Opinion
00 Civ. 5496 (VM).
September 18, 2001
DECISION AND ORDER
BACKGROUND
The above-referenced matter has been scheduled for trial from October 9 to October 23, 2001. Presently before the Court are the parties' motions in limine. On September 7, 2001, the parties appeared at a final pre-trial conference on the record at which time the Court issued its ruling on the motions. The Court's September 7, 2001 ruling is incorporated in and amended by this Decision and Order.
A. THE PORT AUTHORITY'S MOTION IN LIMINE
Defendants Port Authority of New York and New Jersey and Gary Stevens (collectively "the Port Authority") move to limit or exclude the introduction of three portions of plaintiff Elizabeth Abdus-Sabur's (hereinafter "Abdus-Sabur") proposed evidence.
First, the Port Authority moves to preclude the lay opinion testimony of Ivy English, pursuant to Rule 701 of the Federal Rules of Evidence ("FRE") and the Second Circuit's decision in Hester v. Bic Corp., 225 F.3d 178 (2d Cir. 2000). Specifically, the Port Authority objects to two aspects of Ms. English's proposed testimony: (1) her testimony that Gary Stevens gives "breaks to white male toll collectors and not black toll collectors with respect to late tickets and the reporting of customer complaints"; and (2) her statement that "Mr. Stevens did not make a serious effort to create a harmonious work atmosphere for black employees at the toll plaza."
At this juncture, the Court denies the Port Authority's motion in limine as to Ivy English with a strong word of caution to plaintiff's counsel about the proper bounds of opinion testimony by lay witnesses.
The record thus far reflects that Ivy English is a peer of defendant Gary Stevens, who also worked with Abdus-Sabur during the time period relevant to the present dispute. Therefore, Ms. English may be an important fact witness. The Hester decision recognized that, "[w]itnesses are free to testify fully as to their own observations of the defendant's interactions with the plaintiff or other employees . . . Hester, 225 F.3d at 185. Given her position and proximity to the parties in this case, Ms. English is free to testify about facts and events of which she has personal knowledge. If Ms. English observed disparate treatment of Abdus-Sabur or other employees, such testimony may be materially relevant at trial.
Nevertheless, some of Ms. English's testimony on the record appears to be conclusory and speculative opinion. Specifically, her testimony that "Mr. Stevens did not make a serious effort to create a harmonious work atmosphere for black employees at the toll plaza" is clearly Ms. English's own subjective opinion about Mr. Stevens's efforts with regard to the environment for black employees at the toll plaza. This is an example of precisely the kind of conclusory, subjective opinion that Ms. English should not offer, for it represents not facts that she observed, but her own views about events as she may have perceived them.
Although it would be premature for the Court to exclude Ms. English's proposed testimony in its entirety, Abdus-Sabur shoulders a very heavy burden if she seeks to elicit Ms. English's subjective opinions. In accordance with the Second Circuit's decision in Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911-12 (2d Cir. 1997), such lay opinion testimony is only admissible if (1) the witness establishes a strong foundation of intimate knowledge of defendant's operation, (2) the opinion offered is rationally based on observations about the defendant's decision making process, and (3) the testimony remains focused on objective facts.
Merely because an employee at some point had misgivings about the racial and religious harmony in a workplace does not by itself establish that she can satisfy the rigorous foundational standard regarding intimate knowledge about defendant's operations. Such a foundation must necessarily rely on objective criteria such as years on the job, total and type of experience and opportunities to observe and acquire intimate knowledge about defendant's operations. Therefore, mere unsubstantiated opinions about racial or religious motivations will not be allowed, or if given, will be stricken at trial. The lay opinion testimony of Ivy English will be permitted only if the plaintiff carries her burden underLightfoot and Hester and establishes the witness's solid foundation for any such testimony.
