The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
___________________________________X
RUSSSEL COHEN,
MEMORANDUM & ORDER
Plaintiff, 16-CV-1914 (GRB)(SIL)
-against-
HEMPSTEAD UNION FREE SCHOOL FILED
DISTRICT, REGINA ARMSTRONG, CLERK
JULIUS BROWN, RODNEY GILMORE, 11:56 am, Oct 11, 2022
SUSAN JOHNSON, and BEVERLY
U.S. DISTRICT COURT
JONES,
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Defendants.
__________________________________________X
APPEARANCES:
For Plaintiff:
Ricotta & Marks, P.C.
24-11 41st Avenue, Suite Second Floor
Long Island City, New York, 11101
By: Thomas Ricotta, Esq.
For Defendants:
The Scher Law Firm, LLP
One Old Country Road, Suite 385
Carle Place, New York, 11514
By: Austin R. Graff, Esq.
BROWN, U.S. District Judge:
This action, sounding in discrimination and retaliation, after five years of
litigation and following resolution efforts via mediation, settlement discussions and
summary judgment, was recently transferred from Judge Denis R. Hurley to the
undersigned. See Electronic Order dated April 11, 2022. With the matter on the
precipice of trial, the parties have briefed several motions in limine and, at the Court’s
direction, the potential effect of the Supreme Court’s decision in Kennedy v. Bremerton Sch.
Dist., 142 S. Ct. 2407 (2022) on the remaining claims. For the reasons that follow, several
motions in limine are granted, and two of the remaining claims must be dismissed.
BACKGROUND
In an encyclopedic 38-page decision, Judge Hurley carefully reviewed and granted, at least
in part, motions for summary judgment and motions in limine. DE 76. With respect to the latter,
Judge Hurley excluded a range of statements – including some attributed to Kathy Trukafka, a school
principal – because those statements “lack sufficient foundational information to support their
admissibility,” “are [ ] untethered to any protected category or activity,” and “are conclusory as to
her state of mind.” Id. at 18.
The parties agree that, following Judge Hurley’s decision, the following claims remain for
trial:
(1)Title VII hostile work environment claim relating to the Plaintiff’s allegation that
the District’s School Board brought in several pastors on Superintendent Conference
days creating a culture of it being appropriate for staff to engage in prayer and
therefore the alleged incidents of religious insensitivity would have altered the
working conditions of a reasonable employee;
(2) Title VII retaliation claim alleging that the Plaintiff was not appointed to positions
of Assistant Principal or Principal because he filed a charge of discrimination with the
New York State Division of Human Rights in October 2011; and
(3) Monell claim, pursuant to 42 U.S.C. § 1983 against the District for religious
discrimination based upon the evidence that the Board of Education brought in several
pastors on Superintendent Conference days, creating a culture of it being appropriate
for staff to engage in prayer.
DE 94 at 1-2.
DISCUSSION
In his careful consideration of summary judgment, Judge Hurley denied defendants’ motion
with respect to the hostile work environment and Monell claims based almost exclusively upon the
plaintiff’s testimony that:
The school board brought several pastors from the community in on superintendent
conference days which has created a culture of it being appropriate for the staff to
engage in prayer practice in terms of the Catholic faith or the Christian faith.
DE 67-10 at 56; DE 68 at 11. For avoidance of doubt, any fair reading of Judge Hurley’s decision,
and the record as a whole, reveals that the engagement of pastors by the district represents the
lynchpin of plaintiff’s religious-based claims, as the only other evidence relates to miscellaneous
statements and practices of coworkers for which the district cannot be accountable. On this motion,
however, defendants challenge an email written by plaintiff on September 6, 2016, discussing one
such event, which occurred at a Superintendent Conference held on September 1, 2016. DE 90-1;
DE 90-3. Notably, on this motion, defendants forcefully assert that the September 2016 event is the
only event at which a pastor attended a conference at the behest of the district. DE 90-6 at 1 (request
to dismiss claims as they are predicated upon September event); id. at 5 (arguing that the email is the
only piece of documentary evidence supporting two causes of action); id. at 6 (same); id. at 10
(arguing that preclusion of the September 6 document requires dismissal of claim). Despite the
opportunity to do so, plaintiff’s counsel makes no effort to controvert these assertions. DE 91.
Defendants seek preclusion of the September 6 document on several grounds, including late
production and potential inauthenticity. Yet defendants raise a far more compelling argument: the
Conference at issue occurred well after the filing of the complaint in this action, which complaint has
never been amended. DE 90-6 at 6-7. In fact, the complaint tends to support defendants’ unopposed
assertion that the post-filing conference represents the only incident of the Board inviting a member
of the clergy to a meeting, as the complaint is devoid of a single reference to pastors or
superintendent’s meetings. See generally DE 1. While plaintiff argues that these matters should be
considered as part of the “totality of the circumstance,” DE 91, where, as here, plaintiff cannot
demonstrate the existence of a hostile work environment that predated the filing of the complaint,
that argument rings hollow. Moreover, given this email was written by plaintiff during the pendency
of the action, it is self-serving and lacking indicia of reliability.
Furthermore, the defendants seek exclusion of a May 4, 2012 email exchange between the
plaintiff and Kathy Trukafka on authenticity grounds. Irrespective of the authenticity of her email,
it lacks the necessary indicia of reliability to be admitted as an opposing party’s statement because
Trukafka indicates her interests are aligned with plaintiff – not those of her employer – when she
remarks, in a rambling reply, “Our courageous conversations will probably end up getting us
[expletive] in some way.” DE 90-2. Moreover, the content of those communications appears to
render them inadmissible for the very same reasons Judge Hurley precluded the other statements by
Trukafka, as the assertions “are [ ] untethered to any protected category or activity.” DE 76 at 18.
As such, plaintiff will suffer little or no prejudice from its exclusion, and the document is inadmissible
as substantive evidence pursuant to Rule 401 and 403.
Finally, defendants seek the exclusion of a June 20, 2016 email from plaintiff to one
defendant. DE 90-5. This document shares the deficits of the September 6 email, including late
production and post-complaint drafting. It also brings an issue into high relief. Though plaintiff has
complained of a hostile work environment predicated upon religious beliefs, the incident complained
of in this document appears to be the use of “Jesus Christ” as an invective, rather than as an expression
of faith. Id. (plaintiff reporting that Dr. Winfield stated, apparently in exasperation, “Jesus Christ,
our father, I don’t know what you want me to do.”). This buttresses the determination to exclude this
email, as plaintiff will suffer no prejudice from its exclusion, as the document is likely inadmissible
pursuant to Rule 401 and 403. Thus, the September 6, 2016, May 4, 2012, and June 20, 2016 emails
are excluded, and defendants’ renewed motion for summary judgment as to the first and third claims
is granted.
CONCLUSION
For the reasons set forth above, defendants’ motions in limine and renewed motion for partial
summary judgment are granted. The sole claim remaining for the upcoming trial is plaintiff’s
retaliation claim, as described above. The parties are directed to file a revised Joint Pretrial Order
within 45 days of the date of this Order. Jury selection for the trial on plaintiff’s remaining claim is
set for January 17, 2023 at 9:30 a.m.
SO ORDERED.
Dated:
Central Islip, New York s/ Gary R. Brown
October 11, 2022 GARY R. BROWN
United States District Judge