Casmento, Jr. v. Volmar Construction, Inc.

Background

Clifford Casmento, Jr. brought claims alleging retaliatory termination under New York Labor Law § 215.1 and disability discrimination under the New York State Human Rights Law and New York City Human Rights Law. He alleged that, after complaining to Volmar Construction, Inc. about critical safety violations, he was demoted from his position as corporate safety director and ultimately fired.

Casmento filed a motion in limine, which is a request for a ruling before trial about whether particular evidence may be presented to the jury. He asked the court to prohibit references to OSHA and Equal Employment Opportunity Commission administrative proceedings and to prohibit evidence of his criminal conviction history.

OSHA and EEOC Evidence

Before filing this lawsuit, Casmento pursued proceedings before OSHA and the EEOC. OSHA dismissed his complaint after finding that he had not been terminated but had voluntarily resigned. The EEOC issued a right-to-sue letter stating that it could not conclude that the information obtained established violations of the statutes it administered. Volmar listed the agency materials as trial exhibits.

The court recognized that agency findings may qualify for an exception to the hearsay rule, but explained that this does not automatically make them admissible. Under Federal Rule of Evidence 403, evidence may be excluded when its value is substantially outweighed by the risk of unfair prejudice or jury confusion. The court found that the OSHA and EEOC materials were conclusory, provided little information about the investigations or evidence considered, and had little independent value because the parties could present their own evidence about whether Casmento resigned or was terminated. The court also found that admitting the materials could lead to a distracting dispute about the fairness and thoroughness of the agency proceedings and would duplicate other evidence.

The court therefore excluded the OSHA and EEOC exhibits under Rule 403.

Prior Conviction

Casmento had several prior convictions, but Volmar sought to admit only his felony conviction for falsifying business records in the first degree. Casmento had pleaded guilty to that offense and was sentenced on March 13, 2012, to five years of probation. In 2017, he received a certificate of good conduct from the New York State Department of Corrections and Community Supervision. The certificate relieved him from certain forfeitures, disabilities, and employment and licensing bars but stated that it did not remove his conviction record.

Federal Rule of Evidence 609 generally permits certain convictions to be used to challenge a witness’s truthfulness. When more than ten years have passed since the conviction or release from confinement, whichever is later, Rule 609(b) requires the conviction’s probative value, supported by specific facts and circumstances, to substantially outweigh its prejudicial effect. The court noted that convictions older than ten years are generally admitted only rarely and in exceptional circumstances.

The court rejected Casmento’s argument that his certificate of good conduct categorically barred use of the conviction. It held that the certificate did not contain the express rehabilitation finding required to exclude a conviction under Rule 609(c).

The court found that falsifying business records involved a dishonest act or false statement and therefore had high value in evaluating Casmento’s truthfulness. The court also found that the conviction would be only about one and a half months beyond Rule 609(b)’s ten-year period by the time of trial, that the parties had not argued the conviction was so similar to the conduct at issue that it would invite improper inferences, and that Casmento’s credibility would be central because his testimony would conflict with Volmar’s evidence about the alleged termination and safety violations. Weighing these circumstances, the court held that the conviction’s value for evaluating truthfulness substantially outweighed its prejudicial effect.

Disposition

Judge Lewis J. Liman granted in part and denied in part Casmento’s motion in limine. The court excluded the OSHA and EEOC evidence and permitted Volmar to use the first-degree falsification-of-business-records conviction for impeachment. The order did not decide the underlying employment claims.