and 42 U.S.C. § 1983.
Thereafter, Defendants moved for summary judgment. In a September 6, 2023,
Memorandum-Decision and Order, Judge Hurd dismissed Plaintiff's Title VII, NYSHRL, and
Section 1983 claims for discrimination and hostile work environment, leaving only Plaintiff's
Title VII, NYSHRL, and Section 1983 retaliation claims remaining for trial. See Dkt. No. 90.2 In
permitting the retaliation claims to remain for trial, Judge Hurd made clear that these claims only
survived in small part. Specifically, in granting in part and denying in part Plaintiff's motion for
reconsideration, Judge Hurd stated as follows:
When evaluating Peck's NYSHRL and Title VII retaliation claims,
the Court was forced to sort through a laundry list of purported
retaliatory acts that plaintiff first referenced in her Amended
Complaint. Plaintiff supported very few of these acts with record
evidence, though she did offer some citations. In considering the
retaliatory acts that were properly supported, the Court did identify
a narrow issue of material fact concerning plaintiff's investigation
by Internal Affairs and a subsequent counseling memo, and allowed
the NYSHRL and Title VII claims to survive summary judgment
with respect to this narrow occurrence.

This case was originally assigned to United States District Judge David N. Hurd.
Following the conclusion of discovery and dispositive motion practice, the case was reassigned to
the undersigned for purposes of trial. See Dkt. No. 138.
1

Initially, Judge Hurd dismissed Plaintiff's Fourteenth Amendment retaliation claim, but
subsequently reinstated this claim on Plaintiff's motion for reconsideration. See Dkt. No. 95.
2

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Dkt. No. 95 at 10-11. As such, in the orders addressing the motion for summary judgment and
motion for reconsideration, Judge Hurd made clear that the only alleged retaliatory conduct that
survived for purposes of trial was (1) the conduct of an Internal Affairs investigation after Plaintiff
was suspected of leaving work early without authorization (and other timekeeping violations) on
June 18, 2020; and (2) the issuance of a non-disciplinary "supervisor's" or counseling
memorandum to Plaintiff in November 2020, after the same investigation found that Plaintiff had,
in fact, committed some or all of the suspected misconduct.
Trial is scheduled to commence on February 3, 2025. Currently before the Court are
Defendants' supplemental motions in limine. See Dkt. No. 145.3

II. BACKGROUND
For a complete recitation of the relevant factual background, the Court refers the parties to
Judge Hurd's September 6, 2023, Memorandum-Decision and Order. See Dkt. No. 90.
III. DISCUSSION
A.

Standard of Review
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on

the admissibility of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n.2
(1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). A court should exclude
evidence on a motion in limine only when the evidence is clearly inadmissible on all potential

The parties previously submitted motions in limine, which were decided by Judge Hurd.
See Dkt. Nos. 104, 113 & 131.
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grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94 Civ. 5220, 1998 WL 665138,
*3 (S.D.N.Y. Sept. 25, 1998). Courts considering motions in limine may reserve decision until
trial so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co.
v. L.E. Myers Co. Group, 937 F. Supp. 276, 287 (S.D.N.Y. 1996). Alternatively, the court is
"free, in the exercise of sound judicial discretion, to alter a previous in limine ruling" at trial as
"the case unfolds, particularly if the actual testimony differs from what was contained in the
[movant's] proffer." Luce, 469 U.S. at 41-42.
B.

