United States District Court, N.D. Illinois, Eastern Division
August 12, 2004.
LAWRENCE B. MALONE, Plaintiff,
PIPEFITTERS' ASSOCIATION LOCAL UNION 597, Defendant.
The opinion of the court was delivered by: BLANCHE MANNING, District Judge
MEMORANDUM AND ORDER
Pro se plaintiff Lawrence Malone, an African-American, worked
for Foster Wheeler Constructors at the Robbins Resource Recovery
Project and was a member of the defendant Pipefitters'
Association Local Union 597 (the "Union"). Mr. Malone alleges
that the Union subjected him to a racially hostile and abusive
work environment at the Robbins Project. Mr. Malone's case is set
for a jury trial on Monday, August 23, 2004. Before this court
are the parties' motions in limine.
I. DEFENDANT'S MOTIONS IN LIMINE
A. Motion to Bar Plaintiff's Introduction of Evidence That Was
The Union moves this court to enter an order precluding Mr.
Malone from introducing evidence that he has not previously
produced. Specifically, the Union contends that Mr. Malone has
not produced copies of 22 documents that he intends to introduce
at trial and has included on his exhibit list. Mr. Malone
contends that the Union has never requested these 22 documents.
Before Mr. Malone can present these documents at trial, he must
produce them to the Union pursuant to the Northern District of
Illinois' Standing Order Establishing Pretrial Procedure. See
Northern District of Illinois Local Rule 16.1, Standing Order.
Under Section 6 of the Standing Order, the parties are required to "exchange copies of documents
that will be offered in evidence at trial." Therefore, the court
orders Mr. Malone to produce photocopies of the 22 documents to
the Union's attorneys by no later than Friday, August 20, 2004.
If Mr. Malone fails to do so, he will not be able to present
these documents at trial.
B. Motion to Bar Evidence That Does Not Relate to the Robbins
Next, the Union moves this court to preclude Mr. Malone from
presenting any evidence or from making any arguments except to
the extent that they are relevant to his hostile work environment
claim, that is, whether the Union instigated, supported,
ratified, or encouraged a racially hostile work environment at
the Robbins Project. See Reed v. International Union of UAW,
945 F.2d 198, 203-04 (7th Cir. 1991). The Union contends that Mr.
Malone has submitted materials in connection with the pre-trial
order that go beyond the scope of his hostile work environment
claim and that this evidence is irrelevant, and therefore,
inadmissible at trial. See Federal Rule of Evidence 402.
In fact, not only is the proposed evidence irrelevant to Mr.
Malone's hostile work environment claim, some of it is unfairly
prejudicial to the Union. See Federal Rule of Evidence 403;
Mihailovich v. Laatsch, 359 F.3d 892, 906 (7th Cir. 2004)
("evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence"). Therefore, Mr. Malone
cannot present arguments and evidence involving his failure to
promote and job referral claims because these claims were
dismissed by the court in earlier proceedings. The only issue at
trial is Mr. Malone's hostile work environment claim.
Accordingly, Mr. Malone is barred from presenting evidence: (1)
concerning the Union's hiring hall system; (2) relating to wages and
benefits received by Union members; (3) concerning job referrals;
(4) concerning promotions at the Robbins Project; (5) regarding
job sites other than the Robbins Project; and (6) relating to
Union membership and Union elections. This list does not include
every possible fact situation that is not relevant to Mr.
Malone's hostile work environment claim. Therefore, the parties
may make additional objections to evidence, if necessary, at
trial. The court thus grants the Union's Motion to Bar Evidence
That Does Not Relate to Robbins Project Work Environment.
C. Motion to Bar Evidence of Prior Judgments Entered Against
The Union moves this court to preclude Mr. Malone from
presenting any evidence regarding or making any references to the
prior judgments against the Union in Daniels v. Pipefitters'
Ass'n Local Union 597, No. 84 C 5225, Malone v. Pipefitters'
Ass'n Local Union 597, No. 87 C 9966, and EEOC v. Pipefitters
Ass'n Local Union 597, No. 98 C 1601. The Union contends that
evidence of these prior judgment is inadmissible pursuant to
Federal Rule of Civil Procedure 404(b).
Federal Rules of Evidence 404(b) prohibits the use of
"[e]vidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith." However, "other bad acts" are admissible
if offered for another purpose, such as motive, plan, intent, or
opportunity. See Manuel v. City of Chicago, 335 F.3d 592, 596
(7th Cir. 2003). The Seventh Circuit has set forth a four-prong
test to determine the admissibility of other bad acts: (1) the
other act evidence cannot be used to establish the defendant's
propensity to commit the same bad act; (2) the other bad act must
be recent and sufficiently similar to be relevant to the matter
at issue; (3) there must be a sufficient amount of evidence for
the jury to conclude that the similar act was committed; and (4)
the probative value of the evidence cannot outweigh the danger of unfair prejudice. See Okai v. Verfuth, 275 F.3d 606,
610-11 (7th Cir. 2001).
