Colon v. City Of New York

Background

Before trial, Sibyl Colon and defendants New York City Housing Authority (NYCHA), Brian Clarke, and Michael Kelly filed motions in limine—pretrial requests asking the court to decide whether particular evidence, testimony, damages issues, or defenses could be presented at trial. The opinion addresses Colon’s retaliation claims under Title VII, the New York State Human Rights Law, the New York City Human Rights Law, and 42 U.S.C. § 1983.

Colon’s motion

Colon asked the court to take judicial notice of several facts and documents. The court denied judicial notice of the statistic that approximately seven percent of NYCHA’s 2015 operating budget came from City funds. The court found that the statistic was not an undisputed fact suitable for judicial notice and was not relevant to the elements of Colon’s retaliation claims.

The court also denied judicial notice of census data concerning Black Americans of non-Hispanic origin who speak Spanish at home. It found the data potentially confusing and not relevant because it used national statistics, concerned language spoken at home rather than Spanish proficiency, and was not tied to the population from which a potential NYCHA employee might be drawn.

The court granted in part Colon’s request concerning life- and work-expectancy tables. It ruled that the tables attached as Exhibits 3–6 to the Florestal Declaration could be used by the jury to determine economic damages. The court deferred deciding whether the tables could be used to determine emotional-distress damages because that issue was premature.

The court granted Colon’s request for judicial notice of New York City Mayoral Orders concerning required compensation increases for covered workers, including NYCHA employees. The court found the orders publicly available, relevant, and appropriate subjects for judicial notice.

Colon sought to exclude evidence about the performance of NYCHA’s Optimal Property Management Department, also called OPMOM or NextGen, after Janet Abrahams arrived on September 28, 2015. The court denied that request as moot. It found acceptable, at that stage, the defendants’ proposed limitation concerning Abrahams’s employment and Octavia Hayward’s later appointment, while leaving specific relevance objections for trial.

The court denied Colon’s request to bar Clarke and Kelly from asserting qualified immunity. Qualified immunity is a defense that can protect officials from civil damages when their conduct did not violate clearly established law or when it was objectively reasonable for them to believe that it did not violate such law. The court found that the defense had not been waived because the defendants raised it in the pretrial order, and no existing legal requirement required them to raise it earlier.

Defendants’ motion

The court granted the defendants’ request to exclude evidence of Clarke’s deposition statement that the “Law Department” recommended that he not transfer Williams. The court found that NYCHA held the attorney-client privilege, had not waived it, and that Clarke had not disclosed the substance of the legal advice. The court also found that the statement had little or no relevance to Colon’s retaliation claims or the defendants’ defenses and posed a substantial risk of unfair prejudice.

The court denied the request to limit Williams’s testimony to the period when Colon worked for NYCHA. It stated that some later events might be relevant, but warned that the testimony must remain relevant to Colon’s claims. The denial was without prejudice to renewal at trial, and Colon was ordered to provide a proffer—an advance description of the expected testimony—about Williams’s post-resignation testimony.

The court granted the request to exclude testimony and documents concerning NYCHA’s practices or alleged failures involving lead-paint inspections. It found that this evidence was not relevant to Colon’s claims and that its value was outweighed by the risk of unfair prejudice and confusion.

The court denied as moot the request to exclude testimony from Dr. Papanna Ravichandra as an expert because Colon was not offering him as an expert. Colon described him as a treating physician who would testify about what he personally saw, observed, and concluded regarding her health and well-being. The court said any objection that his trial testimony exceeded the proper scope of treating-physician testimony could be raised at trial.

The court denied the request to exclude testimony from Regina Chu and Rosie Mendez. It found that the defendants had not shown that the witnesses had no admissible testimony to offer. Colon was ordered to provide a more detailed description of their expected testimony.

The court denied the request to limit Colon’s emotional-distress damages to “garden variety” damages. It found that deciding the proper category of emotional-distress damages was premature and ordered Colon to provide a proffer describing the evidence she expected to present.

Economic damages

The court denied the defendants’ request to prevent the jury from determining economic damages on Colon’s § 1983 claims. It ruled that the jury should determine those damages. It also explained that economic damages under the New York State and New York City Human Rights Laws are legal remedies for the jury to determine.

The court granted the defendants’ request to have the court, rather than the jury, decide whether Colon was entitled to back pay or front pay under Title VII and the amount of those damages if the jury found Title VII liability. The court nevertheless granted Colon’s request for an advisory jury on those Title VII damages. An advisory jury may make findings that the court can adopt, partly adopt, or disregard.

The court denied the defendants’ requests to prevent Colon from testifying about what she would have earned at NYCHA and to limit her back-pay claim based on alleged failure to mitigate damages. The court ruled that the jury would decide whether the defendants proved a failure to mitigate.

Other issues

The court denied as moot the defendants’ request to bar Colon from arguing that language requirements were discriminatory because Colon stated that she had not made that argument. It also denied as moot the request to bar punitive damages against NYCHA because Colon did not dispute the defendants’ position on that issue.

The court granted the request to bifurcate the trial to the extent that evidence about Clarke’s and Kelly’s financial condition would be presented only after a finding of liability. Bifurcation means separating issues or phases of a trial to reduce prejudice or improve efficiency.

The court denied the defendants’ request to find that Clarke and Kelly were protected by qualified immunity, but allowed them to raise the defense. It ruled that whether the defense ultimately applied would depend on factual findings by the jury. The court also allowed the defendants to assert qualified immunity without requiring NYCHA to waive attorney-client privilege because the defendants were not relying on advice from counsel as the basis for that defense.

Disposition

The court stated that Colon’s motion in limine was GRANTED IN PART and DENIED IN PART. The defendants’ motions in limine were also GRANTED IN PART and DENIED IN PART. The Clerk’s Office was directed to terminate the motions pending at Documents 275 and 278.