Davis v. Lakeside Motor Company Inc

Filing 194

OPINION AND ORDER regarding 167 MOTION in Limine and 174 MOTION in Limine.. Signed by Judge Jon E DeGuilio on 11/20/2014. (saj)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JAMES DAVIS
Plaintiff,
v.
LAKESIDE MOTOR COMPANY, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 3:10-CV-405 JD

OPINION AND ORDER
Now before the Court are the parties’ motions in limine [DE 167, 174] and objections to
the opposing party’s exhibits [DE 170, 173]. The parties’ motions in limine are prolific, but in
many cases relate to evidence that does not exist or that neither party plans to offer anyway. The
Court denies those portions of the motions as moot, but should either party wish to offer such
evidence, they should notify the opposing party immediately, and prior to offering the evidence,
so that the matter can be raised with the Court if necessary. Certain of the requests also lack
enough specificity to be useful as orders in limine, such as a blanket request to preclude lay
witnesses from offering expert opinions. The Court denies those portions of the motions as well,
but the parties remain free to raise those objections on an individual basis at trial.
The Court also notes that, as with any orders in limine, these rulings are preliminary in
nature and are subject to change as the case unfolds, particularly if the evidence at trial differs
from what was contained in the parties’ proffers. Luce v. United States, 469 U.S. 38, 41–42
(1984) (An order in limine “is subject to change when the case unfolds, particularly if the actual
testimony differs from what was contained in the defendant's proffer. Indeed even if nothing
unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion,

to alter a previous in limine ruling.”). That said, the Court addresses each of the motions in
limine in turn, followed by the objections to the trial exhibits.
I. DEFENDANT’S MOTIONS IN LIMINE [DE 174]
1.

Evidence of Defendant’s insurance coverage
Granted. Defendant seeks to exclude evidence of its liability insurance pursuant to Rule

411. Plaintiff objects, but at the final pretrial conference he confirmed that he does not intend to
offer such evidence unless Defendant somehow opens the door, and that he will approach the
Court prior to offering such evidence. Because no admissible purpose for this evidence is
currently apparent, the Court grants the motion.
2.

Statements made during settlement negotiations
Granted without objection.

3.

References to discovery disputes and untimely production of documents
Granted in part. Defendant seeks to exclude any reference to discovery disputes or its

untimely production of certain documents. Plaintiff does not object, but wishes to be able to
cross examine witnesses regarding Defendant’s investigation of his charges of discrimination,
which the Court does not interpret as being encompassed by this request. The Court thus grants
the motion, subject to the Court’s previous order on Plaintiff’s motions for sanctions [DE 140],
in that if Defendant references or elicits testimony on the matters addressed in that order, the
Court will instruct the jury to disregard those matters and will inform it that the reason for the
instruction is that the Defendant failed to comply with its discovery obligations.
4.

References to the parties’ motions in limine
Granted without objection.

2

5.

“Golden rule” arguments
Granted in part. Defendant seeks to bar the “‘Golden Rule’ argument, which invites the

jury to place itself in the plaintiff’s shoes.” Plaintiff does not object, so the Court grants the
motion. The Court notes, however, that an element of Plaintiff’s harassment claim is that a
reasonable person in Plaintiff’s position would find Plaintiff’s work environment to be hostile or
abusive, so the Court will not construe this motion as limiting Plaintiff in any way relative to this
element of proof.
6.

References to Defendant’s corporate status
Denied as overbroad. Defendant requests that any reference to its corporate status should

be barred. The Court agrees that arguments that appeal to prejudice against corporations are
improper, but the fact that Defendant is a corporation is apparent from its name, and even
Defendant proposed a jury instruction that the jury should give corporations the same
consideration they would give any individual person. In addition, Plaintiff must establish a basis
for employer liability as part of his harassment claim, and some limited reference to the
Defendant’s corporate status may be appropriate in that context. Thus, barring any reference at
all to the Defendant’s corporate status would be overbroad, so the Court denies this motion,
though the parties remain free to object on an individual basis should any argument improperly
appeal to prejudice against corporations.
7.

References to underlying facts during voir dire
Denied. Defendant requests that the facts related to this matter be barred from the voir

dire process. That request is overbroad, as at least some of the underlying facts have to be shared
with the venire in order to select a qualified jury. Further, this request need not be addressed
through an order in limine, as the Court will be conducting voir dire itself, and has given the

3

parties ample opportunity to propose and to object to any questions the Court intends to ask
during the process.
8.

Legal conclusions by any witness
Denied as lacking specificity.

9.

Witnesses, exhibits, or contentions that Plaintiff did not timely disclose
Denied. The only evidence Defendant identifies as falling in this category relates to

Plaintiff’s claim for attorney fees, which is not an issue for the jury, and which Plaintiff does not
propose to offer.
10.

Defendant’s subsequent remedial measures
Granted without objection. Evidence of any subsequent remedial measures, including the

changing of Defendant’s hiring procedures following Plaintiff’s termination, will be excluded.
11.

Financial situation of the parties
Taken under advisement. Defendant seeks to exclude evidence of its financial situation.

