The opinion of the court was delivered by: Judge Blanche M. Manning
A jury found for the defendant Lake Forest Country Day School on plaintiff Jean Shutler's claims that the school did not renew her contract because of her age. Before the court is Shutler's motion for a new trial, arguing that improperly admitted evidence and argument denied her a fair trial. For the reasons that follow, her motion is denied.
Under Federal Rule of Civil Procedure 59(a), the court has discretion to order a new trial for any of the following reasons: (1) the verdict was against the weight of the evidence; (2) the award of damages was excessive; or (3) for some other reason the trial was not fair to the party moving for a new trial. See Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir. 2004). Shutler contends the trial was not fair to her for the following reasons:
(1) the defendant's reference during trial to an irrelevant provision of Shutler's employment contract could have led jurors to conclude that Shutler had waived her right to assert a claim of age discrimination;
(2) evidence of favorable letters written by parents in Shutler's personnel file were excluded, even though head of school Michael Robinson testified that he had reviewed the personnel file when deciding not to renew Shutler's contract;
(3) the court allowed head of the lower school Sally Bullard to testify at trial that she relayed parents' complaints about Shutler to Robinson before his decision not to renew her contract, contradicting her prior deposition testimony that she had not relayed parents' complaints to Robinson;
(4) the court allowed Shutler's co-workers Eileen Scallan, Lynn Buettell and Sally Bullard to testify about their unfavorable impressions of Shutler even though Robinson did not testify that he relied on their impressions in making his decision; and
(5) the court allowed defense counsel to ask leading questions while cross-examining Robinson, a witness identified with the defendant whom the plaintiff had called as an adverse witness.
The court will address each of the bases of Shutler's motion for a new trial in turn.
I. Evidence of Employment Contract
First, Shutler contends that she did not receive a fair trial because during cross-examination, defense counsel asked her about terms in her employment contract that would have led jurors to believe that she had waived her right to bring a claim of age discrimination. Plaintiff's counsel objected to any questions about the employment contract, but the court overruled the objection because plaintiff's counsel had first questioned Shutler about the contract during direct examination. Defense counsel then asked the following question:
Q: Ms. Shutler, talking about paragraph number 8, the non-renewal paragraph it states:
It is expressly understood and agreed by and between the parties to this contract that neither the instructor . . . -and that would be you, true?
Q: . . . nor the day school owes any subsequent contractual obligation or service to the other after the terminal date of this one-year contract.
Trial Transcript, January 5, 2011, at 129 (attached as A31 to Motion for New Trial [Docket #55]). After the exchange quoted above, the court sustained plaintiff's counsel's objection on the grounds of relevancy, because Shutler's claim was one for age discrimination, not breach of contract.
Shutler contends that the questions and answers elicited before the court sustained Shutler's objection would have allowed jurors to conclude that, under the terms of her employment contract, Shutler had waived her right to bring a claim of age discrimination. However, the term of the contract quoted by defense counsel specifically states that after the contract terminates, the parties no longer owe one another contractual obligations. It does purport to waive other rights, such as the statutory right to be free from illegal discrimination.
In addition, the jury instructions directed jurors to find in Shutler's favor if she showed that the "defendant did not renew plaintiff's teaching contract because of her age, or defendant terminated plaintiff's employment because of her age." Jury Instructions (attached as Exhibit A to Lake Forest Country Day School's Response [163-1]). The instructions contained no language that would have allowed jurors to conclude that Shutler had waived her right to her claim of age discrimination. See Pickett v. Sheridan Health Care Center, 610 F.3d 434, 446 (7th Cir. 2010) (jurors are presumed to have followed their instructions).
The only mention of the contract containing a waiver of the right not to be discriminated against came from plaintiff's counsel during a speaking objection:
MR. THEOBALD: The claim before the Court is a violation of the Age Discrimination in Employment Act. No one can waive their rights under the discrimination laws to sexual harassment, age discrimination, or racial ...