IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

DANYA DAVIS, et al., ) 

 ) 

 Plaintiffs, ) 

 ) No. 11-cv-07923 

 v. ) 

 ) Judge Andrea R. Wood 

PACKER ENGINEERING, INC., et al., ) 

 ) 

Defendants. ) 

ORDER 

 Plaintiffs Danya Davis, Shannon Webb, and Bernessa Wilson have sued their former 

employer, Defendant Packer Engineering, Inc., alleging that it committed violations of Title VII 

of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000 et seq.

1

 Specifically, Plaintiffs 

Davis and Wilson, both of whom are women, claim that Defendant unlawfully subjected them to 

a sexually-discriminatory hostile work environment and then retaliated against them for 

complaining by terminating their positions. Plaintiff Webb, a male former employee at Defendant, 

claims that he was unlawfully retaliated against for complaining about the sexually-discriminatory 

hostile work environment to which his female coworkers were subjected. In anticipation of the 

jury trial, the parties filed a total of 23 motions in limine. The Court ruled on 13 of those motions 

during the final pretrial conference on January 3, 2017. 2 This detailed Order provides additional 

explanation for the Court’s rulings on the parties’ remaining contested motions in limine as 

reflected in the minute entry dated January 13, 2017. The parties are reminded that the Court’s 

                                                            

1

 Plaintiffs also sued The Packer Group, Inc. (“TPG”), but the Court granted summary judgment in TPG’s 

favor and so that entity is no longer a defendant in the case. 

2

 As reflected in the January 3, 2017 Order (Dkt. No. 161), at the final pretrial conference, the Court ruled 

on Plaintiffs’ motions in limine nos. 1 and 3, as well as Defendant’s motions in limine nos. 1, 2, 3, 5, 6, 7, 

8, 12, 13, 14, and 18. 

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pretrial evidentiary rulings are necessarily preliminary and may be altered even if nothing 

unexpected happens at trial. Farfaras v. Citizens Bank & Trust of Chicago, 433 F.3d 558, 565 

(7th Cir. 2006). 

I. Plaintiffs’ Contested Motions in Limine

A. Plaintiffs’ Motion in Limine No. 2 (Dkt. No. 145) 

 Plaintiffs seek to bar all evidence and references to Defendant’s claim that Plaintiff Davis 

had an affair with her coworker, Senior Vice President Andrew Neuhalfen. Plaintiffs contend that 

evidence Davis engaged in a consensual affair is irrelevant to this case and should be excluded 

pursuant to Federal Rule of Evidence 403, as it would be unduly prejudicial beyond any probative 

value. Plaintiffs also argue that the proffered evidence constitutes inadmissible character evidence 

that should be excluded under Federal Rule of Evidence 404(a)(1). In response, Defendant 

contends that the evidence will show not merely that Davis had an affair with Neuhalfen, but that 

she and Neuhalfen engaged in sexual intercourse at the workplace that was witnessed by other 

coworkers. Defendant also argues that the evidence is relevant to the matter of Davis’s 

truthfulness and credibility, as she was married at the time of the affair. 

 A plaintiff asserting a sexual harassment claim under Title VII must show, among other 

things, that the complained-of conduct was “subjectively offensive.” Passananti v. Cook Cty., 689 

F.3d 655, 664 (7th Cir. 2012). As the Seventh Circuit has explained, if a plaintiff’s conduct shows 

“enthusiastic receptiveness” to the allegedly harassing conduct, then that plaintiff’s claim fails. 

Reed v. Shepard, 939 F.2d 484, 491 (7th Cir. 1991). Here, if Davis in fact engaged in the same 

sort of explicit, public sexual conduct at the workplace as that of which she complains, then her 

conduct would be relevant to the jury’s determination of whether her coworkers’ sexual conduct 

at the workplace created a subjectively hostile work environment for her. 

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 The Court finds that evidence of Davis’s sexual conduct at the workplace is relevant and 

admissible insofar as the conduct was witnessed by other coworkers or carried out in a manner 

that demonstrates Davis did not care whether or not she was observed. Defendant is cautioned to 

take care to present its evidence of the sexual activity through a competent witness with personal 

knowledge of the events. Defendant will not be permitted to introduce testimony that consists of 

mere speculation by witnesses who did not actually see or hear the purported conduct. Evidence 

regarding other alleged sexual conduct by Davis—either outside the workplace or in the 

workplace but not viewable by others—is excluded, as any probative value of such evidence is 

outweighed by the potential prejudice to Davis. See also Fed. R. Evid. 412(a)(1); B.K.B. v. Maui 

