Moshenko v. State University of New York (at Buffalo) et al

Filing 111

DECISION AND ORDER admitting witnesses and exhibits at trial and reaffirming date for jury selection and trial. Signed by Hon. Richard J. Arcara on 4/19/2011. (JMB)

UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK

MONICA S. W HARTON,
Plaintiff,
DECISION AND ORDER
07-CV-116A
v.

STATE UNIVERSITY OF NEW YORK
AT BUFFALO,
Defendant.

I.

INTRODUCTION
Plaintiff commenced this employment discrimination case against

defendant the State University of New York at Buffalo (“UB”) when she filed her
original complaint on February 28, 2007. Plaintiff subsequently amended her
complaint twice, with the second amended complaint being filed on December 11,
2007. In a status conference on April 23, 2010, the Court scheduled jury
selection for November 16, 2010 and the commencement of trial proof for
November 17, 2010. W hen plaintiff arrived for a final pretrial conference on
November 15, 2010, the Court realized that the trial could not go forward at that
time because plaintiff had not exchanged proposed trial exhibits with UB, had not
submitted two copies of proposed trial exhibits to the Court, and had not filed any
documents required by the Court’s final pretrial order (Dkt. No. 89). A few days
later, plaintiff completed her pretrial submissions and submitted her proposed

witnesses and exhibits to UB and the Court. The Court decided that a schedule
for the submission of written objections and responses would be the best way to
review numerous objections that UB would bring regarding the six witnesses that
plaintiff proposed and the 240 exhibits that she submitted.
Accordingly, the Court rescheduled jury selection for January 5, 2011.1
The Court directed the parties to file any objections to each other’s witness and
exhibit list by December 3, 2010. The Court directed the parties to respond to
each other’s objections by December 10, 2010. Upon review of the parties’
objections and responses, the Court rules on the objections as explained below.
II.

DISCUSSION
A.

Elements of Plaintiff’s Claims

Most of the objections that the parties have filed came from UB, concerning
plaintiff’s witnesses and exhibits. Most of UB’s objections, in turn, are objections
to the relevance or to the hearsay nature of the evidence that plaintiff proposes to
submit to the jury at trial. To resolve UB’s objections and to put them in proper
context, the Court will review the elements of each of plaintiff’s claims. Plaintiff’s
Title VII and Title IX claims will be assessed together under the Title VII
framework. Cf. Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir.

1

On December 28, 2010, plaintiff filed a motion to adjourn the trial (Dkt.
No. 107). On January 5, 2011, the Court granted plaintiff’s request to adjourn the
trial and rescheduled jury selection for Tuesday, June 14, 2011. (See Dkt. No.
109.)
2

1995) (“[I]n a Title IX suit for gender discrimination based on sexual harassment
of a student, an educational institution may be held liable under standards similar
to those applied in cases under Title VII.”).
1.

Unlawful Termination Under Title VII and Title IX

Plaintiff has alleged that UB criticized her, excluded her from departmental
meetings, denied her training opportunities, and ultimately terminated her
because she “had too much power as a woman on the staff” (Dkt. No. 42 at 7)
and because of her gender generally. “In proving a case under Title VII, following
the defendant’s proffer of a justification, a plaintiff need only show that the
defendant was in fact motivated at least in part by the prohibited discriminatory
animus. A plaintiff has no obligation to prove that the employer’s innocent
explanation is dishonest, in the sense of intentionally furnishing a justification
known to be false. The crucial element of a claim under Title VII is discrimination,
not dishonesty.” Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 156 (2d Cir. 2010)
(citations omitted).
Accordingly, to prove her claim at trial, plaintiff must prove two elements by
a preponderance of the evidence. First, plaintiff must prove that UB fired or failed
to retain her. Second, plaintiff must prove that her gender was a motivating factor
in UB’s decision. See 5-88 Hon. Leonard B. Sand et al., Modern Federal Jury
Instructions (Civil) (“Sand”), Instruction 88-42 (2010).

3

2.

