# Boger v. New York State Office of Parks, Recreation & Historic Preservation

> District Court, N.D. New York · November 14, 2019

URL: https://www.frixlaw.com/law-library/cases/10312252

## Case

- **Court:** District Court, N.D. New York
- **Decided:** November 14, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10312252

## How later opinions describe it (automated extraction)

- finding prejudice to the defendant where testimony was identified only ten days before trial and no evidence regarding the witness had been submitted in connection with summary judgment motions
- holding that statistical evidence regarding an employer's general practice may be used to establish that the employer's purported nondiscriminatory explanation was a pretext

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
KATHLEEN BOGER,
Plaintiff,
vs. 5:17-CV-289
(MAD/TWD)
NEW YORK STATE OFFICE OF PARKS,
RECREATION & HISTORIC PRESERVATION;
JOANNE D. MITCHELL; LAURA TULLY;
JOE MORISETTE,
Defendants.
____________________________________________
APPEARANCES: OF COUNSEL:
BOSMAN LAW FIRM, LLC AJ BOSMAN, ESQ.
3000 McConnellsville Road
Blossvale, New York 13308
Attorneys for Plaintiff
OFFICE OF THE NEW YORK TIMOTHY P. MULVEY, AAG
STATE ATTORNEY GENERAL WILLIAM E. ARNOLD, IV, AAG
615 Erie Boulevard West
Suite 102
Syracuse, New York 13204-2455
Attorneys for Defendants
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On February 21, 2017, Plaintiff brought this action in Onondaga County Supreme Court
alleging that Defendants discriminated against her on the basis of age and gender when she was
denied a promotion to the Park Manager 1 position at Verona Beach State Park, and the position
was offered to three younger and less-qualified males. See generally Dkt. No. 2; Dkt. No. 63-25
at 94-96. The named defendants are the New York State Office of Parks, Recreation, and
Historical Preservation ("NYS Parks"), Joanne D. Mitchell ("Defendant Mitchell"), Laura Tully
("Defendant Tully"), and Joe Morisette ("Defendant Morisette"). See Dkt. No. 2. Plaintiff
asserted various claims against Defendants under Title VII of the Civil Rights Act of 1964 ("Title
VII"), the Age Discrimination in Employment Act (the "ADEA"), 42 U.S.C. § 1983 ("Section
1983"), the New York State Human Rights Law (the "NYSHRL"), and the New York State
Constitution. See Dkt. No. 2. In March 2017, Defendants removed the action pursuant to 28

U.S.C. §§ 1331 and 1441. See Dkt. No. 1. The Court denied Plaintiff's motion to remand to state
court. See Dkt. No. 30 at 7. Following Defendants' summary judgment motion, the Court
dismissed Plaintiff's claims arising out of the New York State Constitution.1 See Dkt. No. 72.
A trial is scheduled to begin on November 19, 2019. See Dkt. No. 77. In anticipation of
the trial, Defendants have moved in limine for an order (1) precluding the testimony of Derek
Carmen, (2) limiting Plaintiff from introducing evidence about claims that did not survive
summary judgment, and (3) precluding Plaintiff from offering "Me Too" evidence from Plaintiff's
co-workers who claim they have been discriminated against unless the witnesses are similarly

situated. See Dkt. No. 78. Plaintiff has responded seeking denial of Defendants' motion in its
entirely. See Dkt. No. 99.
For the following reasons, Defendants' motions to preclude testimony regarding the
Glimmerglass State Park application process and to preclude "Me Too" testimony from Dorothy
Nagle and Robin Hammond are granted. The Court reserves on the other motions until trial.

1 The claims remaining are: (1) Plaintiff's Title VII claim against Defendant NYS Parks;
(2) Plaintiff's ADEA claim against Defendant NYS Parks; (3) Plaintiff's § 1983 claim against
Defendants Mitchell, Tully, and Morisette for gender discrimination; (4) Plaintiff's § 1983 claim
against Defendants Mitchell, Tully, and Morisette for age discrimination; (5) Plaintiff's NYSHRL
claim against Defendant NYS Parks for gender and age discrimination; and (6) Plaintiff's
NYSHRL claim against Defendants Mitchell, Tully, and Morisette for gender and age
discrimination.
2
II. DISCUSSION
A. Legal Standard
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on
the admissibility of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n.2
(1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). A court should exclude
evidence on a motion in limine only when the evidence is clearly inadmissible on all potential

grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94-CV-5220, 1998 WL 665138,
*3 (S.D.N.Y. Sept. 25, 1998). A court considering a motion in limine may reserve decision until
trial so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co.
v. L.E. Myers Co. Group, 937 F. Supp. 276, 287 (S.D.N.Y. 1996). Alternatively, the court is
"free, in the exercise of sound judicial discretion, to alter a previous in limine ruling" at trial as
"the case unfolds, particularly if the actual testimony differs from what was contained in the
[movant's] proffer." Luce, 469 U.S. at 41-42.
B. Motion to Preclude the Testimony of Derek Carmen

