U.S. Equal Employment Opportunity Commission v. AZ Metro Distributors LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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EQUAL OPPORTUNITY EMPLOYMENT :

COMMISSION, :

:

Plaintiff, : SHORT-FORM

: MEMORANDUM & ORDER

-against- :

: 15-CV-5370 (ENV) (PK)

AZ METRO DISTRIBUTORS, LLC, :

:

Defendant. :

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VITALIANO, D.J.

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

Request Ruling

I. Defendant’s Motions to Bifurcate

(A) Defendant moves to bifurcate the trial in (A) Defendant moves to bifurcate trial of the

order to provide separate trials of the claims claims of Archibald Roberts and Cesar

advanced on behalf of each claimant pursuant Fernandez pursuant to Federal Rule of Civil

1 Though AZ Metro styled its “Motions to Bifurcate” as motions in limine, the Court addresses

these pre-trial motions first.

to Federal Rule of Civil Procedure 42(b). Procedure 42(b), “[f]or convenience, to avoid

Def.’s Mem. (Dkt. 160) at 16-19. Practically prejudice, or to expedite and economize, the

speaking, the request for bifurcation is in the court may order a separate trial of one or

nature of severance. more separate issues, claims, crossclaims,

counterclaims, or third-party claims.” See

also Def. Mem. at 16-17. In the Second

Circuit, it is well-established that bifurcation

rests “firmly within the discretion of the trial

court.” Katsaros v. Cody, 744 F.2d 270, 278

(2d Cir. 1984) (quoting In Re Master Key

Antitrust Litig., 528 F.2d 5, 14 (2d Cir.

1975)). Defendant’s arguments fall well short

of the standard in Federal Rule of Civil

Procedure 42(b). The bifurcation of the case

with separate juries empaneled for the claims

of Roberts and Fernandez would not serve the

interests of judicial economy and expedition.

The alleged termination of both claimants in

violation of the Age Discrimination in

Employment Act (“ADEA”) occurred on the

same day in the same department. Pl.’s Opp.

(Dkt. 160-42) at 16. Even the defense

asserted against each claim overlaps. Neither

were fired, AZ Metro says, each resigned and

were not discharged. Id. Accordingly, there

is substantial overlap to be expected with

respect to evidence and legal issues. This is

hardly 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 the

movant must justify bifurcation on the basis

of the substantial benefits that it can be

expected to produce.” Lewis v. City of New

York, 689 F. Supp. 2d 417, 428 (E.D.N.Y.

2010). Here, defendant has not justified the

additional time and resources required to

bifurcate the trial with substantial benefits.

Defendant’s claims of potential prejudice and

alleged 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 trial (B) The same rule, case law and

between the liability and damages phases considerations apply as in I(A), supra.

pursuant to Federal Rule of Civil Procedure Legion among arguments of the tort defense

42(b). Def.’s Mem. at 19-21. bar, AZ Metro protests that any reference to

damages before a determination of liability

would “prejudice defendant by confusing or

misleading the jury”, relying upon Katsaros v.

Cody, 744 F.2d at 278 (separating the

prudence of a bank loan from the amount of

money eventually lost).

Presumably, such an argument might be a

winning one in the rare case, but not here

where the issues of liability and damages are

intertwined and rely upon overlapping

testimonial and documentary evidence

including a potential finding of “willful”

action by defendant thereby triggering

liquidated damages. See Pl.’s Opp. at 16

(citing 29 U.S.C. § 626(b)). Stated in plain

terms, AZ Metro has not met its burden under

Rule 42. Its motion is denied.

II. Defendant’s Motions in limine

(A) Defendant moves to exclude any claim or (A) Any relevance (Fed. R. Evid. 401) and

evidence regarding defendant’s former probative value of evidence regarding

employee Thomas Marigliano’s change of defendant’s former employee Marigliano’s

position in February 2011 at AZ Metro, and employment history and departure from AZ

his departure from AZ Metro on January 31, Metro 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 other

ADEA-covered employees in other groups at

BoA [who] were also laid off in 2010”.);

Leopold v. Baccarat, Inc., 174 F.3d 261, 271

(2d Cir. 1999). Defendant’s motion is

granted.

(B) AZ Metro moves to exclude any claim or (B) Defendant has already acknowledged that

evidence regarding New York State it told both Roberts and Fernandez it would

Department of Labor Unemployment not, and ultimately it did not, contest their

Insurance Records as to Archibald Roberts claims for unemployment insurance. See e.g.

and Cesar Fernandez. Def.’s Mem. at 21-22. Def.’s Opp. to Pl.’s Motion #2 (Dkt. 151-1) at

3-4, 7. The jury’s time shall not be needlessly

wasted by the introduction of documents to

establish facts that are not disputed. These

facts should be the subject of a stipulation.

The Court anticipates that such a stipulation

will be submitted at the final pre-trial

conference scheduled for September 12, 2019

and ruling on the motion is deferred until

then.

