assertedly “stray comment”--and one not made by Pollard as East
Lake's decisionmaker in the firing process.

But there is more to the matter than East Lake would like to
acknowledge. When the previously defaulted East Lake* sought to
get back into the case back in 2001, it supported that effort
with sworn statements by both Bannister and Crawford. Here is
the relevant part of Bannister's Supplemental Declaration:

3. Plaintiff's assertion in paragraph 10 of his
Affidavit that I made a racial remark in a meeting I
had with him after his termination is false. I had
never met Plaintiff before that meeting. We discussed
whether or not East Lake would return him to work, and
I told him East Lake would not. I did not make the
statement attributed to me. Making such a statement to
an employee or a former employee is totally contrary to
anything I would do. I would discipline any East Lake
employee if I ever discovered they made such a
statement. Furthermore, Chandra Crawford and Juana
Pollard were present at the meeting and will
corroborate the outrageous and offensive falsity of
Plaintiff's allegation.

And here is the corresponding portion of Crawford's Declaration:

3. I was present at a meeting in August, 2000
between Mr. Quiroga and Leroy W. Bannister. Juana
Pollard was also present. At no time during that
meeting did Mr. Bannister make any comments along the
lines of: “You can kiss my black ass if you think that
you are going to get your job back.” I have known Mr.
Bannister for several years and I cannot imagine him
making such a comment to anyone.

* After East Lake had been properly served and failed to

file any appearance or responsive pleading, Quiroga's counsel
moved for and was awarded a default judgment. Then East Lake
came in belatedly on a motion to seek relief from the default
(which this Court granted), coupling the motion with sworn

statements to establish the existence of a bona fide defense.

4


victim of race discrimination. In addition, the statement ends
with the events of August 16, 2000, before Quiroga's next-day
meeting with Bannister--a meeting that admittedly took place--so
that no inference can be drawn either way about Quiroga's claim
of the “black ass” statement by Bannister.

It is true that the portion of Ex. F-2 in which Quiroga
recounts the events of August 15, 2000 (the date on which
Crawford ejected him from Parkview Apartments) does not include
any reference to the racial epithet that Quiroga claims that she
used. To that extent the exhibit will be available for
impeachment purposes (including the possible admission into
evidence of that portion of the exhibit), but that does not call
for the exhibit's admissibility in its totality.

In short, the challenged exhibits will not be admitted as
such. As and when Quiroga testifies at trial inconsistently with
the written version, impeachment through the exhibit (and perhaps
its partial admissibility) will be available to East Lake.

As for the other challenged East Lake exhibits (its Exs. B
and K), they relate to the rejection of other claims that Quiroga
made to the Chicago Housing Authority and the United States
Department of Housing and Urban Development. But both of those
agencies dealt with Quiroga's claim of having been underpaid,
while at the same time he was independently asserting his claim

of racial discrimination through the proper channels (which those


series of minitrials. On that basis East Lake's motion as to
Crawford's personnel file gets mixed treatment, being denied as
to Quiroga Exs. 1 and 2 and granted as to Exs. 3 through 6. East
Lake's motion is also granted as to Quiroga Exs. 18 through 21
{relating to Sharon Daniel), 22 and 27 (relating to Mary Rogers),
42 through 44 (relating to Marcellus Riley) and 45 (relating to
Alfred Neal). Finally, as to Stephanie Hannah, East Lake's
motion is denied as to Exs. 28 and 30 and granted as to Exs. 29,
31, 32, 46 and 47 (although East Lake's counsel may want to take
a fresh look at Exs. 46 and 47 in light of the rulings made
here) .

Apart from those objections as to exhibits, East Lake's
other motion in limine seeks to keep out of the case any
reference to the statement “you can kiss my black ass if you
think that you are going to get your job back,” an assertion that
Quiroga ascribes to East Lake's Vice President Leroy Bannister
(“Bannister”) when Quiroga went to Bannister the day after he had
been fired by his ultimate supervisor, Juana Pollard
(“Pollard”) .* Understandably East Lake, citing and quoting from

Schreiner v. Caterpillar, Inc., 250 F.3d 1096, 1099 (7 Cir.