In her proposed witness list, Plaintiff notes that she intends to call Derek Carmen
("Carmen"), a former employee of Defendant NYS Parks. See Dkt. No. 100 at 1-2. Plaintiff
proffers that Carmen will testify to his observations of an alleged altercation between Plaintiff and
a patron witnessed by Defendant Laura Tully. See id. Defendants have moved to preclude
Carmen's testimony. See Dkt. No. 78 at 3. Specifically, Defendants argue that Plaintiff has
violated Rule 26 of the Federal Rules of Civil Procedure by failing to provide a timely
supplemental disclosure identifying Carmen as an individual with discoverable information. See

id. at 3-4. In response, Plaintiff argues that Defendants were put on notice that Carmen was a
potential witness during the deposition of Defendant Tully. See Dkt. No. 99 at 3.
3
A party is required to provide to the other parties "the name and, if known, the address and
telephone number of each individual likely to have discoverable information – along with the
subjects of that information – that the disclosing party may use to support its claims or defenses."
Fed. R. Civ. P. 26(a)(1)(A). "A party who has made a disclosure under Rule 26(a) . . . must
supplement or correct its disclosure or response in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or incorrect, and if the additional or

corrective information has not otherwise been made known to the other parties during the
discovery process or in writing[.]" Fed. R. Civ. P. 26(e)(1)(A).
"'Many courts in this Circuit . . . have held that the mere mention of a name in a deposition
or interrogatory response is insufficient to satisfy Rule 26(a)(1)(A).'" Leong v. 127 Glen Head
Inc., No. 13-CV-5528, 2016 WL 845325, *4 (E.D.N.Y. Mar. 2, 2016) (citing Lujan v. Caban
Mgmt., Inc., 284 F.R.D. 50, 72 (E.D.N.Y. 2012) (collecting cases)). "Where . . . plaintiffs rely on
the notice 'otherwise' given under Rule 26(e)(1)(A), such other notice must reasonably provide the
required information that plaintiffs intended possibly to call [the individual] as a witness at trial."

Kullman v. State, No. 07-CV-716, 2009 WL 1562840, *7 (N.D.N.Y. May 20, 2009). "Such
notice is not reasonable where it requires an opposing party to guess another party's intentions."
Id. "[T]he mention of [an individual] in deposition testimony or documents without a clear
statement from plaintiffs of their intent possibly to call [the individual] as a trial witness d[oes]
not afford defendants reasonable notice of plaintiff's intent." Id. at *8 (rejecting the plaintiffs'
argument that the defendants were on notice of the plaintiff's intent to call a witness because the
witness was mentioned during depositions and in document production).

Here, while Carmen's name was mentioned in a deposition of Defendant Tully, Plaintiff
never indicated her intent to call Carmen as a witness at trial. See Dkt. No. 63-11 at 91-96.
4
Following the deposition of Defendant Tully, Plaintiff not only failed to provide notice to
Defendants of her intent to call Carmen as a witness at trial, but did not provide notice that
Carmen was individual with discoverable information until shortly before trial. See Dkt. No. 78-
1. Accordingly, the Court finds that Plaintiff failed to comply with Rule 26 of the Federal Rules
of Civil Procedure.
"If a party fails to provide information or identify a witness as required by Rule 26(a) . . .,

the party is not allowed to use that information or witness to supply evidence . . . at trial, unless
the failure was substantially justified or it is harmless." Fed. R. Civ. P. 37(c). In determining
whether to exclude testimony under Rule 37(c)(1) of the Federal Rules of Civil Procedure, a court
must consider "'(1) the party's explanation for the failure to comply with the disclosure
requirement; (2) the importance of the testimony of the precluded witnesses; (3) the prejudice
suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4)
the possibility of a continuance.'" Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006)
(quotation omitted). "The Second Circuit has clarified that a showing of bad faith is not required

