In Belvin et al v. Electchester Management, LLC, 2022 WL 10586743 (E.D.N.Y. Oct. 18, 2022) – in which plaintiffs assert claims of, inter alia, hostile work environment – the court ruled on various motions in limine filed by the parties.
In one motion, defendant asked the court to preclude testimony from two nonparty employees of defendant regarding their own experiences of discrimination while working at defendant.
The court rejected that request, explaining:
“[H]arassment experienced by other employees is relevant to hostile work environment claims,” provided the evidence of such harassment is otherwise admissible, like first-hand testimony. De-Marco v. West Hills Montessori, 350 F. App’x 592, 594 (2d Cir. 2009) (summary order) (citing Howley v. Town of Stratford, 217 F.3d 141, 155 (2d Cir. 2000) and Perry v. Ethan Allen, Inc., 115 F.3d 143, 150-51 (2d Cir. 1997)). “Since one of the critical inquiries with respect to a hostile environment claim is the nature of the environment itself, evidence of the general work atmosphere is relevant. Thus,… in a hostile workplace case, the trier of fact must examine the totality of the circumstances, including evidence of … harassment directed at employees other than the plaintiff.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 150-51 (2d Cir. 1997).
Therefore, testimony from other members of Plaintiffs’ protected class of their own experiences of harassment or discrimination is directly relevant to Plaintiffs’ claims of hostile work environment.
Indeed, such evidence may be central to proving Plaintiffs’ case. And there is no risk of confusing the issues, as evidence of Hewlett and Jenkins’s own experiences of discrimination at EML is probative of whether the work environment was hostile to its employees on the basis of their race—the exact issue being presented to the jury.
Next, Hewlett’s alleged experience of retaliation—that Vito Mundo, EML’s general counsel, pressured him to withdraw his EEOC complaint—is identical to that raised by Belvin. There is no per se rule that evidence of discrete acts of discrimination or retaliation towards non-parties is irrelevant or unduly prejudicial; instead, the court must determine admissibility “in the context of the facts and arguments in a particular case,” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387 (2008). When such evidence is sufficiently similar to the claims raised in the case—for example, when the conduct was engaged in by the same actor, or the actions occurred close in time or space to the plaintiff’s experience—it is relevant. See Schneider v. Regency Heights of Windham, LLC, No. 14-CV-217 (VAB), 2016 WL 7256675, at *12 (D. Conn. Dec. 15, 2016) (weighing factors under which prior experiences of third parties are sufficiently similar). As a result, “it is well established in the Second Circuit that one way to establish retaliation is to demonstrate that other people who have participated in protected activity have been treated adversely and similarly to plaintiffs.” Gaffney v. Dep’t of Info. Tech. & Telecomms., 579 F. Supp. 2d 455, 460 (S.D.N.Y. 2008) (citing Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 141 (2d Cir. 1993), Taitt v. Chem. Bank, 849 F.2d 775, 778 (2d Or. 1988)). Accordingly, Hewlett’s testimony regarding EML’s retaliation for filing an EEOC complaint is admissible.
The court rejected defendant’s argument that the two witnesses in question were not deposed and their discrimination claims were not subject to discovery, noting that this was an issue of defendant’s own making. Specifically, both plaintiffs, during their depositions, testified that both witnesses faced similar hostility, and that if defendant wanted to depose them, it should have done so.