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Ucar v. Connecticut Department of Transportation

United States District Court, D. Connecticut

September 11, 2017

BERK UCAR, Plaintiff,
v.
CONNECTICUT DEPARTMENT OF TRANSPORTATION, et al., Defendants.

          RULING RE: MOTION IN LIMINE (DOC., 25)

          JANET C. HALL JANET C. HALL UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Now 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).

         For the reasons that follow, the Motion in Limine is DENIED.

         II. LEGAL STANDARD

         “The 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).

         III. DISCUSSION

         The court will first consider the defendants' arguments regarding Ucar's comparators, and then turn to their arguments regarding the expected testimony of Jamalipour and Hoxha.

         A. Comparators

         “Whether 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

         The 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).

         Ucar 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 basis.

         The 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 ...


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