Second, the Port Authority seeks to exclude the testimony of Horace Cardoza, Leonard Vernon, Neville Evans and Janet Evans, all Port Authority employees who have filed discrimination and retalation claims against defendant. Defendants object to their testimony on the grounds of FRE 401, 403 and 404. The Port Authority's motion in limine as to these witnesses is denied.
Several courts have held that in an action under Title VII of the Civil Rights Act, evidence of discrimination against other employees is relevant to establishing a generally hostile work environment, a continuing pattern of misconduct, and the defendant's notice of complaints during the relevant time period. See Perry v. Ethan Allen, Inc., 115 F.3d 143, 151 (2d Cir. 1997); Waterson v. Plank Road Motel Corp., 43 F. Supp.2d 284, 288 (N.D.N.Y. 1999). Furthermore, Abdus-Sabur correctly notes that one of the Port Authority's primary assertions is that plaintiff never properly complained of the alleged discrimination through the appropriate channels. Abdus-Sabur is not only entitled to the testimony of these four witnesses to seek to establish a pattern of discrimination, but also to rebut the charge that she never filed an appropriate internal complaint.
The Court cautions, however, that four individual complaints in and of themselves do not conclusively establish a pattern of discrimination in an operation as sizeable as that of the Port Authority. Unless Abdus-Sabur can establish that these complaints generally covered a specified time frame reasonably coincident with the period at issue and that they bear a reasonable relationship to the types of conduct and the operation, policy or employees involved in the present dispute, the testimony would not be admissible to sustain an inference of a relevant pattern. In other words, evidence of discrimination against others is probative only to the extent that it is part of objective evidence tending to establish a continuing pattern.
In Schwapp v. Town of Avon, 118 F.3d 106, 111-12 (2d Cir. 1997), the Court of Appeals addressed a similar issue on a motion for summary judgment. In Schwapp, the court held that incidents of discrimination against employees other than plaintiff "may be of limited probative value," but that plaintiff may be able to connect those incidents to a pervasive or continuing pattern of conduct. Therefore, Schwapp held that summary judgment for defendant was improper without a consideration of these other incidents. Inherent in the Court of Appeals' decision, however, is the need to firmly establish the connection between the other incidents and the alleged continuing pattern of defendant's conduct. of course, the evidence may still be relevant and admissible to support a claim of notice and knowledge that complaints had been filed.
Defendants have also objected to the testimony of these four witnesses pursuant to FRE 701. Although declining to preclude the proposed testimony on the grounds of FRE 701, the Court reiterates again the heavy burden that Abdus-Sabur must shoulder before the opinion testimony of a lay witness may be introduced into evidence. The witnesses must (1) establish a strong foundation (2) of intimate knowledge (3) about defendant's operations. Any unsubstantiated opinions from these witnesses relating to the efficacy or non-efficacy of the Port Authority's investigations of their complaints will be stricken, unless the proper foundation is laid.
B. ABDUS-SABUR'S MOTION IN LIMINE
Abdus-Sabur first moves to exclude any testimony or evidence relating to the "Michael Carter incident," pursuant to FRE 403. Defendants seek to establish that Abdus-Sabur falsely accused Michael Carter, a supervisor at the Port Authority, of sexual harassment for her own personal reasons. This motion in limine is denied.
The standard for excluding evidence pursuant to Rule 403 is well-established: relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. As the Second Circuit noted, "for relevant evidence to be excluded on this basis, the imbalance must be substantial, and the prejudice must be unfair." See Perry v. Ethan Allen. Inc., 115 F.3d 143, 151 (2d Cir. 1997). It is worth noting that all testimony has the potential to be damaging, but that in and of itself is not grounds for exclusion under Rule 403.
