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June 4, 2003


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Julian J. Moore, who is African-American, worked for the Department of Veterans Affairs, Veterans Canteen Service (VCS) as an Assistant Canteen Chief Intern from August 1998 until he was fired in June 1999. He then sued the Secretary of Veterans Affairs alleging race discrimination and unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964. After a trial held in December 2002, a jury found in favor of the defendant on both claims. Moore has moved for a new trial pursuant to Federal Rule of Civil Procedure 59(a), challenging the exclusion of certain evidence and the accuracy of the jury instruction defining the elements of the retaliation claim. For the reasons stated below, the Court denies Moore's motion.

A. Evidence concerning probationary period

At the time of the challenged employment decisions, Moore was a probationary employee. Before trial, the defendant moved in limine to bar evidence or argument to the effect that he should not have been required to serve a probationary period. Moore had previously served a period of probation at another federal agency, the Army and Air Force Exchange Service, and he contended that the VCS could have and should have excused him from serving a second probation. Because the VCS had relied on his probationary status in terminating him, Moore argued, he should be permitted to argue that he should not have been on probation to begin with.

The Court disagreed and granted the defendant's motion in limine. We ruled that "absent some indication that [the officials who terminated him] knew that the probation was improper — which Moore does not argue and does not support" — the evidence was irrelevant, unduly prejudicial, and misleading. Moore v. Principi, No. 00 C 2975, slip op. at 2 (N.D.Ill. Dec. 10, 2002).

In his post-trial motion, Moore has provided no proper basis to reverse the Court's pre-trial ruling. Neither before nor during trial did he offer any evidence to indicate that the persons who were involved in the decision to terminate him had anything to do with putting him on probation. Nor did he offer any evidence to indicate that any of them had any reason to believe that he should not have been considered a probationary employee. Under the circumstances, the claimed impropriety of putting him on probation to begin with had no bearing on whether the decision makers discriminated or retaliated against him.

In his post-trial motion, in contrast to his response to the pre-trial motion in limine, Moore claimed that Ray Tober, a decision maker in the termination, "was responsible for the decision to treat Moore as probationary." Mem. in Support of Mot. for New Trial at 6. But he provided no evidence along with the motion to support this assertion. In his reply memorandum, Moore made what might be considered an offer of proof in this regard. Reply Mem. at 9-10. But this comes far too late; Moore should have done this in response to the pre-trial motion in limine, or at a minimum he should have sought reconsideration during trial and provided the foundation then. A reply brief in support of a post-trial motion is not the time to attempt to lay, for the first time, the predicate for the admissibility of evidence. The extensive submission Moore makes in his reply memorandum to support the proposition that it was improper to classify him as probationary, id. at 10-11, likewise is untimely.

B. Retaliation jury instruction

Title VII's anti-retaliation provision states that

[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a). Moore claimed that the VCS retaliated against him for making internal charges of discrimination — a claim under the statute's "participation" clause.*fn1

The Court's standing order required the parties to submit proposed jury instructions prior to trial as part of the proposed final pretrial order. Both Moore and the defendant submitted proposed instructions concerning the retaliation claim which required Moore to show that he reasonably believed in good faith that he believed the conduct of which he had complained was discriminatory. At the final pretrial conference, the Court deferred until trial the finalization of the jury instructions.

On the first day of trial, the Court provided the parties with a set of proposed jury instructions which, consistent with the parties' proposed instructions, included for the retaliation claim a requirement that Moore prove that he reasonably believed in good faith that the conduct of which he complained was discriminatory. Following the distribution of the proposed instructions, Moore persuaded the Court to include in the retaliation instruction a statement that the conduct of which he had complained did not actually have to be discriminatory in order for him to prevail on the retaliation claim. He did not, however, challenge the proposed inclusion of a requirement of reasonable, good faith belief. Indeed, his proposed supplement to the instruction assumed the propriety of the reasonable, good faith belief requirement.

On the final day of trial, the Court distributed a revised set of proposed instructions including the modification of the retaliation instruction sought by Moore. At that point — near the end of the presentation of evidence — Moore objected for the first time to the retaliation instruction. Contrary to his earlier submission of an instruction with a reasonable, good faith belief element, Moore now argued that no such requirement exists when a plaintiff makes a claim under § 2000e-3(a)'s participation clause.

The Court did not preclude Moore from arguing the point, and we researched the matter over the lunch hour, as did defense counsel. Following the lunch break, defense counsel presented the Court with authorities that they believed supported the imposition of a reasonable, good faith belief requirement for a retaliation claim under ยง 2000e-3(a)'s participation clause. After hearing argument, the Court expressed the ...

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