McPartlan-Hurson v. Westchester Community College et al

Filing 172

OPINION & ORDER re: 162 MOTION in Limine filed by Westchester County, Westchester Community College. For the aforementioned reasons, Defendants' motion is GRANTED in part and DENIED in part. The Clerk of the Court is respectfully requested to terminate the motion at ECF No. 162. (Signed by Judge Nelson Stephen Roman on 11/5/2018) (mro)

at 24-31.). Subsequently, the Court set a trial date for Plaintiff’s retaliation claims for November
9, 2018.
On September 25, 2018, Plaintiff filed her first pre-trial motion in limine, in which she
sought 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. (See Plaintiff’s Memorandum of Law in Support of her Motion in
Limine, (“Pl. Mem.”), ECF No. 157). She also sought to preclude Defendants from offering any
evidence that mentioned, referred to, or attempted to convey to the jury in any manner, directly or
indirectly, the content or substance of the written student evaluations and their electronic
summaries. (Id.) By order dated October 9, 2018, the Court denied that motion, finding that the
student evaluations were relevant to showing the employer’s reason for terminating Plaintiff. (See
Opinion and Order, ECF No. 161).
Presently before the Court is Defendants’ pre-trial motion in limine, in which they seek to:
1) exclude any evidence of Plaintiff’s claims that the County discriminated against her on the basis
of race or disability, and 2) preclude Plaintiff’s expert witness from testifying at trial as to his
analysis wherein Plaintiff would be appointed to a Full-Time Professor Position as an Assistant
Professor at the College. (See Def. Mot., ECF No. 162.) For the following reasons, the Defendants’
motion is GRANTED in part and DENIED in part.

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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 Defendants’ 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 Mgmt., 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
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 interruption 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,
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confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. Though the “standard of relevance 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
1. Evidence Related to Plaintiff’s Claims of Discrimination
Relying on Fed. R. Evid. 402 and 403, Defendants argue that the Court should exclude any

evidence of Plaintiff’s claims that the County discriminated against her on the basis of race or
disability because “such allegations have previously been dismissed by this Court and would only
seek serve to inflame, insight and prejudice the jury against the County.” (Defendants’
Memorandum in Support of their Motion in Limine, (“Def. Mem.”), at 3.) Specifically, Defendants
request that the Court make a jury instruction at the beginning and end of trial “that any alleged
discrimination by the County against Plaintiff based on race and/or disability have been dismissed
by this Court as a matter of law and that such claims have no basis in fact or law.” (Id. at 1.) 1

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Defendants propose jury instruction similar to the following::

You may hear [or have heard] that Plaintiff alleged to the County that she was being discriminated
against based on her race – the fact that she is white and her disability – the fact that she was born
with half a left arm. I am instructing you that there is absolutely no merit to any of the claims of
discrimination by the County against the Plaintiff and this Court has already determined as a matter
of law and fact that such claims have no merit. You are here to determine only whether Plaintiff has
proven by a preponderance of the evidence [which I will define for you later or I have defined for
you] that any alleged, unfounded allegations of discrimination made by Plaintiff, if communicated
to the County, were a motivating factor in Plaintiff not being offered any additional adjunct classes
at the College.
(Def. Mem. at 5.)

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Plaintiff argues the opposite. She claims that she needs all evidence related to her belief
that Defendants’ discriminated against her on the basis of race, including evidence related to
Defendants’: 1) decision not to appoint her to the Ford Fellowship in Fall 2009 and 2) hiring of
Cynthia Robinson to a full-time faculty position in the English Department. (Plaintiff’s
Memorandum Opposing Motion in Limine, (“Pl. Mem.”), at 1-3.) She argues that such evidence
is necessary to show that she engaged in protected activity and had a good faith belief that the
conduct that she complained about violated Title VII. (Id.)
As to Defendants’ proposed jury instruction, Plaintiff argues that such a jury instruction
would mislead, confuse and prejudice the jury by leading them to believe that a federal judge
“thinks very little of her claims” (Id. at 7.) The Court agrees with parts of Plaintiff’s argument.
The Court first addresses the admission of evidentiary exhibits related to Plaintiff’s underlying
discrimination claims and then addresses Defendants’ jury instruction request.
i. Exclusion of Exhibits
To make out a claim of retaliation under Title VII, a Plaintiff must show: 1) participation
in a protected activity; 2) the defendant's knowledge of the protected activity; 3) an adverse
employment action; and 4) a causal connection between the protected activity and the adverse
employment action. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.2005).
Although Plaintiff is correct that she needs to establish “participation in a protected
activity” to make a prima facie claim for retaliation, she overemphasizes the extent to which she
needs evidence of the underlying alleged acts of discrimination to demonstrate that she had a “good
faith reasonable belief” that Defendants violated Title VII. The Second Circuit has repeatedly
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explained that “the plaintiff's burden of proof as to this first step [is] ‘minimal’ and ‘de minimis.’”
Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013); Jute v. Hamilton, 420 F.3d at
17; Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 111 (2d Cir. 2010) (“An employee ‘need not
establish that the conduct she opposed was in fact a violation of Title VII, but rather, only that she
had a good faith, reasonable belief that the underlying employment practice was unlawful.’”)
(emphasis added).
That said, Plaintiff needs to be able to offer some subjective and objective proof to show
that under the totality of circumstances, it was reasonable for her to believe that Defendants
violated Title VII. Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.
1998) (“The reasonableness of Plaintiff’s belief is to be assessed in light of the totality of
circumstances.”); Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1179 (2d Cir. 1996) (explaining
that a jury must find that a plaintiff subjectively believed there was an unlawful employment
practice and that the record as a whole must provide evidence that such a belief was objectively
reasonable).
Accordingly, the Court finds that it is permissible for Plaintiff to offer proof that she applied
for the Fellowship in 2009, she was denied the Fellowship in 2009, she complained about being
denied the Fellowship due to racial discrimination, due to information that Plaintiff personally
knew about the hiring of Cynthia Robinson, Plaintiff believed that she was subjected to racial