Where punitive damages are at issue, though, as here, a party’s financial situation may be
relevant. Lampley v. Onyx Acceptance Corp., 340 F.3d 478, 485 (7th Cir. 2003); EEOC v. AIC
Sec. Investigations, Ltd., 55 F.3d 1276, 1287 (7th Cir. 1995). Defendant argues that punitive
damages will be limited by a statutory cap that is so low—either $50,000 or $100,000, 42 U.S.C.
§ 1981a—that the probative value of this evidence would be substantially outweighed by the
danger of unfair prejudice. The Court disagrees that any damages caps substantially affect the
probative value of such evidence, since no damages caps apply to section 1981, 42 U.S.C.
§ 1981a(b)(4) (stating that the caps on compensatory and punitive damages for Title VII claims
shall not “be construed to limit the scope of, or the relief available under, section 1981 of this
title”), and even if Title VII’s caps were to apply, those amounts would still be considerable
punitive damages awards. However, without knowing what evidence Plaintiff intends to offer on
4

this subject, if any, the Court cannot conduct a Rule 403 analysis, and therefore reserves ruling
on this motion until trial, at which time the parties should raise the issue outside the presence of
the jury before offering such evidence.
12.

“Send a message” arguments
Denied, for the same reason as the previous request. Punitive damages are at issue, and

even if statutory caps (of which the jury will not be informed) apply, a jury could consider those
amounts to be sending a message, so this argument is proper as long as it is limited to the
purpose of punitive damages.
13.

Defendant’s confidential or proprietary documents
Denied, as neither party is aware of any such documents that might be offered at trial.

14.

Testimony of non-called witnesses
Granted. Defendant asks the Court to bar comments regarding the Defendant’s failure to

call a certain witness. Plaintiff responds by arguing that, consistent with Seventh Circuit Pattern
Jury Instruction 1.19, it can ask the jury to draw an adverse inference from the Defendant’s
failure to call a witness. However, that instruction is only appropriate where the missing witness
was only available to the party against whom the inference would be drawn. Plaintiff has not
identified any such witness, so this argument would be improper and the Court grants this
motion.
15.

Comments on a party’s failure to call certain experts
Denied, as neither party has identified any expert witnesses or indicated any possibility of

making such comments.

5

16.

Prior allegations, claims, lawsuits, or complaints of discrimination against
Defendant
Denied. At the final pretrial conference, Plaintiff stated that he is unaware of any such

evidence, so there is no need for an order in limine to prevent him from offering it. To the extent
any such evidence may become available Plaintiff is cautioned to notify the Court prior to
disclosure to the jury.
17.

Evidence of Mike Wilson as a comparator
Denied. Defendant seeks to bar evidence of Mike Wilson as a comparator to Plaintiff, on

the basis that a single comparator is insufficient to prove discrimination. However, Plaintiff does
not need to prove his entire case through every piece of evidence he offers. See Fed. R. Evid. 401
(defining relevant evidence as evidence that has “any tendency to make a fact more or less
probable than it would be without the evidence”). Comparator evidence is probative of
discrimination and retaliation, Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012)
(recognizing “evidence . . . that similarly situated employees were treated differently” as
probative of discrimination and retaliation), and there is little if any prejudicial aspect to this
evidence, so this motion is denied.
18.

Plaintiff’s EEOC charges of discrimination
Denied. Defendant seeks to prevent Plaintiff from offering his EEOC charges of

discrimination into evidence, on the ground that they are hearsay. If offered by Defendant, these
would be statements of a party opponent, but that exclusion to the hearsay rule does not apply if
Plaintiff offers them. Nonetheless, Plaintiff also argues that the charges could constitute prior
consistent statements, and these documents could be admitted on that basis if Plaintiff lays the
necessary foundation, so the motion is denied.

6

19.

Plaintiff’s response to the Indiana Department of Workforce Development request
for information
Denied. As with Plaintiff’s charges of discrimination, this would be hearsay if offered by

Plaintiff, but could potentially be admitted as prior consistent statements.
20.

Plaintiff’s lost wage summary
Granted without objection. Plaintiff has withdrawn the exhibit at issue.

21.

Use of the words “nigger” or “nigga”
Denied. In Defendant’s motion, it seeks to exclude any use of the words “nigger” or

“nigga” at trial, and asks the Court to instruct counsel and every witness to only use the term “N
word” instead. As written, this motion is frivolous, as what words were said and in what manner
are squarely at issue in this case, as are the effect those words actually had on Plaintiff and the
effect those words would have had on a reasonable person, so the inflammatory nature of these
words is probative of disputes that are central to this case. At the final pretrial conference,
Defendant narrowed its request somewhat, and asked that the words only be permitted to be used
by witnesses in describing exactly what was said and how, and that counsel should only be
allowed to use the words on a single occasion, in order to clarify his subsequent uses of the term
“N word.” This is somewhat more reasonable, but the Court still views this request as too
restrictive, as the inflammatory nature of these words is directly at issue in this matter. The
motion is therefore denied.
That said, the Court has no intention to permit excessive or gratuitous use of these words
by either party in this matter. These words are exceptionally offensive and inflammatory, and the
Court will not permit counsel to use them in a manner that crosses the line from a desire to
inform to a desire to inflame. Where appropriate, counsel should use the term “N word” instead.

