Zeltman v. Infinigy Solutions, LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

EDWARD ZELTMAN,

Plaintiff,

vs. 1:20-CV-571

(MAD/CFH)

INFINIGY SOLUTIONS, LLC,

Defendant.

____________________________________________

APPEARANCES: OF COUNSEL:

MOSKOWITZ COLSON GINSBERG & EYLAN SCHULMAN, ESQ.

SCHULMAN, LLP

80 Broad Street – 19th Floor

New York, New York 10004

Attorneys for Plaintiff

LAW OFFICE OF RICHARD CARDINALE RICHARD CARDINALE, ESQ.

26 Court Street – Suite 1504

Brooklyn, New York 11242

Attorneys for Plaintiff

BARCLAY DAMON LLP MICHAEL J. MURPHY, ESQ.

80 State Street BRIENNA L. BRAMAN, ESQ.

Albany, New York 12207

Attorneys for Defendant

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff commenced this action pro se on May 26, 2020, against Defendants Infinigy

Solutions, LLC ("Infinigy"), Jeffrey Gutowski, and John Stevens, claiming he was terminated

from his position as a construction manager on March 18, 2019, because of a disability (or a

perceived disability) and that Defendants failed to provide him with a reasonable accommodation,

all in violation of the Americans with Disabilities Act ("ADA"). See Dkt. No. 1.

Trial is scheduled to commence on August 12, 2024. Currently before the Court are the

parties' pre-trial motions in limine. See Dkt. Nos. 106 & 116.

II. BACKGROUND

For a complete recitation of the relevant factual background, the parties are referred to the

Court's March 15, 2024 Memorandum-Decision and Order. See Dkt. No. 92.

III. DISCUSSION

A. Standard of Review

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 Civ. 5220, 1998 WL 665138,

*3 (S.D.N.Y. Sept. 25, 1998). Courts considering motions 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.

A. Testimony of Jody Lounsbury

In its motion in limine, Defendant asks the Court to preclude Plaintiff from introducing the

testimony of Jody Lounsbury. See Dkt. No. 106-1 at 7-8. According to Defendant, Mr.

Lounsbury is a former employee of Infinigy who filed a complaint with the New York State

Division of Human Rights alleging that he was discriminated against based upon his military

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service. See id. at 7. Defendant claims that, "[u]pon information and belief, the sole purpose for

Plaintiff's solicitation of Mr. Lounsbury's testimony would be to solicit witness testimony about

Mr. Lounsbury's allegations of discrimination based upon military service during his employment

with Infinigy." Id. Because the Court has dismissed Plaintiff's claim under the Uniformed

Services Employment and Re-employment Rights Act of 1994 ("USERRA"), Defendant contends

that this testimony is irrelevant. See id.

Plaintiff has not specifically responded to this aspect of Defendant's motion. However, in

his witness list, Plaintiff lists Mr. Lounsbury as a potential witness and indicates that he "will

testify only if [D]efendant opens the door to irrelevant subjects." Dkt. No. 115 at 2.

Without the benefit of a response from Plaintiff, the Court is unable to resolve this aspect

of Defendant's motion at this time. Accordingly, the Court reserves on this aspect of Defendant's

motion in limine.

B. Testimony Regarding Whistleblower Claims

Defendant next contends that Plaintiff should be precluded from introducing evidence in

support of his dismissed whistleblower claims. See Dkt. No. 106-1 at 9-10. Defendant notes that

Plaintiff's proposed exhibit list reflects that Plaintiff will seek to introduce evidence in support of

a purported "whistleblower" claim for complaining about alleged wrongdoing by Defendant at

worksites. See id. at 9 (citing P-7, P-16, and P-21). Plaintiff has not responded to this aspect of

Defendant's motion.

The Court generally agrees with Defendant's argument that any exhibits relating to

whistleblower claims that were previously dismissed by the Court would be irrelevant because

Plaintiff's only remaining claims are ADA discrimination claims. However, the Court is unable to

determine at this time, based on the brief descriptions in Plaintiff's exhibit list, whether these

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documents are irrelevant and should be precluded. Accordingly, the Court reserves on this aspect

of Defendant's motion in limine.

