Opinion
No. 95 C 5425.
August 13, 2001
RULING ON MOTIONS IN LIMINE
Preliminary Observations
The parties are not in agreement as to what claims will be tried and what claims were dismissed on summary judgment. Claims sought to be raised on behalf of other employees at McKesson, the pattern and practice claims, were dismissed. However, Naeem's claim that she was the victim of gender discrimination survived summary judgment. Naeem's retaliation claim in Count I, her promotion claim, survives. Naeem's second retaliation claim, her claim that she was discharged in retaliation for complaining of her supervisor's sexual advances, was dismissed on summary judgment. Naeem's intentional infliction of emotional distress claim survives as well.
Plaintiff's Motion in Limine to Exclude Testimony of James Boyd
Plaintiff has moved to exclude the testimony and report of James Boyd, a vocational expert, whom defendant seeks to call to prove that plaintiff did not adequately mitigate her damages. Mr. Boyd opines that plaintiff "could have found comparable employment within 3 to 4 months at a salary of $35,000 to $45,000 per year" and "did not exert a consistent or effective job search effort to find appropriate employment." Problematically, plaintiff was making $45,800 at the time of her termination. The law is clear that a plaintiff seeking to mitigate damages need not accept a position that is not comparable, meaning, the plaintiff need not accept a job that pays substantially less than the job she loses. See generally Graefenhain v. Pabst Brewing Co., 870 F.2d 1198 (7th Cir. 1989). Here, Mr. Boyd's opinion is based on the availability of jobs paying less-up to 20% less-than plaintiff was making at the time of her termination. A job paying 20% less does not appear to this court to be comparable, and the defendant has cited no cases which indicate that it is. Therefore, Mr. Boyd's opinion on the availability of such jobs is irrelevant to the issue of mitigation. The motion in limine to exclude his opinion is therefore granted.
Plaintiff's Motion in Limine to Exclude Evidence of the EEOC's Dismissal/Right to Sue Letter
Defendants seek to introduce evidence that the EEOC dismissed plaintiff's claim. Plaintiff is correct that normally, the fact that the EEOC has dismissed a charge is not admissible in a federal suit based upon that charge. The court has doubts that defendants' theory that the dismissal of the charge eliminated any incentive defendants might have to retaliate against plaintiff makes sense. Still, it is for the jury and not for the court to decide whether defendant had a motive to retaliate, and defendants surely have a right to argue this theory.
Seventh Circuit precedent is clear, as this court reads it, that when the plaintiff is relying on timing to raise an inference of causation in the retaliation context, the time period must be measured from plaintiff's exercise of her right to complain and must be considerably shorter than sixteen months. The court notes, however, that it has substantial doubt that this should be the inflexible rule that it is. A employer, it would seem to the court, faced with an employee who was making complaints to a federal agency, might reasonably act with considerable caution toward that employee while the agency was considering the complaint since any adverse action during the pendency of the EEOC proceedings would undoubtedly provoke heightened scrutiny from the EEOC. Once the agency dismissed the charge, however, a reasonable employer could decide that it was safe to get rid of the employee, who had now made clear that he/she was trouble (even more so, perhaps, if the EEOC dismissed the claim, confirming the employer's viewpoint that the employee's complaint was frivolous). Some delay between the dismissal and the discharge could be anticipated, moreover, if the employer, once the charge was dismissed, made efforts to create a paper trail to justify the dismissal, something any reasonable employer, dealing with an employee with a penchant to run to the EEOC, would likely do.
The value of this evidence to defendants, and its prejudice to plaintiff, must be balanced. Letting the jury know that the EEOC dismissed plaintiff's charge, without putting before the jury the evidence that the EEOC, because of lack of resources, dismisses charges and issues right to sue letters in many meritorious cases, would seriously prejudice plaintiff; proving how the EEOC operates in order to give the jury a context in which to evaluate the meaning of a dismissal would mire the court and the parties in weeks of irrelevant evidence. However, the court believes that defendants could get most of the value of this evidence, with much less prejudice to plaintiff, were the jury simply informed that the EEOC proceedings were terminated. The jury presumably knows little about the EEOC and they could be instructed not to speculate on how EEOC proceedings progress or why this particular proceeding was terminated.
Accordingly, the motion in limine is granted to the extent that the defendants will not be permitted to inform the jury of what the EEOC decided. It may, however, inform the jury that the proceedings before the EEOC were concluded long before Naeem's termination.
Defendants' Motion in Limine to Exclude the Testimony of Plaintiff's Human Resources Expert, William Anthony
Plaintiff seeks to call William P. Anthony, Ph.D., to testify that defendant McKesson failed to follow numerous accepted human resources practices and that its failure to do so contributed to the adverse actions committed against plaintiff, specifically, the assignment to plaintiff of incompatible job duties and responsibilities, lack of a clear understanding by plaintiff's supervisors as to what her duties were, lack of documentation and follow through in coaching and counseling plaintiff of alleged performance deficiencies and failure to follow company policy on performance appraisals.
