Cole-Hoover, et al v. Dept. of Corrections, et al
Filing
256
DECISION AND ORDER granting in part and denying in part 210 motion to preclude evidence of the arbitration; granting in part and denying in part 215 motion to preclude hearsay statements; denying 221 motion to instruct the jury as to the substantive law prior to trial; denying 223 motion to permit Dr. Howard to testify via video conference; denying 250 motion to bifurcate. Signed by Hon. Jeremiah J. McCarthy on 8/3/11. (DAZ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
GWENDOLYN COLE-HOOVER, M.D.
Plaintiff,
DECISION AND ORDER
02-CV-00826(M)
v.
STATE OF NEW YORK DEPARTMENT OF
CORRECTIONAL SERVICES, et al.,
Defendants.
_______________________________________
In accordance with 28 U.S.C. §636(c), the parties have consented to jurisdiction
by a United States Magistrate Judge [20].1 Before me are defendants’ motions in limine
to preclude evidence of the arbitration [210], to preclude hearsay statements [215], to instruct the
jury as to the substantive law prior to trial [221] and to permit witness John Howard, M.D. to
testify via video conference [223], as well as defendants’ motion to bifurcate [250]. Oral
argument was held on June 29, 2011. At that time, defendants’ other motions in limine were
addressed. June 29, 2011 Text Order [254]. For the following reasons, defendants’ motions to
preclude evidence of the arbitration [210] and to preclude hearsay statements [215] are granted in
part and denied in part as set forth herein, and motions to instruct the jury as to the substantive
law prior to trial [221], to permit Dr. Howard to testify via video conference [223], and to
bifurcate [250] are denied.
1
Bracketed citations refer to the CM/ECF docket entries.
BACKGROUND
The factual background of this case is set forth in my prior summary judgment
decision [189].
ANALYSIS
A.
Defendants’ Motion to Preclude Evidence Concerning Plaintiff’s Arbitration
Relying on Arlio v. Lively, 474 F.3d 46, 52 (2d Cir. 2007), defendants “move to
preclude plaintiff from introducing the arbitrator’s Opinion and Award, and any evidence
pertaining thereto, at trial.” Defendants’ Memorandum of Law [211], p. 1. Alternatively,
defendants argue that plaintiff should be compelled to make an offer of proof prior to
introducing such evidence. Id., p.4.
Pursuant to Fed. R. Evid. 402 “[e]vidence that is not relevant is not admissible.”
Arlio, 474 F.3d at 52. “‘If an item of evidence tends to prove a fact that is of consequence to the
determination of the action, it is relevant. If it does not tend to prove a material fact, it is
irrelevant.’” Id. (quoting 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence §401.04[2][a], at 401-19 (2d ed. 2006)). “‘A material fact is one that would affect the
outcome of the suit under the governing law.’” Id.
In Arlio the plaintiff alleged that he was unconstitutionally suspended because of
his political opinions. 474 F.3d at 50. “[T]he district court agreed with [the defendant] at the in
limine hearing that the Arbitration Board’s decision [finding that the plaintiff’s suspension was
not for cause] was irrelevant, since it was based solely on the particulars of the union collective
bargaining agreement. It was not in any way an adjudication of Arlio’s constitutional claims (nor
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could it be)”. Id. at 52. “However, [the plaintiff] ultimately convinced the district court that
testimony about the arbitration was necessary to explain why he was not seeking back wages in
the present federal suit.” Id. at 52.
In reversing the district court, the Second Circuit concluded that “the district court
admitted evidence about the arbitration solely because it was probative of a non-material issue;
why [the plaintiff] was not seeking back wages in the federal action. Thus, the testimony was not
relevant and should have been excluded.” Id. at 53. “Although the district court gave a limiting
instruction indicating that the testimony should be considered only for the limited purpose of
‘what is and what isn’t claimed for damages by the plaintiff,’ that same end could have been
achieved simply by allowing [the plaintiff] to state that he was not suing for back pay. Instead,
the district court permitted [the plaintiff] to testify at length about the arbitration proceeding and
essentially informed the jury that [the plaintiff’s] suspension was not for just cause.” Id.
