Opinion
IP 01-198-C-T/K
March 24, 2003
B. Tamika, Bates Roberts Bishop, Indianapolis, IN.
Loralei C. Lannan, Office of Attorney General, Indianapolis, IN.
ENTRY ON PLAINTIFF'S EMERGENCY MOTION TO RECONSIDER
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The Plaintiff filed an Emergency Motion to Reconsider Court's March 17, 2003 Entry on Defendant's Motion in Limine. The motion asserts that the court prematurely ruled on the Defendant's motion in limine without allowing the Plaintiff the time provided under the Case Management Plan within which to respond to the motion. The Plaintiff asks the court to reconsider and vacate its entry granting the Defendant's motion in limine and to consider the Plaintiff's response and objections to that motion.
The court ruled on the Defendant's motion in limine before the time for filing an objection had run. Therefore, the court will consider the Plaintiff's response and objections to the Defendant's motion in limine without deference to the prior ruling.
(1) Retaliation
The Plaintiff states that he has no intention to refer to his allegations of retaliation by the Defendant. He adds, however, that if the Defendant admits into evidence five written warnings given to him in May 2001, he intends to testify regarding the retaliatory nature of acts of the Defendant's agents. The court cannot discern how the May 2001 written warnings have any relevance to this case, and they, therefore, would be inadmissible under Rule 402. Thus, the court need not change its ruling with respect to retaliation, and reference to the warnings in the presence of the jury is PROHIBITED.
(2) Back Pay/Front Pay
The Plaintiff has indicated he has no objection to the motion in limine with respect to front pay and back pay, which he agrees are equitable remedies. Thus, the court does not alter its ruling on the motion in limine with respect to these matters, and it is SUSTAINED.
(3) Comparator Evidence
The Plaintiff maintains that the performance appraisals and work improvement plans of his ten proffered comparables are relevant. He argues that the proffered comparables are similarly situated to him because the same state laws and regulations applied to all merit employees regardless of the employee's supervisor, performance, qualifications or conduct. As this court said in its entry granting the motion in limine, "[a] similarly situated employee is one who is `directly comparable to [the plaintiff] in all material respects.'" (Entry on Def.'s Mot. Limine at 5 (emphasis added) (quoting Rogers v. City of Chicago, No. 02-1211, ___ F.3d ___, 2003 WL 483202, at *6 (7th Cir. Feb. 26, 2003) (quotation omitted).)
Also as noted in the entry, the record discloses that the Commissioner's role with respect to the proffered comparables' appraisals and plans was limited to approving their appraisals and plans prepared by others. This is a relevant and material difference that renders the proffered comparables insufficiently similar to the Plaintiff as he alleges disparate treatment in the failure to give him a performance appraisal or work improvement plan. As the court noted, the difference in the role Joyce played respecting the proffered comparables' appraisals and plans would sufficiently account for any difference in the giving of such appraisals and plans between these employees and the Plaintiff. The court correctly concluded that no one other than Nancy Jones is sufficiently similarly situated to the Plaintiff as to be considered his comparator.
No case law cited by the Plaintiff in his response dictates any other conclusion. In fact, Freeman v. Madison Metropolitan School District, 231 F.3d 374 (7th Cir. 2000), cited by the Plaintiff, supports the court's conclusion that the proffered comparables are not sufficiently similar to the Plaintiff. In that case, the plaintiff alleged that the defendant's policy to return injured workers to modified positions was applied in a discriminatory manner. In concluding that there was no basis for finding that the employees offered by the plaintiff were not similarly situated to him, the court said that "both the policy and the person implementing that policy were the same for Freeman and his proposed witnesses[.]" Id. at 382 (emphasis added). Although the court has considered the Plaintiff's response and objection to the Defendant's motion in limine with respect to comparator evidence, the court's ruling remains the same. The Nancy Jones evidence is the only comparable matter to which reference can be made in the presence of the jury.
(4)-(6) Plaintiff's Medical, Psychological or Psychiatric Condition Treatment
The Plaintiff is correct that reconsideration should be given to the certain matters relating to his medical, psychological and psychiatric condition. The entry concludes that the Plaintiff can testify in lay terms from personal knowledge as to his mental anguish or emotional distress, but cannot testify as to his beliefs about what caused that anguish or distress, absent expert testimony regarding causation. (Entry at 9.)
