The opinion of the court was delivered by: Matsumoto, United States District Judge:
On January 14, 2005, Zinoviy Levitant ("plaintiff") brought this action against his former employer, the City of New York Human Resources Administration ("defendant"), pursuant to Title VII of the Civil Rights Act of 1964, alleging that defendant discriminated against him and subjected him to a hostile work environment based on his race and national origin (the "Title VII" action). In September 2008, plaintiff filed a second lawsuit pursuant to the Americans with Disabilities Act ("ADA") and the Family and Medical Leave Act ("FMLA"), alleging discrimination on the basis of an alleged disability (the "ADA/FMLA" action).
By Memorandum and Order dated December 18, 2008, familiarly with which is presumed, Judge Bianco denied defendant's motion for summary judgment in the Title VII action.
See Levitant v. City of New York Human Resources Admin., 625 F. Supp. 2d 85 (E.D.N.Y. 2008). On the same day, the Title VII case was transferred to this court. The court has set trial to begin in the Title VII case on April 4, 2011.
Pending before the court is a motion in limine by defendant in the Title VII action to preclude plaintiff from introducing certain evidence at trial. For the reasons set forth below, 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); Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Grp., 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(a) ("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-5220, 1998 U.S. Dist. LEXIS 15093, at *11 (S.D.N.Y. Sept. 25, 1998) (citations omitted). Indeed, courts considering a motion in limine may reserve judgment until trial, so that the motion is placed in the appropriate factual context. See Nat'l 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.
I.Evidence Concerning Dismissed Claims
Defendant first moves to preclude evidence and testimony regarding claims that were dismissed by Judge Bianco in his summary judgment decision. Specifically, defendant moves to preclude evidence regarding: (1) plaintiff's discrimination and hostile work environment claims based upon defendant's failure to transfer plaintiff in 2000 and 2001; (2) retaliation due to plaintiff's participation in union activities; and (3) grievances and complaints filed between 2002 and 2004 regarding unsanitary working conditions or with plaintiff's union or with the Human Resources Administration ("HRA") or the Office of Equal Employment Opportunity ("EEO"), other than the August 12, 2003 internal EEO complaint. (ECF No. 89, Defendant's Memorandum of Law in Support of its Motion in Limine, ("Defs. Mem."), at 3-5.) Defendant argues that Judge Bianco's summary judgment decision precludes introduction of this evidence, and that it is "irrelevant, unduly prejudicial and likely to confuse the jury." (Id.)
Defendant argues that Judge Bianco's summary judgment decision precludes plaintiff from introducing evidence of any "discrete acts of alleged discrimination and hostile work environment occurring prior to October 17, 2003." (ECF No. 90, Defendant's Reply Memorandum of Law in Further Support of Its Motion in Limine ("Defs. Reply") at 2.) Specifically, defendant argues that evidence regarding the denial of plaintiff's alleged request to be transferred to the Brooklyn Adult Protective Services Unit, Assessment Unit ("Assessment Unit"), in 2001, is barred. (Id. at 3.) Plaintiff does not oppose defendant's motion on this point. The court agrees that Judge Bianco found that claims based on "discrete acts of discrimination" that occurred prior to October 17, 2002 were time barred. Levitant, 625 F. Supp. 2d at 96 n.6. These include, for example, defendant's alleged failure to transfer plaintiff in 2000, and defendant's allegedly retaliatory actions prior to August 2002. Id. at 97, 105-06.
Accordingly, defendant's motion to preclude plaintiff from introducing evidence regarding the denial of transfer to the ...