Evidence Pertaining to Isaac Eames
In its previous motion in limine, Defendants asked the Court to preclude Plaintiff from

introducing extraneous and irrelevant evidence, including evidence surrounding the death of
former Deputy Isaac Eames, who killed himself after he was reportedly caught embezzling
approximately $500,000 in grant money from the Onondaga County Sheriff's Office. See Dkt.
No. 104 at 21. In its ruling, the Court granted Defendants' motion. See Dkt. No. 131 at 5. Now,
Defendants seek to preclude not just evidence relating to former Deputy Eames suicide, but also
any evidence relating to his "race and alleged use of racial slurs, the nature of his alleged
misconduct and the circumstances surrounding the criminal and workplace investigations, in
addition to the facts that 'he shot and wounded his wife, killed his son and dog, and killed himself
with his department issued weapon.'" Dkt. No. 145-3 at 8. Defendants contend that the Court
should "preclude the admission of any evidence referring to or relating to the conduct, treatment,
or investigation of Isaac Eames ..., including both documentary evidence and testimony by any
witness called during trial, because any such evidence is inherently unfairly prejudicial and would
instead inflame the passions of the jury, he is an improper comparator, and he is deceased and
unavailable for examination." Id. at 7.
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Plaintiff argues that "Eames was a co-worker of Plaintiff. His desk moved next to hers
when she was moved out of the Community Relations Unit following her complaints of
discrimination. Defendants do not articulate why he is an 'improper comparator,' nor offer any
explanation. Such a determination is a mixed question of fact and law better suited to resolution
by the jury." Dkt. No. 153 at 3.
Pursuant to Rule 403 of the Federal Rules of Evidence, "[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence." Fed. R. Evid. 403. "Unfair prejudice within its
context means an undue tendency to suggest decision on an improper basis, commonly, though
not necessarily, an emotional one." United States v. Deutsch, 987 F.2d 878, 884 (2d Cir. 1993).
The Court agrees with Defendants that Isaac Eames is not an appropriate comparator and
that the proposed testimony and evidence is unduly prejudicial and only marginally relevant. As a
general rule, whether individuals are similarly situated is a factual issue that should be submitted
to the jury. Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (citation omitted). In
determining whether employees are similarly situated, the fact-finder must consider "(1) whether
the plaintiff and those [s]he maintains were similarly situated were subject to the same workplace
standards and (2) whether the conduct for which the employer imposed discipline was of
comparable seriousness." Id.
In its previous ruling, the Court granted Defendants' motion to exclude other extraneous
and irrelevant material – specifically, the suicide death of former Deputy Isaac Eames. See Dkt.
No. 131 at 5. Plaintiff is now seeking to introduce evidence and/or testimony regarding Eames'
race and alleged use of racial slurs, the nature of his alleged misconduct before his suicide, and the
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circumstances surrounding the criminal and workplace investigations. This evidence would only
inflame the passions of the jury and sway their emotions with a story having nothing to do with
Defendants' conduct at issue in this case. See Adams-Flores v. City of New York, No. 18-cv12150, 2024 WL 519819, *2 (S.D.N.Y. Feb. 9, 2024).
Plaintiff claims that Eames and Plaintiff were both supervised by Defendants DeMari and
Pellizzari and argues that "Defendants seek to improperly exclude relevant evidence of their
differential treatment of a white male employee and seek to hamstring Plaintiff's case." Dkt. No.
153 at 4. Plaintiff contends that, although Mr. Eames is dead, "he made multiple statements to
Plaintiff and is recorded by Plaintiff wherein he observed the differential and disparate manner in
