United States District Court, E.D. New York
MEMORANDUM AND ORDER
RAYMOND J. DEARIE, District Judge.
Before the Court is a motion in limine by defendant Bay Crane Service Inc. ("Bay Crane"). The defendant Bay Crane contends that the plaintiff, Deochan Singh, should be precluded from admitting into evidence the racial composition of Bay Crane's crane operators, as (1) the evidence is statistical evidence requiring expert analysis to be properly admitted, and (2) the evidence is not relevant, because the racial composition of the hiring pool for the crane operators is determined by a union and "other realities of the industry." For the reasons set forth below, the motion is denied.
Plaintiff Singh, a Guyanese man of Indian descent, commenced this action on February 14, 2011, bringing claims of unlawful discrimination against defendant Bay Crane, pursuant to 42 U.S.C. § 1981 and New York law. Complaint, ECF Docket # 1. Plaintiff Singh alleges that he was employed by Bay Crane as a crane operator from 1997 until about 2000, during which time he worked on Bay Crane's project for the New York City Transit Authority for the maintenance and operation of the New York City subway system (the "Transit Project"). Id. at ¶¶ 8, 10, 13. In 2000, Bay Crane lost the Transit Project contract to Southern Service Group ("Southern Service"), but Southern Service hired all of the employees from Bay Crane who had worked on the Transit Project, including Singh. Id. at ¶¶ 14, 16-17. On September 1, 2010, Bay Crane won the Transit Project contract back from Southern Service and, according to Plaintiff Singh, hired back all of its crane operators from Southern Service, except for Singh. Id. at ¶¶ 19, 21. Singh was the only crane operator of Indian descent and one of only two non-White minority crane operators working on the Transit Project at Southern Service. Id. at ¶ 20. Accordingly, plaintiff Singh alleges that Bay Crane refused to hire him as a construction crane operator on account of his race and national origin. Id. at ¶¶ 22-23, 25, 27.
Defendant Bay Crane moved for summary judgment on September 7, 2012, arguing that Singh had failed to establish a prima facie case of discrimination and proffering a nondiscriminatory reason for its decision not to hire him (that it only hired the crane operators who had been working at a certain location of the Transit Project). Motion for Summary Judgment by Bay Crane Service Inc., ECF # 30. Singh countered by pointing to evidence in the record suggesting that Bay Crane's justification was false, as well as additional circumstantial evidence permitting the inference that Bay Crane refused to hire him on account of his race or national origin. Memorandum in Opposition to Motion for Summary Judgment by Bay Crane Service Inc., ECF # 32. On October 9, 2013, this Court denied Bay Crane's motion for summary judgment, finding that, "if a fact-finder agreed that Singh was the only available crane operator... not hired by Bay Crane, that fact, coupled with the evidence that forty-three of the forty-nine other Bay Crane operators on the Transit Authority contract were white, would permit an inference of discrimination." Singh v. Bay Crane Services, Inc., 11 CV 720(RJD)(RER), 2013 WL 5655931, at *3 (E.D.N.Y. October 11, 2013). The Court similarly denied Bay Crane's motion to reconsider two months later. Singh v. Bay Crane Services, Inc., 11 CV 720(RJD)(RER), 2013 WL 6628961 (E.D.N.Y. December 16, 2013).
Facing trial-currently scheduled for May 4, 2015-defendant Bay Crane moves in limine for the Court to preclude plaintiff Singh from admitting into evidence the racial composition of Bay Crane's crane operators, as (1) the evidence is statistical evidence requiring expert analysis to be properly admitted, and (2) the evidence is not relevant, because the racial composition of the hiring pool for the crane operators is determined by a union and "other realities of the industry." Defendant's Motion In Limine, ECF Docket# 52.
STANDARD OF REVIEW
"Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4 (1984). "The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial." Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.1996) (quotations omitted).
"Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. Wechsler v. Hunt Health Sys., Ltd., 381 F.Supp.2d 135, 140 (S.D.N.Y. 2003). The Federal Rules of Evidence provide that "[r]elevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court." Fed.R.Evid. 402. However, even relevant evidence should be excluded "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Id. at 403.
1. The Admissibility of Statistical Evidence in Disparate Treatment Claims
Statistical evidence alone may not form the basis of a disparate treatment action; however, statistical evidence may be used as circumstantial evidence to bolster such a claim. See, e.g., Hudson v. Int'l Bus. Machs. Corp., 620 F.2d 351, 355 (2d Cir. 1980) ("[Plaintiff] has failed to establish his case and the statistics standing alone do not create it."); Drake v. Delta Air Lines, Inc., 94 CV 5944(FB)(RML), 2005 WL 1743816, at *6 (E.D.N.Y. July 21, 2005) ("Statistics alone are insufficient in a disparate-treatment claim because an individual plaintiff must prove that he or she in particular has been discriminated against.") (citing Hudson, 620 F.2d at 355) (emphasis in original); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 (1973) (finding in a race discrimination disparate treatment action that "statistics as to [the employer]'s employment policy and practice may be helpful to a determination of whether [the employer]'s refusal to rehire [the employee]... conformed to a general pattern of discrimination against blacks.")
In Luciano v. Olsten Corp., the Second Circuit determined that a district court had not erred in admitting into evidence certain simple statistical evidence in a gender discrimination disparate treatment case without an expert. 110 F.3d 210, 217-218 (2d Cir. 1997). The district court's stated reasons in Luciano were as follows: "(l) the statistics were relevant for the limited purpose offered by [the plaintiff], as one piece of circumstantial evidence supporting her claim of pretext...; (2) the raw data was credible and reliable because it came from [the defendant company]'s records and admissions...; (3) the data was probative of discriminatory intent because a sufficiently relevant labor pool was identified...; (4) an expert was not necessary because the data offered was not of a scientific nature but merely reflected existing conditions at the [c]ompany at the time of [the plaintiff]'s termination; and (5) the evidence did not unduly prejudice the defendants, " largely because of a "cautionary instruction" to the jury regarding the usefulness of statistics. Id.
Later that same year, the Second Circuit again found that "[i]n view of the simple nature of the statistical analysis, the district court's cautioning instruction, and the overall evidence in the case, the district court did not abuse its discretion by receiving... into evidence" simple statistical evidence in an age discrimination disparate treatment case without an expert. Stratton v. Dep't. for the Aging for the City of New York, 132 F.3d 869, 877 (2d Cir. 1997). The Stratton court's stated reasons were as follows: (1) the "charts were reliable, " because "[t]hey were [the] defendants' own documents, " and plaintiff had only added the ages, which were basic, undisputed information taken from the defendants' own records; (2) no expert was required for statistical evidence in disparate treatment cases where only "simple arithmetic was used" and "[t]here were no sophisticated statistical theories that needed explanation"; (3) the defendants "could have offered their own charts or statistics or called their own expert witness, " to counter plaintiffs interpretation of the information; (4) the drop in average age was relevant and admissible "to support a claim of discrimination even in a disparate ...