The opinion of the court was delivered by: Garaufis, United States District Judge.
Plaintiff Lorenzo Pugliese ("Pugliese") brings this lawsuit under 42 U.S.C. § 1983 and New York City Administrative Code Section 8-107 ("New York City Human Rights Law") alleging that Defendants The Long Island Railroad Company ("LIRR"), Nancy Greer ("Greer"), and Gerome Petronilia ("Petronilia") (collectively "Defendants") engaged in a pattern and practice of discrimination on the basis of his sexual orientation as a homosexual male and a perception that Plaintiff did not conform to the stereotypes of his gender. (November 19, 2007 Joint Pretrial Order (Docket Entry #51).) On January 2, 2008, Defendants filed a motion in limine to preclude certain evidence from trial. On January 7, 2008, Pugliese filed his opposition to the motion.
For the reasons set forth below Defendants' motion is GRANTED in part and DENIED in part. Familiarity with the background facts of this case and the particulars of the claims that remain for trial is assumed.
As an initial matter, although Plaintiff contends otherwise, all claims against Defendant Petronilia, including those brought under the New York City Human Rights Law, have been dismissed pursuant to this court's September 19, 2006 Memorandum and Order. (See Docket Entry #39 at 23.)
As for the substance of Defendants' motion, the district court's "wide latitude in determining whether evidence is admissible at trial" is, of course, applicable to each of Defendants' evidentiary challenges discussed in turn below. Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 250 (2d Cir. 2006).
Defendants first argue that testimony about alleged "anti-gay" remarks by Plaintiff's then supervisor Bobby Wright ("Wright") are inadmissible because the remarks do not form the basis of Plaintiff's claim and their probative value is outweighed by their prejudicial effect. (Memorandum of Law in Support of Defendants' Motion in Limine ("Defendants' Br.") at 12.) Plaintiff responds that the statements and Defendants' alleged failure to address them provide background evidence of Defendants' discriminatory intent and are probative of Defendants' lack of responsiveness to Plaintiff's complaints. (Plaintiff's Memorandum of Law in Opposition to Defendants' Motions [sic] In Limine ("Plaintiff's Br.") at 2.)
The court agrees with Plaintiff and will allow testimony about Wright's statements incident because the statements and Defendants' response, or lack thereof, to them constitute relevant background evidence in this case. See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 176-177 (2d Cir. 2005) (in the employment discrimination retaliatory discharge context, "relevant background evidence, such as statements by a decisionmaker or earlier decisions typifying the retaliation involved, may be considered to assess liability on the timely alleged act.").
In addition, the court concludes that allowing testimony about Wright's statements is unlikely to cause prejudice to Defendants. Even assuming the testimony might cause some prejudice, that prejudice would not substantially outweigh the testimony's probative value in this case. See Fed. R. Evid. 403. Defendants' motion to preclude testimony about Wright's alleged statements is therefore denied.
B. Statements Allegedly Attributable to Richard Cole and Jerome Petronilia
Plaintiff alleges that he was informed by a station cleaner that Petronilia referred to Plaintiff as a "fucking queer and faggot" and made other similar comments, and that Petronilia instructed the station cleaner not to follow Plaintiff's directions. Plaintiff does not allege that he heard these comments himself. (Defendants' Br. at 13.) Defendants argue that Petronilia's statements "may be admissible" against Petronilia as party admissions, but that because all claims against him have been dismissed, the statements are inadmissible hearsay. (Id. at 15-16.) Plaintiff responds that the statements are admissible as party admissions. (Plaintiff's Br. at 3.)
As Defendants note, whether or not Greer and the LIRR declined to discipline Petronilia for making offensive statements about Plaintiff remains an issue for the jury as the trier of fact. (Defendants' Br. at 15.) If so offered, Petronilia's statements would not be offered "for the truth of the matter asserted" and thus would not constitute hearsay. See Fed. R. Evid. 801(c) (defining "hearsay" as an out-of court-statement "offered in evidence to prove the truth of the matter asserted"). Furthermore, the court found in its August 29, 2007 Memorandum and Order that Petronilia's statements are not hearsay pursuant to Fed. R. Evid. 801(d)(2)(D) because they constitute statements by a party's agent or servant. See 801(d)(2)(D) (a statement is not hearsay if the statement is offered against a party and is a "statement made by a ...