Hostile Work Environment Under Title VII and Title IX

Plaintiff has alleged that UB created a hostile work environment by bullying
and demeaning her on multiple occasions, including in front of co-workers. “Title
VII of the Civil Rights Act of 1964 makes it ‘an unlawful employment practice for
an employer . . . to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.’ As we made clear in
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), this language is not
limited to ‘economic’ or ‘tangible’ discrimination. The phrase ‘terms, conditions,
or privileges of employment’ evinces a congressional intent to strike at the entire
spectrum of disparate treatment of men and women in employment, which
includes requiring people to work in a discriminatorily hostile or abusive
environment. W hen the workplace is permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment, Title VII is
violated.” Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (ellipsis in original)
(internal quotation marks and citations omitted).
Accordingly, to prove her claim at trial, plaintiff must prove four elements by
a preponderance of the evidence. First, plaintiff must prove that she was
subjected to unwelcome harassment, ridicule, or other abusive conduct. Second,
plaintiff must prove that the abusive conduct was motivated, at least in part, by
4

her gender. Third, plaintiff must prove that the abusive conduct was so severe or
pervasive that both plaintiff herself and a reasonable person in plaintiff’s position
would find her work environment so hostile or offensive that it would interfere with
her work performance. Fourth, plaintiff must prove that UB’s management
employees knew, or should have known, of the abusive conduct. See Sand,
Instruction 88-45.
3.

Retaliation Under Title VII and Title IX

Plaintiff has alleged that UB retaliated against her complaints of a hostile
work environment by continuing to subject her to abusive and demeaning
comments. “As we have explained, [t]o establish a prima facie case of retaliation,
an employee must show [1] participation in a protected activity known to the
defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal
connection between the protected activity and the adverse employment action.”
Richardson v. Comm’n on Human Rights & Opportunities, 532 F.3d 114, 123 (2d
Cir. 2008) (alteration in original) (internal quotation marks and citation omitted).
Accordingly, to prove her claim at trial, plaintiff must prove four elements by
a preponderance of the evidence. First, plaintiff must prove that she complained
of discrimination in her employment in some specific way. Second, plaintiff must
prove that UB was aware of plaintiff’s complaint. Third, plaintiff must prove that
she was then subjected to a material adverse action by UB. W ith respect to the
third element, an adverse action is ‘material,’ in terms of a retaliation claim, if it
5

might have discouraged a reasonable worker from complaining about similar
discrimination. The adverse action itself, however, need not be related to
plaintiff’s employment. Fourth, plaintiff must prove that UB took the adverse
action, at least in part, because of plaintiff’s complaint. See Sand, Instruction 8846.
4.

Discrimination Against an Advocate Under Title II of the ADA
and Under the Rehabilitation Act

Finally, plaintiff has alleged that UB harassed her, retaliated against her,
and ultimately fired her because it resented her public advocacy for disabled
students, advocacy that included public criticism of UB over accommodations for
disabled students. “Looking to the enforcement provisions of each statute . . .
[plaintiff] has standing under both Title II of the ADA and the Rehabilitation Act.
Title II’s enforcement provision extends relief to ‘any person alleging
discrimination on the basis of disability.’ 42 U.S.C. § 12133 (1994). Similarly, the
Rehabilitation Act extends its remedies to ‘any person aggrieved’ by the
discrimination of a person on the basis of his or her disability. 29 U.S.C.
§ 794a(a)(2). As the district court noted, the use of such broad language in the
enforcement provisions of the statutes evinces a congressional intention to define
standing to bring a private action under 504 [and Title II] as broadly as is
permitted by Article III of the Constitution.” Innovative Health Sys., Inc. v. City of
White Plains, 117 F.3d 37, 47 (2d Cir. 1997) (internal quotation marks and
6

citation omitted), superseded in part on other grounds by Fed. R. Civ. P. 52;
accord Barker v. Riverside County Office of Educ., 584 F.3d 821, 827 (9th Cir.
2009) (“As in our analysis of section 504 of the Rehabilitation Act, the language
employed in the anti-retaliation provisions of Title II does not evince a
congressional intent to limit standing to individuals with disabilities. Instead, the
use of the phrase ‘any individual’ and the absence of any language limiting
standing to those with disabilities indicates Congress’s intent to grant standing
under Title II ‘as broadly as is permitted by Article III of the Constitution.’ As we
recognized in our Rehabilitation Act analysis, it appears that in formulating the
language in Title II’s anti-retaliation provisions, Congress recognized that
disabled individuals may require assistance from others to defend their rights.”)
(citing Innovative Health).
Accordingly, to prove her claim at trial, plaintiff must prove three elements
by a preponderance of the evidence. First, plaintiff must prove that she either
has opposed any act or practice made unlawful by these statutes, or has aided or
encouraged any other individual in the exercise or enjoyment of any right granted
or protected by the statutes. For purposes of this element, it is irrelevant that
plaintiff herself does not have a disability as that term is defined in the statutes.
Second, plaintiff must prove that UB discriminated against her because of her
advocacy. Third, plaintiff must prove that she suffered damages as a direct result
of that discrimination. See Sand, Instruction 88A-3.
7

B.

