Opinion
Case No. 98 C 5157
July 19, 2002
ORDER
Plaintiff Michael Koch-Weser, a science teacher at Riverside Brookfield High School, sues defendants Leslie Wilson, the school's former principal, and Charles Klingsporn, the school district's former superintendent. Plaintiff's remaining claim, brought under 42 U.S.C. § 1983, charges that defendants retaliated against plaintiff for the exercise of his free speech rights, in violation of the First and Fourteenth Amendments. This court has ruled on a motion to dismiss, motion for summary judgment, and motion for reconsideration, as well as other matters. A trial has been set for December 2, 2002. Now before the court are several of the parties' motions in limine.
Background
Only the facts pertinent to the motions in limine follow. Plaintiff has been a teacher at Riverside Brookfield High School since 1974. Defendants Wilson and Klingsporn held their positions at the school from 1991 until the spring of 2002, when each resigned. In February, March, and May of 1996, plaintiff claims that he spoke at school board meetings against a proposed plan to dismiss about thirty custodial and kitchen workers at Riverside Brookfield High School. Soon thereafter, he claims that defendants began retaliating against him for that speech.
Among other things, plaintiff says that about one month after his first appearance before the school board, he received a memorandum from defendant Wilson informing him that the Honors Advanced Biology course he taught would be revamped for the 1996-97 school year and possibly replaced by Advanced Placement Biology for the 1997-98 year. Plaintiff was instructed not to discuss this issue with any of his current or past students. Apparently, students caught wind of defendants' plan to revise the class and voiced their opposition. (Plaintiff claims that he did not tell the students.) Despite the fact that many students opposed the proposed cancellation of the Honors Advanced Biology class, the school board eventually cancelled the course. In a separate example of alleged retaliation in May 1996, plaintiff claims that defendant Klingsporn accused him of abandoning his home room when, in fact, two teachers were in control of the room. As a result of these and other actions by defendants, plaintiff claims that he suffered from serious depression and was required to seek medical assistance.
Honors Advanced Biology was an ecology-oriented course that examined the ecology in the areas immediately adjacent to the high school. Advanced Placement Biology focused on molecular biology and has little or no ecological focus.
Defendants claim that they revamped the biology class, not to retaliate against plaintiff, but rather to join the national trend among high schools that offer Advanced Placement programs.
Defendant Wilson claims that before she pursued the course revision, she thought that plaintiff's Honors Advanced Biology class prepared students for the AP Biology exam. When she discovered that it did not prepare students for the exam, she instructed plaintiff to change the course instruction accordingly. Furthermore, defendants claim that Klingsporn's accusation that plaintiff abandoned his home room is, in fact, true.
Discussion
To prevail on his § 1983 retaliation claim, plaintiff must demonstrate at trial that his conduct was both constitutionally protected and a substantial or motivating factor in defendants' challenged actions. Thomsen v. Romeis, 198 F.3d 1022, 1027 (7th Cir. 2000). Plaintiff must establish that defendants would not have taken the challenged actions but for plaintiff's constitutionally protected conduct. Id. If plaintiff meets these requirements, the burden shifts and defendants must show by a preponderance of the evidence that they would have taken the same actions even absent plaintiff's protected conduct. Id. Both parties have submitted multiple motions in limine, the majority of which claim that certain evidence would be irrelevant to the requirements in Thomsen.
I. Defendants' Motions in Limine A. Motion to Preclude Plaintiff from Presenting or Arguing Evidence at Trial Contrary to Defendants' Statement of Undisputed FactsThis motion is denied. The court does not understand why plaintiff's failure to contest factual assertions for summary judgment purposes precludes him from contesting them at trial. Contrary to defendants' position, the court has not made, and need not make, "an order specifying the facts that appear without substantial controversy." Fed.R.Civ.P. 56(d).
B. Motions to Bar Testimony from Plaintiff's Students and Co-Workers as to His Job Performance
Plaintiff seeks to call as witnesses some of his former Honors Biology students to testify that plaintiff's Honors Biology course was an inspiring experience for them and that they protested, to the extent they were allowed to, its elimination. Defendants seek to bar this evidence as irrelevant or, alternatively, as more prejudicial than probative and excludable under Rule 403. The defendants argue, compellingly in the court's judgment, that calling students or former students as witnesses in a dispute between a teacher and the school administration is divisive and otherwise undesirable and should not be permitted unless the students clearly have relevant evidence to provide.
