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August 30, 1994

JOHN PLAIR, Plaintiff,


The opinion of the court was delivered by: SUZANNE B. CONLON

John Plair sues E.J. Brach & Sons, Inc. and E.J. Brach Corp. ("Brach") for discriminatory discharge pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e ("Title VII"). Plair contends that Brach fired him after nineteen years' employment because he is African American. Plair now moves in limine to bar Brach from introducing evidence that he was arrested and charged with a misdemeanor the night before he was fired.


 Plair, who is African American, was hired by Brach on July 7, 1973. During the next nineteen years, Plair held several positions with Brach until he was fired effective October 27, 1992. On the night of October 26-27, 1992, Plair left work before the end of his shift -- and without punching his time card. According to Plair, he left work early because he was distraught over personal matters regarding his divorce.

 Shortly thereafter, just after midnight, Plair and Jefferson returned to the same field behind the Brach plant, purportedly to search for Jefferson's gold chain. Security guards from the neighboring 7-Up facility spotted Plair and Jefferson behind the Brach facility, and called the police. In response to the 7-Up guards' call for assistance, the same police officers who had initially encountered Plair and Jefferson arrived on the scene. The police officers again questioned Plair and Jefferson, and this time noticed two cases of Brach's candy lying in the field about 100 yards away. Plair and Jefferson were arrested, placed in custody, and a criminal complaint was filed against them by Brach's security officer. The charges against Plair were subsequently dropped.

 When Plair arrived for work on the afternoon of October 27, 1992, he was informed that he was suspended. On October 30, 1992, Plair and several union representatives met with Brach's labor relations manager, John Klepper. On November 3, 1992, Klepper notified Plair that he was dismissed, effective October 27, 1992. In the termination letter, Klepper alluded to the "circumstances surrounding the events of October 27, 1992." However, the stated reason for Plair's dismissal was not his arrest but "walking off the job and/or leaving the work area . . . during scheduled working time without authorization from management."


 A motion in limine to exclude evidence may be granted only if the evidence sought to be excluded is clearly inadmissible for any purpose. See Hawthorne Partners v. AT & T Technologies, Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993). Thus, in his motion to bar evidence regarding the arrest, the burden is on Plair to establish that the evidence is clearly inadmissible. Id. If the motion is denied, it would not follow that the evidence is deemed admissible. Rather, denial of the motion means only that outside the context of trial, the court cannot determine whether the evidence in question is admissible. See United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).

 Plair moves to bar the introduction of all evidence regarding his arrest. Plair contends that he was fired solely because he left work early and failed to clock out. Thus, Plair reasons that the events outside the Brach facility after he left his work station are irrelevant. Brach responds that Plair was fired not only because he left work before the end of his shift, but also because of aggravating factors, including his arrest. Brach concludes that evidence regarding the events outside the plant after Plair walked off the job is relevant to its claim that Plair was fired for a legitimate, nondiscriminatory reason.

 Both parties cite cases in support of their positions. Plair cites several cases for the general proposition that arrests are inadmissible anti-character evidence under Fed. R. Evid. 404(a). Plair also cites dicta in Smith v. General Scanning, Inc., 876 F.2d 1315, 1319 (7th Cir. 1989), in arguing that in a Title VII case, the question of discrimination must be decided solely with respect to the reason given for discharge. In response, Brach cites cases such as EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292, 297 (7th Cir. 1991), in maintaining that in a Title VII discrimination inquiry, the employer's state of mind is crucial. Although both parties' contentions have some merit, neither party's position is wholly persuasive.

 Brach's reliance on state of mind evidence is similarly overreaching. Although an employer's state of mind is of central importance in Title VII cases, state of mind evidence that was not instrumental to the termination decision would not be relevant. As Plair convincingly states in his reply brief:

An employer cannot have it both ways. If it expressly rejects certain evidence as a basis for discharge at the time of discharge, it cannot later invoke that evidence as a ...

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