United States of America v. State of Wisconsin, Department of Military Affairs

Filing 135

OPINION AND ORDER granting in part, denying in part, and reserving in part plaintiff's and Hartness's (dkt. ## 96 , 97 , 98 , 99 , 100 , 101 , 102 , 103 ) and defendant's (dkt. # 92 ) motions in limine. Signed by District Judge William M. Conley on 6/3/24. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff

and

OPINION AND ORDER
23-cv-60-wmc

MICHELLE HARTNESS,

v.

Plaintiff-Intervenor,

STATE OF WISCONSIN, DEPARTMENT
OF MILITARY AFFAIRS,
Defendant.
Plaintiff contends that defendant Wisconsin Department of Military Affairs
(“WDMA”) violated Title VII, 42 U.S.C. § 2000e-2(a), by offering a lower salary to
plaintiff-intervenor Michelle Hartness than to similarly or less qualified men. The case is
now set for a jury trial beginning on June 24, 2024. In advance of the final pretrial
conference (“FPTC”), scheduled for tomorrow, June 4, 2024, at 3:30 p.m., this order
addresses the parties’ motions in limine (dkt. ##92, 96-103).

OPINION
I. Plaintiff’s and Hartness’s motions in limine (dkt. ##96-103)
1. Treat witnesses associated with WDMA as adverse.
WDMA does not oppose plaintiff and Hartness asking leading questions during
their direct examinations of Joane Mathews, Michael Hinman, Donald Dunbar, Allisa
Brown, Gregory Engle, Stacie Ann Meyer, and WDMA’s corporate representatives. Thus,

the motion is GRANTED in part as to those witnesses. However, WDMA objects to
plaintiff and Hartness asking leading questions of Brian Satula, asserting that he is a
friendly witness to them. Specifically, WDMA points out that Satula is not listed on its
witness list; plaintiff and Hartness list him as a “will call” witness; his deposition transcript
shows that he is not a hostile witness; and he cooperated with a seven-hour deposition.
“[A] witness is most likely to be treated as adverse where he or she was employed
at the time of the incident in question and had a hand in the incident that resulted in suit.”
Gibbons v. Vill. of Sauk Vill., No. 15 CV 4950, 2017 WL 4882334, at *4 (N.D. Ill. Oct. 30,
2017). Here, while Satula was part of Hartness’s selection and salary-setting panel, it is
hard to say that he had a hand in the alleged discrimination against her, as he advocated
for her to: receive a higher salary (ex. 55 (dkt. #41-17) 2); and be considered during the
second round of hiring. (Ex. 67 (dkt. #57-34) 2.) Nevertheless, the court RESERVES in
part, so plaintiff and Hartness can proffer evidence that Satula is an adverse witness at the
FPTC or to the extent Satula may prove adverse at trial.
2. Sequester all witnesses except Hartness.
Plaintiff and Hartness seek to sequester all witnesses, other than Hartness, from
attending the trial or being present in the court before completion of their testimony.
WDMA does not oppose a general sequestration order, but opposes sequestering Mathews,
who it intends to designate as its corporate representative at trial.

Further, WDMA

opposes excluding witnesses from the courtroom during opening statements.
Federal Rule of Evidence 615 provides that “[a]t a party’s request, the court must
order witnesses excluded from the courtroom so that they cannot hear other witnesses’

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testimony.” Fed. R. Evid. 615(a). However, the rule does not authorize excluding “a party
who is a natural person” or “one officer or employee of a party that is not a natural person,
if that officer or employee has been designated as the party’s representative by its
attorney.”

Id. R. 615(a)(1)-(2).

Accordingly, the motion is GRANTED in part as

unopposed and DENIED in part -- the court will not sequester Hartness and Mathews,
while other witnesses will be sequestered. In addition, except for Hartness and Mathews,
no other witnesses will attend opening statements so as to avoid the need for them to rise
and exit should the court proceed immediately to witness testimony or unnecessarily risk
tainting or changing their testimony based on plaintiff’s or defendant’s opening statements.
Finally, this order shall extend to any discussion between counsel or called witnesses with
as yet uncalled witnesses about statements, remarks or testimony made by other witnesses
at trial.
3. Exclude evidence and argument about Mathews’ sex and race.
Plaintiff and Hartness also argue that Mathews’ sex and race is irrelevant to whether
she discriminated against Hartness. WDMA states that it will not argue that Mathews is
legally incapable of engaging in sex discrimination, but it also asserts that the jury is entitled
to know about her “career and characteristics of diversity.”
Here, it would appear that WDMA intends to argue that Mathews’ “characteristics
of diversity” are relevant to her credibility, but such an argument would only lead the jury
to the improper inference that Mathews did not discriminate against Hartness because
they are both women. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (“it
would be unwise to presume as a matter of law that human beings of one definable group