To the extent that plaintiff seeks to call his former students to rebut defendants' assertion that the Honors Biology course was eliminated to serve the needs of the students, the motion in limine is granted. A school administration is permitted to make curricular decisions that are unpopular with students, and the fact that the students object to the administrators' decision does not indicate in any way that the decision is not in the students' best interest. The question of whether a course should be modified to benefit high school students is a question for educators, not for the students. Nor does the court understand how the search for truth in this case will be aided in any way by having a parade of former students testify that they thought plaintiff was a good teacher; the court does not even understand plaintiff's teaching ability to be an issue in this case. To the extent plaintiff plans to call the students to provide evidence as to the deleterious impact on the school community of defendants' alleged efforts to repress speech, the motion is also granted since the school community's damages are not part of this case. In addition, this evidence is excluded under Rule 403. The court can imagine no significantly relevant evidence the students can provide and it is unwilling, without some indication that their evidence is important, to allow the parties in this case to draft the school's students and former students as soldiers in their battles.
The parties' submissions on this issue are not detailed enough or specific enough for the court to know whether there may be other purposes for which the plaintiff plans to offer this evidence. This ruling grants the motion in limine only to the extent that the students may not be called to provide the evidence described above. If plaintiff wishes to call the students for other purposes, he may request that the court reconsider this ruling.
With respect to the parallel motion concerning plaintiff's coworkers, the motion in limine is denied. However, such witnesses can testify only to the extent they have a proper foundation for their testimony. Moreover, if there is no dispute as to plaintiff's abilities as a teacher, then testimony concerning his abilities would be irrelevant and will not be allowed. The court cannot determine on this record the extent to which, if at all, plaintiff's teaching ability or success in teaching his Honors Biology course will be an issue in this case. Defendants' concerns about burdening the teaching enterprise by having large numbers of teachers absent themselves from school to come to court is unfounded.
Plaintiff should choose his witnesses carefully. The court will not permit large numbers of witnesses to give repetitive, cumulative testimony.
C. Motion to Bar Evidence Regarding Alleged Acts of Retaliation Occurring Before August 19, 1996, or, Alternatively to Preclude Plaintiff from Recovering Damages for This ConductDefendants seek to bar any evidence of retaliation that occurred before August 19, 1996, because any alleged violations that occurred before that date are outside the two-year statute of limitations. This includes evidence of Wilson's memorandum to plaintiff in early 1996, as well as plaintiff's claim that Klingsporn accused him of abandoning his classroom in May 1996. The court first concludes that the evidence is at least admissible as background evidence. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) ("A discriminatory act which is not made the basis for a timely charge . . . may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue. . . ."). As an alternative, defendants move this court to preclude plaintiff from recovering damages for these incidents.
Plaintiff invokes the continuing violation theory to argue that both Wilson's memorandum and Klingsporn's accusation are grounds for damages on his § 1983 retaliation claim, despite the fact that they occurred prior to August 19, 1996. Under the continuing violation theory, a plaintiff can "get relief for a time-barred act by linking it with an act that is within the limitations period. For purposes of the limitations period, courts treat such a combination as one continuous act that ends within the limitations period." Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). To apply the doctrine to a § 1983 retaliation case such as this one, the plaintiff must show that an employer has, for a period of time, followed a practice of discrimination. Id. at 565. Further, the discriminatory acts that constitute the practice must be unknown to the plaintiff and undiscoverable through reasonable diligence. Lara v. City of Chicago, 968 F. Supp. 1278, 1286 (N.D.Ill. 1997).
In the opinion denying defendants' motion to dismiss, then-District Judge Ann Williams held that the continuing violation doctrine should apply. Koch-Weser v. Bd. of Educ. of Riverside Brookfield High Sch. Dist. 208, No. 98 C 5157, 1999 WL 519065, at *8 (N.D.Ill. July 16, 1999). Now that defendants have raised the issue in their motion in limine, however, the question is potentially more focused. In Berggruen v. Caterpillar Inc., No. 92 C 5500, 1995 WL 708665 (N.D.Ill. Nov. 29, 1995), the defendant filed a motion in limine similar to the one in this case. The plaintiff invoked the continuing violation doctrine, claiming that she did not realize that she was a potential victim of discrimination during instances outside the statute of limitations. The court held, however, that this contention was refuted by her admission in her Statement of Additional Material Facts that "in 1989 or 1990 . . . she believed that she was being denied opportunities for advancement because she was Hispanic" and that she discussed this belief with her employer's affirmative action coordinator. Id. at *2.
