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September 13, 2005.


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 dispute.

  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 medical examination.

  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 ...

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