The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Plaintiff commenced this employment discrimination case against defendant the State University of New York at Buffalo ("UB") when she filed her original complaint on February 28, 2007. Plaintiff subsequently amended her complaint twice, with the second amended complaint being filed on December 11, 2007. In a status conference on April 23, 2010, the Court scheduled jury selection for November 16, 2010 and the commencement of trial proof for November 17, 2010. When plaintiff arrived for a final pretrial conference on November 15, 2010, the Court realized that the trial could not go forward at that time because plaintiff had not exchanged proposed trial exhibits with UB, had not submitted two copies of proposed trial exhibits to the Court, and had not filed any documents required by the Court's final pretrial order (Dkt. No. 89). A few days later, plaintiff completed her pretrial submissions and submitted her proposed witnesses and exhibits to UB and the Court. The Court decided that a schedule for the submission of written objections and responses would be the best way to review numerous objections that UB would bring regarding the six witnesses that plaintiff proposed and the 240 exhibits that she submitted.
Accordingly, the Court rescheduled jury selection for January 5, 2011.*fn1
The Court directed the parties to file any objections to each other's witness and exhibit list by December 3, 2010. The Court directed the parties to respond to each other's objections by December 10, 2010. Upon review of the parties' objections and responses, the Court rules on the objections as explained below.
A. Elements of Plaintiff's Claims
Most of the objections that the parties have filed came from UB, concerning plaintiff's witnesses and exhibits. Most of UB's objections, in turn, are objections to the relevance or to the hearsay nature of the evidence that plaintiff proposes to submit to the jury at trial. To resolve UB's objections and to put them in proper context, the Court will review the elements of each of plaintiff's claims. Plaintiff's Title VII and Title IX claims will be assessed together under the Title VII framework. Cf. Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995) ("[I]n a Title IX suit for gender discrimination based on sexual harassment of a student, an educational institution may be held liable under standards similar to those applied in cases under Title VII.").
1. Unlawful Termination Under Title VII and Title IX Plaintiff has alleged that UB criticized her, excluded her from departmental meetings, denied her training opportunities, and ultimately terminated her because she "had too much power as a woman on the staff" (Dkt. No. 42 at 7) and because of her gender generally. "In proving a case under Title VII, following the defendant's proffer of a justification, a plaintiff need only show that the defendant was in fact motivated at least in part by the prohibited discriminatory animus. A plaintiff has no obligation to prove that the employer's innocent explanation is dishonest, in the sense of intentionally furnishing a justification known to be false. The crucial element of a claim under Title VII is discrimination, not dishonesty." Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 156 (2d Cir. 2010) (citations omitted).
Accordingly, to prove her claim at trial, plaintiff must prove two elements by a preponderance of the evidence. First, plaintiff must prove that UB fired or failed to retain her. Second, plaintiff must prove that her gender was a motivating factor in UB's decision. See 5-88 Hon. Leonard B. Sand et al., Modern Federal Jury Instructions (Civil) ("Sand"), Instruction 88-42 (2010).
2. Hostile Work Environment Under Title VII and Title IX Plaintiff has alleged that UB created a hostile work environment by bullying and demeaning her on multiple occasions, including in front of co-workers. "Title VII of the Civil Rights Act of 1964 makes it 'an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.' As we made clear in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), this language is not limited to 'economic' or 'tangible' discrimination. The phrase 'terms, conditions, or privileges of employment' evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment. When the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (ellipsis in original) (internal quotation marks and citations omitted).
Accordingly, to prove her claim at trial, plaintiff must prove four elements by a preponderance of the evidence. First, plaintiff must prove that she was subjected to unwelcome harassment, ridicule, or other abusive conduct. Second, plaintiff must prove that the abusive conduct was motivated, at least in part, by her gender. Third, plaintiff must prove that the abusive conduct was so severe or pervasive that both plaintiff herself and a reasonable person in plaintiff's position would find her work environment so hostile or offensive that it would interfere with her work performance. Fourth, plaintiff must prove that UB's management employees knew, or should have known, of the abusive conduct. See Sand, Instruction 88-45.
3. Retaliation Under Title VII and Title IX Plaintiff has alleged that UB retaliated against her complaints of a hostile work environment by continuing to subject her to abusive and demeaning comments. "As we have explained, [t]o establish a prima facie case of retaliation, an employee must show  participation in a protected activity known to the defendant;  an employment action disadvantaging the plaintiff; and  a causal connection between the protected activity and the adverse employment action." Richardson v. Comm'n on Human Rights & Opportunities, 532 F.3d 114, 123 (2d Cir. 2008) (alteration in original) (internal quotation marks and citation omitted).