In this case, despite the fact that Judge Williams applied the continuing violation doctrine at the pleadings stage, defendants contend that plaintiff has since refuted his own argument. They claim: "Plaintiff clearly believed that he had been retaliated against due to his speech at the time of the time-barred events." (Defs.' Reply ¶ 6 n. 1.) Defendants then provide the following citation in support: "(Koch-Weser Dep. 347-350)." However, defendants do not specify to which of the three separate exhibits bearing plaintiff's deposition testimony they refer. In Exhibit 77 of their appendix to summary judgment materials, they include excerpts from plaintiff's deposition on March 7, 2000, which is contained in only 267 pages. Exhibit 78 consists of excerpts from plaintiff's March 10, 2000 testimony, but only page 350 of defendants' four-page reference is included. This page is incoherent without the context of the preceding pages. Finally, Exhibit 79 includes excerpts from plaintiff's March 24, 2000 deposition testimony, and pages 347 through 350 are present. However, nowhere on any of these pages can the court find any support for defendants' contention that plaintiff admitted that he believed he was retaliated against at the time of the events outside the statute of limitations.
Based on this record, the court cannot determine whether plaintiff had a basis for believing that he had ever been retaliated against prior to August 19, 1996. Therefore, defendants' motion is denied. Defendants may seek reconsideration of this order if they come forward with specific evidence well in advance of trial.
D. Motion to Bar Expert Testimony
Next, defendants argue that the court should bar all of plaintiff's proffered expert testimony based on plaintiff's procedural failures. Defendants correctly point out that this case has seen many discovery disputes, most of which regard plaintiff's expert witnesses. Defendants first asked for the identity of plaintiff's experts in July 1999. The parties eventually agreed that plaintiff would disclose his expert designation and report to defendants by March 1, 2000. Plaintiff filed, and this court granted, a motion to extend the deadline to May 1, 2000. When plaintiff failed to meet that deadline, the court moved the date to July 3, 2000. The court later granted another extension to September 7, 2000. By October 17, 2000, defendants had still not received plaintiff's expert report. They filed a second motion requesting that expert discovery be stayed until the resolution of their pending motion for summary judgment. The court denied defendants' motion but also entered an order stating that defendants' expert report would not be due until 30 days after receipt of plaintiff's expert report. On December 11, 2000, defendants received a letter from plaintiff stating that he would disclose his expert report within a week. Plaintiff did not do so. Defendants filed their motion for summary judgment on December 15, 2000 and the court ruled on September 16, 2001. On January 29, 2002, plaintiff moved to reopen expert discovery until April 1, 2002. On March 18, 2002, this court granted plaintiff's motion and ordered that expert discovery be completed by April 1, 2002. On April 5, 2002, plaintiff sent an expert report to defendants' counsel.
At the time defendants filed this motion, trial was set for May 13, 2002, a little more than a month after plaintiff disclosed his expert report. The court agrees that this would have put defendants in a difficult position. (See Defs.' Mot. at 4 ("Defendants can not possibly depose Plaintiff's expert witness, retain a rebuttal expert witness, and simultaneously prepare for a trial date that is less than five weeks away.").) Because of this position, defendants asked the court to bar plaintiff from presenting expert testimony. Since defendants' motion was filed, however, the trial has been moved to December 2, 2002, almost five months from now. This reduces to de minimis any prejudicial effect of plaintiff's failure to comply with discovery deadlines. Because the court can find no significant prejudice from plaintiff's tardiness now that the trial date has been moved, defendants' motion is denied. Defendants have plenty of time to obtain an expert witness. Defendants' motion is denied, and the deadline for the close of expert discovery is moved to October 1, 2002.
II. Plaintiff's Motions in Limine A. Motion Regarding Defendants' Irrelevant and Prejudicial Evidence
Plaintiff asks this court to bar "defendants from offering any form of evidence, testimonial or otherwise, that seeks to unfairly cast plaintiff in an unfavorable light or that has to do with any situation other than the alleged retaliatory actions set forth in the complaint." (Pl.'s Mot. at 4.) Clearly the court cannot enter such a broad order. Plaintiff attempts to get more specific in his motion:
Defendants' approach to the litigation to date suggests that it [sic] will try to introduce irrelevant evidence for various reasons, including: (1) Plaintiff does not accept authority necessary to the smooth functioning of [the school]; (2) There have been situations other than those cited in the complaint where plaintiff has spoken out publicly but where he was not punished for doing so as alleged in the instances raised in the complaint; and (3) Evidence offered purely to cast plaintiff in an unfavorable light simply to prejudice him in the eyes of the jury.