Relevance and Hearsay Generally

In the Federal Rules of Evidence, the general rules for relevance and
hearsay are sufficiently straightforward that the Court will cite them for the sake of
plaintiff, who is proceeding pro se. “‘Relevant evidence’ means evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” Fed. R. Evid. 401; see also Gillming v. Simmons Indus.,
91 F.3d 1168, 1173 (8th Cir. 1996) (“Although blanket evidentiary exclusions
based on relevance grounds are not favored in discrimination cases, to be
admissible the evidence must assist in developing a reasonable inference of
discrimination.”)
As for hearsay, “‘[h]earsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Fed. R. Evid. 801(c). “Hearsay is not admissible
except as provided by these rules or by other rules prescribed by the Supreme
Court pursuant to statutory authority or by Act of Congress.” Fed. R. Evid. 802.
One exception to the hearsay rule that bears heavily on plaintiff’s proposed
exhibits is the “business record” exception in Rule 803(6). As explained below,
this exception covers the medical records that plaintiff has submitted—so long as
they are certified by the custodians of the records as originals or authentic
copies—but will not cover most of the numerous e-mail messages that plaintiff
8

has submitted. “An e-mail created within a business entity does not, for that
reason alone, satisfy the business records exception of the hearsay rule.”
Morisseau v. DLA Piper, 532 F. Supp. 2d 595, 621 n.163 (S.D.N.Y. 2008)
(citations omitted); see also id. at 621 (“None of the e-mails was sworn. In
consequence, statements by plaintiff are admissible only to prove the fact that
they were made. The same is true concerning statements by [the defendant
employer’s] personnel except to the extent that plaintiff relies upon them against
the defendants. In that event, the statements are not hearsay by declarants.”).
C.

Plaintiff’s Witnesses

Plaintiff has proposed having six witnesses testify at trial, including herself.
UB has filed objections about each of these witnesses. The Court will address
each witness in turn.
1.

Monica S. Wharton

Plaintiff proposes testifying in detail about her 17 years of employment as
an administrative staffer at UB’s Great Lakes Program, dating back to June 6,
1989. As she has explained in her pretrial statement, plaintiff seeks to testify that
her employment history was positive for all 17 years. Plaintiff seeks to testify that
her administrative responsibilities increased throughout the years when she
worked for UB, especially through the year 2000, when she worked under Dr.
Joseph V. DePinto, the Director of the Great Lakes Program from 1991–2000.
Plaintiff seeks to testify that, although she always was a term employee at UB,
9

her funding was renewed annually for the first 12 years of her employment
history. After that, plaintiff received a three-year funding term beginning in March
2002. That three-year term was followed by a one-year reappointment that lasted
through March 22, 2006. Plaintiff received her funding renewals with help from
Dr. Joseph F. Atkinson (“Atkinson”), who has been the Director of the Great
Lakes Program since 2000.
As for discriminatory conduct, plaintiff seeks to testify that the
discrimination against her began in 2005 at the hands of Dr. Alan Rabideau
(“Rabideau”), a UB professor who worked at the Great Lakes Program. Plaintiff
seeks to testify about numerous instances when Rabideau harrassed her and
when UB administrators such as Atkinson ignored her complaints or retaliated
against her for complaining. Plaintiff asserts that the period of discrimination has
lasted beyond her formal termination on April 26, 2007 through the present time.
Plaintiff’s theory supporting discrimination through the present time,
approximately four years after her formal termination, appears to be that UB did
not give her a chance to interview for other administrative jobs on campus and
interfered with her attempts to find outside employment by having state
employment records list her as fired, when in fact her job was defunded. In
support of this theory, plaintiff cites National Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 117 (2002) and its principle that “[a]s long as the employer has
engaged in enough activity to make out an actionable hostile environment claim,
10

