Equal Opportunity Emp't Comm'n v. AZ Metro Distribs.

Full title: EQUAL OPPORTUNITY EMPLOYMENT COMMISSION, Plaintiff, v. AZ METRO…

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Date published: Sep 9, 2019

15-CV-5370 (ENV) (PK) (E.D.N.Y. Sep. 9, 2019)

Opinion

15-CV-5370 (ENV) (PK)

09-09-2019

EQUAL OPPORTUNITY EMPLOYMENT COMMISSION, Plaintiff, v. AZ METRO DISTRIBUTORS, LLC, Defendant.

VITALIANO, D.J.

SHORT-FORM MEMORANDUM & ORDER

Jury selection in this case is scheduled to begin on September 16, 2019. Plaintiff Equal Employment Opportunity Commission ("EEOC") and defendant AZ Metro Distributors, LLC ("AZ Metro") have filed numerous final pre-trial motions and motions in limine. Dkt. 150-58, 160. Having considered the submissions of the parties, the Court resolves the motions in the manner and for the reasons as set forth below.¹

1 Though AZ Metro styled its "Motions to Bifurcate" as motions in limine, the Court addresses these pre-trial motions first.

Request	Ruling
I. Defendant's Motions to Bifurcate
(A) Defendant moves to bifurcate the trial inorder to provide separate trials of the claimsadvanced on behalf of each claimant pursuant	(A) Defendant moves to bifurcate trial of theclaims of Archibald Roberts and CesarFernandez pursuant to Federal Rule of Civil

to Federal Rule of Civil Procedure 42(b).Def.'s Mem. (Dkt. 160) at 16-19. Practicallyspeaking, the request for bifurcation is in thenature of severance.

Procedure 42(b), "[f]or convenience, to avoidprejudice, or to expedite and economize, thecourt may order a separate trial of one ormore separate issues, claims, crossclaims,counterclaims, or third-party claims." Seealso Def. Mem. at 16-17. In the SecondCircuit, it is well-established that bifurcationrests "firmly within the discretion of the trialcourt." Katsaros v. Cody, 744 F.2d 270, 278(2d Cir. 1984) (quoting In Re Master KeyAntitrust Litig., 528 F.2d 5, 14 (2d Cir.1975)). Defendant's arguments fall well shortof the standard in Federal Rule of CivilProcedure 42(b). The bifurcation of the casewith separate juries empaneled for the claimsof Roberts and Fernandez would not serve theinterests of judicial economy and expedition.The alleged termination of both claimants inviolation of the Age Discrimination inEmployment Act ("ADEA") occurred on thesame day in the same department. Pl.'s Opp.(Dkt. 160-42) at 16. Even the defenseasserted against each claim overlaps. Neither

were fired, AZ Metro says, each resigned andwere not discharged. Id. Accordingly, thereis substantial overlap to be expected withrespect to evidence and legal issues. This ishardly surprising where the claims are of co-workers working in the same department.That's why bifurcation in such situations, is"thus the exception, not the rule, and themovant must justify bifurcation on the basisof the substantial benefits that it can beexpected to produce." Lewis v. City of NewYork, 689 F. Supp. 2d 417, 428 (E.D.N.Y.2010). Here, defendant has not justified theadditional time and resources required tobifurcate the trial with substantial benefits.Defendant's claims of potential prejudice andalleged lack of evidence (Def.'s Mem. at 18)do not outweigh the other factors.Accordingly, the motion is denied.

(B) Defendant moves to bifurcate the trialbetween the liability and damages phasespursuant to Federal Rule of Civil Procedure42(b). Def.'s Mem. at 19-21.