Police Dep’t, 276 F.3d 1091, 1104 (9th Cir. 2002), as amended (Feb. 20, 2002) (applying Rule 

412 to sexual harassment claims and holding that evidence of plaintiff’s sexual habits were not 

probative to “welcomeness” of alleged harassing conduct).3

 The purportedly adulterous nature of Davis’s sexual affair is not relevant for the purposes 

discussed above, however. And the Court rejects Defendant’s argument that the extramarital 

nature of the affair is relevant to Davis’s credibility. Any putative connection between Davis’s 

alleged extramarital affair and her credibility is so attenuated as to make its probative value slight, 

while the potential for undue prejudice from highlighting Davis’s or Neuhalfen’s marital status 

would be significant. Put simply, the mere fact that Davis and Neuhalfen engaged in a sexual 

relationship while married to other people, by itself, is not necessarily indicative of dishonesty. 

Accordingly, Defendant will not be permitted to reference the purportedly adulterous nature of 

Davis’s sexual conduct at the workplace. 

                                                            

3 Plaintiffs are mistaken in arguing that the evidence of Davis’s sexual conduct represents character 

evidence inadmissible under Rule 404(a)(1). The evidence is not being offered to show that on a particular 

occasion Davis acted in accordance with a character trait; rather, the evidence is offered to show that Davis 

was a participant in the same sexually-explicit work environment she now contends was hostile.

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B. Plaintiff’s Motion in Limine No. 4 (Dkt. No. 147)

 Plaintiffs also seek to bar all evidence that Defendant went out of business after the events 

at issue here. Plaintiffs argue that the fact that Defendant went out of business significantly after 

Plaintiffs were terminated is irrelevant and highly prejudicial, and thus should be excluded 

pursuant to Rule 403. Defendant responds that the evidence is relevant to the issue of damages, as 

the financial condition of a defendant is a factor to be considered when awarding punitive 

damages, and that the evidence is relevant to its claimed financial motivations for terminating 

Plaintiffs. Finally, Defendant points out that many of the witnesses are former employees of 

Defendant and that, in order to avoid confusing the jury, it should be able to explain why these 

former employees no longer work for it. 

 Defendant is correct that the financial condition of the defendant is a factor to be 

considered in determining a punitive damages award. See Waits v. City of Chicago, 2003 WL 

21310277, at *4 (N.D. Ill. June 6, 2003) (stating that the financial impact of punitive damages 

award on defendant is relevant factor) (citing Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 21–

22 (1991); TXO Prod. Corp. v. Alliance Resources Corp., 509 U .S. 443, 462 (1993); 

Merriweather v. Family Dollar Stores of Ind., Inc., 103 F.3d 576, 581 (7th Cir. 1996)). Defendant 

thus has a right to present evidence on this factor in order to mitigate a punitive damages award. 

 At the same time, such evidence presents the potential for prejudice to both parties, for the 

jury may make a whole host of illicit judgments about the merits of a case involving a defunct 

company. The Court further determines that the fact Defendant is no longer in business has 

limited probative value for the other purposes cited by Defendant—i.e., to show the financial 

condition of Defendant at the time that it terminated Plaintiffs and to explain why witnesses are 

no longer employed by Defendant. As a result, the Court will allow evidence that Defendant has 

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gone out of business, but will exclude unnecessary, duplicative, or overly cumulative evidence on 

this fact. The Court will also consider appropriate jury instructions regarding for what purposes 

the jury may consider this evidence. 

II. Defendant’s Contested Motions in Limine

A. Defendant’s Motion in Limine No. 4 (Dkt. No. 143) 

Defendant seeks to exclude evidence of alleged financial improprieties committed by its 

officers and employees, claiming that those improprieties are irrelevant to Plaintiffs’ claims and 

potentially prejudicial. The alleged improprieties that Defendant seeks to have excluded relate to 

the company’s involvement in the “New Vermillion” transaction involving the acquisition of a 

separate manufacturing entity, which is the subject of the shareholder derivative lawsuit Caulfield 

v. Packer, 10-ch-028475 (Cir. Ct. Cook County). The Court agrees with Defendant. This is not a 

fraud case or business dispute. Any alleged financial improprieties are not sufficiently related to 

Plaintiffs’ allegations of discrimination, harassment, and retaliation to have significant probative 

value. Moreover, the suggestion that officers or employees of Defendant engaged in financial 

improprieties has the potential to cause undue prejudice. Finally, while the fact that Defendant 

was experiencing financial problems at the time of Plaintiffs’ terminations may be relevant to 

Defendant’s defense that the terminations were layoffs of financial necessity and not retaliation, 

the reasons for the purported financial problems are not particularly probative and introducing 

such evidence may lead to a (financial fraud) trial within a (discrimination) trial. For this reason, 

Defendant’s motion is granted and evidence of the financial improprieties will be excluded. This 

ruling should not be understood to prevent Plaintiffs from challenging the credibility of 

Defendant’s explanation for why Plaintiffs were terminated. 