Anthony's opinion that McKesson failed to follow accepted human resource policies is inadmissible. The law is clear that an employer's conduct need not be fair and need not represent good employment practice; it need only be non-discriminatory. Therefore, the fact that McKesson acted in a manner which facilitated discrimination, retaliation or emotional distress is not an appropriate subject of expert testimony because McKesson's employment practices-except its alleged discriminatory conduct-is not the subject of this litigation.
However, to the extent that Anthony can demonstrate that McKesson failed to follow its own policies in its dealings with Naeem, such evidence is admissible. An employer's failure to follow its own policies is some evidence of discrimination. See, e.g., Giacoletto v. Amax Zinc Co., Inc., 954 F.2d 424, 427 (7th Cir. 1992). It appears that defendant plans to defend, in part, on the grounds that it followed its own policies. Anthony has sufficient expertise to be able to assist the jury in understanding the meaning of a company's employment policies. If the defendant wants to bring individual policies to the court's attention for a ruling on whether the testimony of an expert explicating those policies would be necessary or helpful, it may do so.
Accordingly, the motion in limine is granted in part and denied in part.
Motion in Limine to Bar Plaintiff's Transportation Expert, David LaPorte
Plaintiff was disciplined by defendants for failing to order that a truck driver employed by defendant who had been involved in a serious accident undergo drug and alcohol testing before finishing his route. Plaintiff's supervisor will testify that he disciplined plaintiff because he believed that her failure to order the testing violated both McKesson's internal policies and Department of Transportation (DOT) regulations. LaPorte will offer testimony that plaintiff's conduct did not violate DOT regulations.
Defendants seek to exclude this evidence on the grounds that it is irrelevant, that the issue on plaintiff's emotional distress claim is whether in suspending plaintiff, her supervisor intended to cause her emotional distress and whether he "was incorrect in his understanding of DOT drug testing requirements has no bearing upon whether he had the requisite state of mind." This is incorrect, however. If the jury believes that plaintiff's supervisor made an honest mistake, it will surely disregard the evidence that he was incorrect in accusing her of violating DOT regulations. But plaintiff is entitled to demonstrate to the jury that he was incorrect. The jury can then assess the credibility of plaintiff's supervisor in determining whether he made an honest mistake or not.
Defendants maintain that plaintiff will seek to prove through LaPorte that McKesson's own policies were violated when the driver was not ordered to undergo testing. The court does not understand plaintiff to be arguing this point. If plaintiff seeks to introduce such evidence, it should be raised with the court before Mr. LaPorte testifies. If the jury can read McKesson's policies and understand them, it is unlikely that an expert will assist the jury in this regard.
Defendants' Motion to Exclude Evidence of Plaintiff's Past Work Performance and Compensation
No ruling on this motion is possible at this time because the parties have not provided the court with the basic chronology essential to a ruling. The parties may argue this orally at a time to be set by the court. In any event, plaintiff will be allowed to testify briefly about her history with defendant including her satisfactory job performance prior to November 1995. Nothing further should be adverted to (such as in opening statements) before the court has had an opportunity to hear the parties and rule on this matter.
Defendants' Motion to Exclude Evidence of Plaintiff's Lost Pay and Benefits
Because plaintiff's Title VII claim for retaliatory discharge was dismissed on summary judgment for lack of proof of a causal connection between her filing of an EEOC charge and her termination 16 months later, defendants seek to bar plaintiff from attempting to recover as damages lost pay and benefits. Plaintiff argues in response that she will seek to prove that insofar as her performance justified her termination, it was deficient because of the extreme emotional duress to which defendants subjected her. In other words, plaintiff claims that if she can establish that the loss of her job was caused by defendants' tortious conduct, she can recover these damages.
For the present, the court is persuaded that plaintiff should not be permitted to introduce this evidence. In Sutton v. Overcash, relied on by plaintiff, the plaintiff presented evidence from which a jury could conclude that the emotional distress caused by defendant's behavior caused plaintiff to leave her job. 623 N.E.2d 820, 838-39 (Ill.App.Ct. 1993). In other words, she presented evidence of constructive discharge. In that case, the plaintiff was entitled to an instruction regarding lost pay because her resignation was the natural and reasonably foreseeable consequence of the defendant's wrongful behavior. In this case, the plaintiff is not arguing that she was forced to leave her job because of defendants' harassing behavior. Rather, she plans to argue that she was terminated because of her performance, but that her performance was poor because of the defendants' harassing behavior. It appears that plaintiff may be blurring the line between harassment and constructive discharge. See Hertzberg v. SRAM Corp., No. 00 C 1825, 2001 WL 869357, at *4 (7th Cir. 2001) (disallowing backpay for a Title VII harassment claim absent evidence of constructive discharge).
The court can envision two circumstances in which such evidence would be admissible. Obviously, as in Sutton, if a plaintiff could show that defendants' harassing conduct was so demeaning as to amount to a constructive discharge, the evidence would be admissible. Second, if plaintiff could show that the specific performance inadequacies which caused her discharge were proximately caused by the emotional distress intentionally inflicted upon her by defendants, then such evidence might well be admissible.
Defendants' motion in limine is granted pending possible further consideration. That is, at a time to be scheduled early in the trial, the court will-if plaintiff wishes — hear further argument on precisely what evidence plaintiff would introduce to support the theory that she is entitled to lost pay and benefits.