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Vereen v. City of New Haven

United States District Court, D. Connecticut

November 20, 2018

DAIRWOOD VEREEN, Plaintiff,
v.
CITY OF NEW HAVEN, Defendant.

          MEMORANDUM OF DECISION ON MOTIONS IN LIMINE

          Hon. Vanessa L. Bryant United States District Judge

         I. Background

         Before the Court are the parties' Motions in Limine. [Dkts. 54 through 63 (Defendant's Motions); Dkt. 66 (Plaintiff's Motion)]. Plaintiff, an African-American man, alleges that he was that racial harassment created a hostile work environment for him in the City of New Haven Department of Public Works (“DPW” or the “Department”). See [Dkt. 76 (Amended Complaint)]. Plaintiff further alleges that employees at the DPW subjected him to disciplinary action as retaliation for Plaintiff's filing of a complaint about the discrimination. Id. at 11-13.

         Plaintiff seeks to preclude six categories of evidence: (a) Evidence relating to Plaintiff's employment history (Defendant's Exhibits E-G, J-U, Q-Y, CC, GG-VV, AAA-KKK); (b) Evidence relating to the City of New Haven extending Plaintiff's probationary period in 2004, Plaintiff's termination after he was hired, and Plaintiff's reinstatement (Defendant's Exhibits Z, AA, BB, DD, EE); (c) Letter from the Department of Public Works Director of Operations to Plaintiff discussing street sweeper training; (d) Evidence of discipline from the Department sent to 27 employees for the period of 2013-2016 (Defendant's Exhibit LLL); (e) Cell phone footage captured by Honda Smith (Defendant's Exhibit RRR); and (f) Impeachment evidence consisting of Plaintiff's prior specific acts of misconduct.

         Defendant files motions to preclude nine categories of evidence: (a) Testimony Regarding Paragraph 25 of the Amended Complaint [Dkt. 54]; (b) Testimony Regarding Various “Stray Remarks” [Dkt. 56]; (c) Facebook posts made by co-workers [Dkt. 57]; (d) Testimony regarding time-barred allegations concerning conduct that occurred before May 2, 2015 [Dkt. 58]; (e) Expert testimony [Dkt. 59]; (f) Testimony regarding Paragraph 26 of the Amended Complaint (conduct while plaintiff was on medical leave) [Dkt. 60]; (g) City of New Haven Affirmative Action Plan [Dkt. 61]; (h) the Equal Opportunity Employment Commission (EEOC) Supervisory Liability Guidelines [Dkt. 62]; and (i) Materials related to other claims of discrimination [Dkt. 63].

         The Court examines both parties' motions in turn.

         II. Legal Standard

         The purpose of a motion in limine 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.” Palmieiri v. Defaria, 88 F.3d 136, 141 (2d. Cir. 1996). Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. Levinson v. Westport Nat'l Bank, No. 3:09-CV-1955 (VLB), 2013 WL 3280013, at *3 (D. Conn. 2013). A court's ruling regarding a motion in limine “is subject to change when the case unfolds . . .Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.” Palmieiri 88 F.3d at 139 (quoting Luce v. United States, 469 U.S. 38, 41-42 (1984)).

         III. Plaintiff's Motions in Limine

         a. Motion to Preclude Evidence Pertaining to Plaintiff's Employment and Disciplinary History (Defendant's Exs. E-G, J-U, Q-Y, CC, GG-VV, AAA-KKK)

         Plaintiff moves to preclude Defendant from introducing documents relating to the Plaintiff's work history and disciplinary record. [Dkt. 66-1, at 1; see Defendant's Exhibits E-G, J-U, Q-Y, CC, GG-VV, AAA-KKK]. Plaintiff argues that these documents are not relevant under Fed.R.Evid. 401 and that “defendants misrepresent the magnitude and significance of, as well as the context, of the prior disciplinary actions.” [Id. at 1-2]. Plaintiff argues that, to the extent these documents have any probative value, it is outweighed by the risk of substantial prejudice. [Id. at 3]. Plaintiff also argues that the documents are hearsay because the “letters of reprimand do not have the indicia of trustworthiness that would justify its admission as a hearsay exception.” [Id. at 2]. Finally, Plaintiff argues that these materials are improper character evidence under Fed.R.Evid. 404. [Id. at 3].

         Defendant responds that evidence of Plaintiff's work history is relevant to Plaintiff's allegation that DPW retaliated against Plaintiff after Plaintiff filed a complaint about his work environment. [Dkt. 70 (Defendant's Objection to Plaintiff's Motion in Limine)]. Defendant argues that the documents are admissible as an exception to the hearsay rule under the Fed.R.Evid. 803(6) exceptions for business records. [Id. at 4]. Furthermore, Defendant argues that the documents are not improper character evidence because they are not being offered as “prior bad acts” to show a trait of character. [Id. at 2]. Rather,, Defendant claims to offer the materials to rebut Plaintiff's claim for retaliation by showing that Defendant had legitimate business reasons for suspending Plaintiff and docking his pay. [Id.]

