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PRESTO v. STATE OF ILLINOIS DEPARTMENT OF HUMAN SERVICES

United States District Court, Northern District of Illinois, Eastern Division


May 21, 2003

DONNA PRESTO, DIANA LEFEBVRE AND VIRGINIA MOUTON, PLAINTIFFS,
v.
STATE OF ILLINOIS DEPARTMENT OF HUMAN SERVICES AND DENNIS BAILEY, DEFENDANTS.

The opinion of the court was delivered by: Joan Humphrey Lefkow, United States District Judge

RULING ON MOTIONS IN LIMINE

A. Defendant's motion to sever pursuant to Federal Rules of Civil Procedure 20 and 21
Defendant has moved to sever plaintiffs' Title VII claims against it into three trials and to sever claims for damages under 42 U.S.C. § 1983 and under state law against the defaulted co-defendant, Dennis Bailey, pursuant to Federal Rules of Civil Procedure 20 (permissive joinder of parties) and 21 (misjoinder and non-joinder of parties). With respect to plaintiffs' claims against it, in Byers v. Illinois State Police, No. 99 C 8105, 2000 WL 1808559, at *4 (N.D.Ill. Dec. 6, 2000), the court recognized factors to consider for permissive joinder, namely, "[whether] the discrimination took place at roughly the same time, if it involved the same people, whether there is a relationship between the discriminatory actions, whether the discriminatory actions involved the same supervisor or occurred within the same department, and whether there is a geographical proximity between the discriminatory actions."

Relying on Byers, defendant argues that plaintiffs "do not allege that Bailey harassed the plaintiffs collectively, i.e., at the same time, date, and location, or in the same matter." (Def. Mot. ¶ 4, Def Mem. at 5.) This argument is plainly without merit. Plaintiffs produce evidence showing that Bailey engaged in egregious and persistent harassment of these three night Mental Health Technicians while working in his capacity as a Night Shift Supervisor at the Howe Center, and that Howe Center management knew or should have known about Bailey's harassment prior to plaintiffs' collective complaint on August 6, 1999. Although there is a difference between Bailey's harassment of Mouton versus his harassment of Presto and Lefebvre in that Mouton "acquiesced" at times for fear of retaliation, Bailey's misconduct with respect to each plaintiff is appropriately heard in one trial as it goes to whether the harassment was so substantially severe and pervasive as to constitute a hostile work environment. As such, this court will not sever plaintiffs' claims against defendant.

With respect to plaintiffs' claims against Bailey, defendant argues prejudice based on plaintiffs' requests for more than $1 million against Bailey because compensatory damages against IDHS under Title VII cap at $300,000. Rather than sever the defendants, the court will instruct the jury as to the conditions on which liability of the separate parties must be based. Accordingly, the court denies defendant's motion to sever.

B. Defendant's motion in limine #1 to bar evidence of arrest record

Bailey's known arrest record consists of disorderly conduct for talking back to a police officer when he was 15 years old, resisting arrest after a traffic violation when he was 19 or 20 years old, disorderly conduct for resisting a police officer when he was 25-26 years old, and eluding a police officer in November 1994. (Bailey Dep. at 9-16.) Defendant asserts that Bailey's previous arrests involve crimes that occurred 9 to 37 years ago and are unrelated to official misconduct and/or sexual harassment. The court grants the motion.

C. Defendant's motion in limine #2 to prohibit plaintiffs from arguing that Bailey's job title as mental health supervisor proves, or is an admission by defendant, that Bailey was a supervisor for Title VII purposes
Whether defendant was a supervisor for Title VII purposes is fact dependent. The motion is granted only insofar as plaintiffs' counsel may not argue that the matter is admitted. It is otherwise denied.

D. Defendant's motion in limine #3 to prohibit testimony that any witnesses fear retaliation for testifying
Defendant points to Margaret Cook's deposition testimony where she states her fellow colleagues and her union steward warned her that she should be on guard if she testified because defendant may retaliate against her. During the deposition, defendant's attorney gave Cook her card and told Cook to contact her if she felt she was being retaliated against for testifying but Cook has not called this attorney. The jury may be instructed not to consider the warnings as evidence that IDHS did or would retaliate. The evidence, however, does provided the basis of Cook's state of mind. The court denies the motion.

E. Defendant's motion in limine #4 to prohibit affidavits as evidence unless a proper foundation is laid and the author is called to testify and is subject to cross-examination
Affidavits of witnesses are inadmissible hearsay and are not admissible into evidence at trial to resolve disputed issues of fact, notwithstanding the fact that the affidavits may have been previously submitted to the defendant. Fed.R.Evid. 801(c) (hearsay); United States v. McCall, 740 F.2d 1331, 1343 (4th Cir. 1984) (affidavits are hearsay) (concurrence). The court grants the motion.

F. Defendant's motion in limine #5 to exclude testimony of Pearlie Kennedy Slaughter's claim of harassment
Pearlie Kennedy-Slaughter used to work for defendant as a Mental Health Technician in the 1980's. She testified in her deposition that she complained to Howe Center management that her night administrator, a purported lesbian, sexually harassed her. Although defendant apparently separated them, they crossed paths again a couple of years later. Subsequently, defendant fired Slaughter for sleeping on the job although she wants to believe that defendant, via the night administrator, retaliated against her. As an aside, based on a line of questioning from plaintiffs' counsel, Slaughter testified that she initially did not want to "help" plaintiffs because she wanted plaintiffs' counsel to include her in the lawsuit with respect to the incident described above.