C. Plaintiff's Testimony Concerning his Alleged Injuries and Medical Records

Defendant notes that Plaintiff has not disclosed an expert witness and it anticipates that

Plaintiff "will attempt to testify about his injuries, including causation, permanency, scope, and

treatment." Dkt. No. 106-1 at 10. Defendant argues that Plaintiff should be precluded from

offering such testimony "to the extent that it goes beyond the common knowledge and experience

of the jury" because Plaintiff is not an expert qualified to testify on these matters. See id. at 10-

11. Relatedly, Defendant argues that Plaintiff should not be permitted to introduce his medical

records without testimony from a healthcare provider regarding the alleged injuries being

referenced in the medical records. See id. at 11-12. In response, Plaintiff contends that he can

testify about the injuries he sustained, which does not require expert medical testimony

considering the nature of his injuries, and that he can authenticate the medical records. See Dkt.

No. 116-1 at 3-5.

Initially, the Court finds Defendant's arguments regarding the authentication of Plaintiff's

medical records to be without merit. Rule 901(a) of the Federal Rules of Evidence provides that

"[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent

must produce evidence sufficient to support a finding that the item is what the proponent claims it

is." Fed. R. Evid. 901(a). The Second Circuit has said time and time again that "[t]he bar for

authentication of evidence is not particularly high and the proof of authentication may be direct or

circumstantial." United States v. Al-Moayad, 545 F.3d 139, 172 (2d Cir. 2008). One of the most

common methods of authentication is through witness testimony. See Vereen v. City of New

Haven, No. 3:17-CV-1509, 2018 WL 6069098, *8 (D. Conn. Nov. 20, 2018) (citations omitted);

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see also United States v. Vayner, 769 F.3d 125, 130 (2d Cir. 2014). Here, Plaintiff will be able to

testify to the authenticity of the medical records, which is sufficient to satisfy Rule 901. See

McCrae v. H.N.S. Mgmt. Co., No. 3:22-cv-217, 2024 WL 1973431, *3 (D. Conn. May 3, 2024)

(holding that the plaintiff in an ADA case could authenticate his medical records at trial).

Defendant next argues that Plaintiff should be precluded from offering testimony about his

injuries and/or medical records "to the extent that it goes beyond the common knowledge and

experience of the jury" because Plaintiff is not an expert qualified to testify on these matters.

Initially, the Court notes that Defendant has not attached Plaintiff's medical records as an exhibit

to its motion and has not identified any specific portion of those records that it finds

objectionable. Without Plaintiff's medical records and more specific objections, the Court is

unable to determine the admissibility at this time. However, the Court notes that "not all

information contained in a medical record is beyond the ken of the jury." Bermudez v. City of New

York, No. 15-cv-3240, 2019 WL 136633, *11 (E.D.N.Y. Jan. 8, 2019). Although certain aspects

of the medical records are likely beyond the ken of the jury and will be inadmissible, other

aspects of the records will certainly be admissible, especially considering the nature of Plaintiff's

alleged disability.

Courts have also found medical evidence is not always required to support a disability

discrimination claim under the ADA and that the determination must be made on a case-by-case

basis. See Rodriguez v. Village Green Realty, Inc., 788 F.3d 31, 43 (2d Cir. 2015) (holding that

"[n]either the ADA or the FHA's text, nor the respective implementing regulations require

medical evidence to establish ... the impairment of a major life activity" and noting that

"[m]edical testimony may be helpful to show that an impairment is substantially limiting, but it is

not always required") (citations omitted); see also Mancini v. City of Providence, 909 F.3d 32, 39

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(1st Cir. 2018) ("Whether medical evidence is necessary to support a disability discrimination

claim is a determination that must be made on a case-by-case basis") (citations omitted).

"Medical evidence is more likely to be necessary to show an impairment when a condition would

be unfamiliar to a lay jury and only an expert could diagnose that condition." Id. at 41 (citation

omitted); Felkins v. City of Lakewood, 774 F.3d 647, 648, 652 (10th Cir. 2014) (requiring medical

testimony to establish that the plaintiff's diagnosis of avascular necrosis, " a rare condition that

can cause bone tissue to die from poor blood supply," was an impairment under the ADA).

