The opinion of the court was delivered by: Stiehl, District Judge:
Now before the Court are the parties' motions in limine. Defendant Illinois Department of Transportation moves to admit into evidence plaintiff Darrell Lynn Miller's prior guilty plea to a crime involving dishonesty, and his employment application on which he allegedly lied about it (Doc. 80). Plaintiff moves to exclude the same evidence (Doc. 83). Also before the Court is defendant's motion to exclude compensatory damages and strike the jury demand in Count II of the complaint, plaintiff's retaliation claim (Docs. 77 & 78). Plaintiff has not responded to that motion. Finally, plaintiff moves to exclude evidence from trial of any disciplinary actions taken against him by defendant, other than those in the complaint (Doc. 84). Defendant responds in agreement that any disciplinary actions taken before or after the events alleged in the complaint are not relevant (Doc. 85).
In this action, plaintiff alleges discrimination and retaliation under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., against defendant, his former employer. Plaintiff has a moderate form of acrophobia, fear of heights, which affects him when he is over 25 feet above the ground in an unsecured position. The Court's previous ruling on de- fendant's motion for summary judgment was reversed on appeal. See Miller v. Ill. Dep't of Transp., 643 F.3d 190 (7th Cir. 2011). The parties are now prepared for trial.
I.DEFENDANT'S MOTION IN LIMINE TO STRIKE THE JURY DEMAND IN COUNT II(Doc. 77)
Defendant moves to exclude compensatory damages and strike the jury demand in Count II, which is plaintiff's retaliation claim (Docs. 77 & 78). Plaintiff has not responded, which the Court considers to be an admission of the merits of defendant's motion. See SDILLR 7.1(c).
Compensatory and punitive damages are not available for retaliation claims under the ADA. Kramer v. Banc of Am. Secs., LLC, 355 F.3d 961, 965 (7th Cir. 2004), cert. denied 542 U.S. 932 (2004); Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1269--70 (9th Cir. 2009); 42 U.S.C. § 1981a(a)(2); 42 U.S.C. § 2000e-5(g)(1). The only remedies available are equitable. Kramer, 355 F.3d at 966. And where the only remedies sought or available are equitable, there is no right to a jury trial. Id. at 965; Marseilles Hydro Power, LLC v. Marseilles Land and Water Co., 299 F.3d 643, 648 (7th Cir. 2002). Defendant's motion is GRANTED. Plaintiff's demand for compensatory damages and a jury trial are stricken from Count II.
In an action not triable of right by a jury, the court may, on motion or on its own, order a trial by jury with the consent of both parties; or it may try any issue with an advisory jury. Fed. R. Civ. P. 39(c)(1); Kramer, 355 F.3d at 967; see also Alexander v. Gerhardt Enters., Inc., 40 F.3d 187, 192 (7th Cir. 1994). An advisory jury is an aid to the court in discharging its functions. 9 CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE § 2335 (3d ed.). The court is not bound by an advisory verdict. Price v. Marshall Erdman & Assocs., Inc., 966 F.2d 320, 324 (7th Cir. 1992).
The Court elects to use an advisory jury on Count II. This case is already being tried to a jury on Count I, so using the jury in an advisory capacity for Count II will promote efficiency and convenience. The jury may be of some assistance to the Court with fact-finding, and the Court will not be bound by the jury's findings. See Bank of China, N.Y. Branch v. NBM L.L.C., No. 01 CIV.0815 (DC), 2002 WL 1072235, at *6 (S.D.N.Y. May 28, 2002). Whether defendant fired plaintiff in retaliation for asserting his rights under the ADA or in response to his alleged threat is a factual matter that the jury can readily decide. Cf. Schuster v. Shepard Chevrolet, Inc., No. 99 C 8326, 2002 WL 507130, at *11 (N.D. Ill. April 3, 2002) (declining to use advisory jury on the issue of front pay because it required a threshold determination of whether the employee's reinstatement with employer would be a practical remedy).
II.PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE DISCIPLINARY ACTIONS (Doc. 84)
Plaintiff moves to exclude all evidence, questioning, and argument about disciplinary actions defendant may have taken against him apart from those mentioned in the complaint (Doc. 84). He addressed other disciplinary actions through his union and, he says, they are not relevant and could prejudice him in this trial. In response, defendant agrees that any discipli-nary actions other than the ones alleged in the complaint are not relevant (Doc. 85). Defendant only wants to present evidence relating to Count II of the complaint (retaliation). The Court finds that the parties are in agreement that only evidence relating to disciplinary actions identified in the complaint may be introduced at trial. Plaintiff's motion is GRANTED. Defendant adds, however, that plaintiff's own testimony at trial could open the door to other disciplinary actions. It therefore asks the Court to reserve ruling on whether defendant may impeach plaintiff at trial, depending on his testimony about other disciplinary actions. The Court agrees to condition this ruling on plaintiff's testimony at trial. See Wilson v. Williams, 182 F.3d 562, 565 (7th Cir. 1999) (discussing conditional rulings); see also Luce v. United States, 469 U.S. 38, 41--42 (1984) (a ruling in limine "is subject to change as the case unfolds").
III.DEFENDANT'S MOTION IN LIMINE TO IMPEACH PLAINTIFF (Doc. 80)
In a deposition, plaintiff testified that in 1988 he pled guilty in Missouri to a felony for the theft of copper wire worth over $150 (Doc. 80, Ex. A, pp. 9--10). Plaintiff said he was only given court supervision, though, and never served time in prison. When he later applied for his position with defendant in July 2002, the employment application asked whether plaintiff had "ever pled guilty to or been convicted of any criminal offense other than a minor traffic violation." He answered "no" (Doc. 80, Ex. B, p. 1). He also certified, by signing the employment application, that the information he'd given in it was true and accurate (id., p. 4).
Defendant now moves for permission to impeach plaintiff at trial with evidence that he pled guilty to a felony crime involving dishonesty more than ten years ago, see Fed. R. Evid. 609(a)(2), 609(b)(1), and that he lied on his employment application about the same crime, see Fed. R. Evid. 608(b) (Doc. 80). Plaintiff moves to exclude the same evidence (Doc. 83). Plaintiff responds that he only received a suspended sentence for the theft, and a suspended sentence is not a conviction under Missouri law. He ...