which Defendant Pellizzari related to him and how she treated Plaintiff. He further made
statements to her relating to inquiries by Defendants about her suggesting she might 'distract'
Eames. This treatment of Plaintiff is evidence relevant to Defendants' intent to retaliate and to
their motive, plan, and lack of mistake in subjecting Plaintiff to retaliation in the form of an
investigation and subjecting her to targeting for her complaints of discrimination on the basis of
her race." Id.
Here, the Court finds that Eames is not an appropriate comparator and that any testimony
or evidence about Eames would be unduly prejudicial and of little probative value. According to
Plaintiff, "Isaac Eames was purportedly under investigation by Defendants in December 2021
regarding financial irregularities in accounts as reported by the Sheriff. 'Two months before the
shooting, the fraud team from JP Morgan Chase notified county officials of a suspicious pending
transfer of more than $41,372.15, according to records obtained in February by syracuse.com.
The money was scheduled to move from a sheriff's office account into the deputy's private
account, authorities said. County officials told the bank to block the transaction, which never
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went through.' He was finally questioned about the transactions days before he shot his wife, his
son, and his dog, and himself on February 7, 2022." Id. at 2 n.1.
First, the events at issue involving former Deputy Eames occurred more than a year
following Plaintiff's alleged protected activity and the alleged retaliatory conduct that followed.
Moreover, based on Plaintiff's allegations, it is clear that he was under investigation for engaging
in criminal conduct and this investigation was never concluded because he subsequently took his
own life. The fact that Eames took his own life before the investigation concluded necessarily
means that Defendants did not have an opportunity to impose discipline on him for his alleged
misconduct which was clearly not comparable to Plaintiff's misconduct.
Moreover, such evidence is necessarily connected to Eames' suicide and cannot be
separated at trial without confusing or misleading the jury, as his death was the reason the
criminal investigation concluded, no charges were filed, and Defendants were unable to take any
further employment action. As a result, any presentation of such evidence by Plaintiff in support
of her disparate treatment theory (i.e., that Eames was treated more favorably than Plaintiff) could
not occur without Defendants being provided the opportunity to challenge the theory by
presenting evidence detailing the circumstances surrounding the conclusion of the investigation
(i.e., Eames' suicide, which effectively rendered any further action moot).
The Court also agrees with Defendants that Eames is not an appropriate comparator for
Plaintiff's disparate treatment theory. While Eames was supervised by Defendants DeMari and
Pellizzari, he was not in the same position as Plaintiff, as he was not a member of the Community
Relations Unit and did not have the same duties as Plaintiff. Nor was he accused of the same
misconduct as Plaintiff. In order to challenge Plaintiff's theory of disparate treatment, Defendants
would need to present evidence connected to the underlying misconduct, such as Eames falsifying
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documents to conceal his criminal acts from Defendants. The Court will not permit this case to
become a mini criminal trial as a vehicle for Plaintiff to create a false equivalency between a
routine time audit and a complex scheme of embezzlement. See Akinyemi v. Napolitano, 347 Fed.
Appx. 604, 607 (2d Cir. 2009) (affirming the decision precluding evidence concerning the
misconduct and discipline of a fellow employee found to have engaged in negligent conduct,
where the plaintiff engaged in intentional conduct). Finally, the Court notes that Eames is now
deceased and is therefore unavailable for questioning during trial to otherwise confront Plaintiff's
theory.
Accordingly, the Court grants this aspect of Defendants' motion in limine.
C.