         The Court turns first to relevance. The documents are relevant because Plaintiff makes claims for retaliation in violation of Connecticut law and Title VII. See [Dkt. 76 (Amended Complaint) at 11-13]. Evidence is relevant in an action if it “makes any fact more or less probable than it would be without the evidence” and if “the fact is of consequence in determining the action.” Fed.R.Evid. 401. Plaintiff's claim of retaliation requires showing that the plaintiff suffered a “materially adverse” employment action because he complained that his work environment was hostile. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Title VII establishes the standard for retaliation under the Civil Rights Act:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter.

         Civil Rights Act of 1964, Title VII § 704(a). Connecticut's employment discrimination statute contains a similar provision:

It shall be a discriminatory practice in violation of this section . . . For any…employer…to discharge, expel, or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under [this statute].

Conn. Gen. Stats. §46a-60(b)(4). Once an employee makes a prima facie case for retaliation, the burden falls on the employer to “articulate a legitimate, non- retaliatory reason for the adverse employment action.” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). Evidence of Plaintiff's work history is highly probative of whether Defendant had a legitimate, non-retaliatory reason for suspending Plaintiff. Plaintiff's concerns regarding the magnitude and context of disciplinary infractions are concerns about the weight of the evidence, not its admissibility.

         Plaintiff also argues that these employment records are inadmissible hearsay. In response, Defendant argues that these documents are admissible under the hearsay exception for records of regularly conducted activity. Fed.R.Evid. 803(6). Plaintiff does not appear to challenge their status as records of regularly conducted activity, or, indeed, does not specifically address any hearsay exception, but rather appears to argue that the materials should be precluded by the Confrontation Clause. Plaintiff argues that the documents “do not show whether there was ever a full and fair opportunity to present evidence and argument” and that they “do not have the indicia of trustworthiness that would justify their admission as a hearsay exception.” [Dkt. 66, at 3].

         Plaintiff cites no credible legal authority for his assertion that these records of regularly conducted activity business should not be admitted and thus his objection fails. The Confrontation Clause does not apply to this civil case. See U.S. Const. amend. VI. Plaintiff's “indicia of trustworthiness” language may be intended to address the requirement that evidence can only be admitted under hearsay exceptions 801(6)- (8) if “the opponent does not show that the source of information or the method of circumstances of preparation indicate a lack of trustworthiness.” See Fed. R. Evid. 803(6)-(8). If that is Plaintiff's intent, Plaintiff's argument fails because he has provided the Court no basis to find a lack of trustworthiness. See Ariza v. City of New York, 139 F.3d 132, 134 (2d. Cir. 1998) (holding that “the party opposing admission of evidence under [Rule 803(8)] has the burden of showing untrustworthiness.”). Defendant asserts that Department of Public Works employees Jeffrey Pescosolido and Lynwood Dorsey will testify regarding the veracity of these records. [Dkt. 70, at 2]. Any doubts about their trustworthiness can be explored through testimony. The Court will allow Defendant to lay the proper foundation for these documents.

         Plaintiff also argues that these documents are inadmissible as improper character evidence. [Dkt. 66-1, at 3-4]. The Court rejects this argument. “Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” Fed.R.Evid. 404(a)(1). Defendant will not offer this evidence to show that Plaintiff acted in conformity with a particular character trait. Rather, Defendant claims to offer these records “to establish the steps DPW took to respond to Plaintiff's workplace conduct.” [Dkt. 70, at 2]. Plaintiff opened the door to this evidence by bringing a claim for retaliation, which allows that Defendant may provide a “legitimate, non-retaliatory reason” for suspending Plaintiff. See Jute, 420 F.3d at 173.

         Finally, Plaintiff argues that this evidence is inadmissible under Fed.R.Evid. 403 because it will confuse the jury and waste the Court's time. The Court declines to make this finding, recognizing that there may be an efficient and clear way for Defendant to introduce this evidence. Plaintiff will be free to provide the context for these documents through examination.