an unlawful employment practice has ‘occurred,’ even if it is still occurring.
Subsequent events, however, may still be part of the one hostile work
environment claim and a charge may be filed at a later date and still encompass
the whole.”
UB objects to having plaintiff testify at all on the grounds that she did not
include her name on the list of witnesses required by the Court’s pretrial order.
Additionally, UB objects to plaintiff’s proposed testimony because it is too general
in nature to formulate more specific objections.
The Court will not preclude plaintiff’s testimony altogether but agrees with
UB that the scope of plaintiff’s testimony should be limited. As part of her theory
that her responsibilities were curtailed suddenly for discriminatory reasons,
plaintiff may testify in summary fashion about any performance reviews, funding
renewals, or awards that she received at any time in her work history with UB. If
UB does not dispute that plaintiff received positive feedback throughout her
employment history then the parties are encouraged to reach a stipulation to that
effect. Subject to more specific objections about relevance, plaintiff generally
may testify about any actions that Rabideau, Atkinson, or other UB employees
took when interacting with her that relate to her allegations. Subject to more
specific hearsay objections at trial, plaintiff may testify about relevant statements
that Rabideau, Atkinson, or other UB employees made to her within the scope of
their respective employment. See Fed. R. Evid. 801(d)(2)(D) (“A statement is not
11

hearsay if . . . [t]he statement is offered against a party and is . . . a statement by
the party’s agent or servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship.”). Statements from
non-parties likely will be inadmissible unless plaintiff can establish that they fall
under one of the hearsay exceptions set forth in Rule 803.
Next, the Court will limit the time frame of plaintiff’s testimony, outside of
work history and performance, to the years 2005 through the present. Events
occurring before 2005 are not relevant, not only because plaintiff has said that the
discrimination began in 2005, but also because plaintiff had a different supervisor
before 2000 and has not alleged wrongdoing by Atkinson between 2000 and
2005. Cf. Callanan v. Runyun, 75 F.3d 1293, 1298 (8th Cir. 1996) (“[W ]e do not
feel that the district court abused its discretion when it excluded [plaintiff’s]
proffered evidence of other alleged acts of discrimination. To begin with, the
excluded testimony in this case . . . consisted largely of generalized, subjective
assertions of a perceived bias in operations at [defendant’s] facility. Moreover, to
the extent that the testimony did identify discrete acts of discrimination, the
witnesses did not complain that [plaintiff’s] own supervisors had engaged in any
behavior that we could correctly characterize as improper.”). As for events
occurring after plaintiff’s formal separation from UB, Morgan is distinguishable
because the issue there concerned events that occurred outside of the 300-day
period for filing with the Equal Employment Opportunity Commission (“EEOC”)
12

but while plaintiff was still employed. Nonetheless, and subject to objections at
trial to specific testimony, plaintiff may testify about specific acts of alleged
retaliation that occurred after April 26, 2007, so long as she can connect them to
the employment relationship that she had with UB. See, e.g., Abreu v. Suffolk
County Police Dep’t, No. 03-CV-5927, 2007 W L 608331, at *12 (E.D.N.Y. Feb.
23, 2007) (citing cases holding that retaliatory “blacklisting” of a former employee
can support a cause of action for retaliation).
Any objections to specific testimony from plaintiff are reserved for trial.
2.

Jennifer Machucki

Plaintiff has proposed calling Jennifer Machucki (“Machucki”) as a trial
witness. Machucki was a graduate student who attended UB from 1996 to 2002.
As a student with a disability, Machucki would testify “about ongoing access
issues she experienced” on campus. (Dkt. No. 106 at 2.) Machucki also was one
of three students with disabilities who filed a lawsuit against UB in 2000 for not
providing a sufficiently accessible campus. Plaintiff proposes that she “and Ms.
Machucki share common interests advocating for the rights for people with
disabilities, especially at the State University of New York at Buffalo.” (Id.) UB
objects to Machucki’s testimony in its entirety as irrelevant. UB asserts that any
of Machucki’s experiences occurred years before the alleged discrimination
against plaintiff began. Additionally, UB asserts that Machucki never filed any
complaints of discrimination during her time on campus.
13