7

22.

Plaintiff’s income or work history after August 2009
Denied as moot. Defendant’s argument on this motion relates only to Plaintiff’s claim for

back pay and front pay, which the Court has already ordered will not be presented to the jury.
23.

Wrongdoing by the Defendant before October 11, 2008
Denied. Defendant seeks to exclude evidence of any discrimination that occurred prior to

October 11, 2008, on the basis that it would be outside the 180-day statute of limitations.
However, as Plaintiff correctly argues, this motion is based on the wrong limitations period, as
Plaintiff had 300 days to file his charges of discrimination and retaliation, so this motion is
denied.
24.

Testimony by Plaintiff about statements to him from employees that were not his
supervisors
Denied. Defendants seeks to bar Plaintiff “from testifying about any statements to him

from any employees of the defendant that were not his supervisors,” on the grounds that the
statements would be hearsay, and that stray racial comments should not be admitted unless
Plaintiff can link them to the decisionmakers. As to the first ground, such statements may be
hearsay, but only if offered for the truth of the matters asserted, and only if no exception applies.
Without knowing what statements, if any, Defendant is actually referring to, the Court cannot
conduct this analysis. Likewise for the second ground, there is no indication what statements
Defendant is referring to or that Plaintiff would be offering them for the purpose of establishing a
racial animus by his supervisors. Therefore, the motion is denied, but may be raised on an
individual basis at trial.
25.

Evidence that Mr. Nichols accused Plaintiff of stealing a tire iron
Granted. Defendant seeks to exclude evidence that Mr. Nichols accused Plaintiff of

stealing a tire iron at some point after terminating Plaintiff’s employment. Plaintiff asserts that at

8

some point shortly after his employment with Defendant, Mr. Nichols reported to the police that
Plaintiff stole a floor jack1 out of the body shop, and that Plaintiff was subsequently questioned
by police officers. Plaintiff argues that this evidence is relevant since treating similarly situated
people outside of Plaintiff’s protected class more favorably can suggest that Mr. Nichols
harbored a racial or retaliatory animus, which motivated him to harass and fire Plaintiff.2 That
may be correct in theory, but Plaintiff has not made a sufficient showing to support an inference
that Mr. Nichols made this accusation because of Plaintiff’s race or protected activity. There is
no information before the Court indicating what accusation Mr. Nichols actually made, what his
basis for that accusation was, whether he made similar accusations against any other individuals,
or whether he had any reason to make similar accusations against any other individuals, for
example. Thus, at this time, there is no basis from which a jury could find that Mr. Nichols
actually treated similarly situated individuals differently as to this incident, such as would be
required in order for this evidence to be relevant. Further, the risk that this accusation could
require a trial within a trial to establish each of the above issues, thus unduly wasting time and
confusing the issues for the jury, would be substantial, so Rule 403 would also present an
obstacle to introducing this evidence.
As to Defendant’s argument in the alternative that this evidence should be excluded
because it occurred outside the timeframe of Plaintiff’s employment, that is not an appropriate
basis for excluding the evidence. Evidence can be probative of Mr. Nichols’ racial or retaliatory
1

Defendant refers to the item as a tire iron, while Plaintiff refers to it as a floor jack, though it is
clear they are referring to the same thing. Because this is Defendant’s motion, the Court uses
Defendant’s term.

2

As to retaliation, the Court construes Plaintiff’s argument to be that this incident is probative of
Mr. Nichols’ motive and intent to retaliate, not that Plaintiff is suggesting that this incident could
be an alternate basis for the jury to find in his favor on the retaliation claim, as he has not
requested jury instructions on that issue and has not suggested that he is seeking damages for
having been questioned by police rather than for having been fired.
9

animus even if it took place before or after the time Plaintiff was actually employed. In fact, even
Defendant has submitted records of discipline it took against other of its employees outside the
timeframe of Plaintiff’s employment, to show a lack of discriminatory reason for actions it took
during Plaintiff’s employment. Though distance in time from the actions at issue can diminish
the relevance of such evidence, the fact that an incident occurred after Plaintiff’s employment is
itself rather unimportant. The Court therefore does not rely on that ground to exclude the
evidence.
26.

Opinion testimony by lay witnesses
Denied as lacking specificity.

27.

Testimony that defense counsel intimidated or coerced any witness
Granted. Defendant seeks to exclude evidence or questioning as to whether counsel

intimidated or coerced any witness. At the final pretrial hearing, Plaintiff noted that he may have
evidence that a witness was intimidated or coerced, but that the intimidation or coercion was by
the employer, not by counsel. Since allegations of such actions by counsel could be highly
prejudicial, and do not appear to be at issue, the Court grants this motion, and bars any
suggestion of coercion or intimidation by counsel.
28.