At the outset, the Court notes that the Port Authority advances several justifiable reasons for the introduction of the Michael Carter incident. First, defendants note that Gary Stevens's attitude and behavior toward Abdus-Sabur was animated in part by his knowledge of the Michael Carter incident. Thus, the incident is part of the backdrop of Stevens's working relationship with Abdus-Sabur. Furthermore, the Port Authority correctly notes that Abdus-Sabur asserts a claim of infliction of emotional distress and that the Michael Carter incident may reflect on Abdus-Sabur's own overall emotional state. Thus, evidence of the Michael Carter incident has probative value with respect to the issue of Abdus-Sabur' s damages.
The Court further finds that the prejudice to Abdus-Sabur from introduction of the incident is not so substantial that it warrants exclusion. Abdus-Sabur is free to conduct cross-examination of any witness testifying to the incident, and she may also continue to vigorously contest that any allegations of sexual harassment were ever made. Therefore, Abdus-Sabur's motion to exclude evidence of the Michael Carter incident is denied.
Second, Abdus-Sabur moves to preclude defendants from raising the defense of adequate remedial measures because they asserted the attorney-client privilege in the deposition of Robert Durando, who was questioned about charges brought by a non-party, Horace Cardoza. Abdus-Sabur correctly notes that if the Port Authority had raised or raises the defense of adequate investigation and response to a complaint of discrimination, it would waive the attorney-client privilege with respect to communications between counsel and client pertaining to that investigation. See Brownell v. Roadway Package System. Inc., 185 F.R.D. 19, 24-25 (S.D.N.Y. 1999); Pray v. New York City Ballet, No. 96 Civ. 5723, 1997 WL 266980, *1 (S.D.N.Y. 1997)
But Abdus-Sabur imprecisely characterizes the Port Authority's position: the Port Authority argues that it had an adequate procedure for addressing complaints of discrimination and that Abdus-Sabur failed to avail herself of these procedures, pursuant to Faragher v. City of Boca Raton, 524 U.S. 775 (1998). This is altogether different from saying that a Port Authority attorney fully and fairly investigated Abdus-Sabur's complaint and that the investigation found no evidence of discrimination.
Therefore, the Court finds no waiver of the attorney-client privilege and no reason to preclude the defense under Faragher. By raising the defense of adequate procedures, the Port Authority has opened the door generally to inquiry as to what those procedures were and whether they were sufficient. From the record, it appears that Abdus-Sabur has not been precluded at all from that line of inquiry, and she will not be precluded from pursuing it at trial. One instance when the attorney-client privilege was invoked involved the post-litigation investigation of the complaint of a Port Authority employee who is not a party to this case. The Court has found no case, and the parties cite none, in which the attorney-client privilege was pierced under those circumstances.
It is equally clear, however, that if the Port Authority offers the testimony of an employee or attorney who investigated Abdus-Sabur's complaints of discrimination in order to show that such claims were unfounded, then the attorney-client privilege will be waived. As of yet, the Court has seen no evidence of that specific defense here and, consequently, no waiver of the attorney-client privilege. The Port Authority is not precluded from asserting the Faragher defense under these circumstances.
In light of its finding, the Court sustains the Port Authority's objection to calling Port Authority attorney Richard Williams as a witness. The Port Authority has represented on the record that Mr. Williams played no part in any investigation of Abdus-Sabur's complaints.
ORDER
For the foregoing reasons, it is hereby
ORDERED that the Port Authority's motion to limit the testimony of Ivy English is denied, with the qualification that any attempt by Abdus-Sabur to introduce Ms. English's opinion testimony must satisfy the requirements as set forth in Lightfoot and Hester and it is further
ORDERED that the Port Authority's motion to exclude the testimony of Horace Cardoza, Leonard Vernon, Neville Evans and Janet Evans is denied; and it is further
ORDERED that Abdus-Sabur's motion to exclude the introduction of the Micahel Carter incident is denied; and it is further
ORDERED that Abdus-Sabur's motion to preclude the Port Authority from asserting its Faragher defense is denied; and it is finally
ORDERED that the Port Authority's motion to preclude the trial testimony of Richard Williams is granted.
SO ORDERED.