The Court agrees with UB that there is a significant problem with the
proposed testimony from Machucki. Machucki was not on campus when plaintiff
allegedly experienced her discrimination and never complained of discrimination
against herself, let alone against plaintiff. Machucki simply has no personal
knowledge of what plaintiff might have experienced in her work environment. See
Fed. R. Evid. 602 (“A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has personal knowledge
of the matter.”) Additionally, plaintiff’s summary of Machucki’s proposed
testimony indicates that all of the proposed testimony would concern a struggle to
make UB’s campus more disability-accessible. W hether UB’s campus is in fact
inaccessible is not at issue in this case; what is at issue is whether UB unlawfully
discriminated against plaintiff—and not Machucki—for saying so. Since the
summary of proposed testimony says nothing at all about UB’s reactions to
plaintiff’s advocacy, the Court sustains UB’s objection and precludes Machucki
entirely as a trial witness.
3.

Dan Chappell

Plaintiff has proposed calling Dan Chappell (“Chappell”) as a trial witness.
Chappell graduated from UB in 2007 and was a federal work-study student in the
Great Lakes Program in 2004 and 2005. According to plaintiff, “Mr. Chappell is a
witness to demeaning, negative and disparaging treatment by Alan Rabideau and
others while he worked in the Great Lakes Program office . . . .” (Dkt. No. 106 at
14

2.) Further, “Mr. Chappell is willing to share important observations about Alan
Rabideau from a former student’s perspective and his serious concerns about the
Administration’s turning a blind eye to the way Alan Rabideau was treating
Plaintiff.” (Id.) UB objects to any testimony from Chappell “only to the extent that
he would testify concerning any inadmissible hearsay or events outside the
relevant time period.” (Dkt. No. 99 at 2.)
UB’s objection is sustained. Chappell may testify at trial, but only as to
allegedly discriminatory conduct against plaintiff that occurred in 2005 or later and
that he personally witnessed or otherwise knows personally. Any objections to
specific testimony from Chappell are reserved for trial.
4.

Paul Zarembka

Plaintiff has proposed calling Dr. Paul Zarembka (“Zarembka”) as a trial
witness. According to plaintiff, Zarembka is an economics professor at UB who
was a regular member of the faculty union, the United University Professions
(“UUP”), from 2005 to 2007. Plaintiff claims that she communicated with
Zarembka publicly through an e-mail distribution list and privately about the
alleged discrimination that she was experiencing. UB objects to Zarembka’s
testimony in its entirety on relevance and hearsay grounds. UB asserts that
Zarembka has no personal knowledge of the alleged discrimination against
plaintiff and can only relay hearsay statements from his prior communications
with plaintiff. UB asserts further that Zarembka was not even the UUP
15

representative involved in the events alleged in this action, and that the correct
representative, Patricia Donovan, will be available at trial.
UB’s objection is sustained. By plaintiff’s own description, Zarembka
appears to be someone whom plaintiff sought as a sounding board for events that
she has alleged. Nothing in plaintiff’s description of Zarembka’s prospective
testimony indicates that Zarembka ever worked with plaintiff or has any personal
knowledge of any events that plaintiff has alleged. Accordingly, Zarembka is
precluded from testifying at trial.
5.

John Sheffer II

Plaintiff has proposed calling John Sheffer II (“Sheffer”) as a trial witness.
According to plaintiff, Sheffer is a former New York State Senator and
Assemblyman who was instrumental in attaining funding for the Great Lakes
Program in the early 1980s. Scheffer also has been a personal friend of plaintiff
since 1989. Plaintiff proposes that Sheffer testify about issues that she shared
with him regarding alleged discrimination by UB. Plaintiff proposes further that
Sheffer testify about unspecified general harassment involving her, UB, and UUP.
UB objects to Sheffer’s testimony in its entirety on relevance and hearsay
grounds. UB asserts that Sheffer has no involvement with any alleged facts in
this case except that he helped create the Great Lakes Program approximately
20 years before the discrimination allegedly occurred. UB asserts further that
Sheffer could testify only about hearsay statements that he made privately to
16

plaintiff in response to hearsay statements that she made to him about the
discrimination that she perceived.
UB’s objection is sustained. Scheffer never worked with plaintiff or in any
capacity at UB at all. Based on plaintiff’s description of proposed testimony,
Sheffer has no personal knowledge whatsoever of any fact that would help
resolve plaintiff’s claims. Accordingly, Sheffer is precluded from testifying at trial.
6.