(B) The same rule, case law andconsiderations apply as in I(A), supra.Legion among arguments of the tort defensebar, AZ Metro protests that any reference to

	damages before a determination of liabilitywould "prejudice defendant by confusing ormisleading the jury", relying upon Katsaros v.Cody, 744 F.2d at 278 (separating theprudence of a bank loan from the amount ofmoney eventually lost).Presumably, such an argument might be awinning one in the rare case, but not herewhere the issues of liability and damages areintertwined and rely upon overlappingtestimonial and documentary evidenceincluding a potential finding of "willful"action by defendant thereby triggeringliquidated damages. See Pl.'s Opp. at 16(citing 29 U.S.C. § 626(b)). Stated in plainterms, AZ Metro has not met its burden underRule 42. Its motion is denied.
II. Defendant's Motions in limine
(A) Defendant moves to exclude any claim orevidence regarding defendant's formeremployee Thomas Marigliano's change ofposition in February 2011 at AZ Metro, andhis departure from AZ Metro on January 31,	(A) Any relevance (Fed. R. Evid. 401) andprobative value of evidence regardingdefendant's former employee Marigliano'semployment history and departure from AZMetro is outweighed by its potential prejudice

2014. Def.'s Mem. at 2-16.

and risk of confusion for the jury. Fed. R.Evid 403; see also Delaney v. Bank of Am.Corp., 908 F. Supp. 2d 498, 504-05(S.D.N.Y. 2012), aff'd, 766 F.3d 163 (2d Cir.2014) (Excluding evidence of "two otherADEA-covered employees in other groups atBoA [who] were also laid off in 2010".);Leopold v. Baccarat, Inc., 174 F.3d 261, 271(2d Cir. 1999). Defendant's motion isgranted.

(B) AZ Metro moves to exclude any claim orevidence regarding New York StateDepartment of Labor UnemploymentInsurance Records as to Archibald Robertsand Cesar Fernandez. Def.'s Mem. at 21-22.

(B) Defendant has already acknowledged thatit told both Roberts and Fernandez it wouldnot, and ultimately it did not, contest theirclaims for unemployment insurance. See e.g.Def.'s Opp. to Pl.'s Motion #2 (Dkt. 151-1) at3-4, 7. The jury's time shall not be needlesslywasted by the introduction of documents toestablish facts that are not disputed. Thesefacts should be the subject of a stipulation.The Court anticipates that such a stipulationwill be submitted at the final pre-trialconference scheduled for September 12, 2019

	and ruling on the motion is deferred untilthen.
(C) Defendant moves to exclude evidence ofany claim regarding the draft charge ofdiscrimination of Archibald Roberts as "aclassic-out-of-court statement...inadmissibleto prove the truth of the matter asserted".Def.'s Mem. at 22-23.	(C) The subject document is clearly an out ofcourt statement and subject to exclusion underthe hearsay rules. It may, of course, beoffered if for a purpose recognized as anexception to the hearsay rule or for somepurpose other than for the truth of the assertedstatement. The ruling must abide the proffer.
(D) AZ Metro moves for leave to offerevidence regarding alleged "EEOC bias".Def.'s Mem. at 24-30.	(D) For the reasons set forth in the Court'srulings on Plaintiff's motions in limine atIII(C) and (D), infra, defendant's motion isdenied.
(E) Defendant moves to exclude "evidence ofdamages based upon the failure to mitigatedamages". Def.'s Mem. at 30-35.	(E) Defendant's motion to exclude evidenceof damages based on the failure of claimants'mitigation is denied. EEOC will have theopportunity to offer proof of damages and AZMetro will have its opportunity to provefailure to mitigate to the extent case lawpermits.
(F) AZ Metro moves to exclude "anyreference, statement, or argument related	(F) To the extent that this even qualifies as amotion in limine, without a specific showing

undisclosed mitigations of damages". Def.'sMem. at 35-36.	of EEOC's failure to comply with anappropriate discovery request, it is denied onthat basis. Without such a showing, it ismerely a restatement of the law wherebydamages evidence sought in discovery but notproduced is inadmissible. Either party is freeto object to any such attempted admission inviolation of this rule. See Fed. R. Civ. Pro 26;37.
(G) AZ Metro moves to exclude "anyreference, statement, or argument related toevidence not previously produced". Def.'sMem. at 36.	(G) Defendant's motion is denied for thereasons stated in the ruling in II(F), supra.
(H) Defendant moves to exclude "anyreference, statement, or argument related toany conciliation or settlement efforts". Def.'sMem. at 36.	(H) Evidence Rule 408 bars the admission ofevidence relating to settlement discussions.This motion is unopposed and is granted forthis reason.
(I) AZ Metro moves to exclude "anyreference, statement, or argument related toan undisclosed methodology as a measure ofdamages, including a specific amount relatedto compensatory or punitive damages".Def.'s Mem. at 36-38.	(I) Defendant's motion is denied, in principalpart, for the reasons set forth in the ruling inII(F), supra.Ultimately, the damages scheme set forth in29 U.S.C. § 626(b) is controlling of thepropriety of evidence on this score. In the

