The opinion of the court was delivered by: BLANCHE MANNING, District Judge
This employment discrimination case is set for trial commencing on
April 12, 2004. The parties' motions in limine and the defendant's motion
to strike and sanction the plaintiff are before the court. The court will
consider Reeves' untimely, 44-page response in the interests of resolving
the motions on their merits. The court cautions counsel, however, not to
disregard dales set by the court or the local rules governing page length
again in the future.
Plaintiff Morris Reeves asserts that his former employer, the Federal
Reserve Bank of Chicago, discriminated against him based on his race in
violation of Title VTT, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981.
The court previously granted the Reserve Bank's motion for partial
summary judgment with respect to Reeves' constructive discharge and
pattern and practice claims. For the purposes of this order, the court
will assume familiarity with that prior order.
Plaintiffs motion in limine regarding references to age
discrimination The Reserve Bank does not object. This motion is
Plaintiffs motion in limine regarding Alicia Williams' and Nancy
Goodman's notes (59-1) Alicia Williams was one of the individuals who
originally interviewed and hired
Reeves. She supervised Reeves directly or indirectly during his
tenure at the Reserve Bank. Nancy Goodman was Williams' supervisor and
was killed in a cur accident in 2000. Reeves seeks to exclude: (1) notes
prepared by Williams; and (2) notes prepared by Goodman and statements
made by her out of Reeves' presence.
The notes and other records prepared by Williams and Goodman that are
the subject of Reeves' motion all relate to the fact that he did not
receive a promotion. They were not placed in Reeves' personnel folder or
given to him at the time they were written. Because of this, Reeves
contends that they are inadmissible hearsay. If the notes are admissible
(an issue which the court does not reach at this time) and the Reserve
Bank can lay a proper foundation for the notes, however, the fact that
Reeves did not see them prior to the inception of this lawsuit is wholly
irrelevant. Moreover, the fact that Reeves did not see the notes at the
time they were prepared goes to their weight, not their admissibility.
Accordingly, Reeves' request to exclude Williams' and Goodman's notes is
taken under advisement, to be ruled upon in the context of the testimony
being offered or elicited.
With respect to Goodman, Reeves also claims that all evidence of her
"conversations, statements, and acts" are inadmissible under the Illinois
Dead Man's Act, 735 ILCS § 5/8-201. The Illinois Dead Man's Act does
not apply, however, where federal law supplies the rule of decision.
Estate of Chlopek by Fahrforth v. Jarmusz, 877 F. Supp. 1189,
1193 (N.D. Ill. 1995). Because only federal claims are at issue in this
case, the Illinois Dead Man's Act is, therefore, inapplicable. This
leaves the court with Reeves' contention that all of Goodman's statements
are hearsay. Because he does not specifically delineate the testimony at
issue or discuss why it is inadmissible, the court declines to exclude it
wholesale at this point in the proceedings. The
motion to exclude evidence relating to Goodman under the Illinois
Dead Man's Act is thus taken under advisement, to be ruled upon in the
context of the testimony being offered or elicited.
Defendant's motion in limine to exclude evidence relating to
Nancy Goodman's alleged acts of discrimination [69-1] As noted
above, Reeves reported to Williams, who reported to Goodman, who is
deceased. Reeves claims that Goodman failed to properly supervise
Williams, The Reserve Bank seeks to limit testimony about Goodman's
alleged delicts to matters that were addressed in her deposition. Citing
to DiLegge v. Gleason, 131 F. Supp.2d 520, 525-26 (S.D.N.Y.
2001), the Reserve Bank argues that it would be improper to shift blame
to Goodman by expanding her alleged wrongs beyond matters that were
raised in her deposition, when she could defend herself.
In DiLegge a white fire fighter alleged that he failed to
receive a promotion due to reverse discrimination and because the City
retaliated against him because he had engaged in union activities. The
Fire Commissioner, who was the decision maker for the City, suffered a
debilitating stroke and thus could not testify at trial. At his
deposition, the plaintiff testified that he thought, that others had
received promotions because they were white but that he did not have a
specific factual basis for this belief. Id. at 525-26. He did
not name the Fire Commissioner as a perpetrator of the alleged
discrimination. The court found that this testimony was not enough to get
to the jury. It also held that the plaintiff could not add claims against
the Fire Commissioner at trial that he had not articulated at his
deposition because it would unfairly prejudice the defendants, given that
the Fire Commissioner was physically precluded from testifying.
Id. at 526.
The same logic that the court employed in DiLegge is
applicable in this case. Reeves had an opportunity to explore his
theories as to why Goodman was responsible for the alleged discrimination
at the Reserve Bank. Because of Goodman's untimely demise, Reeves is thus
limited to the matters that he raised in discovery, and cannot expand his
theory of liability as to Goodman now that she cannot defend herself.
The court also notes that Reeves' position regarding Goodman is based
solely on self-interest. Reeves seeks to exclude evidence relating to
Goodman because it is hearsay and seeks to exclude her notes because they
were not shown to him when they were prepared-Yet, he also seeks leave
to present certain unspecified evidence relating to Goodman. The court
declines Reeves' invitation to resolve the motions in limine relating to
Goodman by excluding evidence which does not support Reeves' claims and
admitting evidence that helps him.
Plaintiffs motion in limine to admit Gary Skoog's expert opinion
based on regression analysis [60-1] Gary Skoog prepared regression
analyses in July of 2001 on bank wide personnel data. These statistical
analyses found that African-American bank employees received fewer
promotions and lower performance ratings than white employees.
The Reserve Bank opposes admission of Skogg's report or
testimony, contending that: (1) the grant of partial summary judgment as
to Reeves' pattern and practice claim means this evidence is irrelevant;
(2) Reeves failed to properly disclose Skoogs as a testifying expert; and
(3) Skogg's testimony is inadmissible under Daubert v. Merrell Dow
Pharmeceuticals, Inc., 509 U.S. 579 (1993), and its progeny. The
court agrees that Reeves cannot use Skoog's regression analyses to
resurrect his pattern and practice claims.
Reeves, however, also seeks to elicit Skoog's opinion to support
his disparate impact claim. The court thus moves to the Reserve Bank's
second argument. Skoogs prepared his analyses in the Summer of 2001 and
Reeves disclosed Skoogs as an expert as to damages in January of 2002.
Reeves' motion in limine, which was filed long after the close of expert
discovery, indicates that he wishes Skoog to testify for purposes other
than damages. The Reserve Bank objects, contending that it would be
prejudiced by the expansion of Skoog's testimony at this late date.
The sanction of excluding expert testimony that way not properly
disclosed is "automatic and mandatory" unless the party making the lardy
disclosure can show that its actions were either justified or harmless,
Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996).
Reeves has not presented a reasonable explanation as to why he seeks to
expand Skogg's testimony at this late date. Moreover, expanding Skoog's
testimony would definitively prejudice the Reserve Bank since discovery
has long since closed and trial is imminent. Thus, Skogg's regression
evidence is excluded. The court will, therefore, not reach the Reserve
Bank's Daubert argument,
Defendant's motion in limine to exclude evidence relating to
Alicia Williams' claim of discrimination [61-1] Williams filed a
charge of discrimination against the Reserve Bank alleging sex and race
discrimination in 1993 and 1994, Williams' claims were based on an April,
1993, reorganization of the supervision and regulation department. The
relevant decision-makers were then Vice President Dave Epstein and Senior
Vice President Frank Dreyer.
The Reserve Bank contends that evidence relating to Williams'
discrimination claims should be excluded because Reeves' pattern and
practice claim is no longer pending and, in any
event, this evidence is irrelevant and prejudicial ...