(Id. ¶ 5.) Again, these ambiguous assertions do little, if anything, to shed light on those specific pieces of irrelevant evidence that defendants allegedly plan to use. Plaintiff points to Defendants' Exhibits 7 through 10 as "examples" of irrelevant evidence. In plaintiff's reply memorandum, he states that he "seeks not only a bar against using the four exhibits but also a more general prohibition against defendants when they make other attempts at trial to introduce similarly irrelevant and prejudicial evidence." (Pl.'s Reply at 2.) The court will not enter such an order. Plaintiff must point to specific exhibits or other evidence that he wishes the court to reject. Because plaintiff has listed Defendants' Exhibits 7 through 10, the court will consider only those exhibits now.
The only exhibit against which plaintiff provides a detailed argument is Exhibit 10, a 1981 letter in which plaintiff allegedly used the word "nigger." (Letter from Koch-Weser to Students of 10/1/81, Defs.' App. Tab 10.) Specifically, the letter is from plaintiff to his students, written after a ten-day teacher strike. In the letter, which was published in the local newspaper, plaintiff complains generally about the working atmosphere at Riverside Brookfield High School. Plaintiff claims that the exhibit's use would be both irrelevant and unfairly prejudicial because it was written years before defendants Klingsporn and Wilson arrived at the school. Therefore, plaintiff argues, the letter sheds no light on whether defendants retaliated against him in 1996. As to the other three exhibits (other 1981 letters written by plaintiff with complaints about the school), plaintiff makes a general argument that because they were created around ten years before defendants Klingsporn and Wilson arrived at the high school, they are also irrelevant.
Defendants respond that Exhibits 7 through 10 are examples of the school's historical responses to plaintiff's complaints about the school district. (Apparently, the school did not punish plaintiff for his public complaints in the past.) Defendants claim that the evidence is relevant to the issues of qualified immunity and punitive damages because both issues require a consideration of Klingsporn's and Wilson's frame of mind when they responded to plaintiff's speech activities.
Defendants argue: "The fact that the District had previously allowed Koch-Weser to distribute to students and publish in the local newspaper statements such as that contained in [sic] 1981 letter without repercussion vitiates the probability that Klingsporn and/or Wilson were reasonable in their conclusion that their actions were lawful and/or were `motivated by evil intent.'" (Defs.' Resp. ¶ 5.) This sentence is confusing, to say the least. The court interprets defendants' argument to be that the fact that the high school let plaintiff get away with his past complaints against the school tends to show that defendants in this case (a) reasonably believed that their actions against plaintiff did not violate the First Amendment; and (b) were not "motivated by evil intent," a requirement for punitive damages. The court fails to see the connection between the school's reaction to four letters written in 1981 and defendants' state of mind during their actions from 1996 to 1998. Even if the letters bear some probative value, the risk of unfair prejudice to plaintiff from their content outweighs the helpfulness they would provide. Therefore, the court grants plaintiff's motion with respect to defendants' Exhibits 7 through 10. Those exhibits are barred. Otherwise, plaintiff's motion is denied without prejudice. He may raise relevance arguments as to specific evidence at trial.
B. Motion Regarding Defendants' List of Witnesses
Next, plaintiff asks the court to bar defendants from calling 19 of the 29 individuals on their "witnesses likely to be called" list. Plaintiff places the disputed witnesses into two categories: (1) eleven former members of the school district's board of education; and (2) eight doctors who have provided medical services to plaintiff.
1. Board members
Plaintiff seeks an order in limine barring former members of the Board of Education from testifying in this case. Plaintiff asserts that defendants intend to call the former board members to elicit testimony that they reviewed all of plaintiff's various grievances against defendants and found them baseless and that they wanted Advanced Placement Biology taught instead of Honors Biology for programmatic reasons and not as retaliation against plaintiff.
The court sees no reason why these board members should be permitted to give evidence to so buttress defendants' case. If the fact of the denials of the grievances is relevant, it should be admitted by stipulation. Defendants propose to go so far as to have the board members testify to their opinion of the defendants' "demeanor" in seeking to revise the curriculum. The board members are interested witnesses and will not be permitted to give opinions on what is essentially the issue of defendants' credibility. Indeed, they were dismissed as defendants only because plaintiff could not show a custom or policy on their part, not because they were fair, unbiased or reliable witnesses on anything relevant to this case. Permitting the board members to come forward and give their opinions as to the bona fides of defendants' motives will turn this case into a trial of the board members' bias. Nothing is to be gained by such a diversion. If, however, the board members had decisionmaking responsibility with respect to the type of biology course that would be offered, they can testify as to their own motivations for making any decision they made or approving any decision they approved. The motion in limine as to the board members is granted. If the court misunderstands the reason defendants seek to call these witnesses, they can move for reconsideration with specific examples of the testimony they wish to elicit.
