Opinion
CIVIL ACTION NO. 99 C 3356
April 1, 2003
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF DISCIPLINARY RECORDS UNRELATED TO ALLEGATIONS OF SEXUAL HARASSMENT
The defendant asks that numerous documents regarding the discipline of male employees be excluded from evidence on relevance and prejudice grounds. The defendant says that "EEOC's only purpose for introducing this evidence is to convince the jury that because these employees have been disciplined in the past, they are more likely to have engaged in inappropriate sexually harassing conduct."
The plaintiff denies that its purpose is to show that employees who have been disciplined in the past are more likely to have engaged in inappropriate sexually harassing conduct. The purpose, the plaintiff says, is to show that "Dial tolerated sexual harassment by treating sexual harassment less seriously than violations of other company policies." Using the four-part test of Treece v. Hochstetler, 213 F.3d 360, 363 (7th Cir. 2000), to determine the admissibility of other bad acts governed by Fed.R.Evid. 404(b), the plaintiff asserts that, therefore, the proof of the other acts is directed toward establishing a matter in issue other than the defendant's employees' propensity to commit like conduct; that the other acts are of recent vintage and sufficiently similar to be relevant to the matter in issue; that there is sufficient amount of evidence for the factfinder to conclude that the similar acts were committed; and that the probative value of the evidence is not outweighed by the danger of unfair prejudice.
In its Reply the defendant argues that the disciplinary records are not similar enough or close enough in time to demonstrate that Dial considered allegations of sexual harassment less worthy of documentation or discipline. I cannot determine from what is before me whether the timing is adequate. The plaintiff will need to use incidents occurring in the same general time period, but I cannot say that the documents targeted are not within acceptable time frames. A final decision of admissibility will have to be made at the trial, apparently. The defendant also says that EEOC is relying upon an unreliable assumption that Dial documented all incidents of company violations but failed to document all incidents of sexual harassment. That may be true, but we shall have to see what the evidence says about the documentation procedures. Dial also argues that the evidence will not support EEOC's argument that violations that were documented are not more severe than the violations of the sexual harassment policy. I, of course, cannot know whether EEOC's evidence will support that argument, without hearing the evidence. Neither can I sustain a motion in limine on this subject without knowing much more about the intended evidence.
Lastly, the defendant argues that the documents should be excluded under Rule 403. It is true that EEOC may take considerable time to prove up the foundation and relevance of these documents, but I shall have to leave to EEOC to determine how to use its available time, just as I shall leave to Dial the mailer of how to use its time.
Insofar as the purpose of the offer is concerned, the plaintiff has the better go of the arguments. Rule 404(b) allows admission of evidence if offered for other purposes than to prove a character of a person in order to show action in conformity therewith. Here, the plaintiff proposes to use the evidence for a key issue in the case, namely, tolerance of sexual harassment by having a practice of documenting violations of various company policies, and disciplining them for those violations, more often or differently from allegations of sexual harassment That is an appropriate use of the proposed exhibits 104, 111, 113, 114, 119, 120, 121, 132, 133, 137, and 139.
IT IS ORDERED that the Defendant's Motion In Limine to Exclude Evidence of Disciplinary Records Unrelated to Allegations of Sexual Harassment, filing 340 and filing 346, is denied.