Gutierrez et al v. The City of New York et al

Filing 93

MEMORANDUM & ORDER granting in part and denying in part 88 Motion in Limine: Defendants' motion is granted with respect to motions and exhibits from the LOA litigation and denied with respect to testimonial references thereto. This Court will consider Defendants' requests for appropriate limiting instructions. For the reasons stated above, it is hereby ORDERED that Defendants' motion in limine to exclude Plaintiffs' Proposed Exhibit 2 to exclude motions and exhibits from the LOA litigation is GRANTED. It is DENIED all other respects. (Signed by Judge Leonard B. Sand on 6/20/2012) (djc)

UNITED S
S DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROLAND GUTIERREZ, et al.,
PIa

08 Civ. 6537 (LBS)

s,

MEMORANDUM & ORDER

v.

CITY OF NEW YORK, et al.,
Defendants.
SAND, J.
limine.

not moved

Plaintiffs

Defendants' motion in

is resolved as follows.
Plaintiffs' Proposed

1.

Defendants a
Exhib

E~hibit

2

that this Court exclude Plaintiffs' proposed

2, the "Detective Only Grid."

This

ibit illustrates

s and their ranks throughout the

the racial breakdown of detect

New York Police Department (NYPD) 's Detect

Bureau.

en that

this Court dismissed Plaintiffs' failure to promote claim, see

491, 502-505

be
the

(S.D.N.Y. 2010), Defendants argue that evidence

eaking the percentage of

spanic detectives in the NYPD and
, other c

ranks is irrelevant to Plaint

employment discrimination.
(IIDefs.' Mem.") 3.
"reviv [ing]
of a hostile wo

Defs.

I

Mem. SUpp. Mot.

of
Limine

In essence, Defendants accuse Plaintiffs of

entire cl

for d

environment [claim]."

Mot. in Limine ("Defs.'

. " ) 5.

-1­

of promotion in the guise
Defs.' Rep. Mem. Supp.

light of this Court's

We agree with Defendants that,
dismissal of P

intiffs' failure to promote claims. Exhibit 2 is

likely to confuse the issues and could well mislead the jury.
See Fed. R. Evid. 403 (IIAlthough relevant. evidence may be
excluded if its probative value is substant

issues. or mislead

the danger of ... confusion of
jury .... ").

The introduction of Exh

d by

ly outwe
the

2. we believe. would

undermine the Court's careful narrowing of Plaintiffs' claims.
By highl

ing the relative paucity of Hispanic detectives.

Exhibit 2 strongly suggests that Defendants are on trial for
illegally discriminat

against Hispanics in hiring and

promotion, which they are not.
P

intiffs' response. general as it is, is unavailing.

aintiffs argue that the statist
directly on Plaint

s in Exhib

2 "impact

s' claim of disparate treatment based upon

race in the assignment of investigat

larrest overtime. "

Mem. Opp'n Defs. ' Mot. in Limine (IIPls. ' Opp'n")
is true. but Plaintiffs do not say how.

Perhaps

2.

PIs. '

Perhaps that
re's a causal

link between the denial of investigative overtime and the
percentage of Hispanic detectives within the NYPD's Detective
Bureau.

We do not know since we were not told.

"While ordinarily it may be the more prudent course ... to
admit into evidence doubtfully admissible records. and testimony
based on them," Van Alen v. Dominick & Dominick. Inc .. 560 F.2d
547. 552 (2d Cir. 1977), we are convinced that the prejudice of

2­

admitt

g Exhib

probative value.

2 substantially outweighs

Defendants' motion is granted.
2.

parties disagree as as to whether Lt. Moroney had the
power to directly or indirectly influence the transfer of
minority subordinates from his command to other assignments.
~2mpare

Defs.' Mem. 3 ("[I]t is undisputed

Lieutenant

Moroney has no authority to transfer employees")

PIs.' Opp'n

2 ("It is undisputed that Lieutenant Moroney had the author
facil

to

e transfers of subordinates from his command to other
that we are faced with an acute factual

assignments.") .

e, Defendants' mot

di

to exclude any reference to this

issue is denied.
3.

Defendants move this Court to bar any and all references to
the Lat

Officers' Assoc

ion case ("LOA litigation").

In

s case, Latino and African-American NYPD officers sued
NYPD alleging hostile work environment, disparate disc
treatment, and ret

iation.

Latino Officers Ass'n v. City of New

, 519 F. Supp. 2d 438, 440 (S.D.N.Y. 2007).
certi

d a class in 2002; the parties settl

negotiated settlement requir

linary

Court
in 2004.

Id.

the NYPD to institute numerous

measures to monitor and remedy racial discrimination within the
force.

Id. at 440-441.

In 2006,

plaintiffs moved for a

contempt order, alleging that the NYPD had not held up

-3

s side

of the bargain.

Id. at 440.

The distr

t court denied their

contempt order, but did so not because they had failed to show
NYPD continued to engage in racial discrimination but

that

because the NYPD "did not warrant that racial discrimination
never again would occur."

Id. at 447.

The distr

t court's

decision was upheld on appeal, but the Second Circuit was careful
to note that while the plaintiffs were barred from moving for
contempt, they could "seek[] r

ress for their underlying claims

through other means [such as] the federal and state laws that
served as the basis

r the underlying class action."

==~=~~_~:==~~~~~=~~~~==~~. .c~~~~~~~~~.

Latino
558 F.3d

159. 165 (2d Cir. 2009).
Defendants now argue that, since none of
this case were involved in the LOA 1

PIa

iffs in

igation, all references to

the LOA litigation be excluded as irrelevant.

Defendants also

argue that. even if relevant, the LOA litigation is substant

lly

more prejudicial than probative and constitutes inadmissible
hearsay.
"To the extent that defendants seek only to preclude the
introduction of pleadings and court
their motion to preclude is grant

ings

other lawsuits,

If offered to prove

fact of racial discrimination at [the NYPD] , such pleadings are
inadmissible hearsay."
. No. 08 C

3577, 2012 U.S. Dist. LEXIS 32070. at *30

(S.D.N.Y. Mar. 9. 2012).

See also Gaffney v. Dep't of Info.

4

==~~,

579 F. Supp. 2d 455, 459 (S.D.N.Y. 2008)

(barring motions

for summary judgment and exhibits from previous case).

1 testimony referencing the LOA

Defendants' motion to suppress
1

However.

denied insofar as "plaintiffs may propose to call

igation

complainants in other lawsuits to testify about prior acts of
racial discrimination."
at "31.

Richmond. 2012 U.S. Dist. LEXIS 32070,

also Zublake v. UBS Warburg LLC, 382 F. Supp. 2d

536, 522 (S.D.N.Y. 2005)

(holding that "evidence of a defendant's

prior discriminatory treatment of a plaintiff or other employees
is relevant and admissible under the Federal Rules of Evidence to
establish whether a

fendant's employment action against an

employee was motivated by invidious discrimination.").
Defendants' motion is granted with respect to motions and
exhibits from the LOA litigation and denied with respect to
testimonial re

rences

reto.

This Court will consider

Defendants' requests for appropriate limiting instructions.
For the reasons stated
Defendants' motion in
Exhibit 2

ove. it is her

to exclude Plaintiffs' Proposed

to exclude motions and exhib

litigation is GRANTED.

y ORDERED that

It is DENIED

SO ORDERED.

s from the LOA

all other respects.

~~I1S~

June 20, 2012
New York, N.Y.

~

5

U.S.D.J.