Accordingly, to prove her claim at trial, plaintiff must prove four elements by a preponderance of the evidence. First, plaintiff must prove that she complained of discrimination in her employment in some specific way. Second, plaintiff must prove that UB was aware of plaintiff's complaint. Third, plaintiff must prove that she was then subjected to a material adverse action by UB. With respect to the third element, an adverse action is 'material,' in terms of a retaliation claim, if it might have discouraged a reasonable worker from complaining about similar discrimination. The adverse action itself, however, need not be related to plaintiff's employment. Fourth, plaintiff must prove that UB took the adverse action, at least in part, because of plaintiff's complaint. See Sand, Instruction 88-46.
4. Discrimination Against an Advocate Under Title II of the ADA and Under the Rehabilitation Act
Finally, plaintiff has alleged that UB harassed her, retaliated against her, and ultimately fired her because it resented her public advocacy for disabled students, advocacy that included public criticism of UB over accommodations for disabled students. "Looking to the enforcement provisions of each statute . . . [plaintiff] has standing under both Title II of the ADA and the Rehabilitation Act. Title II's enforcement provision extends relief to 'any person alleging discrimination on the basis of disability.' 42 U.S.C. § 12133 (1994). Similarly, the Rehabilitation Act extends its remedies to 'any person aggrieved' by the discrimination of a person on the basis of his or her disability. 29 U.S.C. § 794a(a)(2). As the district court noted, the use of such broad language in the enforcement provisions of the statutes evinces a congressional intention to define standing to bring a private action under 504 [and Title II] as broadly as is permitted by Article III of the Constitution." Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997) (internal quotation marks and citation omitted), superseded in part on other grounds by Fed. R. Civ. P. 52; accord Barker v. Riverside County Office of Educ., 584 F.3d 821, 827 (9th Cir. 2009) ("As in our analysis of section 504 of the Rehabilitation Act, the language employed in the anti-retaliation provisions of Title II does not evince a congressional intent to limit standing to individuals with disabilities. Instead, the use of the phrase 'any individual' and the absence of any language limiting standing to those with disabilities indicates Congress's intent to grant standing under Title II 'as broadly as is permitted by Article III of the Constitution.' As we recognized in our Rehabilitation Act analysis, it appears that in formulating the language in Title II's anti-retaliation provisions, Congress recognized that disabled individuals may require assistance from others to defend their rights.") (citing Innovative Health).
Accordingly, to prove her claim at trial, plaintiff must prove three elements by a preponderance of the evidence. First, plaintiff must prove that she either has opposed any act or practice made unlawful by these statutes, or has aided or encouraged any other individual in the exercise or enjoyment of any right granted or protected by the statutes. For purposes of this element, it is irrelevant that plaintiff herself does not have a disability as that term is defined in the statutes. Second, plaintiff must prove that UB discriminated against her because of her advocacy. Third, plaintiff must prove that she suffered damages as a direct result of that discrimination. See Sand, Instruction 88A-3.
B. Relevance and Hearsay Generally
In the Federal Rules of Evidence, the general rules for relevance and hearsay are sufficiently straightforward that the Court will cite them for the sake of plaintiff, who is proceeding pro se. "'Relevant evidence' means 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; see also Gillming v. Simmons Indus., 91 F.3d 1168, 1173 (8th Cir. 1996) ("Although blanket evidentiary exclusions based on relevance grounds are not favored in discrimination cases, to be admissible the evidence must assist in developing a reasonable inference of discrimination.")
As for hearsay, "'[h]earsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). "Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Fed. R. Evid. 802. One exception to the hearsay rule that bears heavily on plaintiff's proposed exhibits is the "business record" exception in Rule 803(6). As explained below, this exception covers the medical records that plaintiff has submitted-so long as they are certified by the custodians of the records as originals or authentic copies-but will not cover most of the numerous e-mail messages that plaintiff has submitted. "An e-mail created within a business entity does not, for that reason alone, satisfy the business records exception of the hearsay rule." Morisseau v. DLA Piper, 532 F. Supp. 2d 595, 621 n.163 (S.D.N.Y. 2008) (citations omitted); see also id. at 621 ("None of the e-mails was sworn. In consequence, statements by plaintiff are admissible only to prove the fact that they were made. The same is true concerning statements by [the defendant employer's] personnel except to the extent that plaintiff relies upon them against the defendants. In that event, the statements are not hearsay by declarants.").
Plaintiff has proposed having six witnesses testify at trial, including herself. UB has filed objections about each of these witnesses. The Court will address each witness in turn.
Plaintiff proposes testifying in detail about her 17 years of employment as an administrative staffer at UB's Great Lakes Program, dating back to June 6, 1989. As she has explained in her pretrial statement, plaintiff seeks to testify that her employment history was positive for all 17 years. Plaintiff seeks to testify that her administrative responsibilities increased throughout the years when she worked for UB, especially through the year 2000, when she worked under Dr. Joseph V. DePinto, the Director of the Great Lakes Program from 1991--2000. Plaintiff seeks to testify that, although she always was a term employee at UB, her funding was renewed annually for the first 12 years of her employment history. After that, plaintiff received a three-year funding term beginning in March 2002. That three-year term was followed by a ...