However, where the condition is familiar to a lay jury, medical testimony is not necessary

required. In Katz v. City Metal Co., Inc., 87 F.3d 26, 31 (1st Cir. 1996), the First Circuit

expressed "no doubt that a rational jury could conclude, even without expert medical testimony,"

that the plaintiff's heart attack was a condition affecting the cardiovascular system and therefore

was a physical impairment for purposes of the ADA. So, too, the Third Circuit determined that a

plaintiff's "failure to present medical evidence of his impairment" was not fatal because arm and

neck pain are "among those ailments that are the least technical in nature and are the most

amenable to comprehension by a lay jury." Marinelli v. City of Erie, 216 F.3d 354, 361 (3d Cir.

2000). "On a spectrum that ranges from missing limbs to rare medical infirmities, some

conditions plainly fall within the universe of impairments that a lay jury can fathom without

expert guidance. These conditions do not require medical evidence in an ADA case." Mancini,

909 F.3d at 42.

Here, Plaintiff's injuries have allegedly caused back, neck, and shoulder pain. Plaintiff is

clearly capable of testifying about his injuries and how they have impacted one or more major life

activities, as required to prove his claim. See id. at 43 (holding that no expert testimony was

required for the plaintiff to establish that his knee injury, which required surgery, impacted major

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life activities such as walking, standing, and bending). While Plaintiff cannot provide medical

opinion evidence, he is permitted to testify about his medical conditions and the limitations they

impose.

Accordingly, this aspect of Defendant's motion in limine is denied without prejudice. At

trial, Defendant will be free to object to any testimony or medical records it believes should be

excluded. The parties are strongly encouraged to review the medical records prior to trial and

stipulate to any records that are admissible and redact any portions they believe appropriate.

D. Punitive Damages

Defendant contends that Plaintiff should be precluded from requesting an award of

punitive damages because "[t]here is simply no evidence that Infinigy acted with the requisite

level of malice or reckless indifference sufficient to permit Plaintiff to request punitive damages."

Dkt. No. 106-1 at 13-14. The Court disagrees.

A party prevailing upon a claim of unlawful intentional discrimination under the ADA

may recover punitive damages "if the complaining party demonstrates that the respondent

engaged in a discriminatory practice or discriminatory practices with malice or with reckless

indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1).

To warrant an instruction on punitive damages, "'[a]ll that a party needs to show is that there is

some evidence supporting the theory behind the instruction so that a question of fact may be

presented to the jury.'" Cameron v. City of New York, 598 F.3d 50, 69 (2d Cir. 2010) (quotation

omitted).

Here, the Court finds that it is premature to rule on this issue at this time. At the close of

evidence, Defendant may renew this request, if appropriate. Accordingly, this aspect of

Defendant's motion in limine is denied without prejudice.

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E. Nominal Damages

Plaintiff argues that the Court should not charge the jury on nominal damages "because if

the jury determines that defendant is liable, the discriminatory terminations of plaintiff resulted in

undisputed actual damages, both financial and emotional." Dkt. No. 116-1 at 8 (citing Kerman v.

City of New York, 374 F.3d 93, 123 (2d Cir. 2004)).

This request is denied without prejudice as premature. It is unclear at this time whether

the jury should be instructed on the issue of nominal damages. Plaintiff may renew this request at

the close of trial if appropriate.

F. Undue Hardship Defense

Plaintiff contends that Defendant has waived an undue hardship defense because "[i]n its

memorandum of law in support of its motion for summary judgment and answer to the amended

complaint, [D]efendant did not contend that a reasonable accommodation would amount to an

undue hardship." Dkt. No. 116-1 at 6-7 (citations omitted). Plaintiff claims that he "would be

unfairly surprised if [D]efendant is permitted to raise an undue hardship defense at this late stage

in the case." Id. at 7. Defendant, however, contends that there is no requirement that the defense

of undue hardship be pled as an affirmative defense. See Dkt. No. 120 at 5-6.

