Free Motion in Limine - District Court of Connecticut - Connecticut

Case 3:03-cv-00386-AWT

Document 119

Filed 04/28/2008

Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT EUNICE SMITH, Plaintiff : : : STATE OF CONNECTICUT, DEPARTMENT OF CORRECTION ET AL. Defendant : CIVIL ACTION NO. 3:03CV0386(AWT)

:

April 28, 2008

DEFENDANT'S 1 SECOND MOTION IN LIMINE Defendant Department of Correction ("DOC") moves to prohibit the plaintiff from mentioning or offering any evidence or raw statistical data that a greater number of disciplines occurred for black DOC employees during the five year period preceding 2003. Such raw data is not relevant and lacks foundation under Federal Rules of Evidence 402. It would also be unfairly prejudicial to the defendant under Rule 403. The plaintiff's case is premised in part upon a statistical argument that between 19982003 black DOC employees were disciplined by the agency as a whole at a higher rate than white employees. Plaintiff relies upon a DOC statistical report prepared by DOC employee Robert Jackson. The report simply identified the number of disciplines during the five-year period and stratified the incidents based upon race. There was no attempt or methodology used to analyze whether any racial group was discriminated against in any respects. Mr. Jackson will testify that he applied no recognized statistical methodology to eliminate legitimate nondiscriminatory reasons for any statistical anomaly. No expert has been retained by the

1

All other defendants have been terminated by prior orders of the Court. The lone defendant at trial is the Dept. of Correction.

Case 3:03-cv-00386-AWT

Document 119

Filed 04/28/2008

Page 2 of 4

plaintiff to: (1) stratify raw data for DOC corrections officers alone to exclude those cases in which legitimate nondiscriminatory factors (type of offense, the decision maker, DOC facility, racial makeup of work shift, repeat offenders, rank or race of supervisor) that could influence the raw data; (2) correlate any valid statistical inference to any particular region or to identified supervisor; (3) account for the differing percentages of BM and WM corrections officers within each facility; (4) account for repeat offenders within a region; or (5) verify in which years the incidents occurred during a five year period. In Foster v. Tandy Corporation, 828 F.2d 1052 (4th Cir. 1984), the federal court rejected raw numbers that lacked a sufficient context upon which to base a valid statistical inference of discrimination. In doing so, the court reiterated the rule that raw statistics devoid of any context which relates those statistics to the alleged discriminatory practice are of minimal probative value." Id. at 1057. It is established law in this circuit that statistical evidence in a disparate treatment case is generally admissible if the requisite foundation is established. Hollander v. American Cyanamid Co., 172 F.3d 192, 202 (2d Cir. 1999). However, before such statistical evidence is admissible the offering party must establish the reliability of any inferences to be drawn from the statistical evidence. Id. at 203. In the Hollander case, the plaintiff brought an age discrimination claim for wrongful termination. In support of his case, the plaintiff sought to offer the statistical reports of an expert who had analyzed the terminations at the defendant's plant and was prepared to opine within a high degree of statistical certainty that age was a determining factor in the plaintiff's termination. Finding the expert's opinion based on raw statistics to be unreliable, the trial court excluded the experts' testimony. On appeal, the Second Circuit Court of Appeals affirmed the

2

Case 3:03-cv-00386-AWT

Document 119

Filed 04/28/2008

Page 3 of 4

trial court ruling. Acknowledging the unreliability of raw statistics, the Court of Appeals stated the following:

However, the Report's inference of discrimination solely on the basis of the raw numbers is impermissible in the absence of any attempt to account for other causes of the . . . anomaly. . . . Highlighting Gaudard's failure to account for explanations other than discrimination is the fact that both 60-69 and 70-79 level 9+ workforce increased moderately over the course of those years. In short, data presented by Gaudard's in this part of the report does not make it any more or less likely that Cyanamid is liable for age discrimination. Id. at 203. See also, Delgado v. Achieve Global, 2000 Conn. Super LEXIS 3184 (November 15, 2000, Melville, J). Permitting the admission of raw statistical data without the proper foundation would unfairly prejudice the defendant and force the parties to litigate an entirely different case of adverse impact under Title VII that was not plead. Defendant also informs the court that plaintiff never identified the 2003 report or supplemented her discovery responses to discovery. The report is not listed as an exhibit in the pretrial memorandum. WHEREFORE, the defendant DOC requests that the court grant the motion in limine. DEFENDANTS DEPARTMENT OF CORRECTION RICHARD BLUMENTHAL ATTORNEY GENERAL

By:

__/s/_Joseph A. Jordano_____________ Joseph A. Jordano (#ct21487) Assistant Attorney General 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 Tel: (860) 808-5340 Fax: (860) 808-5383 E-Mail Address: [email protected]

3

Case 3:03-cv-00386-AWT

Document 119

Filed 04/28/2008

Page 4 of 4

CERTIFICATION I hereby certify that on April 28, 2008 a copy of the foregoing Motion in Limine was filed electronically. Notice of this filing was sent by e-mail to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

__/s/ Joseph A. Jordano____________ Joseph A. Jordano (#ct21487) Assistant Attorney General 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 Tel.: (860) 808-5340 Fax: (860) 808-5383 E-Mail Address: [email protected]

4