The opinion of the court was delivered by: CLIFFORD PROUD, Magistrate Judge
*fn1 In accordance with 28 U.S.C. § 636(c), upon the written
consent of the parties, U.S. District Judge Michael J. Reagan
referred this action to the undersigned Magistrate Judge for all
further proceedings and final resolution. (Doc. 66).
Before the Court are defendant's "fifth" and "sixth" motions in
limine. (Docs. 81 and 82). Based on the fact that defendant was
granted summary judgment as to plaintiff's race and sex
discrimination claims, leaving only a Title VII retaliation
claim, defendant seeks to exclude: (1) all evidence regarding
alleged "comparables" David Kenney, Richard Glazenbrook,*fn2
Brian Griffith, Terry Klockenkemper, Charles Dees, or other
employees, because the Court found those individuals were not
"comparables"; and (2) all evidence of alleged harassment or
events occurring prior to the filing of her May 1, 2001, contract
grievance, which serves as the "protected act" underlying the
retaliation claim. With respect to evidence of "comparables," plaintiff contends
defendant is improperly attempting to bar the introduction of
evidence under the "indirect" method of proof. Plaintiff also
views defendant's motion in limine as an attempt to, in effect,"
seek summary judgment after failing to address the retaliation
claim in a proper motion for summary judgment. In the event
evidence of the specified individuals is barred, plaintiff
contends that it would be improper to bar evidence of "other
employees" for purposes of establishing "comparables" relative to
the retaliation claim.
With respect to evidence of harassment, plaintiff asserts that
she should be able to establish the hostile environment about
which she complained, although she acknowledges that the activity
complained of need not actually violate Title VII to form the
basis of a retaliation claim. Plaintiff specifically links this
contested evidence to the first element of the prima facie
retaliation case a statutorily protected activity. However,
during the September 28, 2005, final pretrial conference defense
counsel conceded the first element of the prima facie case.
"To establish a prima facie case for unlawful retaliation, a
plaintiff must prove three elements: (1) she engaged in
statutorily-protected expression; (2) she suffered an adverse
employment action; and (3) there was a causal link between the
protected expression and the adverse action." Culver v. Gorman &
Co., 416 F.3d 540, 545 (7th Cir. 2005) (quoting Krause v.
City of La Crosse, 246 F.3d 995, 1000 (7th Cir. 2001)).
Plaintiff may prove retaliation by either the "direct" method,
using either direct or circumstantial evidence, or the "indirect"
method, showing that after filing a grievance only she, and not
any similarly situated employees who did not file a grievance, was subject to an adverse employment action
even though she was performing her job in a satisfactory manner.
Rogers v. City of Chicago, 320 F.3d 748, 753-755 (7th Cir.
2003). The "indirect" method of proof is a burden-shifting
method that eliminates the need to show a causal link between the
protected action and adverse employment action. Id. at 755.
If plaintiff opts to use the "indirect" method of proof, she
will need to produce evidence of a "comparable," just as she
attempted to do with respect to her race discrimination claim.
The Court concluded that David Kenney, Brian Griffith, Terry
Klockenkemper and Charles Dees were not "comparables" for
purposes of proving the race discrimination claim because they
were not similarly situated with plaintiff in all respects.
(Doc. 79, pp. 10-14). Although the Court's analysis was geared
toward the race discrimination claim, that does not change the
fact that the four purported "comparables" did not work at the
same site as plaintiff or have similar disciplinary issues.
Therefore, they cannot serve as "comparables" for proving the
retaliation claim. With that said, the Court will not foreclose
the possibility that plaintiff has evidence of "other employees"
who can qualify as "comparables." Of course, plaintiff's argument
begs the question, why were such individuals not proffered
before, since identifying a "comparable" would have staved off
summary judgment as to her race discrimination claim.
2. Evidence of Harassment or Events Prior to May 1, 2001
Having obtained summary judgment on the race and sex
discrimination claims, defendant wants to ensure that the scope
of evidence at trial is limited to the narrower issue of
retaliation. Defendant wants to keep out evidence of alleged
harassment or events occurring prior to the filing of her May 1,
2001, contract grievance, which serves as the "protected act"
underlying the retaliation claim. Defendant deems such evidence as irrelevant
In Miller v. American Family Mutual Insurance Co,
203 F.3d 997 (7th Cir. 2000), the first element of the prima facie
retaliation case was described more specifically: "the plaintiff
must show that: (1) [s]he complained about conduct that is
prohibited by Title VII." Id. at 1007. However, as plaintiff
acknowledges, "to prevail on a retaliation claim, a plaintiff
need not have opposed an action that in fact violated Title
VII, a plaintiff must `reasonably believe? in good faith that
the practice she opposed violated Title VII.'" Hernandez v. HCH
Miller Park Joint Venture, 418 F.3d 732, 737 (7th Cir.
2005) (quoting and omitted internal citation to Fine v. Ryan
International Airlines, 305 F.3d 746, 752 (7th Cir.
2002)). Accordingly, evidence of underlying harassment is
relevant to a retaliation claim to establish that a plaintiff had
such a reasonable, good faith belief. Fine v. Ryan International
Airlines, 305 F.3d 746, 754 (7th Cir. 2002). However, the
Court of Appeals for the Seventh Circuit rejected the notion that
a retaliation trial includes a mini-trial of the underlying
discrimination claims. Id. at 753.
Defendant has conceded the first element of the prima facie
case, which would appear to make the issue moot. However,
plaintiff could argue that alleged acts of harassment, such as a
"bitch" comment and an incident involving a cup of urine, are res
gestae inseparable from the claim still at bar. Therefore,
further analysis is necessary.
On May 1, 2001, plaintiff filed an AFSCME Contract Grievance,
alleging she was working in a hostile environment. (Doc. 72,
Exhibits 22). Three additional AFSCME Contract Grievances were
filed during 2001 regarding disciplinary action taken against
plaintiff. (Doc. 72, Exhibits 23-25). In addition, by letter
dated May 30, 2001, plaintiff informed her supervisor, Curtis
Gathing, that she felt Ruth Kendall was generally harassing her.
(Doc. 72, Exhibit 21). As discussed before, multiple disciplinary actions
were taken against plaintiff in 2001 and she was ultimately
terminated in 2002. None of the aforementioned documents mention
or even remotely hint at the "bitch" remark or "urine" incident,
which occurred in 2000 and 1999, respectively. Plaintiff's May 1,
2001, grievance refers to a "hostile environment,"and plaintiff
repeatedly references a dispute about, and animosity stemming
from a timekeeping issue involving Ruth Kendall. Also, in the May
30, 2001, letter to her supervisor, plaintiff alleges that
Kendall raised issues of religion that offended her.
"Although relevant, 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." Fed.R.Evid. 403. The
Court cannot fathom the relevance of the "bitch" remark in 2000
or "urine" incident in 1999. The grievances and letter clearly
focus on Ruth Kendall; the "bitch" comment and "urine" incident
occurred before Kendall even began working with plaintiff. (See
Doc. 41, Exhibit G (Deposition of Kendall), p. 20 (Kendall was
hired in December 2000 and began work in January 2001)).
Plaintiff has failed to show how those two incidents are tied to
the grievances upon which her retaliation claim is based.
Introducing evidence regarding those two incidents would likely
confuse the jury about the real issue in the case, which is
retaliation, not ...