In opposition to defendants’ motion in limine, plaintiff argues that “the
Arbitrator’s award in this matter is probative of material issues raised by the Plaintiff during the
pendency of the matter in this court, as well as, with the Arbitrator. Plaintiff has alleged during
both proceedings that she was subjected to a hostile work environment and based on the
discriminatory motives of the hostile work environment Defendants she was subjected to adverse
employment actions.” Pendergrass Declaration [232], ¶6. Relying on similar arguments,
plaintiff argued at the summary judgment stage that the arbitrator’s decision was entitled to
preclusive effect. I rejected this argument, concluding that “[t]he sole issue before arbitrator
Day and litigated by the parties was whether plaintiff’s suspension was supported by just cause as
required by the terms of her employment, not whether a Title VII violation occurred. There is no
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indication that arbitrator Day found that the hostile work environment and disparate treatment
experienced by plaintiff to be racially motivated, or that he intended to use these terms to denote
Title VII violations.” September 25, 2009 Decision and Order [189], p. 13.
In opposition to defendants’ motion in limine, plaintiff also argues that the
arbitration is relevant to issues at trial because she “was made to utilize her own financial
resources to defend against charges that were the product of the discriminatory motives of the
hostile environment Defendants; consequently, the arbitration itself is an element of Plaintiff’s
damages.” Pendergrass Declaration [232], ¶5. However, as in Arlio, 474 F.3d at 53, this can be
achieved by simply allowing plaintiff to state the costs she allegedly incurred in pursing the
arbitration.
Plaintiff further argues that Fed. R. Evid. 803(8)(C) “provide[s] for the use and
admission into evidence of a prior administrative finding at trial of an employment
discrimination claim.” Pendergrass Declaration [232], ¶7. “Prior administrative findings made
with respect to an employment discrimination claim may, of course, be admitted as evidence at a
federal-sector trial de novo.” Chandler v. Roudebush, 425 U.S. 840, 864 n.39 (1976) (citing Fed.
R. Evid. 803(8)(C)) (emphasis added). However, here, plaintiff did not arbitrate an employment
discrimination claim. The sole issue was whether there was sufficient cause for plaintiff’s
suspension under her collective bargaining agreement.
Moreover, plaintiff relies (Pendergrass declaration [232], ¶7) on that aspect of my
September 25, 2009 Decision and Order, in which I held that “‘[t]he federal policy favoring
arbitration of labor disputes and the federal policy against discriminatory employment practices
can best be accommodated by permitting an employee to pursue fully both his remedy under the
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grievance-arbitration clause of a collective-bargaining agreement and his cause of action under
Title VII. The federal court should consider the employee’s claim de novo. The arbitral decision
may be admitted as evidence and accorded such weight as the court deems appropriate.’” [189],
p. 14 (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 59-60 (1974)). However, unlike
here, Alexander addressed the preclusive effect of an arbitration under the nondiscrimination
clause of the collective-bargaining agreement. 415 U.S. at 43, 55. No such nondiscrimination
clause was at issue in plaintiff’s arbitration.
Nevertheless, I recognize that it is necessary to provide the jury with a complete
picture of what transpired during the relevant time period. Therefore, with limiting instructions,
I will permit plaintiff to introduce the fact 1) that an arbitration occurred concerning whether
plaintiff’s suspension was supported by cause as required by the terms of her employment, 2) that
plaintiff prevailed at the arbitration and was re-instated, and 3) the costs plaintiff incurred in
pursuing the arbitration. Subject to plaintiff making an offer of proof prior to the trial, at this
stage, all other aspects of the arbitration are precluded as irrelevant and prejudicial. Therefore,
defendants’ motion is granted in part and denied in part as set forth herein.
B.
