The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
Perry Jones and Robert Skaletsky filed this age discrimination
lawsuit after they were fired from their positions as auditors at
the City Colleges of Chicago (the "City Colleges") in 1995. Both
Messrs. Jones and Skaletsky and the City Colleges filed motions
in limine and other pretrial motions, some of which require
discussion. I also discuss the admissibility of several exhibits
in dispute at this stage of the case.
Defendants argue, first, that testimony as to Mr. Jones'
gambling habits is relevant to an after-acquired evidence
defense. See McKennon v. Nashville Banner Publishing Co.,
513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995). After-acquired
evidence of an employee's misconduct may limit his damages. As
the Seventh Circuit summarizes this defense, "[a]n employer may
be found liable for employment discrimination, but if the
employer later — typically in discovery — turns up evidence of
employee wrongdoing which would have led to the employee's
discharge, then the employee's right to back pay is limited to
the period before the discovery of this after-acquired evidence."
Sheehan v. Donlen Corp., 173 F.3d 1039, 1047 (7th Cir. 1999).
City Colleges discovered the evidence of Mr. Jones' gambling in
or around September 1999, so, since the trial date is in November
1999, not much money is at stake.
City Colleges argues that Mr. Jones would not have been hired,
if his gambling career had been known at the time, or that if it
had been discovered while he worked for City Colleges, he would
have been fired. It contends that Jones (1) committed
"application fraud" because he did not disclose that he left
Arthur Anderson to become a full time gambler rather than for the
less striking and more conventional reasons noted on his
application form, and (2) that Mr. Jones violated the City
Colleges Ethics policy providing that "no information shall be
withheld from, or false information supplied to, [City Colleges]
by any employee." Accordingly, City Colleges says, that would cut
off his damages from September 1999 when it became aware of the
But first, City Colleges has waived the after-acquired evidence
defense by not raising it in the pleadings. The defense is an
affirmative defense. See McKennon, 513 U.S. at 362-63, 115
S.Ct. 879. Failure to plead an affirmative defense results in a
waiver of that defense. Bank Leumi LeIsrael, B.M. v. Lee,
928 F.2d 232, 235 (7th Cir. 1991); Fed.R.Civ.P. 8(c) (A party must
"set forth affirmatively" any "matter constituting an avoidance
or affirmative defense."). City Colleges complains that it could
not have pled the defense until it acquired the information in
September 1999, but this was after the date for discovery had
closed. City Colleges does not allege any discovery abuse here,
and in fact there is no particular reason to think that there was
But even if City Colleges had not waived the after-acquired
evidence defense, it would not be able to make out the defense
and so is not entitled to offer in evidence the facts relating to
Mr. Jones' gambling, since there is nothing else that has been
properly pled to which this highly prejudicial evidence might be
relevant. In order to make out the defense, City Colleges must
show by a preponderance of the evidence that the after-acquired
evidence would have led to Mr. Jones' termination. See
McKennon, 513 U.S. at 362-63, 115 S.Ct. 879. The Seventh Circuit
states that "`the inquiry focuses on the employer's actual
employment practices, not just the standards established in its
employee manuals, and reflects a recognition that employers often
say they will discharge employees for certain misconduct while in
practice they do not.' In absence of further evidence that the
policy actually would have been applied, [the employer's]
adversion to its stated policy is therefore insufficient to carry
its burden of persuasion on the after-acquired evidence defense."
Sheehan, 173 F.3d 1039, 1047-48 (internal citations omitted) (a
case involving omissions from an employment application).
"Proving that the same decision would have been justified . . .
is not the same as proving that the same decision would have been
made." Price Waterhouse v. Hopkins, 490 U.S. 228, 252, 109
S.Ct. 1775, 104 L.Ed.2d 268 (1989) (internal citations omitted).
City Colleges offers no evidence that it has ever refused to
hire someone, or that it has ever fired anyone, because he
omitted something from an employment application. It does offer
the testimony of a supervisor who says that Mr. Jones would have
been fired or not hired had City Colleges known of the omission,
but a party's "self-serving remarks standing alone are
insufficient," Tyler v. Runyon, 70 F.3d 458, 468 (7th Cir.
1995). "Self-serving statements do not `shed any light on whether
the employer honestly based its employment decision on [the
relevant] . . . considerations,'" Adusumilli v. City of
Chicago, 164 F.3d 353, 363 (7th Cir. 1998) (internal citations
omitted), and even less do they illuminate whether the employer
would have done so in a hypothetical circumstances. Accord
Haywood v. North Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th
Cir. 1997). Therefore, evidence regarding Mr. Jones' gambling is
City Colleges wishes to enter into evidence several pieces of
what it concedes to be hearsay under the business records
exception to the hearsay rule. This provides that a "memorandum,
report [or] record" which would otherwise be excluded as hearsay
may be admitted if it is "made at or near the time" by "a person
with knowledge . . . in the course of a regularly conducted
business activity," as long as "it was the regular practice of
that business activity to make" such records, unless there is
some indication of "lack of trustworthiness." Fed.R.Evid. 803(6).
That is, the record must be (1) a contemporaneous (2) record of a
business activity, (3) which is regularly conducted, and (4)
recorded as a matter of regular practice, (5) by or based on
information from a person with knowledge, and (6) which has
indicia of reliability. See Wheeler v. Sims, 951 F.2d 796, 802
(7th Cir. 1992).
Neither do the memoranda have indicia of reliability.
Reliability may be established by such factors as systematic
checking, habits of precision on the part of the keeper, reliance
by others on the records, or a duty to record accurately.
Weinstein's Federal Evidence § 803.11, at 803-66 (1999). Mr
Leavell's notes were not systematically checked by anyone else;
nothing indicates that he has any special habits of precision or
that anyone else relied on these records; and he was under no
duty to record that information accurately. Indeed, ...