Flora Khinkis

Plaintiff has proposed calling Flora Khinkis (“Khinkis”) as a trial witness.
According to plaintiff, Khinkis was the mother of a student with a disability who
attended UB. Khinkis would testify that she contacted plaintiff regarding the
support and services that her son needed from UB. Khinkis would testify further
about plaintiff’s role in advocating for her son’s rights. UB objects to Khinkis’s
testimony in its entirety on relevance and hearsay grounds. UB asserts that
Khinkis’s son did not attend UB during the times that are relevant to this case.
UB asserts further that plaintiff has not specified what specific events would be
included in Khinkis’s testimony.
UB’s objection is sustained. Based on plaintiff’s description of proposed
testimony, Khinkis would testify about how plaintiff tried—apparently
unsuccessfully—to persuade UB to make certain accommodations for Khinkis’s
son. To the extent that plaintiff will need to tell the jury what activities composed
her advocacy for the disabled, she may do so herself to the extent permitted by
17

the hearsay rule. In that sense, testimony from Khinkis would be cumulative.
Additionally, and as the Court noted above, this case is not about whether UB
failed to make accommodations for disabled students; it is about whether UB
unlawfully discriminated against plaintiff for saying so. Based on plaintiff’s
description of proposed testimony, Khinkis has no personal knowledge of any
alleged discrimination that plaintiff experienced. Accordingly, Khinkis is
precluded from testifying at trial.
D.

Plaintiff’s Exhibits

Plaintiff has proposed entering 240 exhibits into evidence to substantiate
her claims. These exhibits fall into the following general categories:
1.

The docket sheet for this case;

2.

Correspondence to and from third parties regarding what
plaintiff told those third parties about stress that she
experienced at work and discrimination that she perceived;

3.

Correspondence to the EEOC regarding the status of her
complaint and complaining that the EEOC was not
investigating her complaint quickly enough;

4.

Information pages from the EEOC website regarding the
EEOC’s mediation program;

5.

Lists of court cases naming UB as a defendant that plaintiff
sent to a local newspaper;
18

6.

Personal thank you letters to plaintiff from various personnel at
UB and other universities thanking plaintiff for arranging
conferences and editing newsletters;

7.

Unsigned and unauthenticated memoranda that look like
meeting agendas for the Great Lakes Program;

8.

Correspondence between plaintiff and various UB employees
regarding plaintiff’s request for information on UB’s progress in
making accommodations for disabled students since a lawsuit
was settled in 2000; and

9.

An e-mail request sent to UUP members requesting donations
of vacation time to help her address health problems.

Many of these exhibits capture plaintiff expressing frustration to various
third parties about the discrimination that she perceived coming from UB. These
exhibits do not move plaintiff any closer to establishing any alleged conduct by
UB; at most, they would needlessly repeat plaintiff’s trial testimony about UB’s
conduct. These exhibits are irrelevant to plaintiff’s claims. Other exhibits—many
of which overlap with the irrelevant exhibits—contain extensive and nested
hearsay about UB’s propensity to discriminate. UB objects to a majority of
plaintiff’s proposed exhibits on relevance and hearsay grounds. UB objects
further that any exhibits entered into evidence be properly authenticated and free
of plaintiff’s annotations or any other alterations.
19

Upon review of the proposed exhibits, UB’s objections, and plaintiff’s
arguments for admission, the Court sustains UB’s objections to the following
exhibits from plaintiff, which will inadmissible at trial: 1, 2, 3(1),2 9, 10, 13, 14,
16–19, 22–25, 30–42, 46, 49, 51, 53, 55, 57, 58, 61, 62, 64–66, 68, 69, 72–83,
86–92, 94–96, 99–119, 125–128,3 131, 134–136, 139–144, 146–153, 156–158,
160–163, 171–176, 178–182, 184–186, 188, 189, 196, 197, 215, 216, 223, 230,
232, 233, 236, 237, 239, and 240.
The following exhibits will be admissible for background purposes only,
subject to appropriate foundation and production of a clean copy free of
handwriting that can be submitted to the jury: 3(2), 4–8, 20, 21, 26–29, 47, 52, 54,
56, 97, 121, 154, 155, 159, 192–195, 227, and 238.
Subject to appropriate foundation and production of a clean copy free of
handwriting that can be submitted to the jury, the following exhibits will be
admissible at trial either because UB has not objected or because the Court
overrules UB’s objections: 11, 12, 15, 43, 44, 45, 48, 50, 59, 60, 63, 67, 70, 71,
84, 85, 93, 98, 120, 122, 123, 124, 130, 132, 133, 137, 138, 145, 164–170, 177,
183, 187, 190, 191, 198–214, 218, 222, and 234.
Subject to appropriate foundation and production of a clean copy free of
handwriting that can be submitted to the jury, the following exhibits will be

