United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. Kim United States Magistrate Judge.
Gibbons brings this action against the Village of Sauk
Village ("the Village") pursuant to 42 U.S.C.
§ 1983 and Title VII of the Civil Rights Act, claiming
that the Village engaged in unlawful employment practices by
terminating her employment and refusing to rehire her because
she engaged in protected activities, including filing a
charge with the EEOC. Gibbons also claims that the Village
denied her due process by failing to provide her with a pre-
or post-termination hearing, as required under her employment
contract. Before the court are Gibbons's motions in
limine Nos. 1-16 and the Village's motions in
limine Nos. 1-15. For the following reasons,
Gibbons's Motion Nos. 1, 5-7, 13, 14, and 16 are granted,
Gibbons's Motion No. 3 is granted in part and denied in
part, Gibbons's Motion No. 4 is taken under advisement,
Gibbons's Motion Nos. 2, 9-12, and 15 are denied, the
Village's Motion Nos. 1, 2, 3, 6, 7, 10, 11, 15(b)-15(e),
and 15(k) are granted, the Village's Motion No. 5 is
granted in part and denied in part, the Village's Motion
No. 14 is taken under advisement, and the Village's
Motion Nos. 4, 8, 9, 12, 13, 15(a), and 15(f)-15(j) are
not expressly authorized by the Federal Rules of Evidence,
the authority to make rulings on motions in limine
springs from the court's inherent authority to manage
trials. Luce v. United States, 469 U.S. 38, 41 n.4
(1984). "A motion in limine may be used to insulate the
jury from potentially harmful or unfairly prejudicial
evidence." Anglin v. Sears, Roebuck & Co.,
139 F.Supp.2d 914, 917 (N.D. Ill. 2001). But because the
primary aim of motions in limine is to exclude
evidence that is clearly inadmissible on all possible
grounds, some rulings are best left until trial so that the
context, foundation, and relevance of the contested evidence
can be better understood. Id. (noting that evidence
should be excluded, in limine, only to the extent
that clearly inadmissible evidence is eliminated). As such,
neither a ruling granting a motion in limine, nor a
ruling denying one needs to be the final word on the matter.
The court is free to revisit the following rulings during
trial. See Luce, 469 U.S. at 41-42.
addressing the contested motions, the court notes that
Gibbons's Motion Nos. 1 and 5-7, and the Village's
Motion Nos. 1, 3, 7, and 10 are not opposed. Given the
parties' agreement, and because the court agrees that the
requests made in these motions are appropriate, the court
grants the unopposed motions.
Gibbons's Motions in Limine
filed 15 motions in limine on September 15, 2017.
(R. 123-137.) The Village opposes the following: Motion Nos.
2-4 and 9-16. (R. 144, Def.'s Resp.)
Motion No. 2
motion is denied. Gibbons seeks to prevent the Village from
offering its proposed Ex. 10, which consists of 40 pages of
summaries of the Village's financial documents. (R. 124,
Pl.'s Mot. No. 2 at 1.) Gibbons asserts that the exhibit
is inadmissible because, according to her, it represents a
summary and the Village has not made the underlying documents
supporting this summary available for Gibbons to inspect.
(Id.) Gibbons also contends that she was not put on
notice of the Village's intent to use this exhibit as it
was never disclosed during any deposition in the case.
(Id.) Further, Gibbons contends that the documents
were created for this litigation and not generated and
maintained within the ordinary course of business.
(Id.) The Village responds that this financial
summary was made available to Gibbons during discovery, such
that Gibbons was put on notice of its existence and the
Village's intent to use it as an exhibit. It further
responds that it is too late for Gibbons to challenge this
document after she failed to take the deposition of Village
Financial Director Mohan Rao, who would have explained how
the document is maintained in the ordinary course of
business. (R. 144, Def.'s Resp. at 1.)
may use a summary to prove the content of voluminous records,
so long as the originals of the record are provided to the
other party for examination. Fed.R.Evid. 1006. However, a
party cannot fail to obtain information that is available
during discovery and then demand "the extreme
remedy" of having that information barred as evidence
during trial. SEC v. Ferrone, No. 11 CV 5223, 2016
WL 723017 at *6 (N.D. Ill. Feb. 22, 2016).
appears from the Village's motion that Ex. 10 was
disclosed to Gibbons during discovery more than a year ago.
