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Hickey v. Myers

United States District Court, Second Circuit

June 3, 2013

THOMAS J. HICKEY, Plaintiff,

PHILLIP G. STECK, ESQ., COOPER ERVING & SAVAGE, LLP, Albany, New York, Attorneys for Plaintiff.



MAE A. D'AGOSTINO, District Judge.


Plaintiff Thomas Hickey, formerly the Dean of Liberal Arts and Sciences at the State University of New York College of Agriculture & Technology at Cobleskill ("SUNY Cobleskill" or "the College"), alleges that he was retaliated against by Defendants in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI"), and in violation of 42 U.S.C. § 1981 ("section 1981"), because he spoke about racial discrimination at SUNY Cobleskill. Defendants in this action are SUNY Cobleskill, its former President, Donald P. Zingale, and its former Provost and Vice President of Academic Affairs, Anne C. Myers. Currently before the Court are the following motions: (1) Plaintiff's motion in limine to exclude from evidence personal emails he sent using state resources (Dkt. No. 69); (2) Plaintiff's motion in limine to preclude Defendants from making any reference to a prior lawsuit that he filed against a former employer for breach of contract and defamation (Dkt. No. 88); and (3) Defendants' motion to quash three nonparty trial subpoenas (Dkt. No. 82).

The Court assumes familiarity with the factual background in this action, as well as previous orders and decisions in this matter.


A. Motions in limine

1. Standard of Review

The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n. 2 (1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). A court should exclude evidence 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 WL 665138, *3 (S.D.N.Y. Sept. 25, 1998). Courts considering a motion in limine may reserve decision until trial so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F.Supp. 276, 287 (S.D.N.Y. 1996). Alternatively, the court is "free, in the exercise of sound judicial discretion, to alter a previous in limine ruling" at trial as "the case unfolds, particularly if the actual testimony differs from what was contained in the [movant's] proffer." Luce, 469 U.S. at 41-42.

2. Plaintiff's motion to exclude evidence of his computer usage

On October 15, 2012, Plaintiff filed a motion in limine to prevent the admission of evidence showing Plaintiff's use of SUNY Cobleskill computers to conduct personal business, as well as e-mails containing racial and sexual material. See Dkt. No. 69. Plaintiff contends that evidence pertaining to his efforts to acquire an amateur baseball team amount to "after-acquired evidence" and cannot be used to show that Plaintiff's employment was terminated for improper use of state resources because this evidence was not obtained until after his removal as dean. See id. at 2. Further, Plaintiff argues that this evidence alone is insufficient to support his removal as dean, since e-mails recovered from his account relating to the baseball team amount to "less than one-hundredth of one percent" of the e-mail sent from his state account, and there is no evidence that he would have been terminated had the College known at the time he received or sent the e-mails in question. See id. Plaintiff also seeks to exclude e-mails that were sent as part of an e-mail distribution list involving several other faculty members that contained offensive jokes, including sexually and racially charged material. See id. at 3. Plaintiff argues that these e-mails occurred after he had been terminated as dean, do not amount to harassment or any other sanctionable offense because all participants consented to the exchange, and should be excluded as collateral evidence. See id.

Defendants contend that evidence of Plaintiff's use of SUNY Cobleskill computers to conduct his personal business is relevant to showing his poor job performance. See Dkt. No. 70 at 1. They argue that because Plaintiff has to show that the College's reasons for Plaintiff's discharge were pretextual, any evidence that Plaintiff was not adequately performing his job while dean must be admitted. See id. Defendants also intend to use Plaintiff's alleged misrepresentations of his computer use during his deposition as possible grounds to impeach his credibility. See id. at 2. Further, Defendants argue that evidence of Plaintiff's participation in e-mails involving ethnic and homophobic slurs undermines his attempt to show a good faith basis and reasonable belief that racial bias was the basis for decisions made by other administrators. See id.

Plaintiff argues that the evidence should be excluded on the ground that it is after-acquired evidence of employee wrongdoing, and is therefore inadmissible. See Dkt. No. 69 at 2. The after-acquired evidence rule applies where an employer attempts to introduce evidence that was not known by the employer at the time of the employee's termination as a post-hoc justification for the employer's decision to discharge the employee. See McKennon v. Nashville Banner Publ'g. Co., 513 U.S. 352, 361 (1995). In McKennon, the Supreme Court determined that after-acquired evidence of employee misconduct that was not the basis for the employer's decision to terminate the employee was not relevant for the purpose of determining whether the employer had violated the Age Discrimination in Employment Act ("ADEA").[1] See id. at 356. The Court determined that the evidence was relevant, however, for the purpose of determining the remedies available under the ADEA, and could be used to mitigate the employee's claims for backpay. See id. at 360-61. Thus, if the employer learned of employee wrongdoing that would have resulted in that employee's discharge had the employer known about it, that evidence could be considered in determining the appropriate damages. See id. ; see also Sigmon v. Parker Chapin Flattau & Klimpl, 901 F.Supp. 667, 682 (S.D.N.Y. 1995) (holding that an employer's discovery that an employee had misappropriated firm resources and improperly copied and retained documents during discovery was after-acquired evidence because it was an independent ground for the employee's termination that was not known at the time of the termination. This evidence could not be used to establish liability, but was admissible for the purpose of determining damages).

