Dingman v. Fuji Japanese Steakhouse Sushi Inc.

Background

Heather Dingman brought employment-discrimination claims against Fuji Japanese Steakhouse Sushi Inc. under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law. She alleged that Fuji passed her over for a promotion because of her gender and because she was a mother, eventually leading her to resign. The opinion concerns two motions in limine, which are pretrial motions asking the court to decide whether particular evidence may be presented at trial. A trial was scheduled to begin on November 28, 2023.

Dingman’s motion

The court denied Dingman’s motion in its entirety.

First, Dingman asked to exclude evidence and testimony about unemployment benefits she received after leaving Fuji. Fuji argued that the benefits were relevant to whether Dingman failed to make reasonable efforts to limit her losses and whether deducting the benefits would prevent an improper double recovery. The court preliminarily ruled that the unemployment-benefit records could not be presented to the jury because of their potential prejudicial effect. However, if the jury awarded damages, the court would deduct unemployment benefits from that award, except for payments received between March 23 and June 29, 2020, because Dingman was not claiming back pay for that period.

Second, Dingman asked to exclude Fuji’s proposed Exhibit W. She later withdrew that objection after Fuji provided a replacement exhibit. The court therefore denied that request as moot, meaning there was no longer a live dispute for the court to resolve.

Third, Dingman asked the court to rule that conversations between Fuji’s lawyers and Fuji employees or former employees could not be shielded by attorney-client privilege. Fuji stated that it would assert attorney-client or attorney-work-product protection only concerning current employees Susan Narvaez and Amanda Daston. The court preliminarily held that discussions before and during deposition sessions between those employees and Fuji’s lawyers were protected by attorney-client privilege and were not admissible. The court relied on the rule that a corporation’s lawyers may communicate with employees at any level to obtain information needed for legal advice and that deposition preparation with current employees may be protected.

Fuji’s motion

Fuji’s motion was granted in part and denied in part.

The court allowed Dingman to testify that the dispute described in a text-message exchange was based on a claim of racial discrimination. But because the court had previously ruled that the conduct was not legally protected activity for purposes of Dingman’s dismissed retaliation claim, it barred Dingman from describing the dispute as protected activity. The court reasoned that doing so could confuse or mislead the jury.

The court ruled that Dingman’s proposed Exhibit 8 was inadmissible as hearsay within hearsay. The exhibit contained Dingman’s text exchange with Jill Mattiello, including a screenshot of a separate exchange between Mattiello and Narvaez. The court found that the record did not establish a sufficient basis for each layer of the out-of-court statements to satisfy an exception to the hearsay rule. It also noted that Narvaez had previously recanted her recollection of the statement attributed to a Fuji owner, which raised a trustworthiness concern.

The court rejected Fuji’s request to exclude Amanda Daston’s pay records and Dingman’s related summaries. Fuji argued that Daston’s earnings included server work, double-shift pay, overtime, tips, and bonuses, and that using those records assumed Dingman would have worked the same hours. The court found that these issues were factual questions for trial and that Fuji had not provided a sufficient basis for exclusion. The pay records were sufficiently extensive to permit summaries under Federal Rule of Evidence 1006, but the summaries could be used only after a proper foundation was established.

The court also allowed Dingman’s summary of her post-resignation earnings, provided that it did not include her unemployment benefits and that a proper foundation was established. Finally, the court allowed summaries of Dingman’s and Daston’s work schedules, again subject to a proper foundation. Dingman was directed to provide Fuji with revised and shortened schedule summaries so Fuji’s counsel could review them for accuracy.

Disposition and scope

The court denied Dingman’s motion in its entirety. It granted in part and denied in part Fuji’s motion. The rulings were preliminary determinations for trial and were subject to change as the case developed. The order did not decide the ultimate merits of Dingman’s discrimination claims.