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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff and DEBORAH TABOR Plaintiff-Intervenor
vs.
KIM AND TED INC. d/b/a OLD MAIN INN THEODORE STROMPOLIS and KIMON KOKONAS Defendants.
 
Case:
No. 95 C 1151
 
Location:
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
 
Date:
January 19 1996 Decided
 
Attorneys:
For EQUAL EMPLOYMENT OPPORTUNITY COMMISSION plaintiff: Dana Richard Hutter John C. Hendrickson United States Equal Employment Opportunity Commission Chicago IL. Jose Jorge Behar Equal Employment Opportunity Commission Chicago IL.
For DEBORAH TABOR intervenor: Michael T. Nigro Mark Eugene Gryska Jerry Allan Fogelman Scott T Chase Nigro & Westfall P.C. Glendale Heights IL.
For KIMON KOKONAS KIM AND TED INC. dba Old Main Inn defendants: Keith Edward Roberts Sr. Robert J. Lentz Keith Edward Roberts Jr. Donovan & Roberts P.C. Wheaton IL. John D. Keller John D. Keller & Associates Ltd. Bloomingdale IL.
 
Court:
Suzanne B. Conlon United States District Judge
 
Author:
The Hon. Justice Suzanne B. Conlon
 

The Equal Employment Opportunity Commission ("EEOC") and Deborah L. Tabor (collectively "plaintiffs") sue Kim and Ted Inc. d/b/a Old Main Inn Theodore Strompolis and Kimon Kokonas (collectively defendants ) under Title VII of the Civil Rights Act of 1964 as amended 42 U.S.C. SEC. 2000e et seq. Plaintiffs allege defendants discriminated against Tabor and other female employees by subjecting them to sexual harassment by conditioning continued employment on their assent to sexual conduct and by constructively discharging them. Jury trial begins on February 7 1996. The EEOC moves in limine to exclude evidence relating to three class members.

DISCUSSION

  1. MOTION IN LIMINE STANDARDS

Motions in limine are disfavored. Hawthorne Partners v. AT&T Technologies Inc. 831 F. Supp.1398 1400 (N.D. Ill. 1993). An order in limine excludes clearly inadmissible evidence. Evidence should not be excluded before trial unless it is clearly inadmissible on all potential grounds. Evidentiary rulings should be deferred until trial so questions of foundation competency relevancy and potential prejudice may be resolved in proper context. Middleby Corp. v. Hussmann Corp. No. 90 C 2744 1993 U.S. Dist.6150 *2 1993 WL 151290 at *1 (N.D. Ill. May 7 1993); General Electric Capital Corp. v. Munson Marine Inc. No. 91 C 5090 1992 U.S. Dist.10331 1992 WL 1669631 at *1 (N.D. Ill. July 8 1992). See generally 21 Charles A. Wright Kenneth W. Graham Jr. Federal Practice and Procedure SEC. (s) 5037 5042 (1977 & Supp.1993).

Denial of a motion in limine does not mean all evidence contemplated by the motion will be admitted. Rather denial means the court cannot determine whether the evidence should be excluded outside the trial context. The court will consider objections on individual proffers as they arise even though the proffer falls within the scope of a denied motion in limine. See United States v. Connelly 874 F.2d 412 416 (7th Cir.1989) (citing Luce v. United States 469 U.S. 38 41 n.4 83 L. Ed. 2d 443 105 S. Ct.460 (1984)).

  1. EEOC MOTIONS IN LIMINE

The EEOC seeks to exclude evidence relating to Robin Tamborrino's prior drug use and felony conviction Lorie Erickson's prior alcohol abuse and drug use and Amy Fiala's prior drug use and misdemeanor conviction for retail theft ("the class members"). The EEOC contends evidence of prior drug and alcohol abuse is not a proper basis to attack a class member's credibility concerning sexual harassment. The EEOC further claims this evidence is not relevant to issues of whether the class members were subjected to a sexually hostile environment or damages. Even if relevant the EEOC claims this evidence is unduly inflammatory and would unfairly prejudice the class members substantially outweighing any minimal probative value. Crimm v. Missouri Pacific R. Co. 750 F.2d 703 708 (8th Cir.1984).