2001), seeks to keep that statement out of the trial as an

2 Crawford had told Quiroga to leave the Parkview

Apartments premises on August 15, 2000 because of his claimed
insubordination. When he came back the next day, Pollard
confirmed that he was fired based on Crawford's report to her.

3


Buf when it later came to testimony by the same two persons
during lees depositions, a totally different story emerged from
each. hannister, who had previously sworn that both Crawford and
Pollard would confirm his denial of Quiroga's charge that he had
made a racial remark, changed his version of events to admit that
neither of the two was present at his meeting with Quiroga
(Bannister Dep. 48)~-and of course that meant, contrary to his
earlier statement under oath, that neither could support his
denial. As for Crawford, she not only confirmed that she was not
at the meeting (Crawford Dep. 46, 50-51), but she also stated
that she signed the false declaration because Bannister gave it
to her and asked her to sign it to deny his having made the
offensive statement (id. 49, 50-51).

As in most lawsuits, much is likely to hinge on the jury's
perception of the witnesses' credibility. Not only are the self-
contradictions in the Bannister and Crawford statements plainly
relevant on that score, but the account of Crawford's willingness
to comply with Bannister's request could also be urged as
evidence of bias on her part.* Finally, if Quiroga's version of
the exchange with Bannister is credited, it could be considered

that his loss of employment (attributable to Bannister's refusal

* Crawford testified that she misunderstood the declaration
as ascribing the “black ass” statement to her and not Bannister,
so that she did not knowingly subscribe to a false statement.
Whether or not to buy that is for the jury to decide.

5


agencies were not). Based on the parties' submissions, it
appears that those exhibits are inadmissible as Fed. R. Evid.
(“Rule”) 404(b) material--and even if they might arguably qualify
in those terms, the balancing process called for by Rule 403
would keep them out: whatever marginal probative value they
might have would be substantially outweighed by the danger of
unfair prejudice. As to those documents, then, Quiroga's motion
is granted.
Conclusion

Each side's motion or motions in limine is or are granted in

part and denied in part. This case will go forward for trial on

the basis of the rulings announced here.

SC. Lan, DVSvcte

Milton I. Shadur
Senior United States District Judge

Date: March 4, 2003


‘MinurZ:Ordler Form (v.97)

United States District Court, Northern District of Ulinois

Sitting Judge if Other
than Assigned Judge

Name of Assigned Judge
or Magistrate Judge

Milton I. Shadur

CASE NUMBER 01 C 4949 DATE 3/4/2003
CASE Jesus Quiroga vs. Eastlake Management
TITLE

{ln the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plai
of the motion being presented.]

f and (b) state briefly the nature

rulings announced here. (36-1, 42-1, 44-1)

dl) =

[For further detail see order attached to the original minute order.]

MOTION:
DOCKET ENTRY:
(a3) a Filed motion of { use listing in “Motion” box above.]
(2) im Brief in support of motion due _
@) Oo Answer brief to motion due___. Reply to answer brief due
@ oa Ruling/Hearing on set for at
6) a Status hearing[held/continued to] [set for/te-set for] on set for at,
(6) oO Pretrial conference{held/continued to] [set for/re-set for] on setfor at,
(op) Q Trial{set for/re-set for] on at
(8) QO (Bench/Jury trial] [Hearing] held/continued to at
(9) B ‘This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OLocal Rule 41.1 OO FRCP41(a)(1) O FRCP41(a)(2).
(io) «olf [Other docket entry] Enter Memorandum Opinion and Order. Each side’s motion or motions in

limine is or are granted in part and denied in part. This case will go forward for trial on the basis of the

No notices required, advised in open court

wea”

munber of notices

No notices required.