(C) Defendant moves to exclude evidence of (C) The subject document is clearly an out of

any claim regarding the draft charge of court statement and subject to exclusion under

discrimination of Archibald Roberts as “a the hearsay rules. It may, of course, be

classic-out-of-court statement…inadmissible offered if for a purpose recognized as an

to prove the truth of the matter asserted”. exception to the hearsay rule or for some

Def.’s Mem. at 22-23. purpose other than for the truth of the asserted

statement. The ruling must abide the proffer.

(D) AZ Metro moves for leave to offer (D) For the reasons set forth in the Court’s

evidence regarding alleged “EEOC bias”. rulings on Plaintiff’s motions in limine at

Def.’s Mem. at 24-30. III(C) and (D), infra, defendant’s motion is

denied.

(E) Defendant moves to exclude “evidence of (E) Defendant’s motion to exclude evidence

damages based upon the failure to mitigate of damages based on the failure of claimants’

damages”. Def.’s Mem. at 30-35. mitigation is denied. EEOC will have the

opportunity to offer proof of damages and AZ

Metro will have its opportunity to prove

failure to mitigate to the extent case law

permits.

(F) AZ Metro moves to exclude “any (F) To the extent that this even qualifies as a

reference, statement, or argument related motion in limine, without a specific showing

undisclosed mitigations of damages”. Def.’s of EEOC’s failure to comply with an

Mem. at 35-36. appropriate discovery request, it is denied on

that basis. Without such a showing, it is

merely a restatement of the law whereby

damages evidence sought in discovery but not

produced is inadmissible. Either party is free

to object to any such attempted admission in

violation of this rule. See Fed. R. Civ. Pro 26;

37.

(G) AZ Metro moves to exclude “any (G) Defendant’s motion is denied for the

reference, statement, or argument related to reasons stated in the ruling in II(F), supra.

evidence not previously produced”. Def.’s

Mem. at 36.

(H) Defendant moves to exclude “any (H) Evidence Rule 408 bars the admission of

reference, statement, or argument related to evidence relating to settlement discussions.

any conciliation or settlement efforts”. Def.’s This motion is unopposed and is granted for

Mem. at 36. this reason.

(I) AZ Metro moves to exclude “any (I) Defendant’s motion is denied, in principal

reference, statement, or argument related to part, for the reasons set forth in the ruling in

an undisclosed methodology as a measure of II(F), supra.

damages, including a specific amount related Ultimately, the damages scheme set forth in

to compensatory or punitive damages”. 29 U.S.C. § 626(b) is controlling of the

Def.’s Mem. at 36-38. propriety of evidence on this score. In the

connection, the Court observes that, although

“the Second Circuit has not prohibited parties

from suggesting particular damages amounts

to the jury, [but] it has cautioned against this

practice.” Bermudez v. City of New York, No.

15-cv-3240 (KAM) (RLM), 2019 WL

136633, at *10 (E.D.N.Y. Jan. 8, 2019)

(citing Ramirez v. N.Y.C. Off-Track Betting

Corp., 112 F.3d 38, 40 (2d Cir. 1997)). The

question of whether to permit such argument

by counsel is “left to the discretion of the trial

judge.” Lightfoot v. Union Carbide Corp.,

110 F.3d 898, 912-13 (2d Cir. 1997).

Therefore, the Court cautions that plaintiff

will only be permitted, and solely in the

context of closing argument, to state what

liability the evidence has established, what

damages it has caused and to submit a

specific dollar amount that plaintiff contends

is the summation of any claims of lost wages,

prejudgment interest and a potential award of

liquidated damages (but not punitive

damages). The Court will instruct the jury, as

it does in every case, that statements by

lawyers in closing are nothing more than

argument. 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 Lightfoot

v. Union Carbide Corp., 110 F.3d 898, 912

(2d Cir. 1997).

(J) Defendant moves to exclude “hearsay”. (J) This request, essentially, duplicates

Def.’s Mem. at 36-38. defendant’s request in II(C), supra. The

ruling is the same.

(K) AZ Metro moves to exclude “any (K) Although it is hard to fathom why there

reference, statement, or argument related to might be any issue, there will be no

defendant’s Motions in Limine”. Def.’s discussion at any time before the jury

Mem. at 38-39. regarding any motion or ruling by the Court,

regardless when made.

III. Plaintiff’s Motions in Limine

(A) EEOC moves to exclude evidence not (A) The motion duplicates defendant’s

previously provided in response to a request at II(F), supra. The ruling is the

discovery request. Dkt. 150. same.

(B) EEOC moves to exclude evidence of job (B) Since the basis for the request is not

performance. Dkt. 151. attributed to a specific rule, it is presumed that

plaintiff contends that job performance is not

relevant (Fed. R. Evid. 401), but, if so, its

prejudice outweighs its probative value (Fed.

