Percy v. State of New York

Background

The case was set for trial on December 12, 2023. After a final pretrial conference, the court ruled on the anticipated testimony of Miqueline Mazza and Pamela Alexander, Percy’s proposed Exhibits 1 through 6, and Townsend’s proposed Exhibits A and B. The opinion concerns the admissibility and permitted uses of evidence; it does not resolve the merits of Percy’s claims.

Miqueline Mazza’s testimony

Percy intended to call Mazza to testify about her own alleged sexual harassment by Townsend, which Percy described as similar to the harassment she alleged. The court found the testimony relevant and admissible under Federal Rule of Evidence 404(b) to show Townsend’s motive and discriminatory intent. The court then considered Rule 403, which permits exclusion of relevant evidence when its value is substantially outweighed by dangers such as unfair prejudice, confusion, delay, or needless cumulative evidence. The court found that Rule 403 did not require exclusion and permitted Mazza to testify as described in the parties’ joint pretrial order.

Pamela Alexander’s testimony

Townsend intended to call Alexander about a disciplinary proceeding involving Percy and about Percy’s not telling Alexander about the alleged sexual harassment. The court found testimony about facts underlying the internal investigation relevant and admissible to rebut Percy’s quid pro quo and retaliation claims. The court found that testimony neither relevant nor admissible to rebut the hostile-work-environment claim or to attack Percy’s character for truthfulness. Depending on Alexander’s testimony, the court would issue a limiting instruction restricting the evidence to the quid pro quo and retaliation claims and barring its use as character-for-truthfulness evidence.

Percy’s proposed exhibits

For Exhibits 1, 3, and 4, the court stated that the exhibits were inadmissible hearsay if offered for their truth because Percy had not identified an applicable hearsay exception. The court reserved ruling on whether they could be used solely for impeachment, subject to Percy laying the proper foundation at trial.

Exhibit 2 was a notice of discipline with an unsigned attachment listing allegations against Townsend by a third-party witness, Vivienne Brunson-Bedi. The court stated that the exhibit was hearsay if offered for its truth and appeared unlikely to qualify for a hearsay exception. The court also intended to exclude it under Rule 403 because its probative value was substantially outweighed by the dangers of unfair prejudice, confusing the issues, and needlessly presenting cumulative evidence, particularly in light of Mazza’s testimony. The court reserved ruling on impeachment use, subject to a proper foundation.

Exhibit 5 was a Civil Service Employees Association judicial board decision concerning allegations against Townsend by Brunson-Bedi. The court stated that the exhibit was hearsay if offered for its truth and that Percy had not shown a hearsay exception. The court also questioned whether the document reflected official administrative findings and found the cited Supreme Court decision, Chandler v. Roudebush, distinguishable because it concerned prior administrative findings about the same federal employee’s discrimination claim, not findings concerning another complainant’s similar allegations. The court intended to exclude Exhibit 5 under Rule 403 because it contained allegations from a non-testifying third party, lacked a basis for evaluating the determinations’ credibility, and risked unfair prejudice, confusion, and cumulative evidence.

Exhibit 6 outlined allegations against Townsend by a third-party witness whose identity Percy’s counsel could not confirm at the conference. The court stated that the exhibit was hearsay if offered for its truth and that no applicable exception appeared available. The court also intended to preclude it under Rule 403 because its limited value, its presentation of allegations, and the risks of confusion, cumulative evidence, and unfair prejudice favored exclusion.

Townsend’s proposed exhibits

Exhibit A was a suspension notice signed by Percy that listed allegations concerning the internal investigation. The court found it inadmissible hearsay if offered to prove the allegations’ truth. It nevertheless found the document admissible, and not hearsay, when offered to show its effect on Percy or to rebut Percy’s quid pro quo and retaliation allegations. The court found its probative value outweighed potential unfair prejudice because Percy alleged that Townsend failed to represent her during the investigation. As with Alexander’s testimony, the court limited the document and the underlying investigation facts to rebutting the quid pro quo and retaliation claims, not the hostile-work-environment claim or Percy’s character for truthfulness.

Exhibit B was a resignation form signed by Percy. The court found it admissible as a statement of a party opponent.

Disposition

The court permitted Mazza’s testimony; found specified portions of Alexander’s testimony admissible with possible limiting instructions; found Exhibits 1, 3, and 4 inadmissible when offered for their truth but reserved ruling on impeachment use; intended to exclude Exhibits 2, 5, and 6 subject to any permitted impeachment use for Exhibit 2; admitted Exhibit A for specified limited purposes; and admitted Exhibit B. Judge Victoria Reznik entered the order on December 6, 2023.