United States District Court, S.D. New York
September 13, 2005.
NEVILLE EVANS, Plaintiff,
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
The complicated history of the disputes between these parties
is summed up in decisions in the prior action between
them*fn1 and the Court's decision granting partial summary
judgment of dismissal in this action,*fn2 familiarity with
which is assumed. What remains are plaintiff's claims that he was
retaliated against and subjected to a hostile work environment
("HWE") in that he was (1) placed on AWOL status in May 2002, and
(2) excluded in 2003 from consideration for specific four job
assignments in the defendants Tunnels, Bridges & Tolls
Department. The matter now is before the Court on defendant's
motion in limine.
1. Defendant first moves to preclude plaintiff from offering
evidence that the Port Authority has a custom and practice of
creating an HWE by retaliating against African-American employees
who complain about racial discrimination. It argues that the
evidence is not relevant, that it would be unfairly prejudicial,
and that it would result in needless confusion and prolongation
of the trial.
Plaintiff acknowledges that the Court's summary judgment ruling
limited his claim to the specific matters referred to above. He
nevertheless argues that the custom and practice evidence is necessary or, at least, relevant to demonstrating
that any retaliation against him in the instances referred to
above is attributable to the Port Authority under Monell v.
Department of Social Services, 436 U.S. 658, 661 n. 2, 690-91
(1978), and its progeny.
Plaintiff is correct in asserting that the defendant may not be
held liable for any violation of 42 U.S.C. §§ 1981, 1983, on the
basis of respondeat superior. "In order to cast a municipality
in damages for a Section 1983 violation by one of its agents, the
plaintiff must plead and prove that the injury complained of was
the consequence `of a government's policy or custom, whether made
by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy. . . .'" Blasetti v.
Pietropolo, 213 F.Supp.2d 425, 430 (S.D.N.Y. 2002) (quoting
Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978)).
Thus, while a plaintiff sometimes may satisfy Monell
circumstantially, by demonstrating official indifference to
repeated similar discriminatory acts, that is not the only
possible route. A ready alternative may be proof that the conduct
complained of was committed by a municipal employee whose actions
constitute official policy. See, e.g., Rookard v. Health and
Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983).
In order to prevail on his retaliation claim here, plaintiff
first will have to prove that the actions complained of occurred
and that the actors responsible were motivated, at least in part,
by a desire to retaliate against him for his prior lawsuit. If he
fails to do both, any question of Port Authority liability would
be eliminated. Even if he proves both, he may succeed in
establishing that the responsible actors were policy making
officials in the sense relevant under Monell.
As the Court noted previously, plaintiff's retaliation claims
are weak. The Monell issue therefore may prove to be entirely
academic. The evidence of alleged retaliatory incidents involving
others threatens undue prejudice that should be avoided, at least
unless it is necessary to decide the case. Accordingly, the Court
will further divide the trial.*fn3 It will try the
retaliation and HWE claims, together with any factual issues
bearing on whether the responsible actors were policy making
officials, first. During that proceeding, evidence of any alleged
custom and practice will not be received. In the event plaintiff
succeeds in proving retaliation or HWE, but fails to prove that
the responsible actors were policy makers, it will proceed to try
the circumstantial Monell issue and damages separately in an
order yet to be determined. The Court reserves any ruling on the
scope of the circumstantial proof on the Monell issue.
2. Defendant next seeks to preclude plaintiff from relitigating
issues raised in his prior action.
In Evans v. Port Authority of New York and New Jersey, 02
Civ. 3482 (LAK) ("Evans I"), plaintiff claimed that he
repeatedly was passed over for promotion and subjected to an HWE
on the basis of his race and that he was retaliated against on
two occasions for complaining about alleged discrimination at the Authority. In an opinion
reported at 192 F. Supp.2d 247 (S.D.N.Y. 2002), the Court granted
summary judgment dismissing all of these claims save for Title
VII and Section 1981 claims based on four of a larger number of
alleged failures to promote the plaintiff. One of the surviving
failures to promote involving claims of disparate treatment and
retaliation, but the other retaliation claim was dismissed for
failures of proof. The HWE claim was dismissed on the basis of
plaintiff's having failed to adduce evidence sufficient to go to
the jury. Following a trial on the remaining claims, the jury
found for the defendants on all claims.
The judgment in Evans I has two effects. First, the principle
of claim preclusion forecloses all claims that were or might have
been raised in that action. Thus, plaintiff may not in this
action obtain any relief in respect of claims that he asserted or
could have asserted in Evans I. Second, issue preclusion bars
plaintiff from relitigating any issue that was actually litigated
and necessarily decided in the prior action. These principles
guide the disposition of this branch of the motion.
Evans I actually and necessarily decided that plaintiff was
not subjected to an HWE and that he was not passed over for
promotion on the basis of race during the period covered by that
case. It similarly determined that he was not passed over for
promotion in the two incidents in question for complaining about
discrimination. Accordingly, plaintiff may not relitigate those
issues. Plaintiff's proposed exhibits 42 to 59 appear to relate
only to those issues and are excluded. It seems likely also that
much other evidence that plaintiff proposes to offer must be
excluded under issue or claim preclusion principles and/or Rule
403, but the motion papers now before the Court are
insufficiently specific to permit detailed determinations. The
parties shall meet and confer in an effort to narrow the issues,
failing which the defendant may make a more detailed motion in
limine with respect to any evidentiary questions that remain in
3. Defendant next moves to preclude plaintiff from calling his
health care providers as witnesses on the ground that plaintiff
never responded to interrogatories seeking expert disclosure,
never provided authorizations to obtain his medical records from
two of the three witnesses, and never appeared for an independent
As this case is not ready for trial, plaintiff shall provide
the defendant with all requested medical authorizations no later
than September 27, 2005. He shall submit to independent medical
examination no later than October 31, 2005.
4. Defendant seeks to preclude plaintiff from calling Sandra
Mitchell, Linda Kochenberger, Joseph Seymour, Cedric Fulton,
Joanne McPherson and Joanne Cocozzielo as witnesses, essentially
on the grounds that plaintiff failed to disclose them as persons
with knowledge, that they have no relevant information or both.
All of these witnesses are present or former employees of
defendant. Absent evidence that defendant has been prejudiced
because they for some reason are not available to it for
interview, the Court will not exclude them, at least at this
point. * * *
For the foregoing reasons, the motion in limine is granted to
the extent that the trial is severed as indicated above,
Plaintiff's Exhibits 42-59 are excluded, plaintiff shall provide
the defendant with all requested medical authorizations no later
than September 27, 2005 and shall submit to independent medical
examination no later than October 31, 2005, and otherwise denied.
Following further discussions between the parties, defendant may
renew its in limine motion on a more specific showing. The
parties are further cautioned that the issues remaining to be
tried in this case are few and narrow. If they are unable to give
assurance that the case will be tried in a period consistent with
that fact, the Court will impose time limits on their
presentations at trial.
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