(R. 144, Def's Resp. at 1.) If she thought the exhibit
represents a summary, Gibbons should have requested any
additional documents from the Village at the time she was put
on notice that the Village was using it to demonstrate its
financial situation. In any event, according to the Village,
Ex. 10 is not an improper summary because it is kept in the
ordinary course of business. Gibbons asserts that the exhibit
was created for use in this litigation. (R. 124, Pl.'s
Mot. No. 2 at 2.) The basis of this contention is that the
document covers only 10 months of the Village's
financials, up to the date that she was terminated in 2014.
(Id.) The Village responds that it shortened the
time frame of these summaries because it believed this was
the most pertinent timeframe, the period encompassing
Gibbons's termination. (R. 144, Def's Resp. at 1.) If
Gibbons did not believe that the summaries were kept in the
ordinary course of the Village's business, or felt that
the limitation to 10 months of summaries was inappropriate,
she had the chance to raise this issue during discovery.
Motion No. 3
motion is granted in part and denied in part. Gibbons next
seeks to prevent the Village from offering evidence that it
has not produced during discovery. (R. 125, Pl.'s Mot.
No. 3 at 1.) The Village agrees with the spirit of this
motion, but objects to the extent that it would bar witnesses
from testifying as to their knowledge of records and
documents. (R. 144, Def's Resp. at 2-3.) Specifically,
the Village contends that because Gibbons failed to depose
the Village's Financial Director, Rao, the court should
not prevent Rao from testifying as to documents and other
evidence of which he has knowledge. (Id. at 2.)
to Federal Rule of Civil Procedure 26(a)(3)(A), parties are
required to identify each document and other exhibits that
they intend to use at trial. Parties are not able to use
documents that were not disclosed during discovery, but which
magically appear later in the litigation. See Wachovia
Sec, LLC v. Banco Panamericano, Inc., 674 F.3d 743,
753-54 (7th Cir. 2012). The Village certainly will not be
able to introduce any documents during trial that have not
been disclosed during discovery or in its pre-trial exhibits.
See Fed. R. Civ. P. 37(c)(1). And although the
Village's witnesses will be able to testify regarding
documents and evidence of which they have knowledge, they are
barred from describing any documents that the Village should
have but did not produce during discovery.
Motion No. 4
motion is taken under advisement. Gibbons seeks to bar the
Village from requesting documents or commenting on discovery
in the presence of the jury. (R. 126, Pl.'s Mot. No. 4 at
1.) The Village opposes the motion only to the extent that it
is unclear what Gibbons is trying to bar, and asks that the
motion be discussed at the pretrial conference. (R. 144,
Def's Resp. at 3.) The court agrees with the Village and
the issue will be addressed at the pretrial conference.
Motion No. 9
motion is denied. Gibbons seeks to exclude reference to the
determination of the EEOC on the claims she filed alleging
retaliatory discharge and failure to hire. (R. 130, Pl.'s
Mot. No. 9 at 1.) Gibbons argues that the admission of these
determinations will confuse the jury and be prejudicial to
Gibbons's claims, and that they constitute hearsay.
(Id. at 1-2.) The Village contends in response that
the EEOC determination is both relevant and not unfairly
prejudicial to Gibbons, as the finding of the EEOC was based
on Gibbons's submissions and the Village's responses.
(R. 144, Def's Resp. at 4.) It also argues that the EEOC
determination falls under the public records exception to the
hearsay rule. (Id.)
Seventh Circuit has said that "[a]s a general matter
administrative findings regarding claims of discrimination
may be admitted" under the public records exception to
the hearsay rule. Young v. Jones Green Mgmt., 327
F.3d 616, 624 (7th Cir. 2003); see also Fed. R.
Evid. 803(8). Whether the EEOC determination is admissible
may hinge on whether the prejudicial impact outweighs its
value under Federal Rule of Evidence 403. Young, 327
F.3d at 624. The EEOC determination at issue here states that
the EEOC was unable to conclude that the Village's
actions had violated the law. (R. 130, Pl.'s Mot. No. 9
at 1.) It also states that the EEOC was not certifying that
the Village complied with the law. (Id.) Because the
language used in the determination is neutral, Gibbons has
not shown that its prejudicial effect so outweighs its
probative value that it should be excluded at this point.