For the following reasons, evidence or argument concerning the
prior judgments against the Union will not be admissible at
trial. First, Mr. Malone has not set forth any reason for using
these prior judgments other than to establish that the Union
engaged in similar conduct in this matter. Second, two of the
other cases are not recent, nor are they sufficiently similar to
Mr. Malone's hostile work environment claim. These two actions
involved racial discrimination in referring union members out to
jobs. See Daniels v. Pipefitters' Ass'n Local Union 597,
945 F.2d 906 (7th Cir. 1991); Malone v. Pipefitters' Ass'n Local
Union 597, 774 F.Supp. 490 (N.D.Ill. 1991).
Finally, the evidence of these three cases has very little
probative value as balanced against the unfair prejudice to the
Union. See Mihailovich v. Laatsch, 359 F.3d at 906. Indeed, any
discussion of the EEOC action may unfairly prejudice both the
Union and Mr. Malone because the district court order finding the
Union legally responsible for a hostile work environment was
reversed by the Seventh Circuit. See EEOC v. Pipefitters Ass'n
Local Union 597, 334 F.3d 656, 663 (7th Cir. 2003). Accordingly,
there is a strong possibility that the introduction of the EEOC
case and the multiple theories of liability would confuse the
issues or mislead the jury. See Mihailovich, 359 F.3d at 906.
Therefore, the court grants the defendant's Motion to Bar
Evidence of Prior Judgments Entered Against the Union.
D. Motion to Bar Evidence of the Speech Given by Francis
The Union moves the court to enter an order precluding Mr.
Malone from presenting any evidence regarding or making any
references to a speech given by the Union's Business Manager,
Francis McCartin, on January 7, 1992. The Union argues that
because the McCartin speech was given nearly four years before
Mr. Malone began work at the Robbins Project and that no one knows who was responsible for the racist graffiti at issue, there
is no causal connection between the speech and the Robbins
Project work environment. See Haywood v. Lucent Tech., Inc.,
323 F.3d 524, 530 (7th Cir. 2003).
The Union made similar arguments in its motion for summary
judgment. In this court's summary judgment order of March 12,
2002, the court examined McCartin's speech in detail:
Malone has submitted a transcript of a January 7,
1992 membership meeting delivered by Francis
McCartin, a union business manager. McCartin referred
to the speech as a "state-of-the union" message.
Malone argues that this speech, made more than three
years before he worked at the Robbins site, reveals
the union's racist convictions behind what eventually
occurred there. In his speech, McCartin addressed the
union's general business as well as letters from
anonymous union members. He also complained about
minority members who were upset with the union for
what they perceived as unequal opportunities and the
union's prejudices against them. For example, he read
one demand from a letter: "Apologize for derogatory
remarks made against minority members," and in
response, replied "never," to applause from the
audience. On the issue of the union's minority
membership, McCartin's speech alternated between
vituperative and tolerant. He laments that
African-American members benefit from a
double-standard when disciplined because the union
dare not risk charges of discrimination. He also
implies that the union hall is not as nice a place or
as safe as it was since African-Americans became
members. At other points in the speech, he praises
the ideal that all members of the union should be
treated and considered equal. At all points, the
transcript describes an approving audience, which
applauded at frequent intervals. For certain,
McCartin's speech casts a dubious light on the
caliber of union leadership with respect to its
From any perspective, what remains from reading
McCartin's speech is the factual issue of whether the
union's leadership generated or fostered racial
animus against its African-American members. The
union has offered no authority for their argument
that the temporal separation between the time the
speech was made and when the graffiti appeared on the
toilets at the Robbins site bars Malone from raising
this evidence in support of his claim.
See Malone v. Pipefitters' Ass'n Local 597, No. 97 C 3718,
1998 WL 433765, at *3 (N.D.Ill. Mar. 13, 2002).
In its motion in limine, the Union does not make a compelling
argument for this court to change its ruling and preclude the McCartin speech. Based on the
court's reading of the McCartin speech, Mr. Malone should have an
opportunity to present evidence before a trier of fact concerning
his racially hostile work environment claim, including possible
evidence of a link between the graffiti and the McCartin speech.
Thus, the court denies the Union's Motion to Bar Evidence of the
Speech Given by Francis McCartin.
II. PLAINTIFF'S MOTIONS IN LIMINE
A. Motion to Compel
Mr. Malone brings this Motion to Compel the Union to answer his
Interrogatories No. 22 and 23 which concern assessments that were
deducted from the wages of Union members. The Union declined to
answer these Interrogatories because such assessments are not
relevant to whether there was a racially hostile work environment
at the Robbins Project. Malone, however, moved to compel these
answers to Magistrate Judge Bobrick, who not only denied the
motion, but denied the motion for reconsideration as well. Judge
Bobrick then set a fact discovery cutoff of December 11, 2000.