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will not discriminate against other members of their group” (quotation marks omitted)).
Absent a proffer of Mathews’ habit of affirmatively looking out for sex discrimination in
her job duties under Fed. R. Evid. 406, this evidence will be excluded. Accordingly, the
motion is GRANTED.
4. Exclude evidence and argument regarding Michelle Hartness’s earnings
after 2019.
Plaintiff and Hartness move to exclude her post-2019 earnings from all phases of
the case, arguing that her post-2019 earnings are not relevant because she is only seeking
backpay from 2017 to 2019. They further assert that such evidence would be more
prejudicial than probative, as the jury could infer that WDMA’s discrimination actually
improved her salary.

In response, WDMA asserts evidence that Hartness’s 2020

compensation exceeded what she would have earned as Bureau Director is relevant because
it would weaken Hartness’s expected testimony that “she suffered emotional pain,
humiliation, anxiety and lack of confidence that makes her question everything to this
day.”
Hartness’s earnings were as follows:
Year

Employer

Earnings

2017 (through September)

WDMA

$58,377.64

2017 (through December)

Ascension

$20,031.88

2018

Ascension

$79,479.67

2019

Ascension

$79,689.79

2020

Ascension

$97,180.03

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2021

Ascension

$109,723.74

2022

Ascension

$130,983.00

2023 (through November)

Ascension

$145,473.13

(Dkt. #115, at 5.)
To begin, plaintiff and Hartness may be asking the court to preclude itself from
considering evidence of Hartness’s post-2019 earnings at any stage of the case. That
motion is at best premature, and the court will not limit what it can consider now without
knowing what evidence and arguments will be presented during the case -- particularly at
any equitable, remedial stage. Further, insofar as plaintiff and Hartness wish to exclude
evidence of her post-2019 earnings from the jury, the court also lacks sufficient evidence
to decide that issue. In particular, evidence of her post-2019 earnings may be relevant,
depending on the period for which she seeks compensatory damages for emotional distress.
Accordingly, the court RESERVES on this motion pending more information from plaintiff
and Hartness about the period for which she seeks emotional distress damages.
5. Exclude from the jury evidence and argument about equitable remedies.
Plaintiff and Hartness next seek to exclude from the jury any evidence and argument
about equitable remedies, including any evidence of Hartness’s earnings after she declined
the Bureau Director position. Backpay and equitable relief are generally issues to be
decided by the court. Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 500 (7th Cir.
2000). However, the court RESERVES for the reasons just stated in motion four.

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6. Request regarding the order of evidence.
Plaintiff and Hartness further ask the court not to bifurcate the trial, arguing that a
single proceeding will be more efficient, avoid Hartness having to testify twice, and
conserve resources. Plaintiff and Hartness also assert that evidence of equitable remedies,
including back pay, and injunctive relief should be presented to the court in post-trial
briefing.
Plaintiff and Hartness have only offered generic reasons for deviating from the
court’s standard practice of bifurcating liability and damages.

Thus, they have not

established good cause for the court not to bifurcate the trial.

(Preliminary Pretrial

Conference Order (dkt. #21) 6.) Moreover, plaintiff’s and Hartness’s suggestion that
jurors might decide not to find liability to avoid a second proceeding on damages is illtaken. In the court’s experience, jurors take their role seriously and strive to reach the
correct result, even if doing so might personally inconvenience them. Accordingly, plaintiff
and Hartness’s motion not to bifurcate the trial is DENIED. As for the court deciding
equitable remedies, it is simply more efficient under Fed. R. Civ. P. 1 to take up any
evidence in dispute while the jury deliberates on liability, but the court will RESERVE on
whether any post-trial briefing is necessary.
7. Order stating that evidence related to the selection process and Hartness’s
prior work performance is relevant.
Plaintiff and Hartness ask the court to rule that the following evidence is relevant:
(1) documents from WDMA’s selection process; (2) Hartness’s past performance