Proposed Witnesses Not Previously Disclosed
In their next supplemental motion in limine, Defendants argue that the Court "should

preclude any testimony from any of Plaintiff's proposed witnesses which were not included in her
mandatory Rule 26 disclosures – i.e., Dr. Claudine Ward, M.D. ... and Andrea Morey[.]" Dkt. No.
145-3 at 11. Defendants contend that all four factors that the Court must consider in deciding
whether to exclude this testimony weighs in their favor. See id. at 12-13. In response, Plaintiff
argues that she complied with her Rule 26 requirements in that she "identified both Ward and
Morey in her Response to Defendants' Interrogatories in February 2022." Dkt. No. 153 at 6.
Plaintiff further contends that she "notified Defendants of Dr. Ward's identity in her original and
amended Treating Healthcare Providers Disclosures. ... In fact, Dr. Ward is the very first provider
identified on the July 29, 2022 disclosure. The disclosure further details the subjects of Dr.
Ward's treatment of Plaintiff and was provided together with Dr. Ward's records of Plaintiff's
treatment." Id. at 7.

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Federal Rule of Civil Procedure 26(a) contains mandatory disclosure requirements
regarding disclosure of witnesses and documents. See Fed. R. Civ. P. 26. Under Rule 26(a)(1),
litigants have an obligation to provide or identify in their initial disclosures the name, address and
telephone number of each person "likely to have discoverable information ... along with the
subjects of that information – that the disclosing party may use to supports its claims or defenses."
Id. In addition, Rule 26 requires that the disclosing party provide a copy of "all documents ... that
the disclosing party has in its custody or control and may be used to support its claims or
defenses." Id. This information must be supplemented if a party becomes aware of new
information. See Fed. R. Civ. P. 26(e)(1)-(2).
"Rule 37 provides that any 'party that without substantial justification fails to disclose
information required by Rule 26(a) ... is not, unless such failure is harmless, permitted to use as
evidence at a trial ... any witness ... not so disclosed.'" Patterson v. Balsamico, 440 F.3d 104, 117
(2d Cir. 2006) (quoting Fed. R. Civ. P. 37(c)(1)). Exclusion under Rule 37 is automatic unless the
party who failed to disclose "can demonstrate substantial justification for the failure to disclose or
that the failure to disclose is harmless." Miles v. County of Broome, No. 3:04-cv-1147, 2006 WL
561247, *3 (N.D.N.Y. Mar. 6, 2006).
In determining whether to exclude such witnesses under Rule 37(c)(1), courts in the
Second Circuit consider "'(1) the party's explanation for the failure to comply with the [disclosure
requirement]; (2) the importance of the testimony of the precluded witness[es]; (3) the prejudice
suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4)
the possibility of a continuance.'" Patterson, 440 F.3d at 117 (quotation omitted). "[A]lthough a
'bad-faith' violation of ... Rule 26 is not required in order to exclude evidence pursuant to Rule 37,

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it can be taken into account as part of the party's explanation for its failure to comply." Design
Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006).
Here, the Court finds that Plaintiff has substantially complied with her disclosure
requirements and that this portion of Defendants' motion in limine must be denied. It is clear that
Defendants have been aware of these witnesses since February 2022 and were provided a
description of the information that each possesses that is relevant to Plaintiff's claims. Defendants
will suffer little prejudice by permitting this testimony, since it is largely duplicative of other
evidence already in their possession, including the treatment records from Plaintiff's treating
psychologist, Deborah E. Spinks, Ph.D.
Accordingly, the Court denies this aspect of Defendants' motion in limine.4
D.

Admission of Plaintiff's Exhibits 4 and 27
Defendants seek to preclude admission of Plaintiff's proposed exhibits 4 and 27. See Dkt.

