United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON MOTIONS IN LIMINE
Vanessa L. Bryant United States District Judge
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.
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
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].
Court examines both parties' motions in turn.
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)).
Plaintiff's Motions in Limine
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)
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
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.]
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.
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.
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].
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.
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.
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
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.
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)
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].
Motion to Preclude Letter Regarding Street Sweeper
Training (Defendant's Ex. FF)
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].
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).
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.
Motion to Exclude Materials Related to Discipline Given
to Other DPW Employees (Defendant's Exhibit LLL)
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].
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.
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.
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.
Motion to Preclude Cell Phone Video Footage
(Defendant's Exhibit RRR)
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 ...