The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
Clarence Johns was a reserve police officer for the Village of Sauk
Village (the "Village"). After Mr. Johns failed a polygraph examination
and received a "2" out of "5" on a psychological examination administered
by the Public Personnel Institute, he was removed from the eligible list
for appointment as a full-time sworn police officer and terminated from
his reserve position. He then sued the Village for violating Title VII
and 42 U.S.C. § 1983. In connection with the upcoming trial of this
action, the Village has filed a number of motions in limine.
I grant motions in limine to exclude evidence only if the evidence
sought to be excluded is clearly inadmissible for any purpose. Plair v.
E.J. Brach & Sons, Inc., 864 F. Supp. 67, 69 (N.D.Ill. 1994).
Otherwise, I defer evidentiary issues until they arise at trial so
questions of foundation, relevancy, and prejudice may be resolved in
context. Hawthorne Partners v. AT & T Technologies, Inc.,
831 F. Supp. 1398, 1400-01 (N.D.Ill. 1993). I rule on the Village's
specifically numbered motions in limine below.
I. Racial Remarks Made by Village Employees
In the plaintiff's trial brief included in the pretrial order, Mr.
Johns alleges an indirect case of racial discrimination and also
announces his intent to introduce direct evidence of derogatory racial
statements made by the former Chief of Police and the Commissioner of the
Fire and Police Commission regarding "African-Americans and the
unlikelihood of their becoming full-time Sauk Village police officers."
When considering the admissibility of race-based statements, I first
determine whether they might be probative of discriminatory bias and thus
properly considered by a jury along with all other evidence in context. I
then examine whether the probative value of such evidence is
substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury.
Statements by the Chief and Commissioner of Police that
African-Americans are unlikely to make the police force may well be
direct evidence of discrimination, in which case it is of course
admissible. However, because I have been provided no details as to who
said what to whom and in what context, I cannot decide at this juncture
whether the remarks constitute direct evidence, would be useful to
determine potential bias in an indirect case, or are inadmissible. I
therefore deny the Village's motion.
II. Evidence of Lost Wages
The Village also requests that I bar any wage-based claim because Mr.
Johns did not produce his income tax returns for the years 1995 through
1998. Mr. Johns does not deny that he has failed to produce these
returns, nor does he offer a reason why they were not produced. His only
explanation is apparently that since his termination from the Village
Police Department, substantially all of his income has been earned from
his other employment at the Village. Thus, he alleges that the Village
has ready access to his income during this period. He also points out
that he does not have a claim for lost wages. Parties to litigation
generally do not get to pick and choose which of their opponent's
discovery requests they deem relevant and will respond to. However, the
Village did not move to compel the production of these documents pursuant
to Federal Rule of Civil Procedure 37, so its motion is denied.
III. Evidence of the African-American Population of Sauk
The Village seeks to bar Mr. Johns from introducing evidence of the
African-American population of the Village as inadmissible under
Fed.R.Evid. 402 and 403 because this is a disparate treatment, not a
disparate impact, case. Mr. Johns claims that this evidence is relevant
as pattern or practice evidence of discrimination to prove his prima
facie case. Presumably, the pattern and practice to which Mr. Johns is
referring is the psychological and polygraph tests administered to
potential full-time police officers which he alleges is subjective and
Statistical evidence of disparities between minority representation in
an employer's work force and minority representation in the community
from which employees are hired may help prove disparate treatment in a
pattern or practice case, but such a pattern or practice is shown through
a combination of statistical evidence demonstrating substantial
disparities buttressed by evidence of general policies or specific
instances of discrimination. Hazelwood School Dist. v. United States,
433 U.S. 299, 307, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). Moreover, the
"evidence" proffered by Mr. Johns falls short of what is required in the
Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 349 (7th Cir. 1997)
(statistical evidence, alone, seldom establishes a case for disparate
treatment). Testimony by a municipality's officials regarding its
population may not be reliable and is irrelevant unless clearly tied to
Mr. Johns' disparate treatment case. See King v. General Elec. Co.,
960 F.2d 617, 627 (7th Cir. 1992) (straight percentage comparisons not
statistically significant). The statistical evidence must be of the kind
and degree sufficient to raise an inference of intentional
discrimination. See Goetz v. Farm Credit Serv., 927 F.2d 398, 405 (8th
Cir. 1991); see also Segar v. Smith, 738 F.2d 1249, 1274 (D.C.Cir.
1984). Mr. Johns offers a statistic, not a statistical analysis of the
stringent type and methodology required by the Seventh Circuit. Mr. Johns
does not present the percentage of actual or potentially qualified
African-American applicants in the Village. Had Mr. Johns provided
demographic statistics of the applicant pool, the test results, or
something of the sort, he might have an argument. However, given the lack
of any information to tie to the demographics of the general population
of the Village, the evidence is irrelevant and confusing, so it will be
IV. Other EEOC Claims Against the Village & V. Evidence that
Former Police ...