The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
Now before the Court are 14 motions in limine filed by AutoZone. EEOC has filed its response to these motions. As stated at the final pretrial conference, there is no opposition to the following motions, and they are therefore granted: Motions #1 (doc. #92), #2 (doc. #96), #3 (doc. #93), #7 (doc. #98), #13 (doc. #104) and #14 (doc. #105). This Order resolves the remaining motions.
MOTION IN LIMINE #4 (DOC. #94)
Autozone asks the court to exclude all testimony regarding plaintiff's inability to reproduce, asserting that there is no causal connection between that alleged inability and any accommodation sought from AutoZone. Defendant wisely concedes that inability to reproduce is a major life activity, see Bragdon v. Abbott, 524 U.S. 624 (1998). In Bragdon, the plaintiff had HIV. She brought a "public accommodations" claim under the ADA against her dentist, who refused to treat her in his office. The Supreme Court found that HIV was a physical impairment substantially limiting the major life activity of reproduction.
AutoZone, however, points out that inability to reproduce is not the same as inability to engage in sexual activity, and the latter is not a major life activity. Squibb v. Memorial Medical Center, 497 F.3d 775 (7th Cir,. 2007); Contreras v. Suncast, 237 F.3d 756 (7th Cir. 2001). Because the only evidence is that Shepherd's pain makes it difficult or painful to engage in sexual activity, rather than unable to procreate, AutoZone seeks to bar that evidence entirely.
EEOC does not argue about that distinction, rather pointing to the evidence in this record that supports the proposition that Shepherd is unable to procreate. In his Declaration, Shepherd stated: "The physical motion needed to engage in sexual intercourse is too painful now and causes me to be unable to maintain an erection. Therefore in the time since my back and neck have been impaired, I have been unable to reproduce."
The motion mis-characterizes the record in this case. There is evidence to support the assertion that Shepherd was substantially limited in a recognized major life activity. Severe limitations in the ability to engage in sexual activity for the purposes of reproduction can amount to an impairment of a major life activity. Contreras, 237 F.3d at 764 n.6.
AutoZone goes on to argue that the evidence should nonetheless be barred because there is no evidence of a causal connection between the inability to reproduce and any accommodation sought from AutoZone. In Scheerer v. Potter, 443 F.3d 916, 921 (7th Cir. 2006), the Seventh Circuit commented in dicta that the plaintiff had not explained how his employer could reasonably accommodate his diabetes in the context of symptoms of sexual reproduction. There is no other case making such a statement. If this is an accurate statement of causation in an ADA claim, then the circumstances under which inability to reproduce could be a "disability" cognizable under the Act would be slim to none. I find that the statement does not govern here.
The motion in limine is denied.
MOTION IN LIMINE #5 (DOC. #95)
AutoZone argues that evidence of its net worth or corporate nature is irrelevant other than in the context of a punitive damages claim. There is such a claim pending, so this evidence is not irrelevant.
AutoZone goes on to argue that the punitive damages claim will be successfully defended by evidence of corporate diversity training, including ADA training, to all employees, and by inclusion of a diversity statement in its employment manual. But, as EEOC points out, punitive damages may be properly awarded if there is evidence of "reckless indifference," which can be shown by evidence that the defendant acted "in the face of a perceived risk that [its] actions ... violate[d] federal law." Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536 (1999). If there is evidence, as there is here, that "relevant individuals knew of or were familiar with the anti-discrimination laws and the employer's policies for implementing those laws." Bruso v. United Airlines, Inc., 239 F.3d 848, 858 (7th Cir. 2001). See also, Romano V. U-Haul, 233 F.3d 655, 669 (1st Cir. 2000)(reckless indifference shown by evidence that employee who ordered plaintiff fired was aware of employer's anti-discrimination policies); Ogden v. Wax Works, Inc., 214 F.3d 999, 1010 (8th Cir.2000) (jury could reasonably find reckless indifference from evidence that supervisor acted in the face of a perceived risk that his actions would violate federal law when he testified that he was familiar with his employer's anti-discrimination policy and had received extensive training on the anti-discrimination laws); Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 443 (4th Cir.2000), cert. denied, 531 U.S. 822, (2000) (finding sufficient evidence to support the jury's award of punitive damages when the manager who discriminated presumably knew of the federal antidiscrimination laws, because the employer required all managers to attend a training session on them); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1246 (10th Cir.1999) (finding a sufficient evidentiary basis for the jury's award of punitive damages when the store manager who approved the plaintiff's suspension testified that he was familiar with the ADA and its prohibition against discrimination).
Nothing in AutoZone's motion expounds upon the portion of the title of this document that includes the "corporate nature" of AutoZone. That part of the motion is therefore waived.
Because there is evidence to counter the inference AutoZone would have this Court draw, the motion is denied. Evidence relating to the question of ...