Testimony or argument that Defendant was negligent
Denied. Defendant seeks to exclude any evidence or argument that the defendant was

negligent, on the basis that Plaintiff did not adequately assert such a theory in his complaint or in
his charge of discrimination to the EEOC. After discussing this request at the final pretrial
conference, the Court invited the parties to submit supplemental briefs on this issue, and the
Court has considered those filings as well. To narrow the issue, the Court notes that the only
context in which Plaintiff could possibly have a burden of proof to establish Defendant’s
negligence would be the employer liability element of his hostile work environment claim. There
10

are two different standards for meeting this element, depending on whether the harasser was the
employee’s supervisor or merely a co-worker. If the harasser was a supervisor, then the
defendant is liable unless the harassment did not culminate in a tangible employment action and
the defendant establishes an affirmative defense. However, “[i]f the harassing employee is the
victim’s co-worker, the employer is liable only if it was negligent in controlling working
conditions.” Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013). In Plaintiff’s complaint and
his EEOC charge, Plaintiff alleged that he was harassed by Mr. Nichols, his supervisor. He did
not also allege in the alternative that Mr. Nichols was his co-worker, though, so Defendant
argues that Plaintiff has failed to assert a theory of co-worker harassment and should be barred
from arguing such a theory at trial.3
The Court finds that Defendant’s arguments are misplaced for several reasons. First,
Defendant has cited no authority indicating that the negligence standard cannot also be used
where the harasser is a supervisor. The supervisor standard, which permits vicarious liability and
is easier for a plaintiff to meet, is not available when the harasser is merely a co-worker, Vance,
133 S. Ct. at 2439, but that does not necessarily mean the opposite is true. In fact, as the Supreme
Court stated in Ellerth, an employer’s own negligence is always a basis upon which it can be
held liable for harassment:
[A]n employer is liable when the tort is attributable to the employer’s own
negligence. § 219(2)(b). Thus, although a supervisor’s sexual harassment is
outside the scope of employment because the conduct was for personal motives,
an employer can be liable, nonetheless, where its own negligence is a cause of the
harassment. An employer is negligent with respect to sexual harassment if it
knew or should have known about the conduct and failed to stop it. Negligence
sets a minimum standard for employer liability under Title VII . . . .

3

The Court further notes that this entire issue is likely to be moot, as there does not appear to be
any colorable basis for arguing that Mr. Nichols does not constitute a supervisor.
11

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758–59 (1998) (emphasis added). Thus, even
though Plaintiff alleged that Mr. Nichols was his supervisor, he is every bit as entitled to pursue
a negligence theory as he is a vicarious liability theory, as to which Defendant does not object.
Second, Defendant’s argument that Plaintiff was required to plead this theory of
employer liability misstates the requirements of the notice pleading system. Plaintiff is not
required to plead the legal theories supporting his claim; he is merely required to provide “a short
and plain statement of the claim showing that [he] is entitled to relief.” Fed. R. Civ. P. 8(a)(2);
see Johnson v. City of Shelby, No. 13-1318, slip op. at 1 (U.S. Nov. 10, 2014) (“Federal pleading
rules call for ‘a short and plain statement of the claim showing that the pleader is entitled to
relief,’ Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for
imperfect statement of the legal theory supporting the claim asserted.”). The Complaint
adequately states a claim against the Defendant for racial harassment and contains ample facts
supporting negligence as a basis for employer liability, and it need not have specified which of
the alternate theories of employer liability Plaintiff intended to pursue. To the extent Defendant
claims it did not have adequate notice of Plaintiff’s intent to pursue this theory, its own Answer
refutes that claim, as its thirteenth defense states, “[R]easonable care was exercised to prevent
and correct promptly any alleged discriminatory or harassing behavior . . . .” [DE 9]. Defendant’s
similar argument that Plaintiff did not advance this theory in his EEOC charge of discrimination
fails for the same reason, as Defendant has cited no authority suggesting that such charges need
to assert legal theories. Therefore, Defendant’s motion is denied.
II. PLAINTIFF’S MOTIONS IN LIMINE [DE 167]
a.

Lawsuits or administrative actions filed by or against Plaintiff
Denied as moot, as neither party is aware of such evidence.

12

b.

Monies Plaintiff may have been paid from previous or subsequent claims or lawsuits
Denied as moot.

c.

Claims for unrelated general emotional distress made by Plaintiff in other matters
Denied as moot.

d.

The amount of unemployment benefits Plaintiff received
Denied, as this only relates to Plaintiff’s claim for back pay, which has been addressed by

previous orders of the Court.
e.

Plaintiff’s claim for unemployment benefits prior to his employment with Defendant
Granted. Defendant objects to this request on the basis that this evidence would

demonstrate that Plaintiff was fired from prior positions for good cause, such as repeated
absences. The Court fails to understand how the fact that Plaintiff submitted a claim for
unemployment benefits would show that he was fired for repeated absences (and even then,
Defendant would have to fit this evidence through Rule 404(b)), so this motion is granted.
f.

Prior criminal acts or bad acts by Plaintiff
Denied, as neither party is aware of such evidence.

g.

