494-495. Finally, the “prejudicial effect of the evidence must not substantially outweigh its
probative value.” Jd. at 495.

The District argues that Moore “had a scheme or plan to defraud the defendant by

fabricating false claims of sexual harassment and retaliation for her own financial gain.” (Mot.
8.) As evidence of this plan, in addition to Casanova’s testimony regarding the fake bomb
incident, the District intends to introduce (i) testimony from Sophia Evans that Moore told Evans
that she persuaded Shirley Edinberg to falsely claim that Allen exposed himself to her;'’
(ii) testimony from Evans that when she asked Moore if Allen exposed himself to her, Moore
said it never happened; and (iii) testimony from Casanova that Moore admitted to him that her
allegations about Allen were false and that she said “the bitch [referring to herself] is gonna get
paid.”"® (Def.’s Reply at 6.)

The fake bomb evidence is more than propensity evidence—it supports the District’s

theory that Moore had a scheme to defraud her employer with a false harassment and retaliation

"The District clearly intends to introduce this evidence for the truth of the matter asserted. If
Evans is able to testify regarding a conversation she had with Moore, as the District described in its
motion, (Mot. 3), the conversation is admissible as a party admission. However, Evans’ affidavit, which
was attached to the motion to compel, describes a conversation Evans had with Edinberg, not Moore,
about Edinberg’s conversation with Moore. (Mot., Ex. B 42.) If Evans had the conversation with
Edinburg, then to avoid hearsay problems, Edinburg, not Evans, would have to testify regarding Edinburg
and Moore’s conversation.

The District also intends to have Evans testify that Moore told Edinberg “we’re going to get
paid.” Again, if the District wants this evidence admitted for the truth, which seems evident, Evans is not
the proper witness.

'8In its reply in support of its motion, the District explained that Allen would also testify that
Moore told him she sued the Board of Education for sexual harassment and received money in
settlement. Although Allen testified regarding this conversation during his deposition, the deposition
further revealed that Moore’s purported statement was not true—she has never sued anyone for sexual
harassment prior to this lawsuit. (Mot., Ex. A 38:4-40:17.) This evidence is therefore not admissible in
support of the District’s theory that Moore was engaged in a plan to defraud the District.

19



407001, at *1. To prevail at trial, Moore must establish that she personally was subjected to a
hostile work environment. Hawkins v. Groot Indus., Inc., No. 01 C 1731, 2003 WL 1720069, at
*3 (NLD. Ill. Mar. 31, 2003). Nevertheless, in evaluating her claim, “the trier of fact must
examine the totality of circumstances, including evidence of harassment directed at employees
other than the plaintiff.” Jd. (internal quotation marks and citation omitted). Evidence regarding
Ali’s harassment claim could be relevant, provided that Moore knew about Ali’s harassment
experience at or around the time the harassment occurred. Gleason v. Mesirow Fin. Inc., 118
F.3d 1134, 1144 (7" Cir. 1997) (although incidents directed at others may not have as great an
impact as incidents directed at plaintiff, such incidents still have “some relevance in
demonstrating the existence of a hostile work environment); Mason, 233 F.3d at 1046 (for
incidents of discrimination to be relevant to plaintiff's claim, plaintiff must know about them);
United States Equal Employment Opportunity Comm’n v. Caterpillar, Inc., No. 03 C 5637, 2004
WL 2092003, at *10 (N.D. Ill. Sept. 14, 2004). This is particularly true if Ali’s experience
occurred during the time frame in which Moore contends she experienced a hostile work
environment. The timing of the events, and whether Moore had knowledge of Ali’s experience,
are facts that are not clear to the court based on the parties’ briefs. Additionally, the court is not
persuaded that the prejudicial value of the evidence outweighs its probative value. The District’s
arguments under Rules 402 and 403 are overruled at this time. The admissibility of this evidence
must be decided within the context of trial.

Likewise, the court cannot conclude that evidence regarding Wilkins’ investigation into
Ali’s claims is clearly inadmissible (aside from evidence stemming from the Baird Report, which

has already been excluded). The evidence regarding Wilkins’ investigation into Ali’s claim may

13


harassment within the limitations period because those incidents were not described in Moore’s
journal. There is a dispute between the parties regarding whether Moore’s journal was
exhaustive (as the District contends) or merely comprehensive but not exhaustive (as Moore
contends). Resolution of this factual dispute is for the jury to decide, not the court. Further, if
Moore failed to allege any act within the limitations period, then the District should have sought
summary judgment on the grounds that the entire hostile work environment claim was time-
barred, not just that the pre-limitations conduct was barred. In other words, if Moore failed to
allege any act within the limitations period, her claim should not have survived summary
judgment. See Morgan, 536 U.S. at 117 (an act contributing to the claim must occur within the
statutory period).