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 B. Defendant’s Motion in Limine No. 10 (Dkt. No. 143) 

 Defendant also seeks to exclude evidence of a December 2002 incident in which, 

according to Plaintiff Davis, her coworker, Ed Caulfield, pushed her head toward his groin and 

asked her to perform oral sex on him. Defendant argues that there is no written record of this 

incident and that it is time-barred. The Court fails to see the relevance of the lack of written 

record, however, as Davis presumably is able to testify and be cross-examined based on her 

personal recollection of the event. For reasons similar to those articulated in the Court’s summary 

judgment opinion with respect to Plaintiff Webb’s time-barred claims, even if the incident 

between Davis and Caulfield would not itself be actionable, it still may provide useful background 

information and context for Davis’s non-time-barred sexual harassment claims. Such evidence 

also may bolster Davis’s credibility regarding her non-time-barred claims. The motion is denied. 

 C. Defendant’s Motions in Limine Nos. 9, 15, 16, & 17 (Dkt. No. 143) 

Defendant has also moved to exclude a whole host of sexually explicit conduct at its 

offices, including evidence that Plaintiffs’ coworkers used sexist language and that Plaintiffs’ 

coworkers watched pornography in the workplace. These motions are denied. 

 With respect to the sexist language, Defendant first argues that remarks made to other 

coworkers are irrelevant to Plaintiffs’ claims. This is mistaken. First, the fact that employees made 

similar sexually-explicit remarks to other employees may bolster Plaintiffs’ allegations. For 

example, Plaintiffs’ allegations that Caulfield made sexually explicit remarks to other employees 

would tend to support their allegations that Caulfield harassed them similarly. See Molnar v. 

Booth, 229 F.3d 593, 603 (7th Cir. 2000) (holding that evidence of sexual harassment of others 

was relevant to show the likelihood that plaintiff was harassed). Moreover, comments made to 

other coworkers may provide support for the existence of a hostile workplace. Defendant’s 

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reliance on Janopoulos v. Harvey L. Walner & Assocs., Ltd., 866 F. Supp. 1086 (N.D. Ill. 1994), 

is misplaced. Janopoulos explicitly recognized that the harassment of coworkers could be relevant 

to a hostile work environment claim, but found that the plaintiff in that case did not establish that 

her supervisor’s harassment of other female coworkers implicated plaintiff’s own work 

environment. Id. at 1091. But here, Plaintiffs may be able to lay a proper foundation and avoid 

this problem and so the Court will not bar the evidence before trial. Defendant also argues that the 

alleged use of sexist language was so infrequent as to be insufficient to create a hostile workplace. 

But reviewing Defendant’s motions in limine, there are myriad allegations of inappropriate 

comments. Whether the sum total was more than “occasional” and enough to contribute to a 

hostile work environment is firmly within the province of the jury to decide. 

 Defendant also seeks to exclude evidence that its employees watched pornography in the 

office. These allegations principally relate to John McKinney, Defendant’s Director of Systems 

Failure Analysis and Senior Director of Industrial and Process Safety, who was one of the people 

for whom Plaintiff Wilson was assigned to work. Defendant first argues that McKinney was not 

watching pornography in the common areas of the workplace. But Plaintiffs contend the evidence 

will show that McKinney was watching pornography in a way that was exposed to Plaintiffs and 

that this is actionable as sexual harassment. This Court agrees that exposure to pornography in the 

workplace may be part of the totality of circumstances constituting a hostile work environment. 

See Ammons–Lewis v. Metro. Water Reclamation Dist. of Greater Chicago, 2004 WL 2453835, at 

*2 (N.D. Ill. Nov.1, 2004) (denying summary judgment on hostile work environment claim based, 

in part, on the consistent presence of pornography in the workplace); Williams v. City of Chicago, 

325 F. Supp. 2d 867, 876 (N.D. Ill. 2004) (finding that, even though the mere presence of 

pornography in the workplace can affect both genders, it may be considered as part of the totality 

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of the circumstances impacting a female plaintiff’s work environment). Defendant is free to argue 

otherwise, but the Court will not quiet Plaintiffs’ opportunity to present their evidence. 

