The opinion of the court was delivered by: Matsumoto, United States District Judge
FOR ELECTRONIC PUBLICATION ONLY
Pending before the court are defendants' motions in limine. Plaintiff Charles Castro ("plaintiff" or "Castro"), a Hispanic male of Puerto Rican descent, alleges that defendants, acting under the color of state law, discriminated against him by "denying him equal treatment in the terms and conditions of employment" on the basis of his race and national origin, and in retaliation "for engaging in protected First Amendment activity[,]" in violation of 42 U.S.C. §§ 1981, 1983, 1985, 2000e, as well as New York State Executive Law § 296 and New York City Human Rights Law, Administrative Code § 8-107. (Doc. No. 33, Pl. Mem. in Opp'n to Defendants' Motions in Limine ("Pl. Mem.") at 1;*fn1 see generally, Doc. No. 1, Compl. ¶¶ 2, 7-16.) For the reasons set forth herein, defendants' motions in limine are granted in part and denied in part.
Plaintiff claims that defendants violated his civil rights when they refused to hire him for an entry-level sanitation worker position with the New York City Department of Sanitation ("DSNY"). The parties agree that following plaintiff's termination from the New York City Police Department ("NYPD"), plaintiff passed a civil service exam, which placed plaintiff on an eligibility list for a position with the DSNY. (Doc. No. 29, Def. Mem. in Support of Motions in limine ("Def. Mem.") at 2; Pl. Mem. at 2.) Thereafter, plaintiff was called for an interview. Plaintiff alleges that at the interview, he was advised by defendant Joseph DiPiazza, DSNY's Director of Human Resources, that he was not selected for the entry-level position due to his termination from the NYPD and because he had been a party to a class-action discrimination lawsuit against the City of New York (the "City") and NYPD captioned, Latino Officers' Association v. City of New York in the Southern District of New York. (See Pl. Mem. at 2; Compl. ¶¶ 5, 11-12.)
Plaintiff contends that Mr. DiPiazza's alleged comment regarding the lawsuit demonstrates that defendants were aware of "plaintiff's participation in the prior action against the City" and evidences defendants' retaliatory animus toward plaintiff. (Pl. Mem. at 2.)
By contrast, defendants claim that "[a]t the time the decision was made to consider but not select plaintiff for the . . . [sanitation worker] position in 2005, the agency [DSNY] had no knowledge that he had brought a lawsuit in 1999 against the NYPD stemming from his termination." (Def. Mem. at 2-3.) Instead, defendants assert that plaintiff was not hired because he was "not particularly well-suited to the DSNY." (Id. at 2.) In particular, defendants assert that plaintiff's NYPD disciplinary recorded included assault on another sergeant, a partially-substantially incident in which a pedestrian "was run down with a motor vehicle" and making a false statement in connection with an NYPD investigative interview, for which plaintiff was ultimately terminated from the NYPD. (Id.) Defendants also contend that plaintiff's offenses, coupled with his "problem with authority[,]" "led . . . decision-makers to conclude that . . . [plaintiff] was not a suitable candidate for the DSNY." (Doc. No. 31, Defendants' Reply Mem. of Law ("Reply Mem.") at 6.)
Plaintiff further contends that the "selection process in DSNY discriminates against Hispanics." (Pl. Mem. at 2.) Plaintiff asserts that Caucasian candidates, "who were also former police officers," were hired for the same position for which plaintiff was considered but not selected, "even though their personnel history in the NYPD was must [sic] more egregious than that of the plaintiff." (Id.)
The parties agree that DSNY reviewed the candidacy of former police officers differently than it reviewed other eligible candidates. (See Def. Mem. at 3; Pl. Mem. at 2.) According to defendants, former police officers "were reviewed by the First Deputy Commissioner and the Deputy Commissioner for Administration rather than the Human Resources staff" of the DSNY. (Def. Mem. at 3.) Defendants contend that Mr. DiPiazza "simply gather[ed] information" for the First Deputy Commissioner and Deputy Commissioner, and was not "involved in the decision not to select plaintiff for appointment to DSNY." (Reply Mem. at 4) (emphasis in original.)
Plaintiff asserts that the DSNY's hiring of Peter DelDebbio, a Caucasian NYPD officer who shot an undercover African-American officer, "led to the special review procedures that were in place when the plaintiff was considered but not selected" for the sanitation worker position. (Pl. Mem. at 6.)