As for the District’s contention that the “conduct within the limitations period is not
actionable sexual harassment,” (Mot. { 8), that argument misstates the law. Neither the Wysocki
incident nor the betting conversation need to be independently actionable; the incidents need only
contribute to the hostile work environment. Morgan, 536 U.S. at 117. “Courts should not carve
up the incidents of harassment and then separately analyze each incident, by itself, to see if each
Tises to the level of being severe or pervasive.” Mason v. S. Ill. Univ., 233 F.3d 1036, 1045 (7"
Cir. 2000). That said, the court agrees that the incident in the locker room where Moore
allegedly witnessed Ricky Allen and Sophia Evans having sex is not an act contributing to a
hostile work environment. Although such conduct is completely inappropriate in the workplace,
the conduct was neither directed at Moore nor directed at her gender. See Hilt-Dyson v. City of
Chicago, 282 F.3d 456, 462 (7" Cir. 2002) (conduct must be directed at plaintiff because of her

sex). Evidence regarding the incident Moore witnessed in the locker room is not relevant to her



ard

claim. Accordingly, the first test is satisfied. The act is also close enough in time and similar
enough to the other acts to satisfy the second test. Although convincing someone to make and
plant a fake bomb is an act that goes a step further than making up false claims, the test requires
only that the acts be similar, not identical. Moreover, Moore raised no arguments challenging the
similarity or the timing.’® The third test is likewise satisfied. If the jury finds Casanova more
credible than Moore, they could believe that Moore planned the fake bomb incident.

That leaves the fourth test: whether the prejudicial effect of the fake bomb evidence
substantially outweighs the probative value. Balancing the probative value against the
prejudicial value is a discretionary decision. Compare Gastineau, 137 F. 3d at 495 (affirming
trial court’s decision to admit 404(b) evidence) with Mathis v. Phillips Chevrolet, Inc., 269 F.3d
771, 776-777 (7" Cir. 2001) (affirming trial court’s decision to exclude 404(b) evidence). Here,
although the decision is a close call, the court will allow the District to introduce certain evidence
relating to the fake bomb incident. Implicating Moore in a false bomb threat is prejudicial, but
the evidence is also highly probative of the District’s theory that Moore was carrying out a plan
to defraud her employer with false claims in pursuit of financial gain. Moore argues that even if
she did instigate the fake bomb incident (which she denies), it does not necessarily follow that
her sexual harassment claim is false. But in making this argument, Moore ignores the District’s
other evidence—e.g., that she admitted that her harassment allegations against Allen were untrue.

Further, the law does not require “that there be no prejudicial effect, only that the prejudice not

‘In an attempt to distinguish Gastineau, Moore makes the conclusory argument that in her case,
“there is no pattern or common scheme, and the evidence is not even probative of motive.” (PI.’s Consol.
Resp. at 5.) The court disagrees. There is sufficient evidence from which the jury could conclude that
Moore was engaged in a plan to pursue a fraudulent claim.

20



. as

bomb incident was a factor in professional evaluations of Moore by both Dr. Gonzalez and Dr.
Rossiter.” Accordingly, the District contends it must be allowed to show that Moore is
fabricating her emotional distress claims, at least in part.

This argument misses a fundamental point, however: Moore has no legal basis to recover
damages for emotional distress relating to the fake bomb incident. Assuming arguendo that
Moore can establish liability for sexual harassment or retaliation, her damages cannot be based
on the effect the fake bomb incident had on her emotional health. It is undisputed that Casanova
planted the fake bomb. Casanova was not a District employee. Thus, even if Moore were
emotionally damaged by the fake bomb incident, there is no causal connection between the
District and her damage. The District faces no liability for damages relating to the fake bomb
incident, which means the fake bomb evidence is not relevant to Moore’s damages claim.

