The opinion of the court was delivered by: Matsumoto, United States District Judge
FOR ELECTRONIC PUBLICATION ONLY MEMORANDUM & ORDER
Pending before the court is defendant American Stevedoring, Inc.'s ("defendant" or "ASI") motion in limine. By Memorandum and Order dated November 10, 2009, familiarity with which is presumed, the court granted in part and denied in part defendant's motion for summary judgment. See Suarez v. American Stevedoring, Inc., No. 06-CV-6721, 2009 U.S. Dist. LEXIS 105910 (E.D.N.Y. Nov. 10, 2009). The court granted summary judgment dismissing all of plaintiff's claims except his claims for hostile work environment and retaliatory hostile work environment.
Defendant now moves in limine to preclude plaintiff from introducing certain evidence at trial. The parties have resolved some of their disagreements, however, several evidentiary disputes remain outstanding.*fn1 For the reasons set forth herein, defendant's motion in limine is granted in part and denied in part.
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.
A. Alleged Sexual Contact
Defendant moves to preclude plaintiff from offering any evidence regarding "vulgar, male-on-male horseplay" allegedly engaged in by defendant's employees. (Doc. No. 44, Def. Mem. at 6-7.) In particular, defendant seeks to preclude reference to an incident reported by plaintiff's then co-worker, Equan Womble, regarding an incident where defendant's tractor foreman, Salvatore (Sal) Buzzetta, touched plaintiff's rear end. (See id.) Defendant argues that Mr. Womble's statement based on his observation is not relevant because plaintiff's hostile work environment claims are not founded upon plaintiff's sex or gender. (Id.) Defendant further argues that this evidence is "highly prejudicial" to defendant because it "will offend the moral sensibilities of the average juror." (Id. at 7.) Defendant points out that plaintiff testified during his deposition that Mr. Buzzetta never touched his rear end or genitalia. (Doc. No. 44, Def. Reply Mem. at 1.)
Notwithstanding his deposition testimony, plaintiff argues that the evidence is relevant because it reveals how plaintiff was perceived by his alleged harasser due to this race. (Doc. No. 43, Pl. Opp. at 1.) Plaintiff also contends that it is evidence of retaliation following plaintiff's "complaints of harassment in opposition to such conduct." (Id.)
The court concludes that evidence of Mr. Buzzetta's alleged physical contact with plaintiff may be offered at trial. The court finds that this evidence is relevant insofar as plaintiff asserts that unwanted physical contact by Buzzetta occurred in retaliation for his alleged complaint of harassment against Buzzetta. Thus, to the extent that evidence of unwanted physical contact post-dates plaintiff's testimony before the Waterfront Commission or other protected activities, such evidence is admissible. The court does not find that potential prejudice outweighs the probative nature of this evidence. Moreover, any prejudice is balanced by the jury's ability to consider plaintiff's contradictory prior testimony denying that Buzzetta touched him inappropriately. Accordingly, defendant's motion is denied in this respect.
B. Testimony Regarding Racial Slurs in the Workplace
Defendant also moves to preclude the anticipated testimony of Clint Catucci, ASI's Assistant Terminal Manager and Facilities Security Officer at ASI's Brooklyn terminal, regarding racial slurs uttered at the workplace. Defendant asserts that Mr. Catucci testified that he had heard such slurs, but that he had not heard any slurs since 2002, the year before plaintiff commenced his employment with ASI in 2003 and, thus, Catucci's testimony on this point is not relevant to plaintiff's hostile work environment claims. (Def. Mem. at 7-8.) Defendant further argues that Mr. Catucci's testimony regarding overheard racial slurs is "unreliable hearsay" from unidentified sources. (See Def. Reply Mem. at 4.) Defendant also argues that Mr. Catucci's testimony regarding racial slurs is not probative of plaintiff's hostile work environment claims because the slurs were uttered in a "joking manner" and that introduction of the testimony will be "highly prejudicial." (Def. Mem. at 8.)
Plaintiff argues that Mr. Catucci's testimony regarding racial slurs prior to his employment at ASI is relevant to demonstrate a hostile work environment. (Pl. Mem. at 1-2.) Specifically, plaintiff argues that Mr. Catucci's testimony will "prove the pattern and practice of Defendant in allowing such racial slurs. Such evidence is also admissible to show how long Defendant has allowed such racial harassment and is relevant to an assessment of punitive damages." (Id.)
As previously noted, evidence must be relevant to be admissible. See Fed. R. Evid. 402. Because plaintiff did not commence employment with ASI until January 2003, evidence concerning alleged racial hostility at ASI before January 2003 is not relevant to plaintiff's hostile work environment claims and thus, such evidence lacks sufficient probative value. Plaintiff cannot recover damages, if any, for conduct pre-dating his employment. See Legrand v. New York Rest. School/Education Mgmt. Corp., No. 02-CV- 2249, 2004 U.S. Dist. LEXIS 12893, at *25 n.1 (S.D.N.Y. July 12, 2004) (declining to consider for summary judgment purposes evidence of alleged racial hostility that occurred prior to the commencement of the plaintiff's employment with the defendant) (citation omitted). Moreover, the court finds that any minimal probative value of the evidence concerning alleged racial hostility that occurred before plaintiff's commencement of employment at ASI is substantially outweighed ...