The opinion of the court was delivered by: SUZANNE B. CONLON
On March 31, 1994, the court granted Walner's motion in limine to bar introduction of evidence regarding two prior Equal Employment Opportunity Commission ("EEOC") complaints filed against him by two other former employees. See Memorandum Opinion and Order, No. 93 C 5176 (N.D. Ill. Mar. 31, 1994) at 7-8. On April 5, 1994, the court denied Janopoulos' motion to reconsider the ruling barring the evidence. See Memorandum Opinion and Order, No. 93 C 5176 (N.D. Ill. Apr. 5, 1994) at 2-3. In both decisions, the court clearly ruled that evidence of other sexual harassment allegations against Walner is inadmissible character evidence under Fed. R. Evid. 404(a).
Trial commenced on June 10, 1994, and the court granted Walner's motion for a mistrial that same afternoon. See Order, No. 93 C 5176 (N.D. Ill. June 10, 1994). In addition to ordering a mistrial, the court ordered Janopoulos to pay jury costs. Id.; see also Transcript of Proceedings Before the Honorable Suzanne B. Conlon and a Jury, No. 93 C 5176 (N.D. Ill. June 10, 1994) ("Tr.) at 108.
At trial, Janopoulos called three witnesses, all former Walner employees, and testified herself. Janopoulos' called Lorraine Pala (Tr. 31-43); Colleen Patricia Deutsch (Tr. 43-50); and Diane Soto (Tr. 51-56). Pala and Soto filed EEOC complaints against Walner prior to Janopoulos' complaint. Pursuant to the court's in limine rulings, testimony concerning these witnesses' sexual harassment claims was barred. See Memorandum Opinion and Order, No. 93 C 5176 (N.D. Ill. Mar. 31, 1994) at 7-8.
Janopoulos' attorney Ronald Fishman conducted direct examinations of Pala and Soto; Janopoulos' other attorney, Mark DeBofsky, conducted direct examination of Deutsch. After sustaining several objections to Pala's testimony, the court ordered a sidebar conference. Tr. 35. Outside the jury's presence, the court admonished Janopoulos' counsel not to introduce evidence barred by the court's in limine rulings. Tr. 36. In addition, the court inquired about the purpose for calling Pala as a witness. Id. Janopoulos' attorneys articulated three bases for the testimony.
First, Janopoulos' counsel argued that the testimony would establish that Walner often closed his office door, and that no one could see what went on inside his office. For instance, Soto testified that Walner's office door is made of wood, so people outside his office cannot see inside when the door is closed. Tr. 54-55. In addition, Pala was asked whether Walner would shut his office door when she was inside, whether Walner would lock his office door, and whether she was ever alone in Walner's office when no one outside the office could see what was going on inside. Tr. 35, 40-41. The court sustained Walner's objections to these questions as leading, irrelevant, and suggestive. Id.
Second, Janopoulos' attorneys argued that the testimony would concern instances in which the witnesses heard Walner treating Janopoulos in a sexually abusive manner. Tr. 36-37. The court did not find this line of testimony objectionable under Fed. R. Evid. 404(a). However, when Janopoulos' counsel were repeatedly unable to lay a foundation for their inquiries, the court sustained numerous objections. For instance, Deutsch could not recall any specific conversation between Walner and Janopoulos. Tr. 45-50. In addition, Soto stated that she never saw Walner angry with Janopoulos. Tr. 54. Pala could only recall one instance when Janopoulos was not present and Walner was looking for her because he needed something done; Pala testified that she heard Walner refer to the absent Janopoulos as "a bitch," and complain that Janopoulos was never around. Tr. 39, 41-42.
Finally, counsel sought testimony from Pala and Soto about Walner's behavior toward them. Tr. 36. The court repeatedly admonished Janopoulos' attorneys to respect its in limine rulings. Tr. 30, 35, 36, 57, 58.
In both its March 31 and April 5, 1994 decisions, the Court explicitly ruled that evidence of prior sexual harassment allegations against Walner must be excluded as anti-character evidence under Fed. R. Evid. 404(a). Despite the evidentiary rulings and the court's repeated admonitions during trial, Janopoulos' attorneys' persisted in asking questions designed to elicit prohibited testimony: What would happen when Pala was sitting in Walner's office (Tr. 35); whether Walner ever screamed at Pala (Tr. 40); and whether Walner locked the door to his office when only he and Pala were inside (Tr. 40-41). These questions had no legitimate purpose; they were intentionally posed in order to misdirect the jury's attention from the issue in this case and to unfairly prejudice Walner by suggesting that he has a character trait for sexually harrassing female employees.
The "final straw" that precipitated mistrial occurred during Janopoulos' own testimony. Janopoulos was asked when she filed her EEOC complaint; that is, how long had it taken her to file the complaint after first considering the notion.
Janopoulos began her answer as follows: "Well, when Lorraine Pala filed her complaint --." Tr. 108. Janopoulos' answer was interrupted by an objection, and the court granted Walner's motion for a mistrial at the ensuing sidebar conference. Id. Janopoulos now moves for reconsideration of the mistrial order; Walner moves to dismiss the action and seeks sanctions in light of the conduct causing the mistrial.
Janopoulos and her attorneys repeatedly ignored evidentiary rulings and deliberately elicited inflammatory, irrelevant testimony despite warnings by the court. Nevertheless, Janopoulos moves for reconsideration of the order granting Walner's mistrial motion and assessing jury costs against Janopoulos. Janopoulos' motion is yet another attempt to relitigate the court's two decisions barring evidence that two other former employees filed EEOC complaints against Walner for sexual harassment. Accordingly, Janopoulos' motion is duplicative, improper, and untimely.
In addition, the arguments presented in Janopoulos' present motion are meritless. Janopoulos argues that testimony about the prior EEOC complaints provides necessary background for the witnesses' testimony and is inextricably connected to testimony about Walner's treatment of Janopoulos. Alternatively, Janopoulos asserts that the testimony establishes that she was subjected to a hostile work environment.
a. Testimony as "background"
In response, Janopoulos' attorneys maintained that it would be difficult for the witnesses to separate what happened to them from what happened to Janopoulos. Tr. 57-58. Counsel elaborated:
Once they get into that, their own personal experience comes out. In other words, one of the problems over here is when they had problems, they went to Ms. Janopoulos. Ms. Janopoulos would then go to Mr. Walner. So that the result is, the result which you have is a linking of the two. You have a complaint to Ms. Janopoulos then berating by Mr. Walner. The problem we're having over here is I told these witnesses [sic] before she walked on, she can't mention anything about herself because of the Court's ruling. The moment you exclude comments about what she went ...