2. Doctors
Plaintiff also argues that defendants should be prevented from calling the eight doctors who treated plaintiff for various reasons. First, he claims that defendants failed to disclose these individuals as expert witnesses. Defendants respond that they will not call them as expert witnesses, but as fact witnesses. The court has no reason to question the defendants' sincerity, so this objection is overruled for present purposes. Second, plaintiff claims that the doctors' testimony would be irrelevant.
Defendants respond that the "physicians will testify regarding Plaintiff's pre-existing mental conditions, and their treatment of Plaintiff for the same," all of which is relevant to contest plaintiff's claim for emotional distress damages. In other words, if defendants are found liable, they should be responsible only for those emotional damages caused by their illegal conduct, not plaintiff's pre-existing mental conditions. The court agrees. Allendorf v. Sully Transport, Inc., No. 98 C 50243, 2001 WL 864265, at *2 (N.D.Ill. July 30, 2001) (holding that plaintiff's previous mental records may have been relevant "to show that Plaintiff actually suffered from the psychological disorders alleged in his case previous to the date of the alleged accident, or that Plaintiff may have exacerbated an existing condition on the date of the alleged accident").
Plaintiff finally contends that the doctors' testimony would be unfairly prejudicial and cumulative, in violation of Federal Rule of Evidence 403. However, plaintiff offers little argument to support such a conclusion, other than to say that the "medical testimony would be highly personal. . . ." (Pl.'s Mot. ¶ 12.) There is no general privilege for "personal" information. At this point, plaintiff has not convinced this court that defendants' witnesses should be precluded from testifying. The court can explain to the jury that the doctors' testimony is to be considered only with respect to plaintiff's damages claim. Plaintiff's motion is denied.
C. Motion Regarding Certain of Defendants' Statements of Undisputed Facts
Next, plaintiff asks the court to bar defendants from using certain entries in their Statement of Undisputed Facts that accompanied their December 2000 motion for summary judgment. The court has already rejected defendants' request to read their fact statement to the jury as undisputed evidence. This means that plaintiff may challenge any evidence offered by defendants at trial. Therefore, plaintiff's present motion is denied as moot.
D. Motion for Leave to Take Discovery
Finally, plaintiff seeks permission to take additional discovery in this case regarding the recent resignations of both defendants Klingsporn and Wilson from Riverside Brookfield High School.
"Plaintiff believes that the departure of both defendants may have been precipitated, at least in part, through the actions taken by defendants Wilson and Klingsporn against plaintiff over the course of 1996 through 1998." (Pl.'s Mot. ¶ 7.) Specifically, plaintiff wishes to take discovery of documents and the depositions of Jack Baldermann, the current superintendent of the school district, and Nancy Chmell, a current school board member. Defendants respond that any discovery of defendants' resignations "is not reasonably likely to lead to the discovery of admissible evidence." (Defs.' Resp. ¶ 4.) The court disagrees; the reason for defendants' departure, if it relates in any way to plaintiff in this case, is relevant. However, the court limits plaintiff's discovery request.
Plaintiff may depose Baldermann only about the events leading up to and related to the departure of Klingsporn and Wilson. He may depose Chmell only about the role of the school board in the departure of Klingsporn and Wilson. He may not question either individual about anything that happened before the events leading up to defendants' departure. This forecloses questioning about Chmell's "initiative to become a board member after the time frame addressed in the complaint . . . and what she observed and heard at a meeting at Hauser Junior High School in March of 1998. . . ." (Pl.'s Mot. ¶ 8.) Plaintiff had ample opportunity to depose Chmell regarding those subjects throughout the course of discovery in this case. Any document discovery must also be isolated to the issue of defendants' departure from the high school. For these reasons, plaintiff's motion is granted in part and denied in part. The deadline for this limited discovery is October 1, 2002.
Conclusion
For the foregoing reasons, the court denies all of defendants' motions in limine. The court grants, denies, and grants in part and denies in part plaintiff's motions in limine as explained above. The deadline for the close of expert discovery and plaintiff's limited discovery is October 1, 2002.