No. 145-3 at 13. According to Plaintiff's exhibit lists, the exhibits are Plaintiff's Division of
Human Rights ("DHR") complaint and her EEOC complaint. See Dkt. No. 126 at 1, 4; Dkt. No.
107 at 1, 4. Defendants contend that these exhibits "are complaints and/or litigation documents
from Plaintiff's EEOC and DHR proceedings, and as such are: (1) inadmissible hearsay that
should be precluded pursuant to Federal Rule of Evidence 801 ...; (2) material whose probative
value is outweighed by the risk of prejudice and confusion resulting from their admission that
Although the Court is denying this aspect of Defendants' motion, it is unclear at this point
how relevant Dr. Ward's testimony will be to Plaintiff's remaining claim of retaliation. Based on
the evidence before the Court, it appears that Plaintiff began treating with Dr. Ward following a
concussion she sustained in 2019, prior to the events at issue in the present matter. Clearly, any
lingering effects Plaintiff is experiencing as a result of a concussion that predated the alleged
retaliation in this case is not relevant to her injuries in the present matter. The Court has similar
concerns regarding the relevant of Ms. Morey's testimony, who is identified as Plaintiff's friend
and that her testimony will concern damages. Despite these concerns, the Court has denied
Defendants' motion at this time.
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should be precluded pursuant to Federal Rule of Evidence 403 ...; and (3) inadmissible as records
and reports of public offices setting forth factual findings from investigations in civil actions
under Federal Rule of Evidence 803(8)(c)." Dkt. No. 145-3 at 13-14. In response, Plaintiff
contends that "Defendants' third motion in limine is an attempt to relitigate their prior motion to
exclude background evidence of discrimination in support of her retaliation claims. ... Evidence
of the underlying discrimination that formed the basis of Plaintiff's protected speech is relevant
and admissible to support her claims of retaliation." Dkt. No. 153 at 9.
In their motion in limine, Defendants rely on cases discussing the admissibility of findings
reached by administrative bodies, such as the EEOC and the DHR, rather than the underlying
pleadings before the administrative bodies. See Dkt. No. 145-3 at 14-15 (citing Doe v. Univ. of
Conn., No. 3:09-cv-1071, 2013 WL 4504299, *17-19 (D. Conn. Aug. 22, 2013); Paolitto v. John
Brown E. & C., Inc., 151 F.3d 60, 65 (2d Cir. 1998)). To the extent that Plaintiff is attempting to
introduce her EEOC and DHR complaints, and not the findings of the EEOC and DHR, these
cases are not entirely on point.
Nevertheless, the Court agrees with Defendants that the admission of these exhibits is not
necessary to establish Plaintiff's filing of either the EEOC or DHR action, since Defendants have
indicated that they will stipulate to the fact of these filings. Moreover, Plaintiff will have a full
opportunity to present to the jury during trial of this matter all relevant facts relating to her claims
for alleged retaliation. Admission of these exhibits – and the multitude of irrelevant allegations
and hearsay statements contained therein – would serve only to confuse and/or inflame the jury in
a manner prejudicial to Defendants. These pleadings necessarily contain allegations relating to
claims that have since been dismissed from the present matter and contain other allegations and

11

facts that Judge Hurd previously determined would not be admissible at this trial.5 Courts
routinely preclude the admission of pleadings and court filings because such documents constitute
impermissible hearsay and are otherwise unduly prejudicial because they contain irrelevant
allegations relating to claims that have previously been dismissed. See Richmond v. Gen.
Nutrition Ctrs. Inc., No. 08-cv-3577, 2012 WL 762307, *9 (S.D.N.Y. Mar. 9, 2012) (granting
motion in limine to preclude "introduction of pleadings and court filings in other lawsuits," and
noting that "[i]f offered to prove the fact of racial discrimination ... such pleadings are
inadmissible hearsay" because "allegations of discrimination contained in legal complaints and
other documents ... by their nature are not subject to cross-examination," and further precluding
admission of the documents "based on Fed. R. Evid. 403, in that the risk of unfair prejudice and
confusion from introducing documents reflecting allegations in other cases clearly outweighs the
probative value of such claims); Guitierrez v. City of New York, No. 08-cv-6537, 2012 WL
2357063, *1 (S.D.N.Y. June 20, 2012); Noel v. Inc. Vill. of Lake Success, No. 13-cv-211, 2016
WL 740436, *3 (E.D.N.Y. Feb. 24, 2016) (collecting cases for the proposition that "[p]reviously
dismissed claims, and evidence thereof, are not of consequence in determining the action and
therefore [should] be excluded" and holding that "evidence of previously dismissed disability
discrimination claims where only plaintiff's retaliatory discharge claims were at issue at trial"
must be precluded).6
Accordingly, the Court grants this aspect of Defendants' motion in limine.

The Court has reviewed the EEOC and DHR complaints, which were attached as exhibits
to Plaintiff's response to Defendants' motion for summary judgment. See Dkt. Nos. 83-26, 83-27,
83-81.
5

While the Court is granting this aspect of Defendants' motion, Plaintiff will still be
permitted to testify regarding the events set forth in these complaints, to the extent that they are
relevant, not unduly prejudicial, or not otherwise subject to preclusion.
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E.