Defendants contend that none of the witnesses deposed to date have confirmed that new review procedures for former police officers were adopted in response to "political embarrassment" resulting from the hiring of Mr. DelDebbio. (See Def. Mem. at 6.)
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996); National Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F. Supp. 276, 283 (S.D.N.Y. 1996). "A motion in limine to preclude evidence calls on the court to make a preliminary determination on the admissibility of the evidence under Rule 104 of the Federal Rules of Evidence." Allen v. City of New York, 466 F. Supp. 2d 545, 547 (S.D.N.Y. 2006) (citation omitted); see Fed. R. Evid. 104 ("Preliminary questions concerning . . . the admissibility of evidence shall be determined by the court . . . .") Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94-CV-5520, 1998 U.S. Dist. LEXIS 15093, at *11 (S.D.N.Y. Sept. 25, 1998). Indeed, courts considering a motion in limine may reserve judgment until trial, so that the motion is placed in the appropriate factual context. See National Union, 937 F. Supp. at 287. Further, the court's ruling regarding a motion in limine is "subject to change when the case unfolds, particularly if the actual testimony differs from what was [expected.]" Luce, 469 U.S. at 41.
Rule 402 of the Federal Rules of Evidence requires that evidence be relevant to be admissible. Fed. R. Evid. 402. Relevant evidence is defined as evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Thus, the court's determination of what constitutes "relevant evidence" is guided by the nature of the claims and defenses presented herein.
A. Alleged Remarks by Defendant Joseph DiPiazza
Defendants move to preclude plaintiff from introducing any evidence that Mr. DiPiazza, DSNY's Director of Human Resources, allegedly advised plaintiff that he was not hired as a sanitation worker because he was a party to a class-action discrimination lawsuit against the City and NYPD. Defendants contend that any statements by Mr. DiPiazza are irrelevant because he "was not a decision-maker in the decision not to select plaintiff for appointment." (Def. Mem. at 4.) Defendants further contend that Mr. DiPiazza's alleged statements are "stray remarks" and would be "much more prejudicial to defendants than probative of any issue at bar . . . ." (Id.)
Plaintiff opposes defendants' motion in limine on the grounds that Mr. DiPiazza allegedly played a "central role" in the selection of entry-level DSNY candidates. (Pl. Mem. at 3.) Plaintiff further contends that even if Mr. DiPiazza was not a decision maker with respect to plaintiff's candidacy, he was "in close contact with those who do make the decisions . . . ." (Id.)
Generally, "[s]tray comments are not evidence of discrimination if they are not temporally linked to an adverse employment action or if they are made by individuals without decision-making authority." Del Franco v. New York City Off-Track Betting Corp., 429 F. Supp. 2d 529, 536-537 (E.D.N.Y. 2006) (quoting Opoku-Acheampong v. Depository Trust Co., No. 99-CV-774, 2005 U.S. Dist. LEXIS 16387, 2005 WL 1902847, at *3 (S.D.N.Y. Aug. 9, 2005)); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J. concurring) ("statements by nondecisionmakers, or statements made by decisionmakers unrelated to the decisional process itself" are insufficient to establish discriminatory intent); Schreiber v. Worldco, LLC, 324 F. Supp. 2d 512, 518-519 (S.D.N.Y. 2004) ("Verbal comments constitute evidence of discriminatory motivation when a plaintiff demonstrates that a nexus exists between the allegedly discriminatory statements and a defendant's decision to discharge the plaintiff.") (citation omitted); see also Burrell v. Bentsen, 91-CV-2654, 1993 U.S. Dist. LEXIS 18005, at *29-30 (S.D.N.Y. Dec. 21, 1993) (stray remarks in workplace, statements by non-decision makers, and statements by decision makers unrelated to decisional process are not by themselves sufficient to satisfy plaintiff's burden of proving pretext in a Title VII case) (internal quotations and citation omitted).
"In determining whether a comment is a probative statement that evidences an intent to discriminate or whether it is a non-probative 'stray remark,'" a court should consider (1) who made the remark, i.e., a decisionmaker, a supervisor, or a low-level co-worker; (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark, i.e., whether a reasonable juror could view the remark as ...