The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
This employment discrimination action by Catherine Puglisi ("Puglisi") against her ex-employer CenterPoint Properties Trust ("CenterPoint") has now reached the point, following entry by this Court of the parties' jointly-submitted Final Pretrial Order ("FPTO"), at which each party's numerous motions in limine has been responded to by her or its adversary. This Court's January 15, 2008 memorandum order (Dkt. 102) dispatched one of those motions--CenterPoint's Dkt. 93--at the threshold because it was so patently without merit, but the congeries of remaining motions is ready for resolution. This memorandum opinion and order will treat with all of Puglisi's motions save one, and this Court hopes to deal with CenterPoint's motions shortly.
At the conclusion of its January 15 memorandum order this Court, which had not parsed the other motions to any extent, expressed the hope that the truly frivolous nature of the motion denied there did not foretoken any likelihood that the noscitur a sociis principle would taint any of CenterPoint's other motions.
But as the following discussion reflects, that has proved a vain hope in a number of other instances.
First, Puglisi's motion to exclude certain photographs (Dkt. 72 and 73), responded to by CenterPoint in Dkt. 116 and 124, is granted. This Court never sets a close of discovery timetable, with a later due date for filing of the FPTO, until both sides have confirmed that they can fit all of their discovery needs within that time frame. Indeed, in this instance the close of discovery was followed by CenterPoint's Fed. R. Civ. P. 56 motion for summary judgment, which this Court then denied fully three months after the close of discovery (it also set the FPTO timetable contemporaneously with that denial). CenterPoint has not identified any even marginally justifiable basis for shoehorning the disputed photographs into this case nearly five months after the close of discovery and 1-1/2 months after the denial of summary judgment.*fn1 CenterPoint must content itself with oral testimony by witnesses as to any matters that it believes the long-withheld photographs would disclose. This Puglisi motion is granted.
Puglisi's motion regarding the exclusion of evidence as to her voluntarily-dismissed claims (Dkt. 74 and 75) was responded to by CenterPoint Dkt. 125. CenterPoint begins its response by stating:
In theory, defendant does not oppose the motion.
But then, after indicating some concern as to the precise scope of the motion as perceived by Puglisi, CenterPoint's counsel suggests that resolution of the matter via the current motion in limine is inappropriate on the premise that any ruling would have to be made contingent on Puglisi's testimony and evidence. This Court instead grants the motion because it is unopposed in principle, but without prejudice to the issue possibly being raised again at trial if plaintiff's proof is indeed at odds with her earlier dismissal of certain claims.
Puglisi's motion to exclude evidence related to a single adverse write-up issued to her in 1999 (Dkt. 76 and 77) has been responded to by CenterPoint Dkt. 117. Both because of the extended (nearly six year) time gap between that single write-up and Puglisi's January 2005 firing by a totally different superior (the alleged harasser), which fails to satisfy one critical component of Fed. R. Evid. ("Rule") 404(b) admissibility, and because the overriding Rule 403 balancing process is heavily weighted toward unfair prejudice far in excess of any probative value, the motion to bar is granted. This Court rejects the notion that, as CenterPoint would have it, an early write-up for insubordination that carries with it a warning that further insubordination could result in discharge can operate to poise a Damoclean sword over an employee in perpetuity--a view under which another incident many years later, and involving a different supervisor, can somehow justify the later firing on an "we warned you" basis. This is not to say that CenterPoint must be barred from a limited question in cross examination of a claim, if Puglisi asserts it at trial, that she uniformly "received excellent performance reviews and praise from the highest levels of Defendant's management" (Puglisi's Motion at 1). But in candor, CenterPoint would do well to think twice about (1) the natural reaction of a factfinder to a question such as "Weren't you written up for claimed insubordination six years earlier?" and (2) the fact that Puglisi might then be enabled to introduce two exhibits containing particularly glowing praise from CenterPoint's executives at the very top of the corporate ladder.
Puglisi's next motion, to preclude evidence and arguments relating to the affirmative defense made potentially available under Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)(Dkt. 78 and 79), has been responded to by CenterPoint Dkt. 118. But in this instance it was Puglisi's direct supervisor Justine Hood ("Hood," the alleged harasser) who made the decision to fire Puglisi. That termination certainly qualifies as the type of "tangible employment action" that Faragher, 524 U.S. at 807 teaches as rendering the affirmative defense unavailable. CenterPoint seeks to parse the matter differently, asserting that when the adverse action is retaliatory for an employee's complaining about harassment the action is "not based on sexual harassment." There is a snippet of language in Hill v. Am. Gen. Fin., Inc., 218 F.3d 639, 643 (7th Cir. 2000) that made that distinction in a case that was tried before the Faragher-Ellerth decisions and came to the Court of Appeals after those decisions had been handed down.*fn2 That is really a distinction without a difference, where (as here)(1) the claimed harasser is the actual decisionmaker in terminating Puglisi as a direct outgrowth of the claimed harassment and (2) Puglisi's lawsuit sounds in terms of both sexual harassment and retaliation.*fn3 And to the extent that CenterPoint relies on legitimate non-pretextual reasons for Puglisi's termination, that can comfortably be handled at trial by the shaping of an appropriate verdict form (after all, if Puglisi strikes out on her sexual harassment claim and on the causal relationship between her complaints and her termination, CenterPoint wins in any event). This Puglisi motion is also granted.
Puglisi's next motion, to exclude evidence stemming from the affirmative defense identified in McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362-63 (1995)(Dkt. 80 and 81), has been responded to by CenterPoint Dkt. 119. For a change (somewhat refreshing under the circumstances), the CenterPoint response has merit, and Puglisi seeks to deflect the admission of such evidence by confirming that she does not intend to seek back pay beyond December 31, 2006, nor does she intend to seek front pay or reinstatement (CenterPoint's discovery, two years after firing Puglisi, that she had included a misrepresentation as to the grounds for her having left the employ of another company some nine years earlier, took place in January 2007). CenterPoint overreaches somewhat in other respects, however:
1. It urges that Puglisi must not seek damages for emotional distress that she assertedly sustained after the discovery date (as well as her having outlawed any claims for back pay, front pay and reinstatement). But no such cutoff should apply if the factfinder determines that Puglisi's emotional harm caused by a wrongful termination of employment continued after the discovery date--that poses a question of fact that can also be addressed through jury instructions and a jury form.
2. Any attempted introduction of that false statement under Rule 608(b), as CenterPoint would have it (though its counsel mistakenly ...