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October 3, 2005.


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 none.

  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 issues.

  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 premature.


  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 line.

  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 ...

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