McPartlan-Hurson v. Westchester Community College et al

Filing 161

OPINION AND ORDER re: 157 MOTION in Limine . filed by Mary J. McPartlan-Hurson. Plaintiff's seeks to preclude Defendants from introducing written evaluations of Plaintiff; which were completed by students for each semester she ta ught, as well as electronic summaries of those written student evaluations on the basis that Defendants did not rely on either when making the decision to terminate Plaintiff's employment. (As further set forth in this Order.) For the foregoing reasons, Plaintiffs' motion is DENIED. The Clerk of the Court is respectfully requested to terminate the motion at ECF No. 157. (Signed by Judge Nelson Stephen Roman on 10/9/2018) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MARY McPARTLAN-HURSON,
Plaintiff,
13-CV-2467 (NSR)(LMS)
-againstOPINION & ORDER
WESTCHESTER COMMUNITY COLLEGE, and
WESTCHESTER COUNTY,
Defendants.
NELSON S. ROMAN, United States District Judge
Plaintiff Mary J. McPartlan-Hurson ("Plaintiff'') commenced this action against
Defendants Westchester Community College ("WCC") and Westchester County (the ''County'')
(collectively "Defendants") by filing a Summons and Complaint with this Court on April 12,
2013. (See ECF No. 1 (the "Complaint" or "Comp!.").) Plaintiffs Complaint asserts causes of
action grounded in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title
VII") and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (the "ADA").
Plaintiff alleges that WCC discriminated against her on the basis of her race and disability when
they denied her a diversity fellowship for the Fall 2009 semester and subsequently terminated her
in December of 2009, and claims that her temrination also amounted to retaliation. By Order
dated June 20, 2018, this Court ruled on Defendant's Motion for Summary Judgment, granting it
in part and denying it in part. (See Opinion & Order, dated June 21, 2018 ("SJ Decision"), ECF
No. 153.). Specifically, the Court granted Defendants' Motion dismissing Plaintiff's race and
disability discrimination claims, (id. at 18-24, 31) but denied the Motion with respect to

Plaintiffs retaliation claims. (Id. at 24-31. ). Subsequently, the Court set a trial date for Plaintiffs
retaliation claims for November 9, 2018.
On September 25, 2018, Plaintiff filed a pre-trial motion in limine, which is presently
before the Court. (See Plaintiffs Memorandum of Law in Support of her Motion in Limine, ("PL
Mem."), ECF No. 157). In this Motion, Plaintiffs seeks to preclude Defendants from introducing
written evaluations of Plaintiff; which were completed by students for each semester she taught,
as well as electronic summaries of those written student evaluations on the basis that Defendants
did not rely on either when making the decision to terminate Plaintiffs employment. (Id. at 1.)
For the same reason, she also seeks to preclude Defendants from offering any evidence that
mentions, refers to, or attempts to convey to the jmy in any manner, directly or indirectly, the
content or substance of the written student evaluations and their electronic summaries. (Id.)
For the following reasons, the Plaintiffs' motion is DENIED.
BACKGROUND
The Court assumes familiarity with the facts and allegations in this case. See e.g.,
McPartlan-Hurson v. Westchester Community College, et al., Case No. 13-CV-2467 (NSR),
(S.D.N.Y. June 21, 2018). Accordingly, it turns to the merits of Plaintiffs Motion.
DISCUSSION
I.

Legal Standard
"A district court's inherent authority to manage the course of its trials encompasses the

right to rule on motions in limine." Highland Capital 1\1gmt., L.P. v. Schneider, 551 F.Supp.2d
173, 176-77 (S.D.N.Y.2008) (citing Luce v. United States, 469 U.S. 38; 41 n. 4 (1984)). An in
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limine motion is intended "to aid the trial process by enabling the Court to rule in advance of trial
on the relevance of certain forecasted evidence, as to issues that are definitely set for trial,
without lengthy argument at, or intenuption of, the trial." Palmieri v. Defaria, 88 F.3d 136, 141
(2d Cir.1996). "Because a ruling on a motion in limine is 'subject to change as the case unfolds,'
this ruling constitutes a preliminary determination in preparation for trial." United States v.

Perez, No. 09-CR-1153 (MEA), 2011 WL 1431985, at *1 (S.D.N.Y. Apr. 12,
2011) (quoting Palmieri, 88 F.3d at 139 (quoting Luce, 469 U.S. at 41, 105 S. Ct. at 163)).
The Federal Rules of Evidence provide that only relevant evidence is admissible. Fed. R.
Evid. 402. Evidence is relevant if "it has any tendency to make a fact more or less probable than
it would be without the evidence ... and the fact is of consequence in determining the action."
Fed. R. Evid. 401 (a)-(b). Relevant evidence may still be excluded by the Court "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. Though the "standard ofrelevance established by the
Federal Rules of Evidence is not high," United States v. Southland Corp., 760 F.2d 1366, 1375
(2d Cir.1985), the Court has "broad discretion to balance probative value against possible
prejudice" under Rule 403. United States v. Bermudez, 529 F.3d 158, 161 (2d Cir.2008).

