Opinion
Case No. 98 C 8348.
January 31, 2002
Rulings on Pretrial Motions
Defendants' motions in limine and plaintiffs' motion for default judgement are decided as follows:
1. Defendants' motion to exclude any post-hiring disciplinary matters involving the former CPD Lab employees is granted with respect to the discrimination claim and denied with respect to the retaliation claim.
The principal claim in this case concerns whether defendants discriminated against the plaintiffs in setting their compensation at the time of a merger of the Chicago Police Department's forensic sciences department with its counterpart in the Illinois State Police and the effects lingering into the present of that decision. Disciplinary actions, including demotion, of one or more of the plaintiffs after the merger have no bearing on the claim.
Larry Wilson, however, has also claimed retaliation with respect to a decision to suspend action on a proposed raise after he engaged in activity protected under Title VII. Although Wilson cannot recover for a subsequent reprimand and later removal of reprimand, it is some evidence bearing on the defendants' intent and will be admitted. The evidence with respect to Lori Lewis, however, is excluded on the basis that whatever tangential relevance it has is outweighed by the need to keep the issues focused.
2. Defendants' motion to exclude "non-expert" testimony concerning statistical inference in plaintiffs disparate impact claim is reserved.
As defendants point out, this court denied plaintiffs additional time to procure an expert to support their vaguely pled disparate impact claim. Although the court has not been provided a copy of the statistical summary plaintiffs intend to offer, defendants' description (which is not challenged by the plaintiffs) suggests that it is an effort to support a statistical showing without a statistician. If the evidence compares in summary form the starting salaries of minority and "majority" hires throughout Illinois for a period of time and draws certain inferences of discriminatory impact therefrom, it will be excluded. If, on the other hand, the evidence is, as plaintiff indicates, merely the racial makeup of comparable ISP employees at the time of the merger, this evidence will be admitted as relevant to discriminatory intent.
Plaintiff relies on language from Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir. 1994), citing American Nurses' Ass'n v. Illinois, 783 F.2d 716, 728 (7th Cir. 1986), in which the court discussed various methods of proof of intent: "Second is evidence, whether or not rigorously statistical, that employees similarly situated to the plaintiff other than in the characteristic (pregnancy, sex, race, or whatever) on which an employer is forbidden to base a difference in treatment received systematically better treatment." It is clear from context, however, that the court was not suggesting that "unrigorously" statistical evidence could be offered just as well as rigorously statistical evidence. Plaintiffs have not proffered how they expect the jury to interpret their summary of data or on what statistical formula or theory the inferences they propose to draw are based. Neither have they explained how the setting of salaries for employees statewide has any relevance to the salary setting decisions for minority employees in this case. For these reasons, the court must exclude the evidence as without foundation. On the other hand, if the evidence is merely the racial profile of the work force at a relevant time to demonstrate that the ISP was overwhelmingly white, then there will be no need for an expert witness to draw inferences and (assuming a witness can testify to foundation) the evidence will be received.
3. Defendants' motion to exclude plaintiff Wilson's claim of deprivation of due process is granted.
4. Defendants' motion to exclude plaintiff Wilson's claim of failure to promote him is denied for the reasons stated in I above. Evidence relating specifically to lost pay, however, is excluded from the jury trial.
5. Defendants' motion to exclude any inference that plaintiff Bethea was discharged because of discriminatory reasons is granted without objection.
6. Defendants' motion to exclude issues involving supervisory salaries v. salaries in the bargaining unit is reserved to trial. Without more information on the proposed evidence, the court is unable to rule.
7. Defendants' motion to exclude statements by AFSCME officials used to support discriminatory intent is granted on the basis of relevance and hearsay.
8. Defendants' motion to exclude statements made by Robert Stacey to Tim Chapman is granted. Plaintiffs have not demonstrated the admissibility of this evidence under any rule, such as Rule 801(d)(2).
9. Defendants' motion to exclude evidence that "only" 10% of those hired by ISP as FS trainees were minority or that ISP failed to adequately recruit minority applicants is denied. A low number of minority hires as trainees and lack of recruitment efforts is some evidence of discriminatory intent. That plaintiffs do not have evidence of the comparable applicant pool is fodder for cross-examination.
10. Defendants' motion to exclude any inference that ISP violated the terms of the Intergovernmental Agreement or the transfer legislation is granted.
11. Defendants' motion to exclude evidence regarding destruction of documents is denied. One reasonable inference a jury could from the circumstances is that the witness knowingly destroyed relevant documents.
12. Plaintiffs motion for default judgment is denied.