Defendants’ Motion to Preclude Hearsay Statements and For Cautionary
Instructions Concerning Out-of-Court Statements
Defendants argue that plaintiff’s testimony that a person told her that defendants
made racially offensive statements about her would be admissible for the limited purpose of
establishing that she was aware of such comments “only if plaintiff introduces competent
evidence tending to prove that the comments were actually made” from the individuals that heard
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defendants’ statements. Defendants’ Memorandum of Law [216], pp. 1-2. Therefore, they
request that plaintiff be precluded “from testifying about comments made outside her presence
prior to introducing evidence that the comments were actually made”. Id., p. 3 (emphasis added).
In response, plaintiff relies upon my September 25, 2009 Decision and Order ([189], pp. 16-18),
wherein I rejected defendants’ hearsay arguments. Pendergrass Declaration [237], ¶4.
Plaintiff’s reliance on my prior ruling is misplaced, since at the summary judgment
stage plaintiff presented evidence both that Genevieve Mahoney heard defendant Maume state a
racial epithet about plaintiff in her presence and that Ms. Mahoney relayed this information to
plaintiff. September 25, 2009 Decision and Order [189], p. 17. Nevertheless, I conclude that
plaintiff may testify that a person told her that defendants made racially offensive comments
outside of her presence, for the limited purpose of establishing that plaintiff was aware of such
comments, without having to first present evidence that defendants made these statements. See
Urban v. Capital Fitness, 2010 WL 4878987, *5 (E.D.N.Y. 2010)(“second-hand comments,
describing events or statements that occurred outside of the plaintiff’s presence, may be relevant
in evaluating whether a hostile work environment exists, but if such statements are offered for the
truth of the matter asserted, they must be supported on a motion for summary judgment by an
affidavit or other sworn statement from a person with first hand knowledge”).
Any prejudice to the defendants can be mitigated by a proper limiting instruction to
the jury that such testimony by plaintiff does not constitute evidence that the statements were
actually made. “Juries may not be familiar with the hearsay rule, but the law assumes that they
can and do follow the limiting instructions issued to them.” United States v. Linwood, 142 F.3d
418, 426 (7th Cir.), cert. denied, 525 U.S. 897 (1998).
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Although I will not dictate to plaintiff when she must present evidence that racially
offensive comments were made through witnesses with first-hand knowledge, this evidence must
be introduced. Should plaintiff fail to present non-hearsay evidence establishing that these
statements were made by defendants, her testimony that she heard of these statements being made
will be stricken.
C.
Defendants’ Motion to Instruct the Jury as to the Substantive Law Prior to Trial
Defendants argue that the pretrial instruction on the substantive law is necessary
because it is unlikely that the jury will have accurate knowledge or information regarding the
relevant law and that “instructions at the end of the testimony may come too late to help the jury
understand the evidence or to overcome preconceived and erroneous notions about the
significance of the evidence.” Defendants’ Memorandum of Law [222], pp. 2-3. Plaintiff opposes
the motion, arguing that defendants have failed to provide any “substantive rationale” for their
request and that it would “do no more than to increase the length of the trial”. Pendergrass
Declaration [238], ¶4.
Based upon defendants’ current motion, which contains no case law in support, I
conclude that they have failed to establish pretrial jury instruction on the substantive law is
necessary. In every case there exists the possibility that the jury will not have an accurate
understanding of the relevant law until they are so instructed at the close of the evidence.
Therefore, defendants’ motion is denied, without prejudice to renewal.
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D.
Defendants’ Motion to Bifurcate
Defendants make two primary arguments in support of bifurcation. First, it will
increase efficiency because evidence concerning plaintiff’s damages (including, the arbitration,
article 75 and the Governor’s Office of Employee Relations (“GOER”) proceedings) will be
unnecessary unless liability is found. Second, in order to contest her claims of emotional
damages, defendants will have to introduce evidence of superseding and intervening causes for
plaintiff’s emotional damages, including plaintiff’s subsequent and unrelated claims of emotional
damages arising from her similar employment suit against the Veteran’s Administration (10 cv669) (W.D.N.Y.) and her suit against US Airways (6-cv-255) (W.D.N.C.), which will be
prejudicial to one party or the other. Defendants’ Memorandum of Law [251], pp. 6-9.
