The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently before the Court in this employment civil rights action are Defendants' six (6) motions in limine (Dkts 47 and 48) and Plaintiff's motion in limine (Dkt 49). For the reasons set forth below, Defendants' motions are granted in part and denied in part, and Plaintiff's motion is granted.
I. DEFENDANTS' MOTION TO PRECLUDE PLAINTIFF FROM INTRODUCING EVIDENCE AND/OR TESTIMONY OF FORMER PLAINTIFFS IN THIS ACTION REGARDING CLAIMS OF A HOSTILE WORK ENVIRONMENT
In order to make out his hostile work environment claim, Plaintiff is required to establish by a preponderance of the evidence, among other things, that his work environment was objectively hostile. As the Court stated in its Decision and Order of September 29, 2009, "evidence of harassment of other members of the protected group, if part of a pervasive or continuing pattern of conduct, is surely relevant to show the existence of a hostile work environment." Little v. Nat'l Broad. Co., Inc., 210 F. Supp.2d 330, 389 (S.D.N.Y. 2002) (citing Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 [2d Cir. 1997]). "Moreover, remarks or behavior directed at individuals who are not members of the plaintiff's protected class may be considered when considering the pervasiveness and severity of workplace harassment." Little, 210 F. Supp.2d at 389 (citing Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 [2d Cir. 2000] ["Remarks targeting members of other minorities... may contribute to the overall hostility of the working environment for a minority employee."]).
In addition, the Court finds that the probative value of testimony of other members of a protected class regarding the work environment at the Onondaga County Sheriff's Department during the time period that is relevant to the instant action (i.e. October 29, 1997 and August 5, 2004) is not substantially outweighed by the potential for unfair prejudice. As a result, Defendants' request to preclude Plaintiff from offering testimony and/or evidence of former Plaintiffs in this action regarding claims of race and gender-based hostility in the work environment is denied. For purposes of clarity, the Court will only add two points. First, it will not allow the former Plaintiffs (or any other witnesses) to testify at trial regarding any incidents that occurred either before October 29, 1997, or after August 5, 2004, because Plaintiff's claim is limited, based on the previous action that was dismissed, to whether the work environment was "objectively hostile" during this time period. As a result, and as indicated by the undersigned during the final pretrial conference held February 12, 2010, Plaintiff must provide the Court with an offer of proof regarding the testimony that will be provided by each of these former Plaintiffs before the Court will permit any of these former Plaintiffs to testify at trial.
Second, Plaintiff's discrimination claim may not be based solely on conduct directed at a protected class of employees to which Plaintiff did not belong. See Little, 210 F. Supp.2d at 389 (collecting cases).
II. DEFENDANTS' MOTION TO PRECLUDE ADMISSION OF EEOC/NYSDHR RECORDS, REPORTS AND CORRESPONDENCE
Generally speaking, "EEOC determinations are sufficiently reliable to be admissible under the public records hearsay exception of Fed. R. Evid. 803(8)(C)." Watson v. E.S. Sutton, Inc., 02-CV-2739, 2005 WL 2170659, at *21 (S.D.N.Y. Sept.6, 2005); see also Chamblee v. Harris & Harris, Inc., 154 F. Supp.2d 670, 677-78 (S.D.N.Y. 2001) (probable cause finding admissible, and would be accompanied by limiting jury instruction that finding was not final determination of liability). "Such documents are properly excluded, however, where the evidence's probative value is substantially outweighed by the danger of unfair prejudice." Dodson v. CBS Broadcasting Inc., 423 F. Supp.2d 331, 334 (S.D.N.Y. 2006) (citing Fed. R. Evid. 403; Paolitto v. John Brown E & C, Inc., et al., 151 F.3d 60, 65 [2d Cir. 1998]). "The risk of prejudice is greater where the EEOC has found a violation, as opposed to merely finding the existence of probable cause regarding a violation." Dodson, 423 F. Supp.2d at 334 (citing Paolitto, 151 F.3d at 65 n.3 ["A finding of probable cause states only that the case is a close one, whereas a finding... [of a violation] conclusively resolves the administrative charge."]); see also Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500 (9th Cir. 1986) ("In a letter of violation the EEOC concludes that a violation of [Title VII] has occurred, whereas in a probable cause determination the EEOC determines only that there is probable cause to conclude that a violation of Title VII has occurred. A finding of probable cause does not suggest to the jury that the EEOC has already determined that there has been a violation.... A letter of violation, however, represents a determination by the EEOC that a violation of the Act has occurred and thus results in a much greater possibility of unfair prejudice.").
The document presently in question is a determination letter from the EEOC. Because the Court has not had an opportunity to review this document, the Court is unable to decide its admissibility (or the admissibility of related correspondence). As a result, the Court reserves on Defendants' motion to preclude the admission of EEOC materials.
III. DEFENDANTS' MOTION TO PRECLUDE TESTIMONY OF PLAINTIFF ON ALLEGATIONS OF GENDER AND RACE DISCRIMINATION
Defendants seek to preclude Plaintiff from introducing evidence of gender-based discrimination based on Plaintiff's alleged failure to allege or introduce any evidence that he was subject to discrimination on the basis of his gender. For the reasons stated in Plaintiff's memorandum of law in opposition to this motion, Defendants request is denied. (See Dkt. No. 53, Attach. 5.)
Defendants also seek to preclude Plaintiff from introducing certain evidence of race-based discrimination. More specifically, Defendants seek to preclude Plaintiff from introducing evidence (1) that Plaintiff heard that Captain Albanese had a list, (2) relating to the SERT Team Training video, and (3) that Nurse Finch was involved in a race-based exchange with Plaintiff.
With regard to the list, the Court agrees with Defendants that testimony about what Plaintiff "heard" from a third party is hearsay. As a result, Plaintiff is precluded from testifying about what he "heard" regarding a list. However, Plaintiff is not precluded from introducing evidence of the existence of the list, to the extent that Plaintiff is able to produce such evidence through an admissible means.
With regard to the training video, as stated in the Court's Decision and Order of September 29, 2009, evidence related to incidents arising from this video is probative of a hostile work environment. However, because the Court has not had an opportunity to review the video, and/or make a determination, among other things, as to (1) who created the video, (2) how many times the Onondaga County Sheriff's Department showed the video throughout its existence, and (3) whom the Onondaga County Sheriff's Department showed the video to, the Court is unable to determine whether the probative value of the video is substantially outweighed by the potential for prejudice. As a result, the Court reserves on Defendants' motion to preclude the introduction of the ...