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UNITED STATES EQUAL EMP. OPP. COMMISSION v. CATERPILLAR

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
CATERPILLAR, INC. Defendant. STANLEY McCALLUM, GEORGE A. ERVINS, AND RICKEY L. McNEAL, Plaintiff-Intervenors v. CATERPILLAR, INC. Defendant.



The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

This case alleges that defendant Caterpillar, Inc. failed to use reasonable care to prevent and correct promptly acts of alleged racial harassment against three African-American employees at Caterpillar's Joliet, Illinois facility in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981 et seq. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and this case is set for trial on October 4, 2004. The plaintiffs and defendant filed motions in limine. Plaintiffs' motions in limine [58-1, 59-1, 60-1] are granted as unopposed. The Court addresses each of Caterpillar's motions in turn. DISCUSSION

A. Evidence Relating to a Noose Allegedly Found At Plaintiff McCallum's Home

  Caterpillar moves to exclude evidence relating to a noose allegedly found by plaintiff Stanley McCallum's wife in front of their home on November 25, 1999. Caterpillar argues that the alleged noose, testimony regarding the noose, and a police report filed by McCallum are irrelevant, unfairly prejudicial, lack foundation, and contain hearsay (police report). Plaintiffs argue that the noose evidence is relevant to showing that they subjectively perceived their work environment as hostile or abusive. Caterpillar's motion is granted.

  The noose evidence is excluded under Rule 403 because its probative value is substantially outweighed by the danger of unfair prejudice.*fn1 It is unknown who left the noose at McCallum's home, and there is no connection between Caterpillar and the noose. Plaintiffs state that they will stipulate that Caterpillar is not responsible for the noose found at McCallum's home, but they clearly want the jury to infer a connection between the incident and Caterpillar. For example, plaintiffs point out that McCallum's coworkers knew where he lived.*fn2 The problem with this inference is that there is no evidence (other than plaintiffs' unsupported speculation) linking Caterpillar to the noose found at McCallum's home. Because "the noose is among the most repugnant of all racist symbols, because it is itself an instrument of violence," Williams v. New York City Housing Authority, 154 F.Supp.2d 820, 824 (S.D.N.Y. 2001), there exists a real and substantial danger that the noose evidence could lead the jury to decide the case on an improper emotional basis without any connection between the noose and Caterpillar having been proved. Thus, even if the noose evidence is relevant to the subjective prong of the harassment test as plaintiffs suggest, the Court finds it inadmissible under Rule 403's balancing test. Caterpillar's motion in limine is granted.

  B. Plaintiffs' Opinion Testimony and Testimony Lacking Personal Knowledge

  Caterpillar moves to exclude and/or limit opinion testimony as it relates to "dog whistling" incidents, "KKK" crosses, the writing of "KKK" on the paint booth wall, and plaintiffs' description of persons' alleged "malicious intent" to harass them as inadmissible under Rules 602 and 701.*fn3 Caterpillar's motion is denied in part and reserved in part.

  1. Dog Whistling

  Plaintiffs allege that on several occasions, Caucasian coworkers and one supervisor (Bob Marx) whistled at them as if they were dogs. Plaintiffs will testify that they perceived the whistling as disrespectful and demeaning. Plaintiffs propose to offer the following evidence at trial: (1) in August 1999, Ryan Daggett dog whistled at plaintiff McNeal; (2) on February 4, 2000, Brian Smith dog whistled at plaintiff McCallum; (3) on February 8, 2000, Delmar Peel dog whistled at plaintiff McCallum; (4) on February 11, 2000, Delmar Peel dog whistled at plaintiff Ervins; and (5) On January 31, 2001, Marx dog whistled at plaintiff McCallum. McCallum will testify that the dog whistle he experienced was different than the way Marx whistled normally.

  Caterpillar argues that plaintiffs should be prohibited from referring to "dog whistling" because their claim that persons "dog whistled" at them, rather than simply "whistled," is an opinion which lacks personal knowledge. Caterpillar complains that at their depositions plaintiffs could not describe with specificity what a "dog whistle" sounded like, what it means to "dog whistle" at someone, or how they knew the intent of persons who were allegedly whistling at them.

  Plaintiffs' proposed testimony meets the requirements of Rules 602 and 701. "Lay opinion testimony most often takes the form of a summary of first-hand sensory observations." United States v. Conn, 297 F.3d 548, 554 (7th Cir. 2002). Plaintiffs clearly have adequate firsthand knowledge regarding the alleged whistling incidents. Plaintiffs' characterization of the whistling as "dog whistling" is based on their own personal perceptions and observations. Plaintiffs were participants in these whistling incidents and can testify as to how they perceived the whistling. United States v. Estrada, 39 F.3d 772, 773 (7th Cir. 1994) (holding participant in a conversation permitted to testify as to his understanding of their communications); United States v. Kozinski, 16 F.3d 795, 809 (7th Cir. 1994) (holding participant in conversations had personal knowledge of his own mental processes and was competent to testify regarding them). Testimony as to the plaintiffs' perception of the whistling incidents is also helpful to the jury's determination of whether plaintiffs' work environment was objectively and subjectively hostile.

  Plaintiffs' apparent inability to specify what a "dog whistle" sounded like, what it means to "dog whistle" at someone, or how they knew the intent of persons who were allegedly whistling at them goes to the weight to be accorded that testimony rather than to its admissibility. Caterpillar is free to cross-examine plaintiffs about the basis for their opinions and may offer evidence to contradict or impeach plaintiffs' lay opinions. United States v. Allen, 10 F.3d 405, 414 (7th Cir. 1993) (stating "Rule 701 places great reliance on a party's ability to cross-examine an opponent's witness and present any weaknesses in the witness's testimony to the trier of fact."). While the Court agrees with Caterpillar that plaintiffs must lay a proper foundation for their "dog whistling" testimony, it is premature to determine whether a proper foundation for admission of lay opinions under Rule 701 has been established prior to trial. Caterpillar's foundation objection is denied without prejudice to reassertion at trial if necessary.

  2. "KKK" Crosses

  Caterpillar moves to exclude plaintiffs' testimony that unidentified persons drew "KKK" crosses and crossed paint hooks to resemble a "KKK" cross as impermissible opinion testimony because it lacks personal knowledge. Caterpillar argues that plaintiffs' "KKK" cross opinion testimony lacks personal knowledge because in their depositions, plaintiffs could not explain or describe the alleged difference between a "KKK" cross and a holy cross. Caterpillar also contends that plaintiffs lack personal knowledge of the intent of the persons who drew the alleged "KKK" crosses and crossed the paint hooks in a manner to resemble "KKK." Caterpillar further argues that any reference to "KKK" crosses is unduly prejudicial because it implies that the drawings were explicitly associated with a known racist organization.

  Plaintiffs' response memorandum describes a "Klan cross" as a cross with the arms tilted upwards from horizontal to look like a "Y" or rotated "K." Plaintiffs state that the evidence at trial will establish that they have personal knowledge of what a KKK cross is. Plaintiffs' trial memorandum indicates that during the investigation of a November 1999 etching on the paint booth wall in Building C of a gallows with a hangman's noose around the head of a stick figure, plaintiff McCallum reported that he had previously seen KKK crosses drawn in the paint booth. Plaintiffs also state that in late 1999, they sent a copy of an article regarding hate groups that appeared in the Chicago Tribune as well as a picture of ...


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