Evidence and exhibits related to Plaintiff’s back pay and front pay claims
Granted. As this Court has previously ordered, Plaintiff’s claims for back pay and front

pay are issues for the Court to decide if necessary, not for the jury. Accordingly, Defendant’s
exhibit D, as well as the portions of Defendant’s exhibits A, B, OO, PP, QQ, and RR that pertain
to Plaintiff’s work history and wages, will not be admitted.
h.

Documents not produced during discovery
Granted. Plaintiff seeks to exclude Defendant’s exhibit C, to the extent that it contains

any documents not included in Plaintiff’s version of the EEOC file. Defendant may use any
documents contained in Plaintiff’s version of the file, as discussed in the Court’s sanctions
13

order—so long as it establishes an admissible basis for each document—but while Defendant’s
exhibit list notes that this exhibit contains Plaintiff’s version, the exhibit that Defendant
submitted was its own version of the file. The Court therefore grants this motion, so to the extent
that if Defendant seeks to admit any portions of this exhibit, they must be contained in Plaintiff’s
version of the file.
i.

Affidavits from Defendant’s employees
Denied. Plaintiff seeks to exclude Defendant’s exhibits S, T, U, V, and CC, which are

affidavits from various Lakeside employees. These are unlikely to be admitted, as they would
constitute hearsay if offered for their truth, but they could conceivably be used for impeachment
or through an exception to the hearsay rule, so the Court declines to exclude these exhibits’ use
in their entirety. Should the Defendant seek to admit these documents, it will need to lay an
appropriate foundation for their admissibility, and the Court will consider objections on an
individual basis at trial.
j.

Defendant’s exhibits that lack foundation
Denied. Plaintiff seeks to exclude fourteen of Defendant’s exhibits on the basis that they

lack foundation. Most of these exhibits are subject to other more specific motions in limine, and
many of them have been stricken or limited through those motions. Thus, the Court declines to
separately address them under this more general objection.
k.

Defendant’s exhibits that were designated without specificity
Denied. Plaintiff seeks to exclude exhibits that Defendant designated without the

requisite degree of specificity, as required by this Court’s Scheduling Order. However, the Court
finds that the Defendant has adequately designated these exhibits, so it declines to exclude any
exhibits on this ground, but notes that many of them are subject to other rulings.

14

l.

Documents not disclosed by Defendant with its trial exhibits
Denied as already addressed through other motions in limine and by this Court’s

Scheduling Order.
m.

Expert testimony and evidence
Denied, as Defendant has identified no such testimony or evidence, so an order in limine

on this topic is unnecessary.
n.

Medical records and reports
Denied, as no such evidence has been identified.

o.

Expert opinions by lay witnesses
Denied as lacking specificity.

p.

References to settlement negotiations
Granted.

q.

Police reports or surveillance of Plaintiff
Denied, as neither party is aware of any such evidence.

r.

Documents concerning Plaintiff’s employment subsequent or prior to his
employment with Defendant
Granted, to the extent that Exhibit D is stricken. Plaintiff seeks to strike portions of

Defendant’s exhibit D that contain or are based on information that Defendant learned through
subpoenas issued to his employers. Exhibit D is irrelevant, as the jury will not consider
Plaintiff’s wage claim, so this exhibit will be stricken regardless of the source of its information.
s.

Documents concerning Plaintiff’s employment subsequent or prior to his
employment with Defendant
Denied as redundant to the previous request.

15

t.

Plaintiff’s tax documents
Denied, as these documents would only be relevant, if at all, to back pay and front pay, so

they have already been excluded through other orders.
u.

Phone records or audio recordings of Plaintiff
Denied, as no such evidence currently exists.

v.

Testimony from undisclosed witnesses
Denied. Plaintiff does not identify any witnesses that fit this description, so the Court will

address any such objections on an individual basis should this issue arise.
w.

Evidence or argument of economic hardship that might accrue in the event of a
judgment against Defendant, or that a judgment might cause in increase in
insurance rates
Granted without objection.

x.

Evidence or argument as to the effect this verdict might have on future insurance
rates
Granted without objection.

y.

Evidence or argument that a judgment against the Defendant would financially
harm it or cause financial loss to other members of society
Granted without objection.

z.

Evidence or argument the Defendant sold its Chrysler Jeep Dodge franchise
subsequent to Plaintiff’s employment
Granted without objection.

aa.

Evidence or argument that, or when, Plaintiff hired an attorney
Granted without objection.

bb.

Evidence or argument that Plaintiff is seeking more money than they expect the
jury to award
Granted without objection.

16

cc.

Plaintiff’s claim for attorney fees
Granted, to the extent that Defendant may not reference or comment on the fact that

Plaintiff is seeking attorneys’ fees. If necessary, the Court will determine at a later time whether
attorneys’ fees are warranted and in what amount.
dd.

Statutory damages caps
Granted. Statutory damages caps are issues for the Court to assess, and should not be

disclosed to the jury.
ee.