before evidence may be excluded under Rule 37(c)(1), but it may be taken into account." Taylor
v. New York State Office For Developmental Disability, No. 1:13-CV-740, 2016 WL 2858856, *4
(N.D.N.Y. May 13, 2016) (citing Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir.
2006)).
With respect to the first factor, Plaintiff failed to provide any explanation for her failure to
comply with the disclosure requirement. See Dkt. No. 78-1. As to the second factor, Defendants
claim that the alleged altercation to which Carmen would testify "goes to the heart of Defendants'

defense." See Dkt. No. 78 at 6. Additionally, Plaintiff has repeatedly attacked the veracity and
accuracy of Ms. Tully's recollection and testimony regarding the incident. See Dkt. No. 63-5 at
5
26-31; Dkt. No. 63-11 at 33-39; Dkt. No. 70-5 at 4-5. Under the circumstances, this factor weighs
against Plaintiff. It is also clear that Defendants would suffer prejudice as the witness was
identified less than twenty days before trial. See Patterson, 440 F.3d at 118 (finding prejudice to
the defendant where testimony was identified only ten days before trial and no evidence regarding
the witness had been submitted in connection with summary judgment motions). Finally, a
continuance of this trial due to Plaintiff's extremely late disclosure of a witness almost a year after

the discovery deadline expired and only nineteen days before trial is scheduled to begin would be
inappropriate. See Williams v. Bethel Springvale Nurson Home, Inc., No. 14-CV-9383, 2018 WL
1662644, *6-7 (S.D.N.Y. Apr. 5, 2018) (finding a continuance inappropriate on the eve of trial
where "parties have invested resources in preparing for trial, have arranged their and their
witnesses' schedules, and the Court has cleared room in its calendar to accommodate the current
trial dates"). Based on the foregoing, the Court finds that the Patterson factors weigh in favor of
preclusion.
However, following a telephone conference with counsel, the Court ordered that Plaintiff

produce Carmen to be deposed by Defendants by November 15, 2019. See Dkt. No. 101.
Accordingly, the Court will reserve decision on this aspect of Defendants' motion in limine.
C. Motion to Preclude Testimony That is Beyond the Scope of Surviving Claims
Defendants ask the Court to preclude any evidence relating to claims that did not survive
summary judgment and are not pled in the Complaint. See Dkt. No. 78 at 9. Specifically,
Defendants note that Plaintiff may attempt to introduce evidence regarding her claims that NYS
Parks' employees Robert Hiltbrand ("Hiltbrand") and David Barone ("Barone") sought to retaliate

against her after she made complaints of sexual harassment and gender discrimination. See id.
Defendants, during a conference with the Court also noted that it seeks to exclude any evidence
6
related to an application process for a position at Glimmerglass State Park that Plaintiff went
through in 2017, two years after the alleged discrimination. In response, Plaintiff argues that
"both prior and subsequent acts may be relevant to prove discriminatory or retaliatory intent."2
See Dkt. No. 99 at 9. Regarding the evidence of alleged retaliation by Hiltbrand and Barone,
Plaintiff claims that this evidence is admissible for impeachment and/or rebuttal purposes to show
bias against Plaintiff. See Dkt. No. 99 at 10-11.

1. Glimmerglass State Park Application Process
While evidence of subsequent conduct may be admitted to prove discriminatory motive
relating to a prior employment decision, Plaintiff has failed to provide any authority which
extends such consideration to conduct that occurred years after the alleged discrimination. See
Liberty Envtl. Sys. v. County of Westchester, No. 94-CV-7431, 2000 WL 1341403, *4 (S.D.N.Y.
Sept. 15, 2000). "A showing of disparate treatment – that is, a showing that the employer treated
plaintiff 'less favorably than a similarly situated employee outside [her] protected group' – is a
recognized method of raising an inference of discrimination for purposes of making out a prima

facie case." Mendell v. County of Suffolk & John Gallagher, 316 F.3d 368, 379 (2d Cir. 2003).
Here, there is no retaliation claim and Plaintiff has not alleged that she was subject to a
hostile work environment. Rather, Plaintiff must prove that she was treated differently than
similarly situated individuals and that such selective treatment was motivated by an intention to
discriminate on the basis of impermissible considerations. See Emmerling v. Town of Richmond,
434 Fed. Appx. 10, 12 (2d Cir. 2011). In endeavoring to do so, Plaintiff is permitted to introduce