II.

Application
Plaintiff anticipates that Defendants will seek to introduce written student evaluations and

electronic tabulation summaries of those evaluations (collectively, "Evaluations") for the
semesters leading up to the decision not to rehire Plaintiff and to terminate her employment. (Pl.
3

Mem. at 3.) Plaintiff therefore seeks to preclude the admission or any mention of Plaintiff's
Evaluations during trial. (Id.) Plaintiff Relies on Fed. R. Evid. 402 and 403, arguing that the
Evaluations are irrelevant hearsay that, if shown to a jury, would unfairly prejudice Plaintiff. (Id.
at 3, 6.) Specifically, she states that Dr. Maryanne Vent, Vice-Chairman of the English
Department, Dr. Frank Madden, Chairman of the English Department, and Dr. Heather Ostman,
Vice-Chairman of the English Department all "admitted that they did not review Plaintiff's
student evaluation or electronic tabulation summaries and that they were not considered as part
of the decision to terminate her employment." (Id. at 4-6.) 1 Further, she asse1ts that Drs. Madden,
Vent, and Ostmann knew that the College's policy prohibited student evaluations from being
used in hiring decisions and, therefore, they intentionally did not consider them when making the
hiring decisions. (Id. at 5). 2 Therefore, she argues, "any negative scores or disparaging comments
about her performance or personality will be prejudicial to her and could influence the jury to
accept Defendant's proffered reasons for the termination of her employment ... " (Id. at 3.)

1 Plaintiff points

to the following portions of the decision-makers' deposition testimony in support of her
argument: Dr. Vent, the ultimate decision maker, testified that she did not review written student evaluations" (citing
Deposition of Dr. Maryanne Vent, dated January 9, 2014, ("Vent Dep.") at pp. 83, 87, 134-135, ECF No., 158, Ex.
1) "and did not review the summaries of student evaluations (Vent. Dept. at p. 87); Then Dean Wang, "confirmed
that student evaluations were not used in connection with the decision to rehire adjunct professors." (Deposition of
Dr. Jianping Wang, dated November 15, 2013 ("Wang Dep.") at pp. 12-13, ECF No., 158, Ex. 2); "Dr. Madden also
testified that he did not review any of Plaintiff's student evaluations prior to meeting with Drs. Vent and Ostman in
which the decision not to rehire her and tenninate her employment was made." (Deposition of Dr. Frank Madden
("Madden Dep,") at p. 278, ECF No., 158, Ex. 3); "Dr. Madden further testified that he received student evaluations
and electronic tabulation summaries but that he did not read them, he passed them on to Dr. Wang." (Id. at pp. 236237); "Similarly, Dr. Ostman testified that she never reviewed student evaluations." (Deposition of Dr. Heather
Ostman, dated October 31, 2013 ("Ostman Dep.") at pp. 105-107, ECF No., 158, Ex. 4). (Pl. Mem. at pp. 4-5.)
2

Plaintiff does concede that the Evaluations were used or reviewed by the relevant decision makers "on
one occasion" but claims it was "not in the semester prior to the decisions not to rehire her and terminate her
employment." (Pl. Mem. at 4) (citing Vent Dep. at pp. 84-85.)

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Defendants argue that Plaintiff's Motion must be denied because the Student Evaluations
are relevant and in no way prejudicial to Plaintiff. (Declaration of Darius P. Chafizadeh in
Opposition to Motion in Limine, ("Def. Opp."), ECF No. 160 ,r 10.) Specifically, they argue that:
while the English Department may not have specifically reviewed specific Student
Evaluations contemporaneously to the decision not to bring Plaintiff back for the
Spring 2010 semester as an adjunct professor, the evidence shows that the Madden,
Ostman and Vent were aware of poor student comments of Plaintiff prior to any
decision not to rehire her and, as a result, such documents are relevant to this matter
and no way unfairly prejudice Plaintiff.

(Id.

,r 7.) In addition, Defendants note that Dr. Madden wrote an e-mail contemporaneously in

2009, reflecting that he had considered the Student Evaluations, which resulted in him setting up
a meeting with Plaintiff and monitoring whether student approval of Plaintiff improved. (Id.

,r 8.)

In addition, Defendants argue that the Collective Bargaining Agreement ("CBA") does not
preclude relying on the Student Evaluations for assessing regular adjunct faculty. (Id.

,r 9.)