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evaluations at WDMA (dkt. ##57-58, 57-67 to 57-73); and (3) Patrick O’Connor’s,
Hartness’s former supervisor, letter of reference. (Dkt. #51-1.)
First, as to documents from Hartness’s selection process, plaintiff’s and Hartness’s
motion is overbroad because they have only identified broad categories of evidence (e.g.,
the assessment of candidates’ application materials and interviews at all points during the
selection process) which they ask this court to find categorically relevant. Regardless, the
motion is premature, and may be unnecessary, as WDMA has represented that it expects
evidence related to the hiring process to be relevant. Accordingly, the court will RESERVE
in part.1
Second, given plaintiff and Hartness argue she was similarly or better qualified than
the men to which WDMA offered higher salaries, her past-performance evaluations are
relevant even if the panel did not expressly consider them. That is especially true when
Satula was on the hiring panel and appears to have signed many of Hartness’s performance
reviews. (Dkt. ##57-58, 57-70 to 57-73.) While WDMA fairly points to a lack of
evidence that Satula actually considered any of Hartness’s performance reviews during the
hiring process, that argument goes to the weight of the evidence, not its admissibility.
Finally, although Hartness’s most recent performance review occurred after she turned
down the Bureau Director position, that review covers the period during which she applied
and interviewed for the Director position. (Dkt. #57-58.) Accordingly, the court deems

Indeed, the court expects that it will address this issue in ruling on WDMA’s specific objection to
plaintiff’s and Hartness’s exhibits at the FPTC.

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this evidence at least arguably relevant, and the motion is GRANTED in part subject to
individual objection to specific evidence.
Third, while O’Connor’s letter of recommendation in support of Hartness is
certainly relevant, defendants assert that plaintiff and Hartness have not established
foundation that the letter was received and reviewed by the hiring panel. In Hartness’s
declaration, she states that she gave each panelist a copy of O’Connor’s January 2017 letter
during her interview. (Hartness Decl. (dkt. #51) ¶ 5.) While Hartness avers that she no
longer has that letter, she asserts that she has an April 2017 recommendation letter from
O’Connor that is identical to his January letter, aside from the date, which she attached.
(Id. ¶¶ 7-9.)

The court is inclined to conclude that Hartness’s declaration provides

sufficient foundation, but it will RESERVE in part and allow the parties to make any
additional arguments about the foundation for the letter at the FPTC.
8. Exclude evidence and argument regarding Paul Cooke’s performance as
Bureau Director.
Plaintiff and Hartness move to exclude evidence and argument about how Cooke -who was offered a higher salary than Hartness and accepted the Bureau Director position
-- has actually performed as Director. WDMA asserts that Cooke’s experience before
accepting the Bureau Director job is relevant, and because plaintiff and Hartness assert
that she was better qualified than Cooke, their respective qualifications are critical to
determining whether WDMA discriminated against her.

Cooke’s suitability for the

position (e.g., whether he would “hit the ground running” as Director) is certainly relevant.
However, whether he actually did so is not, especially given the denial of an opportunity

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to do the same by Hartness. Thus, the motion is DENIED in part as to Cooke’s pre-Bureau
Director experience and GRANTED in part as to his actual performance as Director.

II. Defendant’s motions in limine (dkt. #92)
1. Bifurcate trial into liability and damages phase.
As discussed above in response to plaintiff’s and Hartness’s sixth motion in limine,
the court will GRANT WDMA’s motion to bifurcate the trial into liability and damages
phases.
2. Exclude any statement, argument, evidence or lay witness testimony
regarding medical, psychological or psychiatric conditions and causation
of those conditions.
Neither Hartness, her husband, Alan Hartness, nor any other lay witness may render
medical opinions about the causation of Hartness’s injuries, permanence of injuries, future
care and treatment, or future pain and suffering. See Pearson v. Ramos, 237 F.3d 881, 886
(7th Cir. 2001) (“A nonexpert is not permitted to give expert testimony. Wholly lacking
in medical knowledge as he was, the plaintiff was incompetent to testify on the causal
relation if any between exercise and healthy gums.” (citation omitted)); see also United States
v. Conn, 297 F.3d 548, 554 (7th Cir. 2002) (lay opinion testimony is not permissible
regarding “specialized explanations or interpretations that an untrained layman could not
make” (quotation marks omitted)).
Nevertheless, Hartness, Alan, and other lay witnesses may testify about their own
perception of her physical and mental health before and after WDMA offered her a lower
salary than the man it hired, including Hartness’s subjective belief as to what she was

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experiencing, provided that this testimony does not exceed lay opinion under Federal Rule
of Evidence 701.

