decision-makers met on March 19, 1992 for a different reason than
Plaintiff's termination, and that the idea to terminate Plaintiff
unexpectedly arose at this meeting. However, as Sears maintains, the
final "decision" to terminate Plaintiff is not synonymous with a prior
"investigation" of Plaintiff's conduct. In fact, Sears argues that Ms.
Edinin and Ms. Walker — two of the decision-makers — talked
approximately ten days before Plaintiff's termination about his
inappropriate behavior. While they may not have spoken about his
termination per se until the March 19th meeting, these is no reason to
exclude evidence of their prior investigation. Accordingly, this motion
in limine is denied.
Ninth, Plaintiff argues that evidence offered to controvert facts which
Sears is deemed to have already admitted by its failure to deny
statements in Plaintiff's Rule 56.1(b) Statement*fn19 should be
excluded. Specifically, Plaintiff argues that Sears merely requested that
certain paragraphs (e.g., 82, 83, 86, 87, 96, 99, 102, 112, 113, 117,
121, 147, and 148) be stricken, but did not deny them as required by the
Local Rules. However, in Sears' Response to Plaintiff's Statement of
Additional Facts, Sears, for all practical purposes, denied these
paragraphs by arguing that Plaintiff violated the Local Rules by stating
opinions and not facts, and by not including references to affidavits or
parts of the record. Sears then moved to strike Plaintiff's statements at
issue here, because they were in violation of the Local Rules, and,
therefore, did not constitute valid statements of facts.
Furthermore, Plaintiff never filed objections to Sears' Responses to
Plaintiff's Statement of Additional Facts, and, arguably, has waived a
right to contest them now. In any event, the Court finds that Sears did
not "admit" facts in Plaintiff's Rule 56.1 Statement. Therefore, this
motion in limine is denied.
Tenth, Plaintiff's motion in limine to bar evidence in support of
Sears' defense of "exhaustion of administrative remedies" is moot, as
Sears waived this defense in the Final Pretrial Order (Tab H).
Finally, Plaintiff argues that any evidence offered to controvert a
finding that Plaintiff was a "participant" in the 1992 RIF Plan should be
excluded, as it is "the law of the case." However, Judge Nordberg's
August 10, 1998 Order (adopting this Court's R & R) specifically stated
that "the law of the case" doctrine creates a rebuttable presumption. See
Anglin v. Sears, Roebuck and Co., No. 93 C 3438, 1998 WL 483524, at * 3
(N.D.Ill. Aug. 10, 1998) ("The law of the case doctrine `establishes a
presumption that a ruling made at one stage of a lawsuit will be adhered
to throughout the suit.'") (citation omitted).
In the case at bar, Sears maintains that, during discovery, it
uncovered evidence to prove that Plaintiff would never have become
eligible under the Plan, even if he had not been discharged for wilful
misconduct. According to Sears, Mr. Doukas — Plaintiff's own
witness — testified at his deposition that Plaintiff was considered
and rejected for position elimination under the Plan. Because the "law of
the case" only creates a presumption, the Court finds no compelling
reason to exclude evidence which merely undermines a rebuttable
presumption. Therefore, this motion in limine is denied.
For the reasons set forth above, Defendant's Motions in Limine are
denied in part and granted in part. Plaintiff's Motions in Limine are
denied in full. Nonetheless, the denial of a motion in limine does not
mean that all evidence contemplated by the motion will be admitted at
trial. Hawthorne Partners v. A.T. & T. Techs., Inc., 831 F. Supp. 1398,
1401 (N.D.Ill. 1993). Instead, denial merely means that, without the
context of trial, the Court cannot determine whether the evidence in
question should be excluded. Id. Thus, the Court will entertain
objections on individual proffers as they arise at trial, despite the
fact that the proffer falls within the scope of a denied motion in
IT IS THEREFORE ORDERED that Defendant's Motions in Limine be,
and the same hereby are, GRANTED in part, and DENIED in part.
IT IS FURTHER ORDERED that Plaintiff's Motions in Limine be, and the
same hereby are, DENIED.