Motion No. 10
motion is denied. Gibbons seeks to bar evidence about David
Hanks's status as a Baptist minister. (R. 131, Pl.'s
Mot. No. 10 at 1.) Gibbons contends that this testimony would
be hearsay and is not relevant. (Id. at 1-2.) Given
that Hanks can describe his own employment on the stand, it
is unclear what out-of-court statement Gibbons suggests would
amount to hearsay. The Village contends that this information
is admissible, as it is standard background information about
Hanks's employment. (R. 144, Def's Resp. at 5.)
Evidence regarding a party's employment is typically
relevant and is not unfairly prejudicial, whether or not that
employment is church-related. See Simmons v. City of
Chi., No. 14 CV 9042, 2017 WL 3704844, at *7 (N.D. Ill.
Aug. 28, 2017). But to be clear, under Federal Rule of
Evidence 404 this evidence is not admissible to show that
Hanks acted on a particular occasion in accordance with a
particular character trait.
contends that, should this court allow such testimony as to
Hanks's status as a minister, she should be able to
introduce evidence of Hanks's nonconformity with the
Baptist faith, and evidence of the Baptist faith's
position on women holding leadership positions within the
church. (R. 131, Pl.'s Mot. No. 10 at 2.) Because Gibbons
does not argue here that Mayor Hanks's religious
affiliation played into any of the events underlying her
allegations, this court fails to see how such evidence is
relevant. That is especially true because Hanks will be
allowed to reference his status as a Baptist minister only
for the limited purpose of providing standard background
Motion No. 11
motion is denied without prejudice. Gibbons seeks to bar
witnesses Rao and Hanks from providing expert testimony as to
the Village's financial condition. (R. 132, Pl.'s
Mot. 11 at 1.) Gibbons contends that the two cannot testify
as expert witnesses because the Village failed to provide an
underlying report with their opinions pursuant to Federal
Rule of Civil Procedure 26(a)(2)(B). (Id. at 1-2.)
The Village contends that the testimony of Rao and Hanks
regarding its finances is permissible lay testimony based on
their first-hand knowledge of the Village's finances and
operations that they have gained through their positions of
employment. (R. 144, Def's Resp. at 7.)
Rule of Evidence 701 restricts lay witnesses to providing
opinions which are: (a) rationally based on the perception of
the witness; (b) helpful to a clear understanding of the
witness's testimony or the determination of a fact at
issue; and (c) are "not based on scientific, technical,
or other specialized knowledge within the scope of Rule
702." Witnesses may give testimony as to their own
perceptions and knowledge of their participation in the
day-to-day affairs of a business. United States v.
Polishan, 336 F.3d 234, 242 (3d. Cir. 2003). At this
stage, it is unclear what testimony Rao and Hank will give
regarding the Village's finances. These witnesses should
be permitted to give lay testimony regarding their opinions
and perception of the Village's finances at the time of
Gibbons's termination. They should not be permitted,
however, to give opinions that are considered scientific,
technical, or specialized. See Fed. R. Evid. 701(c).
Gibbons may re-raise this objection at trial as needed.
Motion No. 12
motion is denied. Gibbons seeks to bar any evidence meant to
show that Deputy Fire Chief Rich Atwood was similarly
situated to Gibbons. (R. 133, Pl.'s Mot. No. 12 at 1.)
Gibbons contends that any such evidence should be barred
because it would be confusing to the jury. (Id. at
2.) The Village contends that evidence demonstrating that
Atwood was similarly situated is relevant both to
Gibbons's claims and to its defense that Gibbons's
layoff was a result of the Village's financial condition.
(R. 144, Def's Resp. at 8-9.) This court agrees that
evidence of another layoff around the time that Gibbons was
terminated would be relevant to the Village's defense.
argues that the Village will be unable to show that Atwood is
similarly situated to her at trial. (R. 133, Pl.'s Mot.
No. 12 at 2.) But whether evidence will be credible or
persuasive speaks to its weight rather than its
admissibility. And Gibbons's blanket statement that
evidence regarding Atwood's similarity ...