Here, the Court finds that this aspect of Plaintiff's motion must be denied. As Defendant

correctly notes, courts in the Second Circuit have found that the defense of undue hardship is not

necessarily waived when not included in a defendant's answer. See Kreisler v. Humane Society of

N.Y., No. 16-cv-8177, 2017 WL 11568964, *2 (S.D.N.Y. Dec. 20, 2017) (holding that the

defendant's failure to raise an undue hardship defense in its answer does not necessarily waive

that defense and noting that "courts in the Second Circuit that have considered whether undue

hardship must be plead[ed] as an affirmative defense under the ADA and NYCHRL have

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determined that it does not'") (citations omitted); Gorbea v. Verizon N.Y., Inc., No. 11 Civ. 3758,

2014 WL 2916964, *4 (E.D.N.Y. June 25, 2014) (denying motion to exclude evidence of undue

hardship from trial where the defendant "did not explicitly plead 'undue hardship' as an

affirmative defense") (citations omitted); Brooklyn Ctr. for Independence of the Disabled v.

Bloomberg, 980 F. Supp. 2d 588, 657 (S.D.N.Y. 2013) (holding, in an ADA public

accommodation case, that it was unnecessary for the defendants to plead undue hardship because

plaintiffs had not proposed specific accommodations).

Additionally, Rule 8(c) of the Federal Rules of Civil Procedure provides that, "[i]n

responding to a pleading, a party must affirmatively state any ... affirmative defense." But the

undue hardship defense arises in response to a plaintiff's proposed accommodation. See

Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995); see also Bloomberg, 980 F.

Supp. 2d at 657 (citations omitted). In his amended complaint, the only mention of a proposed

accommodation was that his request "not to be sent to North Carolina to perform heavy labor due

to his injury on March 15, 2019 was a request for a reasonable accommodation." Dkt. No. 19 at ¶

24. This single statement is insufficient for the Court to find that Defendant should have pled this

affirmative defense. See Bloomberg, 980 F. Supp. 2d at 657.

Even assuming Defendant was required to plead undue hardship as a defense, the Court

finds that Defendant has pled this defense adequately. In its answer, Defendant denies Plaintiff's

assertion that it denied Plaintiff's reasonable accommodation request and that his request "would

not have posed an undue hardship to Infinigy." Dkt. No. 19 at ¶ 24; Dkt. No. 32 at ¶ 24.

Moreover, Defendant asserted as an affirmative defense that Plaintiff "fails to state a claim upon

which relief may be granted" and that Defendant "did not participate, engage or assist in any act

or conduct" which would warrant judgment in Plaintiff's favor. Dkt. No. 32 at ¶¶ 44, 47-48.

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Courts have found such language sufficient to provide adequate notice to a Plaintiff that this

defense would be raised at trial. See Gorbea, 2014 WL 2916964, at *5.

Finally, even assuming that Defendant did fail to raise this affirmative defense (and was

required to do so), the Court would permit Defendant to amend its answer. Plaintiff's claim that

permitting Defendant to raise this claim at trial is entirely conclusory. Plaintiff has been aware

from the beginning of this litigation (and earlier) that Defendant's position has been that it no

longer had a position for Plaintiff in New York and that, if he wished to continue his employment

with Defendant, he would be required to relocate to North Carolina. This is clearly sufficient to

place Plaintiff on notice that this issue would arise at trial.

Accordingly, this aspect of Plaintiff's motion in limine is denied.

G. McDonnell Douglas Framework

Plaintiff contends that, "[c]ontrary to [D]efendant's position, the McDonnell Douglas

burden-shifting framework exists to assist a trial judge in determining whether a case meets the

legal requirements for a decision by a fact-finder. The framework is not to be submitted to the

jury." Dkt. No. 116-1 at 7-8 (citing Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 118 (2d Cir.

2000)). According to Plaintiff, in an employment discrimination or retaliation case, "'the job of

the jury is simply to decide whether an impermissible factor was a motivating factor in the

adverse employment action.'" Id. at 8 (citing Gordon, 232 F.3d at 118). The Court disagrees with

Plaintiff's position, as he is conflating his burden of proof in his ADA discrimination claim with

the jury charge.