References to society being overly litigious
Granted in part. Plaintiff seeks to bar “[a]ny reference to society in general being overly

litigious, or that the Plaintiff is engaged in a ‘scam’ or ‘scheme to defraud’ any party, or playing
the ‘litigation lottery.’” Defendant objects to this motion because it believes that evidence of
damages that Plaintiff did or did not receive in prior lawsuits is relevant. Any relevance to such
evidence would be quite tenuous, but the Defendant has represented that it is not aware of any
such evidence, so its objection to this motion is moot. Should that change, the Defendant must
notify Plaintiff and the Court before using such evidence. The arguments Plaintiff seeks to bar
through this motion would be improper, so the motion is granted, subject to the exception that
Defendant is entitled to impeach Plaintiff’s testimony, including by referencing Plaintiff’s
financial motivations, if appropriate.
ff.

References to or evidence of discrimination, harassment, or retaliation claims made
by Plaintiff other than in this matter
Denied as redundant to previous motions, and since neither party is aware of any such

evidence.

17

gg.

References to or evidence of any monies Plaintiff may have been paid in other
claims or lawsuits
Denied as redundant to previous motions, and since neither party is aware of any such

evidence.
hh.

References to or evidence of disciplinary actions taken by Defendant’s supervisors
except for Mr. Nichols
Denied. Plaintiff seeks to exclude any reference to or evidence of disciplinary actions

taken by any supervisor other than Mr. Nichols. Defendant objects on the basis that comparisons
to similarly situated employees are relevant. So long as Defendant can actually establish that the
other employees are similarly situated, this evidence may be admissible, so the Court denies the
motion. However, in order to offer these documents on that basis, Defendant will need to lay a
foundation as to each disciplinary action such that the jury could find that the other employees
were similarly situated. This will require Defendant to show at a minimum that there was a
common decisionmaker between Plaintiff’s discipline and each of the other disciplinary actions
it seeks to admit, (which does not necessarily mean the employees reported to the same
supervisor). Coleman, 667 F.3d at 847–48 (noting that a party must typically “demonstrate at a
minimum that a comparator was treated more favorably by the same decision-maker who fired
the plaintiff”). If that is the case, and Defendant can also show that the other employees were
subject to the same standards of conduct as Plaintiff and that their misconduct was of comparable
seriousness, then the fact that the other employees worked in other departments will not bar this
evidence. Id. at 849 (“‘[W]hen uneven discipline is the basis for a claim of discrimination, the
most-relevant similarities are those between the employees’ alleged misconduct, performance
standards, and disciplining supervisor,’ rather than job description and duties.” (quoting Rodgers
v. White, 657 F.3d 511, 513 (7th Cir. 2011)). Simply showing that other employees were
disciplined by other supervisors is not enough, though.
18

The Court further notes that the relevance of such evidence may depend on the arguments
Plaintiff advances at trial. If, for example, Plaintiff concedes that the disciplinary policy would
have required his firing regardless of his race had he actually violated the policy, and only argues
that he never violated the policy, then evidence as to how Defendant applied its policy to other
employees might not be relevant (unless Defendant shows that those employees did not actually
violate the policy either). On the other hand, if Plaintiff argues that his firing must have been
discriminatory because no other non-black employees ever got fired or disciplined, then a much
broader range of evidence may be admissible.
ii.

References to or evidence of any disciplinary actions taken by Defendant after
Plaintiff’s termination
Denied. Plaintiff seeks to bar any evidence of discipline that Defendant took against other

employees after the date he was fired. Although any distance in time tends to diminish the
relevance of such evidence, the fact that Plaintiff had already been fired at the time of the other
disciplinary actions does not mean that they are irrelevant, so long as they involved common
decisionmakers applying common standards to conduct of comparable seriousness.
jj.

References to the EEOC’s findings
Granted. Plaintiff seeks to bar any reference to the EEOC’s findings as to his charges of

discrimination on the basis that they are hearsay and also excludable under Rule 403. Defendant
opposes this request and argues that the EEOC’s findings are admissible and that their probative
value is not substantially outweighed by their prejudicial value.
The Court agrees with the Plaintiff. First, it is not apparent that the purported findings
meet the exception to the rule against hearsay. Rule 803(8)(A)(iii), sets out an exception to the
hearsay rule for a “record or statement of a public office if it sets out . . . factual findings from a
legally authorized investigation” and “neither the source of information nor other circumstances
19