Document
Number

Notices mailed by judge’s stalY,

Notified counsel by telephone

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

54/2003

courtroom od bo ving ie ied nie
SN doputy's *
initials
Dat veld inf
central Clerk’s Office puny ridin



to reconsider his firing just one day later) was race-related.
So East Lake's motion in limine on that score is denied.

Quiroga's Motion in Limine

Quiroga's motion in limine has two parts. As with East
Lake's motions, Quiroga's is granted in part and denied in part.

To begin with, Quiroga seeks to exclude several exhibits
that are said to “relate to certain statements purportedly wrote
[sic] by the Plaintiff.” Although Quiroga does not attach those
documents (East Lake Exs. D, F-1 and F-2 and Quiroga Dep. Ex. L),
East Lake's response says that all of them are substantially
identical, and it attaches Ex. F-2 to its filing (which this
Court has of course reviewed in light of the motion and
response) .°

Nothing in what the parties have submitted appears to call
for the independent admission of the exhibit or exhibits at
issue. To the extent that East Lake contends the documents show
that Quiroga had then evidenced no concern about any alleged
national origin discrimination against him, the statement does in

fact contain two expressions on his part about being the alleged

° It appears unnecessary to explore at this belated date
the side issue of whether Quiroga Dep. Ex. L was written by him,
something that he denied during his Dep. 151-52. Although East
Lake's counsel then responded with the stated intention that
“we'll get a handwriting expert and we'll do everything necessary
to prove that you wrote this” (id. 152-53), nothing was done in
that respect before discovery was closed and the FPTO was
completed, tendered and signed by this Court. As such, that
collateral issue is out of the case for trial purposes.

6


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JESUS A. QUIROGA,
Plaintiff,
No. O01 C 4949

v.

EASTLAKE MANAGEMENT and

)
)
)
)
)
)
)
DEVELOPMENT CORPORATION, )
)
)

Defendant.

MEMORANDUM OPINION AND ORDER

This employment discrimination action, in which Jesus
Quiroga (“Quiroga”) asserts he was the victim of race-based
discrimination when East Lake Management and Development
Corporation (“East Lake”) fired him, is ready for trial. After
this Court's entry of the final pretrial order (“FPTO”) that had
been jointly submitted by the parties' counsel, each tendered
motions in limine. Both have now responded, and the motions are
veady for disposition. Because Quiroga has both the burden of
going forward and the burden of persuasion, this opinion will
address East Lake's motions first.

East Lake's Motions in Limine

In part East Lake seeks to bar a gaggle of exhibits taketh
from the employment files (1) of Chandra Crawford (“Crawford”),
the Building Manager at Parkview Apartments (where Quiroga
worked) and the person with whom Quiroga had the confrontations
that triggered his firing, and (2) of a group of East Lake's

janitorial employees who also worked at Parkview Apartments.


Some of East Lake's objections require individual treatment,
while others permit collective treatment.

Because the gravamen of Quiroga's claim is that he was
treated less favorably in terms of discipline than other
employees (leading to the hoped-for inference that the disparate
treatment was because of his race'), the different events that
occasioned discipline against the various employees involved must
bear some reasonable relationship in terms of their nature and
gravity. But East Lake takes an overly restrictive view of that
requirement, somewhat akin to distinguishing a precedent because
the earlier case involved a black horse while the current one
involves a white one. This Court will instead, where
appropriate, leave to the good sense of the trial jury the
determination of the probative force (or lack of it) of the
discipline (or lack of discipline) visited on other
employees--and the challenged exhibits will be viewed from that
perspective.

Because Quiroga's termination was ascribed to incidents of
claimed insubordination on his part, exhibits from the files of
other employees that also bear on insubordination will be
allowed--thus permitting each side to argue similarities or

dissimilarities to the jury without converting the action into a

+ Quiroga is Hispanic, while Crawford and the other

employees are all African-American.

2