promote efficiency of trial, the court will limit the use of the Investigation Report to purposes of impeachment. The Investigation Report may not be introduced by any party as part of their case-in-chief except with respect to party admissions.
Brom's Motion in Limine To Exclude O'Meara Memoranda
Brom moves in limine to exclude certain memoranda authored by Norton O'Meara, who was Brom's immediate supervisor. Initially, Brom moved to exclude three memoranda (defendants' exhibits 10-12); however, Brom has withdrawn his motion as to defendants' exhibits 10 and 11. Accordingly, all that remains is consideration of Brom's motion to exclude defendants' exhibit 12 which is a memorandum drafted by O'Meara approximately five months after Brom was terminated and which was drafted expressly as O'Meara's "attempt to mitigate the charges Mr. Charles Brom has leveled at the agency with respect to the circumstances surrounding his dismissal." Defs.' Ex. 12. Brom moves to exclude this memorandum contending that the document does not fall within the so-called business records exception to the hearsay rule. FED. R. EVID. 803(6). Defendants concede that the memorandum is not admissible as a Rule 803(6) "business record," but contend that the memorandum may be admitted and read into evidence, pursuant to Rule 803 (5), as a "recorded recollection" in the event that O'Meara has insufficient recollection to testify fully and accurately at trial. The court finds that this memorandum, written approximately five months after Brom was terminated -- and for the express purpose of expressing "manangement's perspective" in the face of an impending investigation by the Illinois Department of Human Rights -- does not constitute a "memorandum . . . made or adopted by the witness when the matter was fresh in the witness' memory." FED. R. EVID. 803(5). Accordingly, Brom's motion to exclude defendants' exhibit 12 is granted.
Defendants' Motion in Limine To Exclude Anticipated Testimony
Defendants move in limine to exclude the anticipated testimony of two Bozell employees. The first of the two challenged statements was allegedly made by Wayne Fickinger, a Vice Chairman of Bozell, approximately five to six months before Brom was terminated. Brom contends that Fickinger stated, "after you have worked an account like Beam for a long time, people feel that they want younger people on the account." Complaint P 16. The second statement was allegedly made by Norton O'Meara, Brom's immediate supervisor, who stated "after a while, a client wants younger people on the account."
Defendants argue that any testimony as to these two comments would involve double hearsay inadmissible under Fed. R. Evid. 802 and 805. Defendants contend that the first level of hearsay consists of the witness's testimony that the statements were made and the second level of hearsay involves the statements allegedly made by Fickinger and O'Meara concerning statements by some other person to the effect that they wanted younger people on the account.
At the outset, we disagree with defendants that the anticipated testimony involves double hearsay. There can be no question that the anticipated testimony involves the first level of hearsay. However, as defendants correctly observe, O'Meara's and Fickinger's statements would be admissible as party admissions if these two individuals were involved in the decision to discharge Brom. See Shager v. Upjohn Co., 913 F.2d 398, 402 (7th Cir. 1990). The issue of whether O'Meara or Fickinger were sufficiently involved in the ultimate decision to discharge Brom is hotly contested by the parties and the issue can only be resolved based upon consideration of the evidence presented at trial. Because it is entirely possible that Brom may succeed in establishing that O'Meara and Fickinger were sufficiently involved in the decision to terminate him, the court cannot conclude -- on the present record -- that the challenged testimony is clearly inadmissible as a "party admission." FED. R. EVID. 801(d)(2).
The court's central disagreement with defendants' position is with respect to whether the challenged testimony contains a second level of hearsay. The court cannot conclude that Fickinger's alleged statement, "after you have worked an account like Beam for a long time, people feel that they want younger people on the account," or O'Meara's alleged statement, "after a while, a client wants younger people on the account," amount to reports or reiterations of what some other declarant previously stated. Rather, the court understands these statements as expressions by Fickinger and O'Meara as to what they believe "people" or "client[s]" generically want. If Fickinger or O'Meara had stated, "Often, a man feels that a man has to do what a man has to do," no one would seriously contend that this is a report or reiteration of a previous statement by a man that "a man has to do what a man has to do." Rather it is a general expression of the speaker's understanding of the philosophical outlook of others. In the same vein, Fickinger's and O'Meara's statements are readily understood as general expression's of their perspective on what other people want. The fact that Fickinger and O'Meara used unidentified and ambiguous referential nouns such as "people" and "a client" lends further support, under the circumstances, to the conclusion that they were not purporting to reiterate the statements of some specific other declarant. In view of the court's understanding of the challenged testimony as being offered not to prove the truth of the matter asserted (namely, that "people" or "a client" feel they want younger people on an account) but rather is being asserted to prove the state of mind of the decision-makers, the court finds no second level of hearsay in the challenged testimony.
Thus, provided that Brom can establish the requisite foundation that Fickinger and O'Meara were, in fact, sufficiently involved in the discharge decision, the court cannot conclude that the challenged testimony is "clearly inadmissible" as double hearsay.