Prior to the present motion, Mr. Malone has never asked this
court to review Judge Bobrick's decisions regarding
Interrogatories No. 22 and 23. A district court's review of
discovery orders made by a magistrate judge is governed by
Federal Rule of Civil Procedure 72(a). See Weeks v. Samsung
Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997). Rule
72(a) allows the parties to file objections to a magistrate
judge's discovery orders within 10 days after being served a copy
of the order. Mr. Malone failed to do so. As the Union correctly
asserts, it is too late for Mr. Malone to challenge Judge
Bobrick's orders now.
In any event, Mr. Malone has copies of the Union's financial
statements for 1993 and 1994, which he attached to his motion. Whether the information is
relevant or not, there is no need to allow Mr. Malone any
additional discovery to supplement this information. Therefore,
the court denies Mr. Malone's Motion to Compel.
B. Motion for Clarification
Next, Mr. Malone asks this court to clarify its orders in which
the court granted the Union's summary judgment motion as to Mr.
Malone's failure to promote and job referral claims. The court
reminds Mr. Malone that it reviewed these two claims in its
Motion for Reconsideration Memorandum and Order, which was
entered on March 30, 2004. In that order, the court clearly
stated that Mr. Malone's job referral claim was unsupported by
the record and that his failure to promote claim was insufficient
because of the Union's lack of authority to promote him. Further,
Mr. Malone failed to establish a prima facie case for his failure
to promote claim. As such, Mr. Malone cannot make any arguments
at trial regarding these dismissed claims. The only issue
remaining is his hostile work environment claim.
Nonetheless, Mr. Malone now claims that he "received disparate
treatment from 597 Union Steward Dennis Halney" and other union
stewards. Mr. Malone, however, did not bring a disparate
treatment/wrongful discharge claim in his First Amended
Complaint. This court cannot allow Mr. Malone to bring this
additional cause of action over six years after he filed his
First Amended Complaint. See Federal Rule of Civil Procedure
15(a). In addition, even if this court were to assume that the
EEOC charge was sufficient to bring a lawsuit based on an alleged
disparate treatment/wrongful discharge, the 90 days in which Mr.
Malone was required to file a lawsuit on this basis has long
since passed. See 42 U.S.C. § 2000e-5(f)(1). Therefore, the
court denies Mr. Malone's Motion to Clarify. C. Motion to Strike and Bar Defendant's Statement of Issues
Based on the Seventh Circuit's decision in EEOC v. Pipefitters
Ass'n Local Union 597, 334 F.3d 656 (7th Cir. 2003), Mr. Malone
moves this court to strike Defendant's Statement of Issues It
Will Offer Evidence to Support, numbers 5, 6, and 7.*fn1 Mr.
Malone contends that these statements are inadmissible because
they concern two theories of liability that the Seventh Circuit
has outright rejected: (1) the Union has an affirmative duty to
prevent racial harassment; and (2) the selective inaction theory,
i.e., the Union would take the initiative to solve other
problems in the workplace, but not racial harassment. See EEOC
v. Pipefitters Ass'n Local Union 597, 334 F.3d 656, 661 (7th
The statements at issue are as follows:
5. Whether the Union refused to grieve or otherwise
address any complaint regarding the allegedly
racially hostile or otherwise offensive work
environment at the Robbins Project.
6. Whether Union Business Agent Steve Toth took
appropriate steps when he received a complaint about
7. Whether Piping Superintendent Dennis Hahney
represented Local 597 at the Robbins Project.
8. Whether Mr. Hahney took appropriate steps when he
received a complaint about racial graffiti and a
The Union contends that proof supporting these statements will
show how it responded to member complaints and that such
responses are relevant to defeat Mr. Malone's argument that the
Union intentionally promoted a pervasive atmosphere of
discrimination at the Robbins Project. Without more information as to the Union's defense, it is unclear
why this evidence would be relevant to Mr. Malone's hostile work
environment claim. That being said, the court will take Mr.
Malone's motion in limine under advisement and hear it within
the proper context during trial.
After careful consideration of the record, and in the exercise
of its discretion, the court denies Plaintiff's Motion to Compel
[R. 158-1], Plaintiff's Motion to Clarify [R.159-1], and
Defendant's Motion to Bar Evidence of the Speech Given by Francis
McCartin [R.153-1]. The court grants the Union's Motion to Bar
Evidence That Does Not Relate to Robbins Project Work Environment
[R.154-1] and the Union's Motion to Bar Evidence of Prior
Judgments Entered Against the Union [R. 156-1]. The court takes
the Plaintiff's Motion to Strike and Bar Defendant's Statement of
Issues and Argument under advisement [R.162-1] and will determine
the admissibility of the proposed statements at trial. Finally,
the court grants the Union's Motion to Bar Plaintiff's
Introduction of Evidence That Was Not Produced [R.155-1], but
allows Mr. Malone to produce photocopies of the 22 documents by
no later than Friday August 20, 2004. If Mr. Malone fails to do
so, he will not be able to present these documents at trial.