R. Evid 403). At any rate, evidence

concerning the facts and circumstances

around the time of the end of employment is

relevant to allegations of age discrimination,

regardless of whether the defense is one of

“improper discharge” or “resignation”. Pl.’s

Mot. (Dkt. 151) at 1. The Second Circuit has

found job performance to be a relevant factor

in assessing whether discrimination occurred.

See e.g. Delaney v. Bank of Am. Corp., 766

F.3d 163, 169 (2d Cir. 2014) (Affirming a

summary judgment grant in favor of the

employer in an age discrimination case where

“the evidence supports BoA’s assertion that

Delaney was terminated because of his poor

performance” and noting “we do not sit as a

super-personnel department that reexamines

an entity's business decisions.”

(quoting Scaria v. Rubin, 117 F.3d 652, 655

(2d Cir.1997))). To be precise, evidence of

job performance is “relevant probative

evidence” 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, the

plaintiff’s motion, on these grounds, to

exclude evidence relating to the job

performance of Roberts and Fernandez is

denied.

(C) EEOC moves to exclude evidence relating (C) In line with the case law, see E.E.O.C. v.

to “the scope or substance of the EEOC’s Sterling Jewelers Inc., 801 F.3d 96, 101 (2d

investigation”. Dkt. 152. Cir. 2015), the parties agree that “evidence

concerning the scope, substance and merits of

the EEOC’s investigation of this lawsuit is

irrelevant”. Def.’s Opp. (Dkt. 152-1) at 1.

This request is denied as moot.

(D) Plaintiff moves to exclude evidence (D) The Court has previously ruled that

relating to Monique Roberts. Dkt. 153. discovery and affirmative defenses regarding

Monique Roberts are both irrelevant and

inappropriate. See Dkt. 58; 77; 119;

September 15, 2017 Minute Order. Any such

evidentiary purpose would be contrary to the

law of the case, and moreover, in the unlikely

event it is relevant, its prejudice would

swamp any probative value. See Fed. R. Evid

401-403. Accordingly, the motion to

preclude such evidence is granted and

defendant is barred from referring to Monique

Roberts’ employment at EEOC or suggesting

that her role or actions played any role in the

case or investigation.

(E) EEOC moves to exclude evidence of (E) Plaintiff requests an order excluding “all

“lack of internal complaints”. Dkt. 154. evidence, remarks and questions in the

presence of the jury concerning the lack of

internal complaints” by Fernandez and

Roberts. Pl.’s Mot. (Dkt. 154) at 1.

Defendant argues such evidence is relevant as

it relates to the framework of cases where

workplace harassment or constructive

discharge is claimed. Def.’s Opp. (Dkt. 154-

1) at 1-2.

Whether an exception exists in such cases

relates to an argument of constructive

discharge. EEOC has not and represents that

it will not at trial proceed on any such theory.

Here, plaintiff has specifically claimed

unlawful discharge due to age of two former

employees of AZ Metro in violation of

Section 4 of the ADEA, 29 U.S.C. § 623(a).

Complaint (Dkt. 1) ¶ 12. Plaintiff has not

made 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 a

constructive discharge claim as one where

plaintiff must show “working conditions so

intolerable that a reasonable person would

have felt compelled to resign.”) Therefore,

evidence of the lack of internal complaints is

not relevant, and, if relevant, is likely to

mislead or confuse the jury and the evidence

running afoul of either Rule 401 or Rule 403

will be excluded. EEOC’s motion is granted.

(F) EEOC moves to exclude evidence (F) To the extent the motion seeks to exclude

“regarding any source of income other than evidence of unemployment received or sought

earned income”. Dkt. 155. by claimants, ruling is deferred pending

resolution of the request at II(B), supra.

To the extent this motion seeks a ruling on a

potential “offset” of a potential damages

award, given that such evidence is not

appropriate for consideration by the jury, see

Dailey v. Societe Generale, 108 F.3d 451, 460

(2d Cir. 1997); Meling v. St. Francis Coll., 3

F. Supp. 2d 267, 275 (E.D.N.Y. 1998)

(declining to offset a damages award

following a jury verdict), the Court defers

consideration at this time.

(G) EEOC moves for a ruling of evidence “of (G) The motion is denied for the reasons set

Thomas Marigliano’s termination” to be forth in the ruling in II(A), supra.

relevant. Dkt. 156.

(H) EEOC moves for authentication of A&T (H) The records produced by AT&T have

phone records as business records. Dkt. 157. been properly authenticated by AT&T. The

redactions are covered by a protective order

(Dkt. 97) entered by Magistrate Judge Kuo.

See June 15, 2017 minute order. No appeal

was taken. That ruling is the law of the case.

Plaintiff’s motion (Dkt. 157) is granted. See

Fed. R. Evid. 803(6); 902(11); 902(13).

(I) EEOC moves for a ruling that “evidence of (I) Plaintiff’s motion (Dkt. 158) is denied as

prior consistent statements of Fernandez and duplicative of Federal Rule of Evidence 801

Roberts” is not hearsay. Dkt. 158. and premature. The request is cut from the

same 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