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April 2, 2004.

MORRIS R. REEVES, Plaintiff,

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 granted,

  • 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 Page 2 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 Page 3 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. Page 4

  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. Page 5 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 Page 6 event, this evidence is irrelevant and prejudicial ...

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