indicate a lack of trustworthiness.” Here, the EEOC closed its investigations and issued a Rightto-Sue letter with a box checked next to the following text:
The EEOC issues the following determination: Based upon its investigation, the
EEOC is unable to conclude that the information obtained establishes violations
of the statutes. This does not certify that the respondent is in compliance with the
statutes. No finding is made as to any other issues that might be construed as
having been raised by this charge.
[DE 190-3, -4]. It is not clear what the EEOC means by this language, though. It could mean that
the EEOC indeed made a finding that no discrimination or retaliation took place, but it could also
mean that the EEOC was simply closing its investigation having not actually made a finding
either way. Thus, it is unclear whether these letters satisfy the exception to the hearsay rule.
Even if the letters, or testimony to the same effect, were not excluded as hearsay, this
evidence would easily be excluded under Rule 403. Under that rule, “[t]he court may exclude
relevant evidence if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Here, the probative
value of evidence of the EEOC’s investigation and findings, such as they are, is limited, as the
jury will have the benefit of considering live testimony given under oath and tested through the
adversary process, which was not available to the EEOC, and the Defendant has not suggested
that any information was presented to the EEOC that will not also be available at trial. Young v.
James Green Mgmt., Inc., 327 F.3d 616, 624 (7th Cir. 2003) (upholding the exclusion of EEOC
findings in part because the party “pointed to no evidentiary material available to the EEOC that
was not otherwise available to the jury during trial”); Halloway v. Milwaukee Cnty., 180 F.3d
820, 827 (7th Cir. 1999) (upholding the exclusion of administrative findings of discrimination in
part because “the investigation was not based on sworn affidavits or depositions from both
sides”); EEOC v. Custom Cos., Inc., No. 02-cv-3768, 2007 WL 1810495 (N.D. Ill. June 21,
20

2007) (excluding EEOC findings after considering “the fact that the EEOC has no adjudicatory
power, that statements made to the investigator were not under oath, and that evidence on
matters investigated by the EEOC was available from other sources.”).
Meanwhile, the dangers of unfair prejudice, confusing the issues, misleading the jury, and
wasting time are substantial. As the Seventh Circuit has recognized:
Whether an EEOC determination is in favor of a charging party or a respondent, a
district judge or jury cannot evaluate the weight it deserves, if any, without
understanding what evidence was presented to the EEOC and whether that
evidence is properly admissible in court. That sort of effort will rarely add much
to the probative value of the admissible evidence that is actually submitted to the
court or jury for a de novo decision on the merits.
Silverman v. Bd. of Educ. of the City of Chicago, 637 F.3d 729, 733 (7th Cir. 2011). The time
that this detour into the EEOC investigation would waste substantially outweighs the probative
value of this evidence. Adding to that the danger that the jury could be misled or confused as to
the nature and impact of the EEOC’s findings, there is simply no question that this evidence
should be excluded. Plaintiff’s motion in limine is therefore granted, and the EEOC’s findings as
to Plaintiff’s charges of discrimination will be excluded from trial.
kk.

Plaintiff’s social media pages
Denied as premature, as Defendant has collected no such evidence.

ll.

Improper opening or closing argument
Denied as lacking specificity.

mm.

Request for permission to use PowerPoint during opening statements
Granted. Counsel may use PowerPoint presentations during their opening statements.

However, to the extent counsel wish to include any content other than expected testimony or
exhibits that counsel believe will be admitted into evidence, such as clipart or illustrations, for
example, or if counsel include statements of the law that differ in any way from the Court’s jury

21

instructions, counsel should disclose the particular slides to the opposing party ahead of time to
avoid disruptions at trial.
nn.

This motion in limine
Granted, to the extent that the parties may not reference the filing of or ruling on any

motions in limine.
oo.

This motion in limine and the Court’s order on it
Denied as redundant to the previous request.

pp.

Prior rulings and orders by the Court
Granted without objection.

qq.

Unemployment benefits Plaintiff received
Denied as redundant to previous requests and as already addressed by the Court’s order

that back pay and front pay issues will not be decided by the jury.
rr.

Attempts to argue against employer liability
Denied. This is a disputed factual issue that has not been determined as a matter of law or

stipulated to, so the parties are free to explore this issue through the evidence that is offered at
trial.
ss.

Attempts to argue that Mr. Nichols was unaware of Plaintiff’s complaints against
him
Denied, for the same reasons as the previous request.
III. PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EXHIBITS [DE 170]

Wage claim exhibits (Exhibits A, B, D, L, OO, PP, QQ, RR)
Plaintiff objects to these exhibits on the basis that they are only relevant to back pay and
front pay issues, which will not be presented to the jury. At the final pretrial conference,
Defendant indicated that portions of exhibits A, B, OO, and RR are relevant to issues other than
the wage claim, but conceded that the remaining exhibits are not relevant. Exhibits D, L, PP, and
22

QQ, as well as the portions of exhibits A, B, OO, and RR that pertain to wages, are therefore
stricken. As to the remaining portions of those exhibits, the Court does not yet have enough
information to assess the relevancy or admissibility of those portions, and will deal with those
issues at trial should they arise.
EEOC exhibits (Exhibits C, F, G, I, J, K, W, X, Y)
Plaintiff objects to exhibits relating to the EEOC investigation. This includes the EEOC’s
investigation file (exhibit C); the EEOC’s charge summary (exhibit F); the EEOC investigator’s
notes (exhibits G, J, K); the EEOC dismissal (exhibit I); Defendant’s responses to the EEOC
charges (exhibits W and X); and the correspondence from Mr. Ninkovich to the EEOC (exhibit
Y).
For the same reasons discussed above that the Court is not admitting the EEOC’s
findings, the Court does not intend to admit any exhibits whose relevance is only their
involvement in the EEOC investigation, and many of these exhibits also contain additional layers
of hearsay. Thus, the only portions of these exhibits that are likely to be admissible are those that
contain statements by the Plaintiff, or that have some other basis for admission or use, such as
for impeachment or as recorded recollections. Otherwise, these exhibits are unlikely to be
admitted.
Disciplinary records of employees other than Plaintiff (Exhibit M)
Plaintiff objects to this group exhibit on the basis that many of these records pertain to
discipline for matters completely unrelated to attendance issues, which are at issue here, and
handed down by supervisors who were not involved in disciplining him. As the Court discussed
above relative to Plaintiff’s motion in limine (hh), Defendant’s discipline of other employees
may become relevant if Plaintiff argues that Defendant applied its disciplinary policies
dissimilarly based on his race, instead of merely arguing that he never violated the policy.
23

