United States District Court, D. Connecticut
RULING RE: MOTION IN LIMINE (DOC., 25)
C. HALL JANET C. HALL UNITED STATES DISTRICT JUDGE
before the court is the Motion in Limine to Exclude Witnesses
filed by the defendants, the Department of Transportation for
the State of Connecticut (“DOT”), James McCann,
Rabih Barakat, Jon Hagert, and Scott Hill (collectively, the
“defendants”). Motion in Limine to Exclude
Witnesses (“MIL”) (Doc. No. 122). The defendants
seek to exclude or limit the testimony of Alireza Jamalipour
(“Jamalipour”), Nihat Ozkan
(“Ozkan”), Sarah Hoxha (“Hoxha”),
Timothy McGuane (“McGuane”), David Tassavor
(“Tassavor”). See id. at 1. The
plaintiff, Berk Ucar (“Ucar”), opposes the
Motion. See Mem. in Opp. to Defs.' Mot. in
Limine (“Opposition”) (Doc. No. 129).
reasons that follow, the Motion in Limine is
purpose of an in limine motion is 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) (citation and
internal quotation marks omitted). In deciding a motion in
limine, the court must determine whether the evidence is
admissible under Federal Rule of Evidence 104. See
Highland Capital Mgmt., L.P. v. Schneider, 379 F.Supp.2d
461, 467 (S.D.N.Y. 2005). Potential evidence should be
excluded only if it “is clearly inadmissible on all
potential grounds.” Ziemba v. Lynch, No.
3:11-cv-717 (SRU)(WIG), 2011 WL 4633117, at * 1 (D. Conn.
Oct. 4, 2011) (citation omitted).
court will first consider the defendants' arguments
regarding Ucar's comparators, and then turn to their
arguments regarding the expected testimony of Jamalipour and
two employees are similarly situated ordinarily presents a
question of fact for the jury.” Graham v. Long
Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). In order to
be similarly situated, the plaintiff must show that the two
employees are similar “in all material respects.”
See id. This standard requires a showing that the
co-employees “were subject to the same performance
evaluation and discipline standards, ” and that the
“employees who went undisciplined engaged in comparable
conduct.” Id. at 40.
1. Ozkan and Jamalipour
defendants first argue that Ozkan and Jamalipour should not
be permitted to testify that other DOT employees regularly
take longer and more frequent breaks than permitted by
contract. See MIL at 2. They argue that these two
witnesses are not similarly situated to Ucar in all material
respects, and thus no inference of discrimination can be
drawn from their treatment. See id.; McGuiness
v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001)
(“[W]here a plaintiff seeks to establish the minimal
prima facie case by making reference to the disparate
treatment of other employees, those employees must have a
situation sufficiently similar to plaintiff's to support
at least a minimal inference that the difference of treatment
may be attributable to discrimination”). The defendants
argue that Ozkan and Jamalipour are not employed in the same
position as Ucar and work in different units and have
different supervisors from him, and therefore were not
similarly situated in all material respects. Id. at
3-7 (citing Graham, 230 F.3d at 40 (2d Cir. 2000).
responds that he does not intend to offer Jamalipour or Ozkan
as comparators themselves, but rather that they will testify
as to what they have observed, not what they have
experienced. See Opp. at 4-5. Ucar notes that the
Second Circuit requires the plaintiff to show that his
co-employees were subject to the same performance evaluation
and discipline standards, and that those similarly situated
employees were not punished when they engaged in comparable
conduct. See id. at 5 (citing Graham, 230
F.3d at 40). Because Jamalipour and Ozkan are only being
offered to testify as to their knowledge of how others were
treated, that they are not similarly situated is not
disqualifying and the court will not exclude them on this
defendants next argue that Jamalipour and Ozkan's
testimony concerning the treatment of others should be
excluded because they cannot identify any specific
comparators who were similarly situated in all material
respects. See Defs.' Reply to Pl.'s Opp.
(“Reply”) at 3-4. The cases the defendants cite
are all in the context of summary judgment, when the court is
considering what evidence the parties have marshalled.
See id. (citing Desir v. B of Co-op. Educ.
Servs., 803 F.Supp.2d 168, 180-81 (E.D.N.Y. 2011);
Fuentes v. Cablevision Sys. Corp., No.
14cv32(RRM)(CLP), 2016 WL 4995075, at * 7 (E.D.N.Y. Sept. 19,
2016)). Here, the court is considering whether the testimony
of the witnesses is admissible, not whether Ucar will
ultimately succeed in proving his case. Because Ucar is
offering Jamalipour and Ozkan to testify as to their personal
knowledge of ...