2

Plaintiff has submitted two exhibits numbered 3.

3

Plaintiff has not submitted any exhibit numbered 129.
20

admissible at trial if and only if plaintiff obtains either the originals or copies
certified by the appropriate medical or governmental records custodian, so as to
make them admissible under Rule 803(6): 217, 219–221, 224–226, 228, 229,
231, and 235.
E.

UB’s Witnesses

Plaintiff has filed objections to several of the witnesses that UB has
proposed calling at trial.
Among other witnesses, UB proposes calling Atkinson, the current Director
of the Great Lakes Program. Plaintiff’s objection to Atkinson’s testimony is that
the “[f]ailure to re-appoint plaintiff was not based on funding but an adverse action
against plaintiff for reporting discrimination against his colleague and friend, Alan
Rabideau.” (Dkt. No. 102 at 2.) Plaintiff’s objection is not an objection to
admissibility based on the Federal Rules of Evidence, but rather one of the core
contentions in her entire case. Plaintiff certainly will be able to cross-examine
Atkinson in pursuit of her contention; what weight her contention should receive is
a matter for the jury to resolve. Plaintiff’s objection is overruled.
Plaintiff has objected to any testimony coming from Ann Salter (“Salter”), a
retired senior staff assistant who once worked for Rabideau. Plaintiff’s objection
is that Salter “had no role in plaintiff’s harassment, discrimination or retaliation
claims.” (Id. at 3.) Plaintiff, however, has put in controversy how a work
environment functions with her or Rabideau in it. Consequently, Salter’s
21

testimony will be relevant to the extent that she has personal knowledge of a work
environment featuring plaintiff, Rabideau, or both of them. Plaintiff’s objection
thus is overruled.
Plaintiff has objected to any proposed testimony from Helen Domske
(“Domske”), the Associate Director of the Great Lakes Program. Plaintiff objects
that any testimony from Domske would be irrelevant because she was not on the
UB payroll and was not in a position to make decisions about plaintiff’s
employment. UB responds that Domske was in fact the Associate Director of the
Great Lakes Program, thus putting her in a supervisory role and in a key position
to discuss plaintiff’s work environment, regardless of her payroll setup. The Court
agrees that the second-highest officer in the Great Lakes Program may have a lot
of relevant information about the work environment in that office, regardless of
the details of her payroll. Accordingly, plaintiff’s objection is overruled.
Plaintiff has objected to proposed testimony from Sharon Nolan-W eiss
(“Nolan-W eiss”), UB’s Associate Director of the Office of Equity, Diversity and
Affirmative Action Administration (“EDAAA”). Plaintiff seeks to preclude any
testimony from Nolan-W eiss on the grounds that Nolan-W eiss is a lawyer and
that any information that plaintiff shared with her is confidential. In support of her
argument, plaintiff cites (former) New York attorney disciplinary rules and
American Bar Association model rules that limit how attorneys may communicate,
in the course of representing a client, with people whom they know to be
22