Defendants respond they will not introduce prior drug and alcohol abuse to prove class members' untruthfulness. However defendants contend evidence of a witness' illegal drug use or alcohol abuse may be probative of the witness' inability to recollect and perceive underlying events. See Jarrett v. United States 822 F.2d 1438 1446 (7th Cir.1987); United States v. Cameron 814 F.2d 403 405 (7th Cir.1987). Defendants claim class members' inability to recollect and perceive underlying events is legitimately at issue because they may have been using drugs during the relevant time periods. Moreover defendants claim the evidence is relevant to class members' emotional distress damages -- some of their emotional problems may relate to prior drug use or alcohol abuse. The evidence allegedly relates to class members' ability to perform their job duties. Finally the evidence may relate to constructive discharge allegations.

  1. Lori Erickson

Lori Erickson worked at Old Main Inn between 1977 and May 19 1995. See Final Pretrial Order Schedule A at P 42. In October 1995 Erickson claimed Strompolis sexually harassed her approximately 10 years ago. Deposition of Lori Erickson ("Erickson Dep.") at 76. Erickson testified she does not currently drink much but had an alcohol problem in the past. Id. at 35. She attended Alcoholics Anonymous meetings for two years between 1984 and 1986. Id. at 35-36. She used cocaine between 1981 and 1984; as frequently as once a week in 1984. Id. at 37. Additionally she may have smoked cannabis in that time period. Id. at 36.

Because it is unclear exactly when Erickson claims to have been sexually harassed she may have been using drugs and abusing alcohol around the time of the alleged sexual harassment. Defendants claim Erickson's drug use and alcohol abuse is probative of her ability to perceive and recall events. A witness' drug use may be admissible to attack her ability to perceive the underlying events. Jarrett 822 F.2d at 1446. The memory or mental capacity of a witness must legitimately be at issue. Cameron 814 F.2d at 405. Because Erickson's drug use and alcohol abuse may have overlapped with the alleged harassment her memory may legitimately be at issue. Moreover the evidence may relate to her claim for emotional distress damages -- some of the emotional suffering may be attributable to her drug use and alcohol abuse.

The EEOC's generalized claim of undue prejudice does not substantially outweigh potential probative value of the evidence. Crimm concerned evidence of drug use three years prior to the events in issue proffered to prove witnesses' untruthfulness. See Crimm 750 F.2d at 707-08. The EEOC fails to demonstrate that the probative value of Erickson's alcohol and drug use as to the reliability of her memory and her emotional distress damages claim is substantially outweighed by unfair prejudice. Thus the evidence is not clearly inadmissible on all potential grounds. Accordingly the EEOC's motion to exclude evidence of Erickson's drug use and alcohol abuse must be denied.

  1. Robin Tamborrino

Robin Tamborrino worked at Old Main Inn from July 1989 to September 1989; February 1990 to March 1990; May 1990 to February 1991; and October 1991 to December 1991. See Final Pretrial Order Schedule A at P 77. In 1989 and 1991 Tamborrino voluntarily underwent 30 days of inpatient drug rehabilitation at the Share Center in Glen Ellyn Illinois and the Ad Center in Elgin Illinois. Deposition of Robin Tamborrino ("Tamborrino Dep.") at 25-26. Tamborrino stated at her deposition that she used narcotics for 20 years and cocaine for 10 years. Id. at 9-10. Tamborrino refused to answer when she last used narcotics. Id. at 11. In April 1993 she was convicted of a felony for unlawfully possessing 15 grams of cocaine. See Def. Ex. B. She was sentenced to 18 months probation. Id.; Tamborrino Dep. at 8.Tamborrino continued to use narcotics. Tamborrino Dep. at 9. In August 1995 Tamborrino's probation was revoked for missing meetings with her probation officer and testing positive for drug use. Id. at 9 12;Def. Ex. B. She was re sentenced to 18 months incarceration. Def. Ex. B.

