United States District Court, S.D. New York
October 3, 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
Defendant previously moved in limine for an order precluding
plaintiff from offering, inter alia, evidence that the Port
Authority has a custom and practice of creating a hostile work
environment by retaliating against African-American employees who
complain about racial discrimination. Plaintiff resisted that
aspect of the motion principally by contending that evidence of
the alleged custom and practice of retaliation was necessary to
satisfy Monell v. Dept. of Social Services, 436 U.S. 658
(1978), and its progeny, although he claimed also that the
evidence was offered "to meet the causality requirements
necessary to establish a retaliation claim . . ." against the
Port Authority. Pl. Resp. 2. In an order dated September 13,
2005, the Court dealt with the former problem by ruling that it
first would try the retaliation claim, excluding the evidence of
alleged retaliation against other employees, and then try the
Monell issue only if necessary.
Plaintiff now seeks reconsideration on three grounds. First, he
maintains in substance that the Court overlooked his contention
that evidence of alleged retaliation against others is relevant
not only to the Monell issue, but to the question whether any
adverse action taken against plaintiff was causally connected to
his protected activity. He claims, among other things, that he
"has an absolute right to present all relevant evidence, both
direct and circumstantial, in support of his claims." Pl. Mem. 7.
Second, he claims that he is entitled to place before the jury
evidence of alleged discrimination against him that is said to
have occurred prior to his first case in which he was entirely
unsuccessful on the theory that this is part of the overall
fabric against which his claims arising out of subsequent events
must be assessed. Finally, he argues that the trifurcation of the
trial essentially into liability, Monell and damages phases
deprives him of due process of law and his Seventh Amendment
right to trial by jury. I take these contentions in reverse
order. Separate Trials
Plaintiff cites no authority in support of his claim that
trifurcation of the trial would deprive plaintiff of his rights
to due process of law and trial by jury. The Court is aware of
Evidence of Events Prior to the First Trial
Plaintiff's second argument is both overstated and premature.
The Court is quite aware of the theoretical possibility that a
plaintiff in a discrimination case covering a given period of
time might present evidence insufficient to convince a trier of
fact that an adverse action during that period was motivated by
discriminatory animus, but that the same evidence, when taken
together with evidence of subsequent events, might persuade a
second trier of fact that some later adverse action was so
motivated. For example, a plaintiff in a hostile work environment
("HWE") case covering the years 1998 through 2000 and who offered
evidence of events A, B and C during that period might to
convince a trier of fact that a hostile work environment existed
during 1998-2000. The same plaintiff later might bring a second
case covering the period 2001 through 2003 and seek relief for
events D, E and F. In such a later case, evidence of events A, B
and C conceivably might be relevant,*fn1 at least to prove
employer awareness and possibly for other reasons. Hence, it is
difficult and perhaps impossible to determine in the abstract
that the fact that plaintiff lost his prior case, in and of
itself, renders whatever evidence he offered in that case
irrelevant in this one. By the same token, it certainly cannot be
said in the abstract that anything that plaintiff now might wish
to offer, regardless of whether it was or might have been offered
in evidence in the first trial and regardless of issue preclusive
effects of the first judgment, necessarily would be relevant.
Moreover, even if some evidence of events prior to the first
trial were relevant in the strict sense of Rule 402, substantial
issues would remain as to whether and to what extent it should be
excluded under Rule 403.
Had the Court resolved these potentially difficult issues,
plaintiff might have had cause for seeking reconsideration. But
it did not. The September 13, 2005 order was not so ambitious. It
(1) held that plaintiff could not relitigate certain factual
issues actually and necessarily decided against him in the prior
case, (2) excluded plaintiff's proposed exhibits 42 to 59, (3)
directed the parties to meet and confer in an effort to eliminate
or narrow the area of dispute as to what other evidence might be
foreclosed under issue or claim preclusion principles and/or Rule
403, and (4) allowed defendant to make a renewed and more
specific in limine motion with respect to any unresolved
Plaintiff does not here address any of these matters. Indeed,
he does not appear to have met or conferred with defendant. The issue is entirely
Finally, plaintiff claims that the Court overlooked Perry v.
Ethan Allen, Inc., 115 F.3d 143 (2d Cir. 1997), and like
authorities in trifurcating the trial because that ruling, in
effect, deprived plaintiff of the benefit of evidence of alleged
retaliation against other Port Authority employees in attempting
to prove that the adverse actions of which he here complains were
motivated by retaliatory animus.
Perry, insofar as it is relevant here, involved the question
whether the trial court erred in an HWE case by excluding as
"irrelevant" and unfairly prejudicial evidence of sexual
harassment not witnessed by the plaintiff. The Circuit concluded
that the evidence was relevant because it went to the question
whether a "pervasive hostile environment" existed. It went on to
conclude that the exclusion of the evidence under Rule 403 as
unfairly prejudicial given that "[t]he district court did not
identify any respect in which the evidence that might result from
such probative evidence would have been unfair," although it went
on to hold that the error had been harmless. Id. at 151.
The Court assumes, without deciding, that evidence of
retaliation against other employees who had complained of
discrimination, at least in theory, might have some tendency to
establish that adverse action against plaintiff following such a
complaint was motivated by discriminatory animus. Even given that
assumption, however, plaintiff would be a long way from the goal
Rule 403 permits exclusion of relevant evidence not only where
its probative value is substantially outweighed by the danger of
unfair prejudice (i.e., prejudice other than that which flows
from evidence because the evidence tends to prove the adversary's
point), but where it is so outweighed by confusion of the issues,
misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.
Introduction of evidence of alleged retaliation against other
employees entails very substantial risks of most of the adverse
effects enumerated in the Rule.
First, this case is unique because plaintiff already has tried
to judgment, and lost, one far-reaching case against this
defendant on very similar charges. To the extent that he seeks to
retry that case on the theory that the evidence that did not
prevail previously might have some probative force on the issue
of causation in this case entails an unfairness to the defendant
that arises not from any probative force of the evidence, but
from being subjected to a second trial that in some part would be
on charges that it already has prevailed upon. Thus, to the
extent that plaintiff proposes to call evidence of alleged
retaliation against other employees that was available to him at
the time of the last trial, whether or not he then offered it,
this case is entirely unlike Perry.
Second, there is a significant risk of confusion of the issues.
While the Court of course could instruct the jury in this case
that evidence of events prior to the date of the second trial is offered only on the issue of causality (and perhaps Monell),
the risk that the instruction would not be fully understood or
adhered to would exist.
Third, introduction of other alleged incidents of retaliation
involving other employees presents the substantial likelihood
that this trial would consume a great deal of time litigating the
merits of plaintiff's claims concerning each of those episodes.
All that said, plaintiff may have a point to the extent that a
more specific analysis of plaintiff's proposed evidence may be
warranted in order to make a more informed judgment under Rules
402 and 403.
Accordingly, plaintiff's motion for reconsideration is granted.
Upon reconsideration, the Court adheres to its prior ruling, but
it does so without prejudice to an in limine motion by
plaintiff, to be filed on or before October 31, 2005, in which he
makes a detailed offer of proof as to each alleged incident of
retaliation or other conduct against other employees that he
proposes to prove. The offer shall set forth the date(s) of and
plaintiff's claim concerning each incident, the witnesses
plaintiff proposes to call and the testimony they would give, and
any supporting documentary evidence. If the Court grants the
motion in limine, it may reconsider the trifurcation ruling in
whole or in part.
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