The Seventh Circuit has said that "[a] plaintiff's testimony about emotional distress may, in certain circumstances, of itself suffice to support an award for nonpecuniary loss." Merriweather v. Family Dollar Stores of Ind., Inc., 103 F.3d 576, 580 (7th Cir. 1996). Other cases support this proposition. See Tullis v. Townley Eng'g Mfg. Co., 243 F.3d 1058, 1066-67 (7th Cir. 2001) (upholding nonpecuniary damages award based exclusively on the plaintiff's testimony that "he felt `low' and `degraded' by his employer's conduct . . . and `back-stabbed' when the company opposed his unemployment compensation," he had "financial difficulties" because of his unemployment such as difficulty paying bills, borrowing money from family or friends, falling behind in child support payments and an inability to buy new school clothes for his children and take them "to do the Wal-Mart, McDonald[`s] thing."). Whether this is an instance in which the Plaintiff's testimony about emotional distress or mental anguish alone could support an award of nonpecuniary damages remains to be seen at trial, but the Plaintiff will be allowed to offer testimony and other evidence to support his claims of emotional distress and mental anguish.
Following the Seventh Circuit authorities which allow a plaintiff's testimony alone to support a nonpecuniary award, the court reconsiders its grant of the motion in limine as follows: (1) the Plaintiff may testify about emotional distress and mental anguish that he attributes to his demotion; (2) the Plaintiff may testify as to any alleged physical manifestations of such distress or anguish (e.g., loss of appetite, sleeplessness, crying, etc.) allegedly suffered as a result of the Defendant's actions; (3) the Plaintiff's lay witnesses may testify about their firsthand observations of his emotional distress and mental anguish and any physical manifestations attributed to such distress and anguish; and (4) reference to any of the above matters (1) through (3) may be made by the Plaintiff, his counsel and his witnesses.
As for the question of causation, neither the motion in limine nor the response is sufficiently specific for this court to determine what type of testimony the Plaintiff intends to offer and what the Defendant fears would be inadmissible. On the issue of causation, the court can only rule at this time in a very general way, and will have to rule more specifically when questions are asked of witnesses at trial. First, generally, an expert opinion on causation of such distress and anguish would be admissible, if proffered by a properly qualified expert with sufficient information upon which to base such an opinion. Second, generally, a lay opinion, whether from the Plaintiff himself or from his other non-expert witnesses, about the cause of emotional distress or mental anguish (e.g., the demotion caused the Plaintiff's clinical depression) will not be admissible. Third, the second general statement is qualified by the admissibility of non-expert testimony which allows an inference to be drawn that the Plaintiff's emotional distress and mental anguish was caused by the demotion. An example of such testimony would be lay testimony that after his demotion, the Plaintiff cried frequently, whereas, such an event was rare prior to the demotion. The examples of such testimony are innumerable, and the court is unaware of what the proffered testimony on this subject will be, so no more particular guidance can be given except that the firsthand observation of a temporal link between an emotional distress or mental anguish and the demotion is enough to support an argument that an inference should be drawn that the demotion and the distress or anguish are connected.
The same could be said about the worsening of a condition which preceded the demotion, such as the deepening of pre-existent depression. It is not appropriate for the non-expert witnesses to be asked questions or give answers which cause them to attribute causation for the Plaintiff's distress or anguish to the demotion. Nonetheless, firsthand observation of the conditions and a correlation to the time of the demotion would be admissible. The court will have to determine after the evidence is completed whether there is sufficient evidence for the elements of mental distress or anguish to be determined by the jury.
Fourth, the Plaintiff can testify about how the demotion made him feel (e.g., sad, angry, upset, etc.). Expert opinion linking such emotions with the demotion is not required. So, as described in these four general categories, the court's earlier ruling on evidence of emotional distress or mental anguish is modified.
However, expert testimony will be required to support evidence of a diagnosis of the Plaintiff's medical, psychological or psychiatric conditions and the reasonableness and necessity of the type and cost of treatment thereof.
(7) EEOC Matters
The Plaintiff's response states that neither the Plaintiff nor his witnesses intends to make any reference to his EEOC Charge or investigation, unless needed to rebut any defense. As a result, the court's ruling with respect to the Defendant's motion in limine in regards to EEOC matters should stay the same. In the event the Plaintiff believes reference to his EEOC Charge or investigation is necessary to rebut a defense, he must first approach the court and obtain permission outside the hearing of the jury before any reference to such matters may be made.