The Court agrees with Defendants. In order to assess the Evaluations under Fed. R. Evid.
402 and 403, the Court need first establish that the Evaluations are relevant under Fed. R. Evid.
401. Rule 401 provides that "Evidence is relevant if: (a) it has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action." Fed. R. Evid. 401. Here, Plaintiffs exhibits demonstrate the
Evaluations' plain relevance. For example, Dr. Vent testified that she discussed Plaintiff's
Evaluations at some point with Dr. Madden and learned that Plaintiff had been called to speak to
then Dean Wang about them because "they were low." (Vent Dec. at pp. 84-85.) Similarly, Dr.
Wang testified that while student evaluations were not used as the basis for "recommend[ing]
that an adjunct professor not be hired for the following year", "many factors went into that
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decision, notjustthe student evaluation." (Wang. Dec. at pp. 94-95) (emphasis added.) Dr.
Madden, too, discussed how the student evaluations were a reason that Dean Wang, prior to
Plaintiffs termination, met multiple times with Plaintiff. (Madden Dec. at pp. 74, 79, 80, 89.)
This collective testimony demonstrates that whilst not central, the Evaluations were at least
considered when assessing faculty members' job performance.
Moreover, the Court agrees with Defendants' argument that even if Dr. Madden and
other members of the English Department did not specifically review the Evaluations right at the
time they made the termination decision, they were aware of their general nature and discussed
them with one another in e-mail and other informal conversations. (See Def. Opp.

~~

23-24, Ex

A) ("Maureen has a history of problems. [Dr. Wang] and I have talked with her about her student
evaluations and the rate of attrition in her classes.") See also Russell v. New York Univ., No. 172527-CV, 2018WL3115795 (2d Cir. June 25, 2018) (affirming District Court's granting
summary judgment in favor of defendants on retaliation claim, where employer-university relied
on evidence of university using student evaluations over the years to conduct performance
review meetings and as one of many factors for assessing adjunct faculty members' job
performance history.) It was also permissible for the Department to have loose knowledge of
these evaluations in the backs of their minds because while the CBA does reflect that the
administration was prohibited from using the Evaluations for disciplinary purposes for full-time
and senior adjunct professors, the CBA contains no analogous rule pertaining to regular adjunct
faculty. (See Def. Opp., Ex. B.) And in any event, neither party indicates that it intends to show
that the Evaluations were the primary basis for the termination decision.
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Further, as Defendants correctly note, once Plaintiff establishes a prima facie case of
retaliation, it is there burden to show evidence of a legitimate, nonretaliatory reason for the
adverse employment action and then Plaintiffs ultimate burden to show that the employer's
explanation is merely a pretext. (Def. Opp.

,r,r 19-20.) Evidence of job performance-related

reasons for an employer to terminate an employee is probative, vital, and indeed, frequently-used
in similar contexts. See e.g., id.; see a/so Xu-Shen Zhou v. S. UN.Y Inst. ofTech., No. 6:08-CV0444 GTS/ATB, 2011 WL 4344025, at *2 (N.D.N.Y. Sept. 14,2011), ajfd in part, vacated in

part, remanded sub nom., Xu-Shen Zhou v. State Univ. ofNew York Inst. of Tech., 499 F. App'x
105 (2d Cir. 2012) (allowing employer-university to defend retaliation claim with record
evidence establishing that [employee] was not renewed because of his [IDEA] scores, student
complaints, student evaluations, and the recommendations of the Peer Review Committee");

Malacarne v. City Univ. a/New York, 289 F. App'x 446, 448 (2d Cir. 2008) (affirming District
Court's holding on retaliation claim, where District Court chronicled several non-pretextual
examples of plaintiffs poor job performance, including various prior performance evaluations
and behavioral complaints). Again, the Court finds the Evaluations facially relevant.
Plaintiff argues that even if probative, the prejudicial impact of the Evaluations
outweighs their utility. (Pl. Mem. at 3.) The Court finds that Plaintiff overstates her risk of
prejudice. Plaintiffs ultimate burden is to show that any reason Defendants offer for her
termination decision is a pretext for the actual reason, which is retaliation for lodging complaints
about the fellowship process and her claims of discrimination. On the other hand, Defendants
need to prove that the reason for not rehiring Plaintiff was due to her cumulative poor work
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performance. The evaluations, therefore, are relevant probative evidence. Though it is their
burden to find ample relevant and appropriate evidence for their case, the peril that Defendants
will face if they cannot rely on or mention the Evaluations, is far graver than the imagined peril
that Plaintiff would face in having the Evaluations introduced at trial.
Additionally, this Court finds that Plaintiffs concern about the likelihood of the unduly
influencing the jury are inflated. A jury does not live under a rock. The Court trusts that they will
be able to appreciate the power dynamic in a student-teacher relationship and weigh the value of
anonymous student evaluations commensurately. Accordingly, Plaintiffs Motion is DENIED.
CONCLUSION

For the foregoing reasons, Plaintiffs' motion is DENIED. The Clerk of the Comt is
respectfully requested to terminate the motion at ECF No. 157.

Dated:

October 9, 2018
White Plains, New York

~

N
S.ROMAN
United States District Judge

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