2 Notably, Plaintiff sought to amend her complaint to address these exact claims.
However, Plaintiff's motion to add Hiltbrand and Barone as defendants and include allegations of
retaliation stemming from the Glimmerglass application process was denied. See Dkt. Nos. 40,
49.
7
evidence of Defendants' subsequent conduct related to the application process at issue, namely the
Verona Beach application process. See Hollander v. American Cyanamid Co., 895 F.2d 80, 84
(2d Cir. 1990) (holding that statistical evidence regarding an employer's general practice may be
used to establish that the employer's purported nondiscriminatory explanation was a pretext);
MHANY Mgmt. v. County of Nassau, 843 F. Supp. 2d 287, 213 (E.D.N.Y. 2012) (holding that
discriminatory intent may be inferred from the totality of the relevant facts, including the

historical background of the decision, specific sequence of events leading up to the challenged
actions, contemporary statements made by members of the decision-making body, and departures
from normal procedure) (citing Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 267-68 (1977)); see also Liberty Environmental Systems, Inc.,
2000 WL 1341403, at *3. However, the Court finds that evidence related to the Glimmerglass
application process, which occurred nearly two years after the alleged discrimination, would serve
only to confuse the issues and mislead the jury. See Fed. R. Crim. P. 403. Accordingly,
Defendants' motion in limine is granted as to evidence related to Plaintiff's 2017 application to

Glimmerglass State Park.
2. Allegations of Retaliation by Hiltbrand and Barone
The Federal Rules of Evidence require that evidence admitted at trial be relevant. Fed. R.
Evid. 402. Relevant evidence is that which has any tendency to make the existence of a fact of
consequence more or less probable than it would be without the evidence. Fed. R. Evid. 401.
"The court's determination of what constitutes 'relevant evidence' is guided by the nature of the
[claim] and the defendant's defense theories." United States v. Watts, 934 F. Supp. 2d 451, 462
(E.D.N.Y. 2013). "The court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury."
8
Fed. R. Evid. 403. The Second Circuit "grants 'broad discretion' to the district court to admit or
exclude evidence pursuant to Rule 403.'" United States v. George, 266 F.3d 52, 63 (2d Cir. 2001).
The evidence which Defendants seeks to preclude relates to alleged complaints of sexual
harassment and gender discrimination made by Plaintiff to her supervisors sometime between
2010 and 2012. See Dkt. No. 63-3 at 143-44. Plaintiff alleges that these complaints are the
reason why Hiltbrand and Barone relayed negative references – which served as a basis for

Defendants' hiring decision – to the hiring committee for the Verona Beach State Park application
process. See Dkt. No. 91 at 12. The Court notes that this is not the first time that Plaintiff has
attempted to litigate these issues. Plaintiff previously moved to amend her complaint to add a
claim of retaliation and violations of Plaintiff's First Amendment right to free speech by Hiltbrand
and Barone for her complaints of sexual harassment and gender discrimination. See Dkt. No. 40.
However, Plaintiff's motion was denied on multiple grounds, including that the temporal
relationship between the alleged protected activity and alleged adverse action were tenuous at
best. See Dkt. No. 49 at 9-10. Presently, Plaintiff argues that the evidence that Hiltbrand and

Barone allegedly sought to retaliate against Plaintiff should be admissible as impeachment
material to demonstrate bias. See Dkt. No. 99 at 11.
"The Supreme Court has held that impeachment for bias is admissible under Rule 402."
United States v. Figueroa, 548 F.3d 222, 229-30. "Proof of bias is almost always relevant
because the jury, as finder of fact and weigher of credibility, has historically been entitled to
assess all evidence which might bear on the accuracy and truth of a witness' testimony." United
States v. Abel, 469 U.S. 45, 52 (1984). However, "a trial judge does not abuse [her] discretion by

curtailing cross-examination as long as the jury has 'sufficient information to make a
discriminating appraisal of the particular witness's possible motives for testifying falsely.'" United
9
States v. Devery, 935 F. Supp. 393, 409 (S.D.N.Y. 1996). "Although the scope of a defendant's
right to introduce evidence of bias is not limitless, and may be restricted as the trial court in its
sound discretion deems proper, . . . it is rarely proper to cut off completely a probative inquiry that
bears on a feasible defense." United States v. Harvey, 547 F.2d 720, 723 (2d Cir. 1976) (citation
omitted). The court may still exclude relevant evidence if its probative value is substantially
outweighed by danger of confusing the issues. See United States v. James, 609 F.2d 36, 47 n.11