Plaintiffs may try to argue that Slaughter's testimony demonstrates that defendant ineffectively responded to complaints about sexual harassment in the past. Slaughter's testimony, however, is too attenuated because it involves different individuals during a remote time period. The court grants the motion.

G. Defendant's motion in limine #6 to prohibit plaintiffs from giving hearsay testimony
Defendant seeks to prohibit plaintiffs from testifying that other Mental Health Technicians, such as Adrian Veal, Andrea Jensen, Regina Foster and Matilda Johnson, confided in plaintiffs that Bailey subjected them to sexual harassment. The motion is granted as the testimony is hearsay.

H. Defendant's motion in limine #7 to prohibit witnesses from testifying what plaintiffs told them about Bailey's actions
Fellow Mental Health Technicians may testify that plaintiffs told them that Bailey was sexually harassing them. Defendant argues this testimony is self-serving. Ruling is reserved.

I. Defendant's motion in limine #8 to exclude testimony/evidence of claims that Bailey sexually harassed anyone other than plaintiffs
Testimony such as that of Irma Burnham who observed Bailey's harassment of other women in the presence of the Living Unit Administrator Taylor and Unit Director Carlson may be admissible to show that Bailey's harassment was so open and pervasive that defendant knew or had to know about it. Ruling is reserved.

J. Defendant's motion in limine #9 to preclude plaintiffs from presenting improper opening or closing argument
Defendant does not want plaintiffs' counsel to express his personal opinions regarding this case during opening and closing argument. The law is well established that it is improper for counsel to express personal opinions during such arguments. The court grants the motion.

K. Defendant's motion in limine #10 to preclude plaintiffs from requesting more than the statutory cap in damages from the jury
Pursuant to § 1981a(c)(2), "the court shall not inform the jury of the limitations described in subsection (b)(3) of this section[,]" which concerns the statutory cap for compensatory damages. The court denies the motion.

L. Defendant's motion in limine #11 to exclude testimony/evidence of plaintiffs Lefebvre's and Mouton's claims of prior sexual assault
Lefebvre reported "vague memories" of being molested three times when she was nine years old by a family "friend" who put his hands in her underwear. Mouton testified that when she was 14 years old, a family "friend" fondled her genitals, she was sexually assaulted by a man she met in a bar when she was 20 years old, and that a co-worker fondled her in an elevator when she was 27 years old. According to defendant, "it is proper to exclude evidence of sexual assaults because of the sympathetic effect it might have on a jury." See Campbell v. Ingersoll Milling Machine Co., 893 F.2d 925, 928-29 (7th Cir. 1990) (excluding evidence of prior sexual assault by a former supervisor 2 ½ years prior to the defendant's purportedly discriminatory discharge of plaintiff because, inter alia, the evidence was irrelevant to plaintiff's discrimination claim and the prejudice outweighed the probative value due to its improper generation of sympathy from the jury).

This evidence may come in through the psychologist witnesses only. If, however, defendant attempts to dispute the veracity of the claims of previous sexual abuse, plaintiffs may testify in rebuttal. The court grants the motion in part and denies the motion in part.

M. Plaintiffs' motion in limine to exclude all references to the cap on Title VII damages
Pursuant to § 1981a(c)(2), "the court shall not inform the jury of the limitations described in subsection (b)(3) of this section[,]" which concerns the statutory cap for compensatory damages. The court grants this motion.

N. Plaintiffs' motion in limine to exclude all references to any possibility of recovery by plaintiffs from Dennis Bailey and/or the Default Judgment entered against him in this case
On October 18, 2001, when the court granted plaintiffs' motion for default judgment, it further ordered that prove-up will be taken at trial. The court denies this motion.

O. Plaintiffs' motion in limine to exclude all evidence relating to any offers by plaintiffs to settle their case against defendants pursuant to Fed.R.Evid. 403 and 408
The court grants this motion.

P. Plaintiffs' motion in limine to prohibit defendant from asserting Ellerth-Faragher Affirmative Defense against plaintiffs
Plaintiffs argue that Bailey's sexual harassment of them constitutes a tangible employment action and thus defendant is not entitled to the Ellerth/Faragher affirmative defense. None of the cases cited by plaintiffs served as an actual bar to prevent a defendant from asserting its Ellerth/Faragher affirmative defense during trial. The court denies this motion.

Q. Plaintiffs' motion in limine to exclude evidence relating to any other lawsuits or claims filed by plaintiffs pursuant to Fed.R.Evid. 403
Defendant seeks to offer evidence that one plaintiff filed a claim for worker's compensation, as evidence of her overreaching. A party is entitled to pursue alternative avenues of relief. The court grants this motion.

Trial in this case will commence on Tuesday, May 27, 2003. No trial proceedings will be held on the following dates: the morning of Thursday, May 29 (afternoon only); Friday, May 30; Friday, June 6 and Friday, June 13. Should this case continue into the week of June 16, the trial will not be held on Wednesday, June 18.

20030521

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