connection, the Court observes that, although"the Second Circuit has not prohibited partiesfrom suggesting particular damages amountsto the jury, [but] it has cautioned against thispractice." Bermudez v. City of New York, No.15-cv-3240 (KAM) (RLM), 2019 WL136633, at *10 (E.D.N.Y. Jan. 8, 2019)(citing Ramirez v. N.Y.C. Off-Track BettingCorp., 112 F.3d 38, 40 (2d Cir. 1997)). Thequestion of whether to permit such argumentby counsel is "left to the discretion of the trialjudge." Lightfoot v. Union Carbide Corp.,110 F.3d 898, 912-13 (2d Cir. 1997).Therefore, the Court cautions that plaintiffwill only be permitted, and solely in thecontext of closing argument, to state whatliability the evidence has established, whatdamages it has caused and to submit aspecific dollar amount that plaintiff contendsis the summation of any claims of lost wages,prejudgment interest and a potential award ofliquidated damages (but not punitivedamages). The Court will instruct the jury, as

	it does in every case, that statements bylawyers in closing are nothing more thanargument. See Edwards v. City of New York,No. 08-2199 TLM, 2011 WL 2748665, at *2(E.D.N.Y. July 13, 2011); see also Lightfootv. Union Carbide Corp., 110 F.3d 898, 912(2d Cir. 1997).
(J) Defendant moves to exclude "hearsay".Def.'s Mem. at 36-38.	(J) This request, essentially, duplicatesdefendant's request in II(C), supra. Theruling is the same.
(K) AZ Metro moves to exclude "anyreference, statement, or argument related todefendant's Motions in Limine". Def.'sMem. at 38-39.	(K) Although it is hard to fathom why theremight be any issue, there will be nodiscussion at any time before the juryregarding any motion or ruling by the Court,regardless when made.
III. Plaintiff's Motions in Limine
(A) EEOC moves to exclude evidence notpreviously provided in response to adiscovery request. Dkt. 150.	(A) The motion duplicates defendant'srequest at II(F), supra. The ruling is thesame.
(B) EEOC moves to exclude evidence of jobperformance. Dkt. 151.	(B) Since the basis for the request is notattributed to a specific rule, it is presumed thatplaintiff contends that job performance is notrelevant (Fed. R. Evid. 401), but, if so, its

prejudice outweighs its probative value (Fed.R. Evid 403). At any rate, evidenceconcerning the facts and circumstancesaround the time of the end of employment isrelevant to allegations of age discrimination,regardless of whether the defense is one of"improper discharge" or "resignation". Pl.'sMot. (Dkt. 151) at 1. The Second Circuit hasfound job performance to be a relevant factorin assessing whether discrimination occurred.See e.g. Delaney v. Bank of Am. Corp., 766F.3d 163, 169 (2d Cir. 2014) (Affirming asummary judgment grant in favor of theemployer in an age discrimination case where"the evidence supports BoA's assertion thatDelaney was terminated because of his poorperformance" and noting "we do not sit as asuper-personnel department that reexaminesan entity's business decisions."(quoting Scaria v. Rubin, 117 F.3d 652, 655(2d Cir.1997))). To be precise, evidence ofjob performance is "relevant probativeevidence" in unfair discrimination or

	retaliation claims. McPartlan-Hurson v.Westchester Cmty. Coll., No. 13-cv-2467(NSR)(LMS), 2018 WL 4907610, at *4(S.D.N.Y. Oct. 9, 2018). Accordingly, theplaintiff's motion, on these grounds, toexclude evidence relating to the jobperformance of Roberts and Fernandez isdenied.
(C) EEOC moves to exclude evidence relatingto "the scope or substance of the EEOC'sinvestigation". Dkt. 152.	(C) In line with the case law, see E.E.O.C. v.Sterling Jewelers Inc., 801 F.3d 96, 101 (2dCir. 2015), the parties agree that "evidenceconcerning the scope, substance and merits ofthe EEOC's investigation of this lawsuit isirrelevant". Def.'s Opp. (Dkt. 152-1) at 1.This request is denied as moot.
(D) Plaintiff moves to exclude evidencerelating to Monique Roberts. Dkt. 153.	(D) The Court has previously ruled thatdiscovery and affirmative defenses regardingMonique Roberts are both irrelevant andinappropriate. See Dkt. 58; 77; 119;September 15, 2017 Minute Order. Any suchevidentiary purpose would be contrary to thelaw of the case, and moreover, in the unlikelyevent it is relevant, its prejudice would