 Defendant next argues that some of the evidence of McKinney watching pornography—

namely, the photographs and videos—were illegally procured without McKinney’s or 

Defendant’s consent and should be excluded on that basis. But there has been no determination 

that this evidence was actually procured illegally or that McKinney’s or Defendant’s consent was 

required. Moreover, even if the evidence was obtained illegally, Defendant has pointed to no 

authority requiring suppression of the evidence as an appropriate—let alone necessary—remedy. 

Thus, the Court will not exclude the evidence on that basis. 

 Finally, Defendant argues that evidence of McKinney viewing pornography should be 

barred because the alleged conduct does not indicate discrimination on the basis of sex but instead 

merely represents generally inappropriate conduct. Defendant is correct that a plaintiff asserting a 

Title VII sex discrimination claim must show that the alleged discrimination was “because 

of . . . sex.” 42 U.S.C. § 2000e–2(a)(1); Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 

2007). Here, however, the alleged conduct of viewing pornography—especially, as Plaintiffs 

contend, pornography that is by its nature demeaning to women—could be specifically offensive 

to women in the workplace. See Petrosino v. Bell Atl., 385 F.3d 210, 222 (2d Cir. 2004) (holding 

that comments and graphics that demeaned women can create a hostile work place); Ensko v. 

Howard Cty., 2005 WL 1367084, at *2 (D. Md. June 7, 2005) (ruling that allegations of 

displaying pornography demeaning to women satisfies the “because of sex” element of Title VII). 

It is not a requirement that the conduct alleged to constitute sexual harassment be specifically 

directed at the plaintiff. Yuknis, 481 F.3d at 554 (stating that one could be subjected to sexual 

harassment even though “one was not singled out”). Nor is it a requirement that the conduct be 

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intended to cause distress or offense to the plaintiff. Id. (“A working environment may be deeply 

hurtful to women even though the men who created it were merely trying to please themselves, 

and were thus guilty of insensitivity rather than aggression.”). Thus, repeated exposure to 

pornography that demeans women could have created a hostile workplace for Plaintiffs Davis and 

Wilson. Moreover, this evidence also adds context for those Plaintiffs’ other allegations of 

conduct constituting sexual harassment. The Court will allow Plaintiffs to use this evidence as 

part of the totality of the circumstances to make their case to the jury. 

D. Defendant’s Motion in Limine No. 11 (Dkt. No. 143) 

Defendant raises 15 hearsay objections, listed in his motion in limine as items (a) through 

(o). The statements at issue are described as follows: 

(a) Sartain told Davis that Davis needed to “be more than a sex symbol.” 

(b) Sartain called Caulfield a “male chauvinist” who called women “cunts” and 

“bitches.” 

(c) Sartain told Caulfield to “behave.” 

(d) Koehler told Davis that Caulfield was “an asshole [but] you just have to 

deal with it.” 

(e) Wilson informed Davis of harassment and discrimination experiences, and 

of instances where pornography was being watched by an engineer while 

he masturbated. 

(f) When asked during an EEOC investigation why nothing was done about 

the environment at Packer, Koehler replied that “in any work place there 

[are] inappropriate statements.” 

(g) When Davis complained to Koehler again in March 2009 of the 

discriminatory and hostile environment at Packer, despite being in 

possession of emails, notes, and other documentation evidencing the 

environment, Koehler said he didn’t want to know about it. 

(h) When Davis complained to Sartain of the discriminatory and hostile 

environment at Packer in January 2009 and informing her of rumors that 

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Davis was “sexually pursuing employees,” Sartain replied that Davis was 

“living in a man’s world.” 

(i) When Davis complained to Koehler about the masturbation and 

pornography viewing of an engineer at Packer, Koehler replied that she was 

supposed to “insulate” him from those issues. 

(j) Koehler advised Davis that Caulfield wanted her salary decreased so male 

employees could be paid more, agreeing with Caulfield that Davis was 

making “too much money.” 

(k) After Davis was terminated, Koehler told her that “Caulfield won.” 

(l) Webb informed Kenneth Packer, Defendant’s founder and Chairman of the 

Board, of the violations of Defendant’s sexual harassment policies, but 

Kenneth Packer replied by telling Webb that Defendant did not have an HR 

department and that employees were expected to act as their own HR 

department in such situations. 

(m) When Webb complained of violations of Defendant’s sexual harassment 

policies, he was called a “whiner,” and a “chicken little,” and was told that 

he was a poor Marine. 

(n) After Webb was terminated, Kenneth Packer told Webb, “What we did was 

wrong. That wasn’t right.” 

(o) Caulfield suggested firing “all of the old and ugly women” to cut costs. 