Likewise, WDMA may challenge those lay observations on

cross-examination.

Should the parties need further guidance about the limits of the

evidence plaintiff and Hartness may seek to admit related to her damages, they should be
sure to address it at the FPTC. Accordingly, WDMA’s motion is GRANTED IN PART
and DENIED IN PART as described above.
3. Dismiss Hartness’s claim for injunctive relief because she lacks standing.
Plaintiff and Hartness do not oppose this motion. Hartness also filed a response
stating that she withdraws her claim for injunctive relief in this matter. (Dkt. #124.)
Thus, this motion is GRANTED as unopposed.
4. Exclude any statement, argument, evidence or testimony about media
coverage or statements to the press in this case.
This motion is GRANTED as unopposed.
5. Exclude any statement, argument, evidence or testimony about Hartness’s
previous performance evaluations and O’Connor’s letter of reference.
The motion is DENIED in part as to Hartness’s performance evaluations and
RESERVED in part as to O’Connor’s letter of recommendation, both for the reasons stated
in the court’s discussion of plaintiff’s seventh motion in limine.

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6. Exclude statements, arguments, evidence or testimony that WDMA had a
“historical practice” of “parity” and any testimony or evidence about
former Bureau Directors O’Connor’s or Lawrence Reed’s salaries in 2010
and 2011, or that WDMA had a policy to pay bureau directors the same
amount.
WDMA asserts that evidence of the past Bureau Directors’ pay should be excluded
because: (1) there is no evidence as to how O’Connor’s salary was determined at the time
of his hire as Bureau Director; (2) there is no evidence as to how WDMA set Reed’s salary
in 2010 (which was not his starting salary); (3) the mere fact that O’Connor and Reed had
the same salary does not mean that WDMA had a historical practice of paying bureau
directors equivalent salaries; (4) O’Connor and Reed were not valid comparators to
Hartness; and (5) the salary evidence was more prejudicial than probative. The court
agrees with WDMA that there are flaws in this evidence, but those flaws go to the weight
of the evidence, not to its admissibility. Accordingly, this motion is DENIED and plaintiff
and Hartness may introduce evidence of O’Connor’s and Reed’s salaries and argue that
WDMA had a policy or practice of salary parity.
7. Exclude argument and evidence about a 2019 assessment of the National
Guard’s handling of sexual assault.
This motion is GRANTED as unopposed, with the caveat that plaintiff may use this
evidence: (1) for proper impeachment purposes; and (2) subject to discussion outside the
jury’s presence as to whether defendant has “opened the door,” whether at side bar or at a
break during the trial.

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8. Exclude statements, arguments and evidence about the history, purpose,
importance or intent of Title VII, the role of plaintiff in enforcing Title
VII, and any EEOC results.
Plaintiff and Hartness do not oppose the motion beyond asking that the court
incorporate statements about plaintiff’s and Hartness’s respective roles in the lawsuit and
the purpose of Title VII. While the court will incorporate brief descriptions of Title VII as
well as plaintiff’s and Hartness’s roles in pursuing their joint claim in the introductory and
liability instructions, it will exclude any other reference to their roles and Title VII. In
particular, as stated in the court’s summary judgment order, the parties’ role in and result
of any EEOC proceeding is not admissible at trial. (Dkt. #78, 13 n.7.) Accordingly, this
motion is GRANTED in part and DENIED in part.

ORDER
IT IS ORDERED that plaintiff’s and Hartness’s (dkt. ##96-103), and defendant’s
(dkt. #92) motions in limine, are GRANTED in part, DENIED in part, and RESERVED
in part as set forth above.

Entered this 3rd day of June, 2024.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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