To succeed on his ADA discrimination claim, Plaintiff is required to prove the following:

"(1) her employer is subject to the ADA; (2) she is disabled within the meaning of the ADA; (3)

she is otherwise qualified to perform the essential functions of her job with or without

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accommodation; and (4) she suffered an adverse employment action because of her disability."

Harvin v. Manhattan & Bronx Surface Transit Operating Auth., 767 Fed. Appx. 123, 127 (2d Cir.

2019) (citation omitted). In its Memorandum-Decision and Order granting in part and denying in

part Defendant's motion for summary judgment, the Court found, among other things, that "there

is a genuine dispute of material fact over (1) the scope of Plaintiff's injury, as a factual matter, and

(2) whether Plaintiff's injury is sufficiently limiting to constitute a disability under the ADA."

Dkt. No. 92 at 17. Additionally, the Court found that there are genuine disputes of material fact

as to whether Plaintiff was qualified to perform the essential functions of his job with or without

accommodation. See id. at 17-19. As these issues are for the jury to decide, Plaintiff is

fundamentally incorrect that the jury should not be charged on the issue of whether or not

Plaintiff is disabled, or the remaining elements of his prima facie case which are in contention.

Additionally, as Defendant notes, Plaintiff misunderstands the Second Circuit's decision in

Gordon. Specifically, Gordon does not support a proposition that Plaintiff's burden of proof at

trial, and establishing the elements set forth in McDonnell Douglas, is somehow limited by this

decision. Rather, Gordon and other cases discussing the issue have expressed concern that the

rote recitation of the McDonnell Douglas framework is unwise, "'because such language –

developed by appellate courts for use by judges – is at best irrelevant, and at worst misleading to

a jury.'" Balu v. City of New York, 679 Fed. Appx. 84, 85 (2d Cir. 2017) (quoting Gordon, 232

F.3d at 118). Rather, Gordon warns that technical phrases that populate the McDonnell

Douglas framework – phrases such as "prima facie case" and "presumption" – should be avoided

in jury instructions. See Teixeira v. Town of Coventry by and through Przybyla, 882 F.3d 13, 17

& n.2 (1st Cir. 2018).

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Plaintiff contends that the Court should merely instruct the jury on "whether an

impermissible factor was a motivating factor in the adverse employment action." Dkt. No. 116-1

at 7. While such language will necessarily be included in the final instructions to the jury, more

is required. For example, unless Plaintiff establishes that he was disabled within the meaning of

the ADA, he cannot prevail on his claim. For the jury to make this determination, it must be

instructed on the relevant definitions regarding what qualifies as a disability under the ADA. If

Plaintiff fails to establish this element, it necessarily follows that his alleged disability was not an

impermissible motivating factor in his adverse employment action. In crafting its instructions, the

Court will strive to avoid overly technical legalese and instead rely on language that will assist

the lay jury in reaching the correct conclusion. Sharkey v. Lasmo (AUL Ltd.), 214 F.3d 371, 374

(2d Cir. 2000) ("If the plaintiff has successfully made a prima facie case and the defendant has

met its burden of proffering a reason other than discrimination for its actions, the court should

instruct the jury that plaintiff bears the burden of proving that the defendant was motivated by

prohibited discrimination—without reference to the successive burden-shifting tests that the

parties have been required to pass").

Accordingly, this aspect of Plaintiff's motion in limine is denied.

IV. CONCLUSION

Having carefully considered the parties' submissions in this matter and the applicable law,

and for the reasons set forth above, the Court hereby

ORDERS that Defendant's motion in limine (Dkt. No. 106-1) is DENIED in part and

RESERVED on in part; and the Court further

ORDERS that Plaintiff's motion in limine (Dkt. No. 116-1) is DENIED; and the Court

further

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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 ISSO ORDERED.

Dated: August 5, 2024 J fo

Albany New York Ce GL GRD “ee

? Mae A. □□ Agostino~”

U.S. District Judge

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