The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Lorraine Margelewski has sued her former employer, Cosco Industries, Inc., alleging that Cosco terminated her employment because of her age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1).*fn1 The case was originally set for trial on February 11, 2008, but the Court reset the trial date, not at the request of either party but because Margelewski's trial counsel represented a defendant in a case set for trial before the Court on the same date. In this order, the Court rules on the two remaining motions in limine.
1. Cosco's Motion to Exclude Statement to IDES
After Cosco terminated Margelewski, she applied for unemployment compensation. In response to her application, Cosco submitted a statement to the Illinois Department of Employment Security (IDES) on which it checked off that she was "discharged for misconduct." Cosco attached to the statement a narrative of its version of the events that led to Margelewski's discharge. In the narrative, Cosco stated that on October 24, 2005, Margelewski took a work break after the time she was permitted to do so, and a supervisor met with her to discuss the violation, giving her a copy of the schedule of permitted break times and discussing the importance of compliance. Cosco stated that Margelewski committed a similar violation the next day, and supervisory personnel met with her to discuss the violation and give her a written warning. Cosco stated that at the meeting, Margelewski refused to take the written warning, began to yell and swing her arms, then yelled "I'm leaving" and left Cosco's premises, "thereby abandoning her job without Cosco's authorization in violation of Cosco policy." Pl. Surreply, IDES Protest, Ex. A. Cosco concluded by stating that Margelewski's "activites constituted misconduct because they were in violation of Cosco's policies, harmful to Cosco and some of its employees, and, some of the violations (taking breaks at unpermitted times), were repeated even after an explicit warning from Cosco. Cosco, therefore, terminated [Margelewski] for misconduct." Id.
Margelewski has designated Cosco's response to her unemployment claim as an exhibit that she intends to offer at trial. Cosco's first objection is that Margelewski did not make timely disclosure that she intended to use this document as a trial exhibit. See Fed. R. Civ. P. 26(a)(3)(A)(iii) & (B). That arguable noncompliance, which almost certainly was harmless to Cosco in any event, was cured by the Court's continuance of the trial date on its own motion. Cosco has now had plenty of time to figure out how to deal with the document if it is admitted in evidence.
Cosco's primary argument is that the IDES statement should be excluded "because it is not relevant to this action, constitutes inadmissible hearsay and would be highly prejudicial to defendant." Motion In Limine ¶ 3. First, the statement plainly is not hearsay -- offered by Margelewski, it is the statement of an opposing party, and thus under Federal Rule of Evidence 801(d)(2) it is not hearsay.
On the issue of relevance, Cosco argues that the statement does not make the existence of age discrimination more or less likely. The Court disagrees. Margelewski has a colorable argument that Cosco's statement to the IDES regarding why it terminated her is inconsistent with explanations supervisors have given on other occasions. When an employer gives shifting rationales for a challenged employment decision, that supports a contention that the real reason for the decision was a prohibited one. See Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 677-78 (7th Cir. 2003). Cosco argues that the claimed inconsistency is more apparent than real, but that concerns the weight to be given the evidence, not its admissibility. The statement to the IDES is relevant, and Cosco's argument that the statement was made in a unique context and that this will have to be explained is insufficient to outweigh the statement's probative value in a way that would make it inadmissible under Federal Rule of Evidence 403.
For these reasons, the Court denies Cosco's motion to exclude its statement to the IDES.
2. Cosco's Motion to Preclude Evidence of Alleged Adverse Actions
In her ADEA claim, Margelewski challenged not just her termination, but earlier employment decisions concerning training opportunities and work assignments, as well as allegedly too-close supervision after she returned from FMLA leave. With regard to the challenged actions other than her termination, the Court concluded on Cosco's summary judgment motion that even assuming Margelewski could show that these amounted to actionable adverse actions, "Cosco can show legitimate, nondiscriminatory actions for each of them and Margelewski has no evidence that these reasons are pretextual." Margelewski v. Cosco Indus., Inc., No. 06 C 6349, 2008 WL 192326, at *5 (N.D. Ill. Jan. 18, 2008).
Margelewski acknowledges she cannot recover damages for these earlier acts. She nonetheless wants to offer evidence regarding the earlier events, saying that they "provide background information for the jury as part of the circumstantial evidence necessary for plaintiff to prove intentional discrimination." Pl. Resp. to Mot. In Limine at
1. Specifically, Margelewski argues that she should be permitted to present these matters to the jury to show that Cosco had a plan to terminate her based on her age; she contends that the training of two younger workers to perform functions that management had claimed were overstaffed reflects that it was, in effect, preparing to get rid of her -- and that the company later found an excuse to do exactly that. See Pl. Surreply at 5. Margelewski contends that the Court's instructions to the jury will eliminate any possible confusion by making it clear that the claim the jury has to decide is whether she was terminated based on her age. Pl. Resp. to Mot. In Limine at 2.
Cosco argues that this evidence is irrelevant and that its admission would be unfairly prejudicial, because it would subject Cosco to a trial on matters on which it prevailed on summary judgment and likely would confuse the jury. The Court disagrees. First, Margelewski has ...