represented by counsel for the same subject matter. UB responds that the rules
that plaintiff has cited do not apply to this situation, and that in any event, plaintiff
has placed her relationship with Nolan-W eiss at issue by asserting that she
presented her situation to Nolan-W eiss. The Court agrees that the rules that
plaintiff has cited do not apply here, and that a key part of plaintiff’s entire case is
how she interacted with the various administrators at UB who handle complaints
of employment discrimination. Accordingly, plaintiff’s objection is overruled.
Plaintiff has objected to proposed testimony from Beth Del Genio (“Del
Genio”), Chief of Staff at UB’s Office of the Provost. Plaintiff apparently wants
Del Genio precluded entirely, because she contends that Del Genio was not
involved in the decision not to renew her contract. As with her objection to
Atkinson’s testimony, plaintiff objects further that the failure to re-appoint her was
not based on funding but on discriminatory conduct. Since part of the core of
plaintiff’s case is her categorical denial that funding had anything to do with her
non-renewal, any personal knowledge that Del Genio has about the Provost’s
evaluation of funding for the Great Lakes Program would be relevant.
Accordingly, plaintiff’s objection is overruled.
Plaintiff has objected to proposed testimony from James Jarvis (“Jarvis”),
UB Associate Vice President for Human Resources. UB submits that Jarvis may
testify about the terms and conditions of plaintiff’s employment and about issues
related to plaintiff’s non-renewal and search for other jobs on campus. Plaintiff
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objects that Jarvis is not relevant as a witness because she applied for numerous
jobs at UB and was blacklisted. Again, plaintiff’s objection actually is one of the
theories of her case, not a problem of admissibility under the Federal Rules of
Evidence. Accordingly, plaintiff’s objection is overruled.
Finally, plaintiff has objected to any trial testimony coming from Patricia
Donovan (“Donovan”). Donovan is the UUP representative at UB with whom
plaintiff communicated regarding Rabideau and her work environment. Plaintiff
objects to testimony from Donovan on the grounds that Donovan “represented”
her and thus is prohibited from disclosing any aspects of her case. UB responds
that plaintiff never filed a formal UUP grievance, that Donovan never represented
her in any capacity as a result, and that plaintiff has put her relationship with
Donovan at issue in any event. To the extent that plaintiff intends to criticize UUP
at trial for not investigating her situation and advocating for her, she cannot
simultaneously prevent UUP representatives from explaining how it responded to
plaintiff’s situation. Accordingly, plaintiff’s objection is overruled.
F.

UB’s Exhibits

UB has proposed entering 36 exhibits into evidence to substantiate its
claims. The exhibits generally consist of correspondence between the EEOC and
either UB or plaintiff; correspondence between UB and plaintiff concerning
renewal or non-renewal of her funding over time; information regarding the job
postings and search processes for other jobs on campus that plaintiff sought; and
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information about prior proceedings in this case or other cases in which UB was a
defendant.
Plaintiff objects to many, though not all, of UB’s exhibits. The rationale
behind plaintiff’s objections is difficult to understand, since plaintiff has made her
objections in one or two words (e.g., “irrelevant” or “hearsay”) and with no
explanation. UB has responded to each objection, setting forth the rationale for
admitting the exhibit in question.
Upon review of all of UB’s proposed exhibits, and after consideration of the
strongest possible arguments that could support a pro se plaintiff’s evidentiary
objections4 and UB’s arguments in favor of admissibility, the Court sustains
plaintiff’s objections to defense exhibits 8, 10, and 36.
The Court partially sustains plaintiff’s objections to defense exhibits 4, 5,
and 6. Those exhibits are admissible only to demonstrate that UB corresponded
with the EEOC on May 3, 2006 and with plaintiff on April 10, 2006.
The Court partially sustains plaintiff’s objections to defense exhibits 31 and
33. Those exhibits will be admissible for impeachment only, not for UB’s case in
chief.
Finally, plaintiff had filed objections (Dkt. No. 98) to the disclosure of Social
Security numbers, bank account numbers, and similarly sensitive personal
4

“Because [plaintiff] is a pro se litigant, we read [the] supporting papers
liberally, and will interpret them to raise the strongest arguments that they
suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citation omitted).
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information in some of UB’s exhibits. Although only exhibit lists, and not exhibits
themselves, are docketed publicly, plaintiff’s concerns about privacy are
reasonable. Further, there is no reason to publish sensitive personal information
to the jury. Accordingly, UB is directed to redact such information from any
exhibits published to the jury.
The Court overrules any other objections that plaintiff had to any other
exhibits. All other defense exhibits not listed above are admissible.
III.

CONCLUSION
For all of the foregoing reasons, the Court will admit witnesses and exhibits

at trial as explained above. As the Court set forth in its prior Decision and Order
of January 5, 2011 (Dkt. No. 109), jury selection will begin on Tuesday, June 14,
2011 at 9:00 a.m. Trial will commence on W ednesday, June 15, 2011 at 9:30
a.m.
SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: April 19, 2011

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