SATTER & ANDREWS, LLP, ROSS P. ANDREWS, ESQ. Syracuse, NY, Counsel for Plaintiff.
HON. ERIC T. SCHNEIDERMAN, DOUGLAS J. GOGLIA, ESQ., Attorney General for the State of New York Albany, NY, Counsel for Defendants.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Currently before the Court, in this employment discrimination action filed by Xu-Shen Zhou ("Plaintiff") against the State University of New York Institute of Technology, Dr. Lisa Berardino, Dr. Stephen Havlovic and Dr. William Langdon ("Defendants"), is Plaintiff's motion in limine seeking to preclude certain evidence regarding his teaching performance during his previous employment with Bloomsburg University. Defendants oppose the motion. For the following reasons, Plaintiff's motion is denied.
I. Relevant Background
This action was commenced in April of 2008. Plaintiff amended his complaint in April of 2009 and Defendants timely filed their answer to the Amended Complaint. Generally, Plaintiff's Amended Complaint alleges that Plaintiff, a person of Chinese nationality and origin, was subject to discrimination during his employment at the State University of New York Institute of Technology ("SUNY IT"). This Court has liberally construed Plaintiff's Amended Complaint to assert claims of discrimination, retaliation, and hostile work environment pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981, and Section 292 of the New York State Human Rights Law ("NYHRL"). See Zhou v. State Univ. of New York Inst. of Tech., No. 08-CV-0444, 2011 WL 4344025, at *1 (N.D.N.Y. Sept. 14, 2011).
In the Fall of 2005, Plaintiff began his employment with SUNY IT as a faculty member teaching finance in the School of Business. Dr. Spina, the Interim President of SUNY IT, extended the offer of employment to Plaintiff. During Plaintiff's interviews for the position, he never disclosed that he received complaints from students about his teaching at Bloomsburg University, his former employer.
In August of 2009, Defendants served Bloomsburg University with a subpoena directing production of documents related to Plaintiff's employment. Plaintiff moved to quash the subpoena in the District Court for the Middle District of Pennsylvania, which was later denied on January 5, 2010. Bloomsburg University produced the documents to Defendants on February 12, 2010. Defendants did not move for summary judgment until October of 2010, and never moved to amend their Answer to add the after-acquired evidence doctrine as an affirmative defense.
Nonetheless, in support of their motion for summary judgment, Defendants raised the after-acquired evidence issue, arguing that, should Plaintiff prevail on his discrimination claim, any damages should be limited based on evidence of Plaintiff's poor teaching evaluations at Bloomsburg University. Defendants argued that, had they been aware of those evaluations, Plaintiff would not have been hired to begin with. ( See Dkt. No. 70-1, at 11 [Defs.' Mem. of Law in Support of Mot. for Summ. J.].) In opposing the motion for summary judgment, Plaintiff advanced the same arguments he presents now in support of his motion in limine, including that, because the after-acquired evidence doctrine is an affirmative defense that must be pled, which Defendants failed to do, the Court should not consider it. ( See Dkt. No. 78-5, at 26-28 [Pl.'s Mem. of Law in Opp'n to Mot. for Summ. J.].) Because the Court granted Defendants' motion for summary judgment in its entirety, it did not address the parties' arguments regarding the after-acquired evidence doctrine. However, the Court did consider the evidence of Plaintiff's evaluations at Bloomsburg University as admissible evidence in determining that the record evidence does not support a finding of pretext on Plaintiff's discrimination claim. See Zhou, 2011 WL 4344025, at *4. The Court further noted, in granting Defendants' motion for summary judgment regarding Plaintiff's retaliation claim, that Plaintiff advanced the same arguments regarding pretext on that claim as he did regarding his discrimination claim, and that the Court rejects those arguments for the same reasons it rejected them regarding the discrimination claim. See id., at 13.
Plaintiff appealed this Court's decision granting Defendants' motion for summary judgment regarding Plaintiff's retaliation claim, but did not appeal that portion of this Court's decision granting summary judgment regarding Plaintiff's discrimination and hostile work environment claims. Consequently, the Second Circuit determined that Plaintiff abandoned those claims. See Zhou v. State Univ. of New York Inst. of Tech., 499 F.Appx. 105, 107 n.1 (2d Cir. 2012). Regarding Plaintiff's retaliation claim, the Second Circuit found that, viewing the evidence in a light most favorable to Plaintiff, they raise a triable issue of fact that a fact finder could resolve in Plaintiff's favor. See Zhou, 499 F.Appx. at 109-10. The Second Circuit made no ruling regarding the inadmissibility of evidence relied on by this Court, despite Plaintiff having argued before the Circuit that the evidence regarding Plaintiff's teaching evaluations at Bloomsburg University is inadmissible.
Ultimately, the Second Circuit vacated this Court's decision regarding Plaintiff's retaliation claims against all Defendants except Dr. Peter Spina. See Zhou v. State Univ. of New York Inst. of Tech., 499 F.Appx. 105 (2d Cir. 2012). Accordingly, Plaintiff's retaliation claims against all Defendants except Dr. Spina remain to be tried. In support of these claims, Plaintiff essentially alleges that Defendants decided not to renew his two-year employment contract in retaliation for Plaintiff's complaints of race or national origin discrimination by Dr. Langdon.
II. The Parties' Arguments
Plaintiff argues that evidence of his poor teaching reviews at Bloomsburg University prior to his employment at SUNY IT should be precluded for the following four reasons: (1) it is irrelevant and inadmissible to prove that Plaintiff had a propensity for poor teaching; (2) it does not fall within the "after-acquired evidence" doctrine because it does not constitute misconduct that occurred during Plaintiff's employment with SUNY IT; (3) the after-acquired evidence doctrine is an affirmative defense, which Defendants failed to plead in their answer; and (4) Defendants cannot establish that Plaintiff's performance at Bloomsburg University constituted misconduct of such severity that they would have terminated Plaintiff on that ground.
Defendants oppose Plaintiff's motion on the following two grounds: (1) evidence of Plaintiff's poor teaching reviews at Bloomsburg University and his false statements about those reviews during his interviews with SUNY IT are admissible to impeach Plaintiff's credibility; and (2) such evidence is admissible under the after-acquired evidence doctrine to limit damages, which was not required to be pled as an affirmative defense, especially ...