Lay Witness Testimony
Defendants next ask the Court to "limit the testimony of the lay witnesses to only their

perceptions and observations and preclude any testimony that is not supported by their personal
observations or opines on a legal conclusion at issue in this case." Dkt. No. 145-3 at 16.
Defendants contend that "Plaintiff has identified several lay witnesses including Stephen Peck,
Heather Poland, Collete Reynolds, Kevin Moore, and Andrea Morey. Plaintiff's witness list
broadly states that the witnesses are either expected to testify as to alleged 'retaliation and
disparate treatment by Defendants against Plaintiff and damages' or simply 'damages.'" Id.
Because none of these witnesses are identified as expert witnesses, Defendants argue that their
"testimony should be limited to only their observations of behavior or relevant events they
personally observed. They should not be permitted, as a lay witness, to opine or attest to some
conclusion that requires specialized training or expertise in the field of mental health, or provide
their personal judgement as to an ultimate issue in the case, such as the alleged unlawful motives
of Defendants." Id. at 16-17.
In response, Plaintiff's counsel assures the Court that she is familiar with the Rules of
Evidence and indicates that she "has no intention of presenting or attempting to present expert
opinion from lay witnesses." Dkt. No. 153 at 12. Plaintiff assures the Court that the testimony
will be based on the witnesses' observations and personal knowledge and that it will not be based
on scientific, technical, or other specialized knowledge. See id. at 12-13.
In light of Plaintiff's response, the Court denies this aspect of Defendants' motion in
limine.
F.

Comments by Non-Decisionmakers

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Defendants contend that "[t]he Court should preclude testimony of any witness at trial
regarding comments made by any individual who is not a decisionmaker, or any comments made
by decisionmakers unrelated to the decision-making process at issue, as they relate to Plaintiff's
burden to demonstrate discriminatory or retaliatory animus." Dkt. No. 145-3 at 19. Defendants
note that "Plaintiff may seek to introduce evidence of any comments made by nondecisionmakers
– e.g., Susan DeMari (former Deputy Chief of Civil Division), Esteban Gonzalez (former Deputy
Chief of Custody Division), Katherine Trask (Deputy Chief of Administrative Decision), Captain
Paula Pellizzari (former Administrative Executive Officer), Sergeant Jon Seeber (Public
Information Officer and Community Relations Supervisor), Vanessa Baker (Employee Relations),
Sergeant Steven Smolen (Internal Affairs), Monica Williams (Chief Diversity Officer), Lieutenant
Jammie Blumer (Internal Affairs), Kelly Seeber (Deputy), Michelle Williams (Human Resources),
Paul Smith (former Personnel Department), or Isaac Eames (Deputy) – in order to meet her
burden to prove discriminatory or retaliatory animus on behalf of Defendants." Id. at 19-20.
"'Courts must weigh the following factors when determining whether a comment evinces
an intent to discriminate: (1) whether a decisionmaker made the remark; (2) whether the remark
was made close in time to the employment decision(s) at issue; (3) the content of the remark; and
(4) whether the remark was made in connection with the decisionmaking process.'" Van BruntPiehler v. Absolute Software, Inc., ___ F. Supp. 3d ___, 2024 WL 3765523, *10 (W.D.N.Y.
2024) (quoting Quinby v. WestLB AG, No. 04 Civ. 7406, 2007 WL 3047111, *1 (S.D.N.Y. Oct.
18, 2007)) (other citation omitted); see also Silver v. N. Shore Univ. Hosp., 490 F. Supp. 2d 354,
363 (S.D.N.Y. 2007).
In the present matter, the Court finds that it is unable to decide this issue at this stage. As
noted above, among the factors to be considered in determining the admissibility of such
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testimony is whether the remark was made close in time to the employment decision at issue, the
content of the remark, and whether the remark was made in connection with the decisionmaking
process. Without the necessary context of the testimony at issue, the Court is unable to make this
decision at this time.
Accordingly, the Court reserves judgment on this aspect of Defendants' motion in limine.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, the Court hereby
ORDERS that Defendants' supplemental motions in limine (Dkt. No. 145) is GRANTED
in part, DENIED in part, and RESERVED on in part; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: January 28, 2025
Albany, New York

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