The Court finds that the computer usage and e-mails at issue in the present case qualify as after-acquired evidence under McKennon. This evidence was not known to Defendants at the time they made the decision to remove Plaintiff from his position as dean, thus it would be inappropriate to consider this evidence as a justification for Defendants' decision to remove Plaintiff from his position. While Defendants argue that this evidence is directly relevant to their justification that Plaintiff failed to perform his job adequately, there are a number of formal complaints relating to Plaintiff's job performance contained in the record that were known to Defendant's prior to Plaintiff's removal. Thus, the exclusion of this evidence will not be prejudicial to Defendants' case.

While after-acquired evidence is generally inadmissible to show liability in employment actions, such evidence may be admitted for the limited purpose of mitigating damages. See McKennon, 513 U.S. at 361. Thus, Defendants may introduce evidence of Plaintiff's computer usage and controversial e-mails to show that Plaintiff is only entitled to backpay until the date this evidence was discovered or not entitled to reinstatement or front pay, provided that this conduct alone would have supported Plaintiff's removal from his position. See id.; see also Zhou v. State University of New York Institute of Technology, No. 6:08-cv-0444, 2013 WL 2237842, *4-*5 (N.D.N.Y. May 21, 2013) (holding that the after-acquired evidence at issue may be used to impeach the plaintiff's credibility pursuant to Rule 608(b) of the Federal Rules of Evidence and to limit damages regarding the plaintiff's termination).

Based on the foregoing, the Court grants Plaintiff's motion in limine in part, and will exclude after-acquired evidence of Plaintiff's computer usage for the purpose of illustrating Defendants' theory of Plaintiff's job performance. The evidence will be admissible for the limited purpose of mitigating damages. To the extent that Plaintiff seeks to prevent Defendants from using this evidence for impeachment purposes on cross-examination, the Court reserves judgment.

3. Plaintiff's motion to preclude evidence of Plaintiff's previous lawsuit

On February 11, 2013, Plaintiff filed a motion in limine to preclude Defendants from making any reference to Plaintiff's prior lawsuit against his previous employer, Roger Williams University, for breach of contract and defamation. See Dkt. No. 88. The lawsuit culminated in a favorable settlement for Plaintiff eleven years ago, and involved issues of contract and tort law in the State of Rhode Island. See id. at 1. Plaintiff argues that this previous settlement is of no importance to the federal claims at issue in the present matter. See id. Plaintiff further argues that the previous lawsuit is a collateral matter that would require a mini-trial on the issues that were raised in that lawsuit in order for the jury to understand it, and would needlessly distract the jury from the issues in the present case. See id.

Defendants contend that the evidence is relevant because while Plaintiff was employed at SUNY Cobleskill, he threatened school officials by advising them of his earlier lawsuit, and "touted his earlier suit against Roger Williams University as part of his scheme to extort officials into retaining him in his position." Id. at 2. Defendants contend that Plaintiff threatened to sue his subordinates, those who encouraged participation in his evaluation, and threatened to sue those who were critical of his performance. See id. at 2.

While Plaintiff argues that evidence of the prior lawsuit would be used to attack Plaintiff's credibility ( See Dkt. 88 at 1), Defendants argue that this evidence goes directly to the merits of the case, and is inextricably intertwined with the Defendants' grounds for removing Plaintiff from his position. See Dkt. 91 at 2. They contend that Plaintiff's repeated publication of his prior lawsuit against Roger Williams University formed a basis for Defendants to believe that Plaintiff was manufacturing claims of racism and unequal treatment in bad faith as a continuation of his "boldface extortion tactics to attempt to retain his job." See id. at 3.

Two rules of evidence are implicated by Plaintiff's motion. Rule 404(b) prohibits the admission of evidence of "other crimes, wrongs, or acts... to prove the character of a person in order to show action in conformity therein." Fed.R.Evid. 404(b). Such evidence may be allowed, however, "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...." Fed.R.Evid. 404(b)(2). Rule 403 provides the district court with broad discretion to exclude evidence where the probative value is substantially ...

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