Hatcher v. Cheng et al

Filing 168

ORDER GRANTING IN PART AND DENYING IN PART Plaintiff's Motion in Limine Number 2 (Doc. 149 ), GRANTING Defendant's Motion in Limine Number 3 (Doc. 150 ) and DENYING Defendant's Motion to Strike Expert Thomas L Hoops (Doc. 161 ). Signed by Judge Staci M. Yandle on 4/5/2018. (bps)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
LAURA J. HATCHER,
Plaintiff,
v.
BOARD OF TRUSTEES OF
SOUTHERN ILLINOIS UNIVERSITY
Defendant.

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Case No. 3:13-cv-00407-SMY-SCW

ORDER

This matter is before the Court on three pretrial motions: Plaintiff Laura Hatcher’s
Motion in Limine #2 (Doc. 149), Defendant Board of Trustees of Southern Illinois University’s
Motion in Limine #3 (Doc. 150) and Defendant’s Motion to Strike Expert Thomas L. Hoops
(Doc. 161). For the reasons below, Plaintiff’s MIL #2 is GRANTED IN PART AND DENIED
IN PART, Defendant’s MIL #3 is GRANTED and Defendant’s Motion to Strike is DENIED.
Plaintiff’s Motion in Limine 2
Plaintiff’s MIL #2 seeks an order “[t]o foreclose any argument concerning or the
presentation of the contents of the Judicial Review Board’s written findings and
recommendations for the grievance appeal of Professor Jarlen Don or Chancellor Cheng’s
reasons therefor.” According to the parties’ filings and arguments made at the Final Pretrial
Conference, Dr. Don was a tenured associate professor who was denied a promotion to full
professor at Southern Illinois University in 2011 on a decision by Vice Chancellor John
Koropchak, acting as Provost. Dr. Don submitted a grievance over the denial to the Judicial
Review Board (“JRB”), which unanimously recommended overturning Koropchak’s decision

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and implementing Dean Kolb’s recommendation that Dr. Don be awarded full professor status.
Chancellor Rita Cheng subsequently chose not to accept the JRB’s recommendation and
affirmed the denial of Dr. Don’s promotion.
In June 2014, Defendant produced a spreadsheet to Plaintiff in association with answers
to interrogatories. The spreadsheet gives a summary of faculty whose denial of tenure and/or
promotion was submitted to the JRB, the JRB’s recommendation and Chancellor Cheng’s
subsequent decision on the matter. (Doc. 155-1). Dr. Don’s case was among those listed.
In January 2018, Defendant made a “supplemental production” of documents to Plaintiff
relating to Dr. Don’s case, specifically the JRB’s written Findings and Recommendations and
Chancellor Cheng’s subsequent letter overriding the JRB’s conclusion and denying the
promotion. The supplemental discovery deadline was January 20, 2017. (Doc. 131).
Plaintiff seeks to bar the introduction of the documents produced and any reference to the
contents of those documents. The written MIL references the late disclosure of these documents.
During the Final Pretrial Conference, Plaintiff’s counsel also argued that Dr. Don’s case was
irrelevant to the issues in this case, both because his was a promotion case (as opposed to
promotion and tenure) and because he had not filed an Equal Employment Opportunity
Commission complaint regarding his denial.
The Court finds that the facts and circumstances surrounding Dr. Don’s promotion
decision are substantially similar to those surrounding the decision on Plaintiff’s tenure so that
they are probative and relevant to the question of whether Plaintiff was treated differently
because she filed an EEOC claim. As such, testimony and argument regarding the Don matter
may be admissible, subject to appropriate foundation and objections at during trial.
However, the Don JRB Memorandum and Chancellor Cheng’s subsequent letter denying
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Don’s promotion, are excluded as there has been no explanation for their late disclosure. Not
only were they produced approximately a year after the last discovery deadline, they were
produced after the dispositive motion had been submitted, argued and ruled upon.

Under

F.R.C.P. 37(c)(1), the Court may exclude materials not timely produced in accordance with a
party’s duty to timely disclose or supplement its discovery responses. The motion is therefore
GRANTED IN PART as to the actual documents, and DENIED IN PART otherwise. 1
Defendant’s Motion in Limine 3
Defendant’s MIL #3 seeks to prohibit Plaintiff or any of her witnesses from mentioning,
arguing or introducing evidence that Chancellor Cheng was required to accept the
recommendation of the JRB to award tenure to Plaintiff. As discussed at the Final Pretrial
Conference, whether such evidence or arguments are proper depends on the interpretation of
relevant provisions of the Collective Bargaining Agreement (“CBA”) in force at the time. As
such, whether Chancellor Cheng was required to accept the JRB’s recommendation is a question
of law for the Court’s determination.
Upon review and examination of the CBA, the Court finds that the CBA did not require
the Chancellor to automatically accept the recommendation of the JRB.

Section 13.01(j)

provides that the Chancellor make a decision “based upon the JRB’s report, supporting
documents, and in cases where the Chancellor chooses to review the testimony, the tape
recording of the hearing.” It also provides that the JRB’s decision “shall replace the decision of
the Provost and Vice Chancellor that is being appealed. The Chancellor shall treat the JRB panel
decision in the same manner as she/he treats similar decisions of the Provost and Vice

1

In light of this ruling, the Court’s ruling on Defendant’s MIL#2 is revised to bar such evidence or information as to
other employees other than Dr. Don.

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Chancellor.” However, the very next section (13.01(k)) is sets forth the procedure that is
triggered if and when the Chancellor “does not accept a recommendation of the JRB that is
favorable to the Faculty member[.]” This very clearly contemplates a world where Chancellor
Cheng was more than a rubber stamp for the JRB’s conclusions. The motion is therefore
GRANTED as to any evidence or suggestion to the jury that she was required to adhere to the
decision of the JRB, as it would clearly be confusing or misleading.
Defendant’s Motion to Strike Expert Thomas Hoops
Finally, Defendant has moved to strike Plaintiff’s proffered expert witness, Thomas
Hoops.

Defendant claims that Plaintiff’s disclosure of Hoops, his original report and his

supplemental report were untimely, that his reports were not compliant with F.R.C.P. 26(1)(2),
and that his testimony does not meet the standard for admissible expert testimony under F.R.E.
702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.. 509 U.S. 579 (1993).
This is essentially a Daubert motion to exclude expert testimony combined with a request
for sanctions for failure to follow the rules of discovery and the scheduling plan. However, to be
timely, such motions should have been made at or before the dispositive motion deadline(s)—
September 9, 2014 (Doc. 70) prior to the appeal in this case or at the very latest the March 10,
2017 deadline set after the case was remanded (Doc. 131).

Hoops was clearly known to

Defendant as a potential expert witness since his first report was disclosed in February 2014.
The time for challenging the timeliness and propriety of his reports or his methodology was long
before the final stages of pretrial.
Moreover, Plaintiff’s failure to include Hoops on her initial Rule 26(a)(3) disclosures’ list
of witnesses appears to have been inadvertent and was clearly not prejudicial. Hoops’ reports
were included in the listing of potential exhibits, which would lead a reasonable litigator to
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anticipate that he would be called as a witness. For these reasons, Defendant’s Motion to Strike
is DENIED.
IT IS SO ORDERED.
DATED: April 5, 2018

s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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