Defendants argue Tamborrino's recollection of her employment at Old Main Inn may be at issue. The EEOC stipulated she worked intermittently at Old Main Inn between 1989 and 1991.Tamborrino recalls working at Old Main Inn full-time between 1989 and 1991.Tamborrino Dep. at 40-41. She only recalls quitting on two separate occasions in 1989 -- once for a day and the other time for two weeks. Id. at 41-44.

Tamborrino's recollection of her employment at Old Main Inn may not coincide with the EEOC's stipulation. Defendants contend the number of times Tamborrino left Old Main Inn is relevant to her constructive discharge claim. Because it appears Tamborrino used drugs during the same time period as her employment at Old Main Inn her drug use may affect her ability to recall. Defendants also maintain Tamborrino's 20-year drug history may have affected her ability to perform her job duties. Finally defendants assert her drug use may be relevant to the emotional distress claim. The EEOC generally claims the evidence is unduly prejudicial. However it is not clear that the probative value of Tamborrino's drug use is substantially outweighed by undue prejudice.

Accordingly the EEOC's motion to exclude evidence of Tamborrino's drug abuse must be denied.

The EEOC also seeks to bar admission of Tamborrino's felony drug conviction. Defendants claim the conviction is admissible as impeachment evidence under Fed. R. Evid.609(a)(1). Evidence of a witness' felony conviction of a crime punishable by imprisonment in excess of one year is admissible for impeachment purposes unless substantially outweighed by undue prejudice. Charles v. Cotter 867 F. Supp.648 655-56 (N.D. Ill. 1994). The EEOC bears the burden of excluding this evidence; the trier of fact should have "as much relevant evidence on the issue of credibility as possible." Fed. R. Evid.609 advisory committee's note at 357; Gora v. Costa 971 F.2d 1325 1330 (7th Cir.1992); Campbell v. Greer 831 F.2d 700 707 (7th Cir.1987). As discussed above the underlying drug use may be admissible for purposes other than general credibility. Given the possibility that drug use evidence may be presented to the jury the EEOC fails to clearly establish that the probative value of Tamborrino's felony conviction is substantially outweighed by undue prejudice. Accordingly the EEOC's motion to exclude Tamborrino's conviction must be denied.

  1. Amy Fiala

Amy Fiala worked at Old Main Inn from May 1992 to September 1992 and from September 1993 to February 1994. See Final Pretrial Order Schedule A at P 49. Fiala stated at her deposition she has used cocaine and marijuana; she used cocaine during the period she worked at Old Main Inn. Deposition of Amy Fiala ("Fiala Dep.") at 114.

Defendants claim Fiala's drug use is relevant because it may have interfered with her ability to perform her job. Defendants also claim her drug use is relevant to emotional damages and whether she was constructively discharged. The drug use may be admissible for purposes other than truthfulness. The EEOC's generalized claim of undue prejudice does not substantially outweigh the probative value of Fiala's drug use. Accordingly the EEOC's motion to exclude evidence of Fiala's drug use must be denied.

The EEOC also seeks to exclude evidence of Fiala's misdemeanor conviction for retail theft. In April 1995 Fiala pled guilty to a charge of retail theft for shoplifting a key chain. The Seventh Circuit does not view shoplifting as a crime of dishonesty under Fed. R. Evid.609; to include shoplifting as a crime of dishonesty would swallow the rule and allow any past crime to be admitted for impeachment purposes. United States v. Amaechi 991 F.2d 374 378-79 (7th.Cir.) cert. denied 125 L. Ed. 2d 677 113 S. Ct.2980 (1993). Defendants represent they will not offer evidence of Fiala's shoplifting conviction. Accordingly the EEOC's motion to exclude Fiala's shoplifting conviction is moot.

CONCLUSION

Plaintiff EEOC's motions in limine are denied or moot.

ENTER:

Suzanne B. Conlon