The Plaintiff objects to the motion in limine with respect to the Defendant's EEOC position statement, citing Rule 801(d)(2). The court's entry recognized that an employer's position statement in an EEOC proceeding may be admissible to the extent it constitutes an admission, or to show the employer has given inconsistent statements for its challenged decision, and denied the motion in limine with respect to the Defendant's EEOC position statement. (Entry at 11.) Thus, the Plaintiff's objection has been sustained.
The Plaintiff's response states that the Plaintiff intends to introduce evidence that on the same day as an EEOC mediation conference he discovered in his state personnel file the September 1999 partially completed performance appraisal and work improvement plan. He also states that no reference will be made to the substance of comments or actions taken at that mediation conference. If the partially completed performance appraisal and work improvement plan surfaced in the Plaintiff's file on the same day of the mediation conference or even shortly before, this may suggest an attempt by the Defendant to cover its tracks and may be relevant as to a discriminatory motive or intent.
However, before the court can make a definitive ruling on this matter, more information about the circumstances of the discovery of the performance appraisal and work improvement plan is needed. If, for example, the uncontroverted evidence shows that the appraisal and plan were prepared in September 1999 and placed in the Plaintiff's file around that time, and the Plaintiff could not have been aware of their existence in his file because he had not reviewed his file until the day of the mediation conference, then it seems that the Plaintiff's discovery of them in his file the day of the mediation would not reasonably suggest discriminatory motive or intent. Therefore, the Plaintiff, his counsel and his witnesses shall make no mention of the Plaintiff's discovery in his state personnel file of the partially completed September 1999 performance appraisal and work improvement plan without first bringing the matter to the court's attention outside the hearing of the jury and obtaining express permission from the court to refer to or offer such evidence.
Accordingly, at this time, there is no reason to alter the court's ruling on the motion in limine with respect to EEOC matters.
(8) Subsequent Remedial Measures
The Plaintiff contends that the Defendant's reference to any evidence of a later remedial measures is too vague to support an order in limine. In ruling on the motion in limine the court was unaware of any such remedial measures and was of the impression that subsequent remedial measures would not be an issue in this case. Therefore, the court granted the motion as to such matters. The Plaintiff's response suggests that the Defendant has not taken any subsequent remedial measures and nothing in the record suggests otherwise. It still appears that the matter of subsequent remedial measures is a non-issue in this case. So, the court's ruling on the motion in limine will remain the same with respect to such measures.
(9) Settlement Negotiations
The Plaintiff states that he and his witnesses do not intend to make any reference to settlement negotiations. Consequently, the ruling on the motion in limine with respect to settlement negotiations remains the same.
(10) Scope of EEOC Charge
In his response and objection to the motion in limine, the Plaintiff states that claims of discrimination that are like or reasonably related to the allegations of the EEOC Charge are admissible. The court's entry, likewise, concludes that a plaintiff may bring claims not in the EEOC charge if the claim is "`like or reasonably related' to the EEOC charges, and the claim in the complaint reasonably [could] be expected to grow out of an EEOC investigation of the charge." Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 550 (7th Cir. 2002) (quotation omitted). Though the court granted the motion in limine as to acts not included in the Plaintiff's Charge, the court expressly noted that it "will reconsider this . . . ruling if and when the Plaintiff makes a sufficient showing that any matters not included in his EEOC Charge are like or reasonably related to his EEOC Charge and reasonably could be expected to grow out of an EEOC investigation of his Charge." (Entry at 14.) Consequently, the court's entry on the motion in limine allowed the Plaintiff to present evidence of relevant acts of alleged discrimination against him, provided he first establishes outside the presence of the jury that such acts are "like or reasonably related to" the allegations of his EEOC Charge and "reasonably could be expected to grow out of" an investigation of that Charge. Accordingly, there is no need to change the court's ruling on the motion in limine with regard to the scope of the EEOC Charge.
Conclusion
The Plaintiff's emergency motion to reconsider is GRANTED. The court now has considered the Plaintiff's response and objections to the Defendant's Motion in Limine.
Though the court has considered the response and objections in their entirety, most of the court's ruling on the Defendant's Motion in Limine remain the same. The rulings, however, are modified to the limited extent described above.
ALL OF WHICH IS ORDERED.