 Many of these statements—specifically, (a), (c), (d), (f), (g), (h), (i), (m), and (o)—do not 

appear to be hearsay at all, as they are not “offer[ed] in evidence to prove the truth of the matter 

asserted in the statement.” Fed. R. Evid. 801(c)(2). 

 Moreover, statements (b), (j), and (k) were made by either Charlotte Sartain or Mike 

Koehler, who were employees of Defendant at the time, and thus the statements are not hearsay 

either. See Fed. R. Evid. 801(d)(2)(D). Defendant alleges that these statements were not made in 

the scope of Sartain’s and Koehler’s employment and therefore not properly considered 

statements by a party-opponent. But Sartain’s and Koehler’s statements were made in the context 

of human resources decisions and thus do appear to be within the scope of their employment. 

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Similarly, statements (l) and (n) were allegedly made by Kenneth Packer, the former Chairman of 

the Board and founder of Defendant, about company policy and human resources decisions. Thus, 

these hearsay objections are presently overruled and the evidence will not be excluded pretrial. 

Defendant may raise these objections at trial if Plaintiffs’ fail to establish a proper foundation for 

the admissibility of the evidence. 

 Finally, statement (e) does appear to be hearsay, as it is an out-of-court statement offered 

for the truth of the matter asserted. However, Defendant has not provided sufficient context for 

this Court to determine whether or not a hearsay exception might apply. For example, it is not 

clear the time frame in which Wilson made the statement to Davis. If it was in the immediate time 

frame after she witnessed the alleged incident, then it may be covered by the hearsay exception 

for “present sense impression[s].” Fed. R. Evid. 803(1). The Court will not rule on this hearsay 

objection pretrial, but will allow Defendant may raise the objection at trial if Plaintiffs fail to lay a 

proper foundation for the admissibility of the evidence.

 E. Defendant’s Motion in Limine No. 19 (Dkt. No. 143)

 Finally, Defendant seeks to exclude all evidence of damages relating to Plaintiff Wilson’s 

claim of improper termination. Defendant argues that Wilson did not complain of her termination 

in her EEOC charge and thus her claim is administratively barred. This is mistaken. The Seventh 

Circuit has stated that “a plaintiff alleg[ing] retaliation for having filed a charge with the EEOC 

need not file a second EEOC charge to sue for that retaliation.” Luevano v. Wal-Mart Stores, Inc., 

722 F.3d 1014, 1030 (7th Cir. 2013). Here, Wilson filed her first EEOC charge in December 

2009. She alleges that Defendant rescinded her promotion offer in retaliation for her having filed 

that EEOC charge. Consequently, in February 2010, she filed another EEOC charge based on the 

alleged retaliation and was subsequently terminated in September 2010, which she alleges was in 

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response to her having filed the EEOC charges. Luevano is therefore directly applicable to this 

case and Wilson was not required to file an EEOC charge to complain about the retaliatory 

termination arising out of her prior EEOC charges. Thus, the Court will not exclude the evidence 

of damages relating to Wilson’s improper termination claim. 

III. Documentary Objections 

The parties have each raised numerous objections to documentary exhibits. Both sides 

have objected to various documents as lacking foundation, inadmissible hearsay, and lacking 

relevance. As with its motions in limine, the Court’s treatment of objections to documents prior to 

trial is necessarily preliminary and the course and presentation of evidence may alter it. With that 

in mind, the Court has reviewed the documents and overrules the parties’ pretrial relevance 

objections. Based on the current record, the Court cannot find that any of the contested documents 

is not relevant to any matter to be decided at trial. 

 The Court notes that Defendant’s exhibits 7, 9, and 11 are employee policy materials, 

which Defendant claims are relevant because they deal with the propriety of Plaintiff Wilson 

videotaping McKinney in the workplace. The Court concludes that these materials may be 

relevant to showing Defendant’s purported motivation in terminating Wilson’s employment if 

violation of company policy is offered as a reason for termination. Otherwise, the materials do not 

appear relevant and will be excluded at trial. Regardless of the admissibility of the policy 

materials (as the Court ruled above with respect to Defendant’s Motions in Limine Nos. 15 and 

17), any videotapes and photos that Wilson took of McKinney, even if in violation of employee 

policy, are relevant and admissible. Defendant may not use exhibits 7, 9, and 11 to challenge 

before the jury the Court’s determination on the admissibility of evidence. 

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 The Court will defer its rulings on the foundation and hearsay objections until trial. 

Determinations of whether certain exhibits should be excluded because Defendant failed to 

produce them during discovery are also deferred pending verification by Defendant of whether the 

contested documents were in fact produced. 

ENTERED: 

Dated: January 16, 2017 __________________________ 

 Andrea R. Wood 

 United States District Judge 

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