(2d Cir. 1979).
At this point, the Court finds that it is unable to determine whether the alleged testimony
will violate Rule 403 of the Federal Rules of Evidence. Given these concerns, the Court will
reserve decision on this aspect of Defendants' motion in limine.
D. Testimony of Alleged Discrimination by Non-Party Co-Workers
Defendants seek to preclude any testimony from current and/or former employees of NYS
Parks regarding allegations of discrimination unrelated to Plaintiff's claims. See Dkt. No. 78 at
10. Defendants argue that any such testimony is only admissible if the witness is similarly

situated to Plaintiff. See id. Defendants' motion specifically identifies two witnesses who appear
on Plaintiff's amended witness list: Dorothy Nagle ("Nagle") and Robin Hammond ("Hammond").
See Dkt. No. 78 at 10; Dkt. No. 100 at 4. Both Nagle and Hammond are current or former
employees of NYS Parks. See id. Defendants argue that Nagle and Hammond are not similarly
situated to Plaintiff, and thus, any testimony they could provide would be prejudicial evidence of
alleged discrimination with minimal probative value. See Dkt. No. 78 at 10.
"A plaintiff relying on disparate treatment evidence, 'must show she was similarly situated

in all material respects to the individuals with whom she seeks to compare herself.'" Id. To
establish that individuals are similarly situated, "a plaintiff must show that her co-employees were
10
subject to the same performance evaluation and discipline standards." Graham v. Long Island
R.R., 230 F.3d 34, 40 (2d Cir. 2000). "Whether two employees are similarly situated ordinarily
presents a question of fact for the jury." Id. at 39. However, the question of whether evidence of
discrimination experienced by non-party witnesses is admissible "is fact based and depends on
many factors, including how closely related the evidence is to the plaintiff's circumstances and
theory of the case." Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008).

"Applying Rule 403 [of the Federal Rules of Evidence] to determine if evidence is prejudicial also
requires a fact-intensive, context-specific inquiry." Id.
Here, as previously mentioned, the proposed witnesses at issue are Nagle and Hammond.
See Dkt. No. 78 at 10. While Plaintiff scored an 85 on the civil service exam, both Nagle and
Hammond had a lower score and were not "reachable" according to the "Rule of Three."3 See
Dkt. No. 63-5 at 21, 112, 239-40. Thus, to the extent that Plaintiff argues the testimony of these
witnesses should be admissible to establish disparate treatment, the Court disagrees as Nagle and
Hammond are not similarly situated in all material respects. Graham, 230 F.3d at 40. To the

extent that Plaintiff argues that the Court should allow the testimony as general evidence of
discriminatory practices, the Court is unpersuaded.
"The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury."
Fed. R. Evid. 403. The Second Circuit "grants 'broad discretion' to the district court to admit or
exclude evidence pursuant to Rule 403.'" George, 266 F.3d at 63.

3 For a detailed description of the Rule of Three, the Court directs the parties to its July 2,
2019, Memorandum-Decision and Order. Dkt. No. 72 at 5.
11
Because Nagle and Hammond were not similarly situated to Plaintiff, their testimony has
minimal probative value. Descriptions of alleged discrimination by Defendants against Nagle and
Hammond would be well outside the scope of the complaint, and would serve only to confuse the
issues or mislead the jury. See Fed. R. Evid. 403. The Court finds that the minimal probative
value of the proposed testimony is substantially outweighed by a danger of confusing the issues or
misleading the jury. See Castro v. City of New York, No. 05-CV-593, 2010 WL 11586591, *5
(S.D.N.Y. Aug. 11, 2010) (finding that the probative value of the testimony a coworker who
experienced discrimination by the defendants was outweighed by the danger of unfair prejudice,
confusion of the issues, misleading of the jury, and undue delay). Accordingly, Defendants'
motion to preclude the testimony of current and/or former employees of NYS Parks regarding
allegations of discrimination unrelated to Plaintiff's claims is granted with respect to Dorothy
Nagle and Robin Hammond.
IH. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the reasons set forth herein, the Court hereby
ORDERS that Defendants' motion in /imine (Dkt. No. 78) is GRANTED in part and
RESERVED ON in part; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED. .
Dated: November 14, 2019 J) if 2 G 3 Zp ‘
Albany, New York Ce ORG “ez
Mae A. D’Agosting~/
U.S. District Judge

12

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