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Gwendolyn Cole-Hoover, M.D. v. State of New York Department of Correctional Services

August 3, 2011


The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge


In accordance with 28 U.S.C. §636(c), the parties have consented to jurisdiction by a United States Magistrate Judge [20].*fn1 Before me are defendants' motions in limine to preclude evidence of the arbitration [210], to preclude hearsay statements [215], to instruct the jury as to the substantive law prior to trial [221] and to permit witness John Howard, M.D. to testify via video conference [223], as well as defendants' motion to bifurcate [250]. Oral argument was held on June 29, 2011. At that time, defendants' other motions in limine were addressed. June 29, 2011 Text Order [254]. For the following reasons, defendants' motions to preclude evidence of the arbitration [210] and to preclude hearsay statements [215] are granted in part and denied in part as set forth herein, and motions to instruct the jury as to the substantive law prior to trial [221], to permit Dr. Howard to testify via video conference [223], and to bifurcate [250] are denied.


The factual background of this case is set forth in my prior summary judgment decision [189].


A. Defendants' Motion to Preclude Evidence Concerning Plaintiff's Arbitration

Relying on Arlio v. Lively, 474 F.3d 46, 52 (2d Cir. 2007), defendants "move to preclude plaintiff from introducing the arbitrator's Opinion and Award, and any evidence pertaining thereto, at trial." Defendants' Memorandum of Law [211], p. 1. Alternatively, defendants argue that plaintiff should be compelled to make an offer of proof prior to introducing such evidence. Id., p.4.

Pursuant to Fed. R. Evid. 402 "[e]vidence that is not relevant is not admissible." Arlio, 474 F.3d at 52. "'If an item of evidence tends to prove a fact that is of consequence to the determination of the action, it is relevant. If it does not tend to prove a material fact, it is irrelevant.'" Id. (quoting 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence §401.04[2][a], at 401-19 (2d ed. 2006)). "'A material fact is one that would affect the outcome of the suit under the governing law.'" Id.

In Arlio the plaintiff alleged that he was unconstitutionally suspended because of his political opinions. 474 F.3d at 50. "[T]he district court agreed with [the defendant] at the in limine hearing that the Arbitration Board's decision [finding that the plaintiff's suspension was not for cause] was irrelevant, since it was based solely on the particulars of the union collective bargaining agreement. It was not in any way an adjudication of Arlio's constitutional claims (nor could it be)". Id. at 52. "However, [the plaintiff] ultimately convinced the district court that testimony about the arbitration was necessary to explain why he was not seeking back wages in the present federal suit." Id. at 52.

In reversing the district court, the Second Circuit concluded that "the district court admitted evidence about the arbitration solely because it was probative of a non-material issue; why [the plaintiff] was not seeking back wages in the federal action. Thus, the testimony was not relevant and should have been excluded." Id. at 53. "Although the district court gave a limiting instruction indicating that the testimony should be considered only for the limited purpose of 'what is and what isn't claimed for damages by the plaintiff,' that same end could have been achieved simply by allowing [the plaintiff] to state that he was not suing for back pay. Instead, the district court permitted [the plaintiff] to testify at length about the arbitration proceeding and essentially informed the jury that [the plaintiff's] suspension was not for just cause." Id.

In opposition to defendants' motion in limine, plaintiff argues that "the Arbitrator's award in this matter is probative of material issues raised by the Plaintiff during the pendency of the matter in this court, as well as, with the Arbitrator. Plaintiff has alleged during both proceedings that she was subjected to a hostile work environment and based on the discriminatory motives of the hostile work environment Defendants she was subjected to adverse employment actions." Pendergrass Declaration [232], ¶6. Relying on similar arguments, plaintiff argued at the summary judgment stage that the arbitrator's decision was entitled to preclusive effect. I rejected this argument, concluding that "[t]he sole issue before arbitrator Day and litigated by the parties was whether plaintiff's suspension was supported by just cause as required by the terms of her employment, not whether a Title VII violation occurred. There is no indication that arbitrator Day found that the hostile work environment and disparate treatment experienced by plaintiff to be racially motivated, or that he intended to use these terms to denote Title VII violations." September 25, 2009 Decision and Order [189], p. 13.

In opposition to defendants' motion in limine, plaintiff also argues that the arbitration is relevant to issues at trial because she "was made to utilize her own financial resources to defend against charges that were the product of the discriminatory motives of the hostile environment Defendants; consequently, the arbitration itself is an element of Plaintiff's damages." Pendergrass Declaration [232], ¶5. However, as in Arlio, 474 F.3d at 53, this can be achieved by simply allowing plaintiff to state the costs she allegedly incurred in pursing the arbitration.

Plaintiff further argues that Fed. R. Evid. 803(8)(C) "provide[s] for the use and admission into evidence of a prior administrative finding at trial of an employment discrimination claim." Pendergrass Declaration [232], ¶7. "Prior administrative findings made with respect to an employment discrimination claim may, of course, be admitted as evidence at a federal-sector trial de novo." Chandler v. Roudebush, 425 U.S. 840, 864 n.39 (1976) (citing Fed. R. Evid. 803(8)(C)) (emphasis added). However, here, plaintiff did not arbitrate an employment discrimination claim. The sole issue was whether there was sufficient cause for plaintiff's suspension under her collective bargaining agreement.

Moreover, plaintiff relies (Pendergrass declaration [232], ¶7) on that aspect of my September 25, 2009 Decision and Order, in which I held that "'[t]he federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices can best be accommodated by permitting an employee to pursue fully both his remedy under the grievance-arbitration clause of a collective-bargaining agreement and his cause of action under Title VII. The federal court should consider the employee's claim de novo. The arbitral decision may be admitted as evidence and accorded such weight as the court deems appropriate.'" [189], p. 14 (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 59-60 (1974)). However, unlike here, Alexander addressed the ...

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