In response, plaintiff argues that defendants “complain of nothing more than issues
that would ordinarily and by necessity be overlapping in a discrimination trial of this nature, i.e.,
the issue of economic loss due to the Defendants’ discriminatory behavior, the loss of reputation
that accommodates such discrimination, and the emotional distress Plaintiff endured or suffered as
a consequence of said discrimination”. Pendergrass Declaration [255], ¶5. She also argues that
defendants’ “concerns about intervening and or superseding periods of distress is without moment
here, especially where they point to their own continuing discrimination as a cause of the
emotional distress; this is true as well where they do nothing more than to raise the prospect of
litigating other collateral matters to mitigate their damages”. Id., ¶6.
Bifurcation is governed by Fed. R. Civ. P. (“Rule”) 42(b), which permits separate
trials “[f]or convenience, to avoid prejudice, or to expedite and economize”. “[W]hether to
bifurcate a trial into liability and damages phases is a matter within the sound discretion of the
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trial court”. Getty Petroleum Corp. v. Island Transportation Corp., 862 F.2d 10, 15 (2d Cir.
1988), cert. denied, 490 U.S. 1006 (1989). “‘Although bifurcation of trials is not unusual and may,
under appropriate circumstances, be the preferred method, bifurcation remains the exception
rather than the rule.’” Coyle v. Crown Enterprises, Inc., 2009 WL 2399904, *1 (W.D.N.Y.
2009)(Foschio, M.J.). “‘The party seeking bifurcation bears the burden of establishing that
bifurcation is warranted’”. Id.
Although trying the liability and damages phases together may result in a longer
trial involving testimony and evidence unrelated to the liability issues in this case, I agree with
plaitniff that “bifurcation would do nothing more than prolong a case that has been awaiting
resolution for more than nine . . . years”. Pendergrass Declaration [255], ¶9. Moreover, at oral
argument, plaintiff’s counsel agreed to cap plaintiff’s damages claim to a date certain, which he
tentatively identified as the date plaintiff was reinstated following the GOER decision, thereby
minimizing the scope of the trial. June 29, 2011 Text Order [254].2
Defendants’ “concern that the presentation of substantial evidence regarding
Plaintiffs' injuries could somehow prejudice and confuse the jury can be obviated through a
curative jury instruction. Bifurcation is thus unnecessary to avoid any undue prejudice to the
parties”. Coyle, 2009 WL 2399904, *1.
2
Notwithstanding that assurance, plaintiff’s counsel has yet to advise defendant’s counsel
and the court of that date. Should he fail to do so in writing by August 8, 2011, defendants’ motion to
bifurcate may be reconsidered.
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E.
Defendants’ Motion to Permit Dr. Howard to Testify Via Video Conference
Relying on Rule 43(a), defendants seek to permit Dr. Howard, to testify via video
conference because of his health conditions (osteopenia and cardiopulmonary issues), which
would make it “onerous” for him to travel from his home approximately 2 1/2 hours away.
Defendants’ Memorandum of Law [225], pp. 1-2; Howard Declaration [224]. In response,
plaintiff argues that defendants have produced “no competent medical evidence to demonstrate
any physical limitations regarding his ability to travel and give testimony”. Pendergrass
Declaration [239], ¶7.
At oral argument, I directed defendants to submit medical evidence in support of
their motion to permit Dr. Howard to testify via video conference by July 31, 2011. June 29, 2011
Text Order [254]. Because I failed to receive any medical evidence by the July 31 deadline,
defendants’ motion is denied.
CONCLUSION
For these reasons, defendants’ motions to preclude evidence of the arbitration
[210] and to preclude hearsay statements [215] are granted in part and denied in part as set forth
herein, and motions to instruct the jury as to the substantive law prior to trial [221], to permit Dr.
Howard to testify via video conference [223], and to bifurcate [250] are denied.
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SO ORDERED.
Dated: August 3, 2011
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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