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Gibbons v. Village of Sauk Village

United States District Court, N.D. Illinois, Eastern Division

October 30, 2017

LISA GIBBONS, Plaintiff,
VILLAGE OF SAUK VILLAGE, an Illinois Municipality, Defendant.


          Young B. Kim United States Magistrate Judge.

         Lisa 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[1] 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 denied:

         Legal Standard

         Although 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.


         Before 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.

         A. Gibbons's Motions in Limine

         Gibbons 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.)

         1. Motion No. 2

         The 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.)

         A party 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).

         It 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.

         2. Motion No. 3

         The 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.)

         Pursuant 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.

         3. Motion No. 4

         The 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.

         4. Motion No. 9

         The 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.)

         The 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.

         5. Motion No. 10

         The 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.

         Gibbons 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 information.

         6. Motion No. 11

         The 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.)

         Federal 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.

         7. Motion No. 12

         The 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.

         Gibbons 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 ...

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