However, for each disciplinary record Defendant seeks to introduce, it will need to establish first
that there was a common decisionmaker involved between Plaintiff’s discipline and the
discipline of the other employees. That is, Defendant will either need to show that Mr. Nichols
was involved in the discipline of the other employee, or in the case of another supervisor, that
that supervisor was involved in both Plaintiff’s discipline and the discipline of the other
employee.
Defendant will also need to show that Plaintiff and the other employees were subject to
the same standards of conduct, and that that the infractions of each of the other employees were
similar enough to Plaintiff’s alleged infractions that a jury could reasonably infer that Defendant
did or did not apply its policies to Plaintiff because of his race. This may be easy to do for the
discipline of Mr. Wilkins and Mr. Kostantios, who were disciplined by Mr. Nichols for
attendance reasons. As to employees who were disciplined for viewing pornography on company
computers, though, or who were disciplined for poor performance, this showing is rather
improbable, and those records are unlikely to be admitted.
Indiana Department of Workforce Development Request for Information (Exhibit N)
Plaintiff objects to this exhibit as hearsay. This document appears to be a form that was
completed by Plaintiff, so it may be subject to a hearsay exception if Defendant can lay that
foundation. However, at the final pretrial conference, the Defendant indicated that he was not
sure how this exhibit is relevant anyway, so this issue is likely moot.
Affidavits or Statements of Lakeside Employees (Exhibits S, T, U, V, Z, AA, CC, DD)
Plaintiff objects to these exhibits, which contain various affidavits or written statements
from Lakeside employees, as hearsay. Defendant stated at the final pretrial conference that it
does not intend to offer these into evidence, but may use them for impeachment. Plaintiff is
correct that these exhibits would be hearsay if offered by Defendant, so these exhibits will not be
24

admitted into evidence outright, though Defendant could potentially use them for impeachment
or, if appropriate, have them read into the record as past recorded recollections.
Plaintiff also objects to exhibit DD, an affidavit from James Wilkins, on the basis that it
was not properly disclosed during discovery. Defendant has not responded to that objection, so
unless Defendant can demonstrate that it properly disclosed this exhibit, the Court will not
permit the Defendant to use it for any purpose at trial, consistent with the Court’s prior sanctions
order.
Plaintiff’s Deposition (Exhibit EE)
Plaintiff filed a number of objections to the use of his deposition at trial, both objecting to
the relevance of certain portions of the deposition, and asking the Court to rule on certain
objections made at the time of the deposition. [DE 169]. Defendant filed a response in which it
states that it does not intend to use the deposition at trial, except possibly for impeachment.
Accordingly, the Court will exclude the objected-to portions of the deposition, but Defendant
may use the deposition to impeach Plaintiff with prior inconsistent statements, if appropriate.
Plaintiff’s employment file (Exhibit GG)
Much of Defendant’s exhibit GG, which contains Plaintiff’s employment file, is
irrelevant or contains inadmissible hearsay. To the extent Defendant wishes to offer any
documents from this file, it should separate out those documents and must establish a basis for
their admission.
Defendant’s Supplemental Rule 26(a)(1) Disclosures (Exhibit SS)
Plaintiff objects to Defendant’s exhibit SS, which is Defendant’s supplemental Rule
26(a)(1) disclosures. There is no apparent basis for Defendant to offer its own disclosures into
evidence, and counsel stated at the final pretrial conference that it does not intend to offer this
exhibit, so the Court strikes this exhibit.
25

IV. DEFENDANT’S OBJECTIONS TO PLAINTIFF’S EXHIBITS [DE 173]
Defendant objects as a general matter to Plaintiff’s exhibits on the basis that Plaintiff did
not resend copies of the exhibits in advance of this second trial setting. The Court overrules this
objection, as Plaintiff adequately notified Defendant of its exhibits. Defendant also objects to
Plaintiff’s lost wage summary, but Plaintiff has already withdrawn that exhibit. Finally, the Court
notes that exhibits 11 and 12, which contain Plaintiff’s EEOC charges, would constitute hearsay
if offered by Plaintiff. At the final pretrial conference, Plaintiff indicated that he did not intend to
offer these into evidence, but may use as prior consistent statements, if appropriate.
SO ORDERED.
ENTERED: November 20, 2014

/s/ JON E. DEGUILIO
Judge
United States District Court

26