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discrimination at the time she complained about it, 2 Plaintiff re-applied to the Fellowship in 2010,
Plaintiff was again denied the Fellowship and was also terminated.
In holding that evidence related to the circumstances surrounding Plaintiff’s application
and denial of the Fellowship in 2009 can be used as “background evidence to support the actionable
claims,” the Court does not find the numerous exhibits related to the English Department’s internal
operations, polices, or internal deliberation process in 2009 relevant to Plaintiff’s retaliation claim,
particularly when she did not herself have access to such information at the time she made her
complaints that she was discriminated against. Accordingly, such exhibits will generally not be
admissible.
In light of these guidelines, while Defendants have raised numerous objections to specific
exhibits that Plaintiff seeks to admit at trial, the Court declines to rule on their admissibility at the
present moment and will make specific rulings, as needed, during trial.

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Defendants seek to exclude all evidence related to the hiring of Cynthia Robinson on grounds that: 1)
Plaintiff “did not allege any claims relating thereto in her Complaint” and 2) Plaintiff already testified “under oath at
her deposition that she did not make any complaints regarding Ms. Robinson to Mary Anne Vent (or anyone).” (See
Defendants’ Reply, ECF No. 170, at 4.) The Court rejects both these arguments. The Court rejects Defendants’ first
argument because Plaintiff does not need to have made a separate claim in her Complaint regarding the propriety of
hiring Ms. Robinson in order for it to color the objective basis of her reasonable belief of retaliation. Plaintiff’s
Complaint also does not need to include every bit of evidence and reasoning that supports her retaliation claim.
Second, to the extent that Plaintiff already testified in her deposition that she did not complain to any faculty about
the hiring of Ms. Robinson, the Court is not allowing all evidence related to Ms. Robinson’s hiring to be admitted
wholesale. Plaintiff will be allowed only to seek introduction of evidence that shows that something Plaintiff
personally knew related to Ms. Robinson’s hiring gave Plaintiff an objectively reasonable belief that she was subject
to racial discrimination at the time that she complained about it. To the extent Defendants note that Plaintiff already
testified that she did not raise this issue with Vent, either Plaintiff will not be able to adduce contrary evidence or
Defendants may enjoy their prerogative to impeach Plaintiff or contest the reliability of her evidence. It is not,
however, the province of the Court to exclude evidence that may contradict a witness’s prior deposition testimony.

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ii. Jury Instruction
With regards to Defendants’ request for the jury instruction, the Court grants this request
to the extent that it will inform the jury that the only claim before the Court is Plaintiff’s claim for
retaliation and that none of Plaintiff’s previous claims for discrimination are currently before this
Court. The Court will not, at the start of trial, instruct the jury that “this Court has already
determined as a matter of law and fact that [Plaintiff’s discrimination] claims have no merit.” The
Court need not determine the exact parameters of the jury instruction that will be made at the end
of trial at this moment. Thus, to the extent that Defendants’ post-jury instruction request is denied,
it is denied without prejudice with leave to be renewed at the end of trial.
2. Preclusion of Plaintiff’s Expert Report or Amendment of Expert Report
Plaintiff has already agreed to have her expert, Sheldon Wishnick, amend his expert report
and provide a revised version of the damages report submitted by him, excluding calculations for
damages from her position as Assistant Professor position, and only including potential damages,
stemming from her position as an Adjunct Professor. (See Declaration of Howard Shragin,
(“Shragin Dec.”), at 1.) Therefore, the Court need not adjudicate this request.
Defendants note, however, that Plaintiff’s proposed Exhibits include a copy of the old
expert report, and not an updated report. (See Plaintiff’s Proposed Exhibits 49 and 50.) Defendants
further note that the parties have agreed that the issue of potential lost earnings will be addressed
by the Court, not the jury. (Reply Declaration of Darius Chafizadeh, (“Reply Dec.”), at 1 note 2.)
Accordingly, the Court orders that Plaintiff promptly submit an amended expert report,
excluding calculations for damages from her position as Assistant Professor position, and only
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