         Accordingly, Plaintiff's first Motion in Limine to preclude Defendant's Exhibits E-G, J-U, Q-Y, CC, GG-VV, and AAA-KKK is DENIED. If, during the trial, it becomes apparent that Defendant is presenting the evidence for an improper purpose or in a confusing manner, the Court will consider revisiting this ruling.

         b. Motion to Preclude Evidence Related to the City of New Haven extending Plaintiff's Probationary Period in 2004, His Termination, and His Reinstatement (Defendant's Exs. Z, AA, BB, and DD)

         The Motion to Preclude Defendant's Exs. Z, AA, BB, and DD is GRANTED on consent as Defendant notes that Plaintiff has agreed not to submit evidence relating to his 2005 termination. [Dkt. 70, at 3].

         c. Motion to Preclude Letter Regarding Street Sweeper Training (Defendant's Ex. FF)

         Plaintiff moves to preclude Defendant's Exhibit FF, a letter from DPW Director of Operations Jeffrey Pescosolido to Plaintiff regarding street sweeper training, on the grounds that it is “hearsay, is irrelevant, and would cause confusion and waste of time.” [Dkt. 66, at 7]. The letter states that Vereen “will (as agreed) receive training as available, assigned by Departmental Supervisor's [sic] based on Union agreements, daily activities, equipment and staffing requirements.” Defendant's Exhibit FF. Defendant argues that the letter will be offered to rebut Plaintiff's anticipated assertion that he was not given opportunities for street sweeper training. [Dkt. 70, at 4].

         The Court declines to exclude the letter because it is unable to determine the relevance of the letter at this time. If Plaintiff makes no claim that he was denied the opportunity for street sweeper training, the relevance of the letter will be difficult to establish. If Plaintiff does testify that he was not given opportunities for street sweeper training, the letter would certainly be relevant to rebut that assertion. In that case, the letter may be admissible as a business record under Fed.R.Evid. 803(6).

         Therefore, Plaintiff's Motion in Limine to Preclude Defendant's Exhibit FF is DENIED. The Court will consider revisiting this ruling at trial if a dispute arises.

         d. Motion to Exclude Materials Related to Discipline Given to Other DPW Employees (Defendant's Exhibit LLL)

         Plaintiff seeks to exclude Exhibit LLL, which compiles letters of discipline sent to 27 DPW employees for the period of 2013-16, on the grounds that the evidence is irrelevant, is hearsay, is improper character evidence, and is unfairly prejudicial. [Dkt. 66-1, at 8-11]. Defendant argues that Exhibit LLL “demonstrates that the Defendants investigate policy violations for all DPW employees.” [Dkt. 70, at 4]. Defendant explains that “it is anticipated that Plaintiff will claim that he was treated differently from other DPW employees.” [Id.]. Defendant argues that the materials are admissible under the records of regularly conducted activity business exception to the hearsay rule. [Id. at 5].

         Letters of discipline sent to other employees are not relevant to Plaintiff's claims or Defendant's defenses. Plaintiff makes claims under state and federal law of: 1) a hostile work environment due to discrimination on the basis of his race and 2) retaliation for his complaint about the work environment. [Dkt. 76, ¶¶ 50-68]. The alleged discrimination concerns remarks made by Plaintiff's supervisor and coworkers and the City's failure to respond to those remarks. Plaintiff does not allege that he was disciplined differently because of his race. The materials, therefore, are not relevant to Plaintiff's hostile work environment claims.

         The materials are also not relevant to Plaintiff's retaliation claim. The only conceivable argument for utilizing this evidence to rebut the retaliation claim would be to assert that because DPW disciplined other employees for violation of DPW policies, Plaintiff's discipline was appropriate. This is a tenuous link. The fact that other employees were disciplined has no probative value absent a claim from Plaintiff that similarly situated individuals were treated differently. Records of discipline for other employees will not aid a jury in deciding whether Plaintiff was treated fairly. Defendant can present evidence of DPW policy and evidence that Plaintiff violated DPW policy. Defendant's witnesses can even testify that they handled Plaintiff's discipline in the same way they would handle discipline for any employee. However, presenting written evidence of disciplinary actions against other employees is unnecessary unless Plaintiff argues that the disciplinary reasons given for his suspension were pretextual.

         Accordingly, Plaintiff's Motion in Limine to exclude Defendant's Exhibit LLL is GRANTED. If Plaintiff does, in fact, testify that he was unfairly targeted for discipline when other employees were not, Defendant's Exhibit LLL may be relevant. The Court encourages Defendant's counsel to raise the issue if appropriate.

         e. Motion to Preclude Cell Phone Video Footage (Defendant's Exhibit RRR)

         Plaintiff seeks to preclude the introduction of Exhibit RRR, a video allegedly recorded by Plaintiff's co-worker Honda Smith. [Dkt. 66, at 11-13]. Defendant asserts that the video shows Plaintiff making “vulgar and obscene” comments towards women in the presence of female co-worker Smith. [Id. at 6]. Plaintiff argues that the video has no probative value, that it is improper character evidence, and that the video is unfairly prejudicial to Plaintiff. [Id.] Defendant argues that the video is relevant because in order for Plaintiff to sustain his claim for a hostile work environment, he must prove that he found the conduct at issue “to be undesirable or offensive, and that he did not participate in the conduct himself.” [Dkt. 70, at 5]. Defendant alleges that Plaintiff's behavior in the ...


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