swamp any probative value. See Fed. R. Evid401-403. Accordingly, the motion topreclude such evidence is granted anddefendant is barred from referring to MoniqueRoberts' employment at EEOC or suggestingthat her role or actions played any role in thecase or investigation.

(E) EEOC moves to exclude evidence of"lack of internal complaints". Dkt. 154.

(E) Plaintiff requests an order excluding "allevidence, remarks and questions in thepresence of the jury concerning the lack ofinternal complaints" by Fernandez andRoberts. Pl.'s Mot. (Dkt. 154) at 1.Defendant argues such evidence is relevant asit relates to the framework of cases whereworkplace harassment or constructivedischarge is claimed. Def.'s Opp. (Dkt. 154-1) at 1-2.Whether an exception exists in such casesrelates to an argument of constructivedischarge. EEOC has not and represents thatit will not at trial proceed on any such theory.Here, plaintiff has specifically claimedunlawful discharge due to age of two former

employees of AZ Metro in violation ofSection 4 of the ADEA, 29 U.S.C. § 623(a).Complaint (Dkt. 1) ¶ 12. Plaintiff has notmade a complaint of "constructive discharge".Id.; see generally Pennsylvania State Police v.Suders, 542 U.S. 129, 147, 124 S. Ct. 2342,2354, 159 L. Ed. 2d 204 (2004) (Explaining aconstructive discharge claim as one whereplaintiff must show "working conditions sointolerable that a reasonable person wouldhave felt compelled to resign.") Therefore,evidence of the lack of internal complaints isnot relevant, and, if relevant, is likely tomislead or confuse the jury and the evidencerunning afoul of either Rule 401 or Rule 403will be excluded. EEOC's motion is granted.

(F) EEOC moves to exclude evidence"regarding any source of income other thanearned income". Dkt. 155.

(F) To the extent the motion seeks to excludeevidence of unemployment received or soughtby claimants, ruling is deferred pendingresolution of the request at II(B), supra.To the extent this motion seeks a ruling on apotential "offset" of a potential damagesaward, given that such evidence is not

	appropriate for consideration by the jury, seeDailey v. Societe Generale, 108 F.3d 451, 460(2d Cir. 1997); Meling v. St. Francis Coll., 3F. Supp. 2d 267, 275 (E.D.N.Y. 1998)(declining to offset a damages awardfollowing a jury verdict), the Court defersconsideration at this time.
(G) EEOC moves for a ruling of evidence "ofThomas Marigliano's termination" to berelevant. Dkt. 156.	(G) The motion is denied for the reasons setforth in the ruling in II(A), supra.
(H) EEOC moves for authentication of A&Tphone records as business records. Dkt. 157.	(H) The records produced by AT&T havebeen properly authenticated by AT&T. Theredactions are covered by a protective order(Dkt. 97) entered by Magistrate Judge Kuo.See June 15, 2017 minute order. No appealwas taken. That ruling is the law of the case.Plaintiff's motion (Dkt. 157) is granted. SeeFed. R. Evid. 803(6); 902(11); 902(13).

(I) EEOC moves for a ruling that "evidence ofprior consistent statements of Fernandez andRoberts" is not hearsay. Dkt. 158.	(I) Plaintiff's motion (Dkt. 158) is denied asduplicative of Federal Rule of Evidence 801and premature. The request is cut from thesame cloth as AZ Metro's request at II(C),supra. The ruling is the same.

So Ordered.
Dated: Brooklyn, New York

September 9, 2019

/s/ Eric N. Vitaliano

ERIC N. VITALIANO

United States District Judge