Nor can the court conclude, on the present record, that the probative value of the challenged testimony is substantially outweighed by the danger of unfair prejudice to defendants. While it is certainly true that stray remarks in the workplace, which are not relatively contemporaneous with an adverse employment action and which are not reasonably related to the action, have been found to be of little probative value in ascertaining discriminatory intent with respect to that action, see, e.g., Hong v. Children's Memorial Hosp., 993 F.2d 1257 (7th Cir. 1993), cert. denied, 128 L. Ed. 2d 48, 114 S. Ct. 1372 (1994); Rush v. McDonald's Corp., 966 F.2d 1104, 1116 (7th Cir. 1992); McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686-87 (7th Cir. 1991), the court cannot conclude that the challenged remarks fall within the ambit of the "stray remark" caselaw. In the first instance, the challenged statements were not simply remarks reflecting a general antipathy towards members of the protected class and bearing no relation to a personnel action; rather, the remarks can readily be interpreted as relating directly to Fickinger's and O'Meara's perception of appropriate staffing decisions. Indeed, the relationship of the statements to Brom's termination is relatively straightforward: Fickinger and O'Meara expressed their perception as to the fact that others may feel that a younger person is needed for the job, and shortly thereafter Brom was replaced by a younger person. Cf. Tibbitts v. Van Den Bergh Foods Co., 857 F. Supp. 1249, 1255 (N.D. Ill. 1994). Second, the court cannot conclude that the period of five to six months between Fickinger's statement and Brom's termination
renders the statement so non-contemporaneous as to substantially diminish the probative value of the remark.
Thus on the present record the court cannot conclude that the probative value of Fickinger's and O'Meara's statements are substantially outweighed by the danger of unfair prejudice.
Accordingly, defendants' motion in limine to exclude anticipated testimony regarding the statements allegedly made by Fickinger and O'Meara must be denied.
Defendants also move in limine to exclude anticipated testimony regarding certain statements allegedly made by Lane Barnett, Jim Beam's Vice President of Marketing and Advertising that purportedly evidence age-based animus. Defendants contend that no evidence in the record suggests that Barnett made any such statements to any representative of Bozell. In response, Brom makes no effort to suggest that the challenged statements were, in fact, made to Bozell representatives. Instead, he appears to argue simply that the fact that Fickinger and O'Meara made their alleged statements reveals that Bozell adopted the age animus of Barnett and Jim Beam. Pl.'s Resp. at 5-6. However, the mere fact that Fickinger and O'Meara allegedly made statements echoing the same sentiment as Barnett is entirely insufficient to establish that the former "adopted" the latter's alleged age animus.
Because Barnett was not a decision maker with respect to defendants' decision to terminate Brom; and, because the record offers no basis upon which to conclude that Barnett's alleged comments constitute adopted admissions by defendants under Rule 801(d)(2)(B), the court concludes that the anticipated testimony concerning Barnett's alleged statements is inadmissible hearsay. Accordingly, defendants' motion in limine to exclude testimony concerning the statements identified in their motion allegedly made by Barnett is granted.
Defendants' Motion in Limine To Exclude Exhibits
Defendants move in limine to exclude certain trial exhibits identified by Brom in the Amended Final Pretrial Order. Defendants roughly categorize the challenged exhibits into six categories: "(1) a group of exhibits predating the hiring of Lane Barnett by Beam in December of 1984;
(2) a group of memoranda and other documents pertaining to an advertising project for a product called 'Jim Beam and Cola';
(3) documents pertaining to Beam's sales;
(4) a series of Bozell and/or Beam meeting agendas or invitations;
(5) various research reports and proposals;
and (6) a group of proposals, reports correspondence, memoranda and budgets for various projects pertaining to the Beam account.
" Defs.' Mtn. at 2-3. Defendants contend that the challenged exhibits are irrelevant and, to the extent that they are relevant, their probative value is substantially outweighed by the danger of undue prejudice.
The Federal Rules of Evidence define "relevant evidence" very broadly as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. All relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EVID. 402, 403. Any party that seeks to exclude evidence on relevancy grounds by way of a pretrial motion in limine faces an exceptionally high obstacle.
The court finds defendants' arguments as to the challenged exhibits' lack of relevance unpersuasive. To the extent, limited or not, that the challenged exhibits tend to make the fact that Brom was meeting Bozell's legitimate expectations more or less probable, the evidence is relevant. Similarly, to the extent, limited or not, that the challenged exhibits tend to make the fact that Bozell's nondiscriminatory justification for terminating Brom is pretext more or less probable, the evidence is relevant. The issue of whether the probative value of the challenged exhibits is substantially outweighed by the danger of unfair prejudice cannot be determined at this stage of the proceedings without the benefit of context provided by the evidence presented at trial. Therefore, defendants' motion to exclude exhibits is denied.
Defendants' motion for bifurcation of the liability and damages phases of the trial [140-1] is granted. Brom's motion in limine to exclude defendants' expert witness damage calculations [132-1] is granted as to the "Tax Effects" section of the expert's report and is denied in all other respects. Brom's motion in limine to exclude the IDHR investigation report [133-1] is granted in part and denied in part: The conclusion section of the IDHR Report shall be excluded and use of the remainder of the Report shall be limited to impeachment; no party shall introduce the Report as part of their case-in-chief except with respect to party admissions. Brom's motion in limine to exclude the O'Meara memoranda [134-1] is granted with respect to O'Meara's December 9, 1985 memorandum and is denied in all other respects. Defendants' motion in limine to exclude anticipated testimony [135-1] is denied in part and granted in part: The motion is denied as to statements made by Fickinger and O'Meara; the motion is granted with respect to statements made by Barnett. Defendants' motion in limine to exclude exhibits [137-1] is denied.
United States District Judge
October 21, 1994