As explained above, the District’s motion in limine to admit the fake bomb evidence

under Rule 404(b) is granted.
ENTERED:
NAN R. NOLAN
Dated: November 19, 2004 United States Magistrate Judge

2°F or example, Dr. Gonzalez’s treatment notes indicate that Moore was overwhelmed with fright
due to the incident.

22


48

Third, the District objects that the conversation is hearsay, and thus, inadmissible.
Although Moore failed to raise any substantive counterargument in opposition to the motion, it is
evident to the court that the conversation is not being offered for the truth of the matter asserted
(i.e., whether any of the three men would actually receive oral sex from plaintiff), but rather, for
its effect on Moore. The conversation is therefore not hearsay.

Finally, the District argues that the evidence should be excluded under Rule 403 because
the danger of unfair prejudice substantially outweighs the probative value. Given the District’s
failure to articulate anything more than a generic objection, this objection is overruled.
Accordingly, the District’s motion in limine to exclude evidence relating to the betting
conversation between Wysocki, Culhane and Hultgren is denied.

F. Motion in Limine to Allow for Admission of Evidence Related to the Fake
Bomb Incident

The District also filed a motion in limine asking the court to admit evidence related to a
fake bomb incident. Some background information is necessary to understand this motion. In or
around October 2002, a fake bomb was found under Moore’s car while she was at work.
According to Moore’s then-boyfriend, David Casanova, Moore convinced him to fabricate the
fake bomb, plant it under her car, then call the District to report that there was a bomb under
Moore’s car, apparently in an effort to draw attention to her harassment claims. Casanova has
confessed to his involvement in the fake bomb incident, and there is a pending charge against
Moore for misdemeanor disorderly conduct. It is undisputed that the fake bomb incident
occurred, but Moore maintains that she had no involvement in the incident. In fact, during her

deposition in this case, Moore claimed that the fake bomb was planted in retaliation for her

17



admission under Fed. R. Evid. 803(8)(C), the public records exception, the court disagrees.

Rule 803(8)(C) applies to “[rJecords, reports, statements or data compilations, in any
form, of public offices or agencies, setting forth . . .(C) in civil actions and proceedings . . .
factual findings resulting from an investigation made pursuant to authority granted by law,
unless the sources of information or other circumstances indicate lack of trustworthiness.” Fed.
R. Evid. 803(8)(C) (emphasis added). Callie Baird, a private attorney, prepared the Baird Report.
Her law firm is not a public office or agency, and she was not investigating pursuant to authority
granted by law. In an effort to contort the Baird Report to fit within the public record exception,
Moore relies primarily on United States v. Davis, 826 F. Supp. 617 (D.R.I. 1993) to argue that
the Report is a public record because Baird conducted the investigation as a consultant for the
District, which is a public agency. This argument is fatally flawed, however, because the report
was Baird’s, not the District’s, and in any event, the District is not a public agency authorized by
law to investigate sexual harassment claims.

As an initial matter, Moore reliance on Davis is misplaced because Davis is factually
distinguishable from the case at bar. In Davis, a CERCLA action to recover environmental
cleanup costs, the Environmental Protection Agency contracted with a “well-known, widely
recognized hazardous waste cleanup consultant” to conduct a remedial investigation/feasibility
study of the contaminated site. Davis, 826 F. Supp. at 619. The consultant compiled the results
of its investigation into a report, which the EPA approved and released to the public. /d. at 619.
The government filed a motion in limine to have the report admitted into evidence, which the
court granted, finding that the report fell within the public records exception under Rule

803(8)(c). Jd. at 624. Although written by the consultant, the court found that the report



the relatedness. Further, the District’s contention that there is a gap between incidents involving
Hultgren is quite different from claiming that the harassment Moore experienced ceased for a
substantial period of time. Cf Lucas v. Chicago Transit Auth., 367 F.3d 714, 727 (7* Cir. 2004)
(acts were not part of the same hostile work environment where there was a “three-year gap
between the discriminatory acts alleged, with the last act occurring entirely by happenstance”).

The District also argues that the allegations involve different actors. Admittedly, there is
some variation in the actors. Allen’s conduct occurred during the pre-limitations period whereas
the incidents with Wysocki and Culhane occurred during the limitations period. However,
Moore claims she reported Allen’s harassment to Wysocki, who took no action. If Wysocki was
aware of her earlier complaints, and later was an active contributor to the problem, a reasonable
jury could conclude that the conduct during the limitations period “merely extended the same
hostile work environment” that began in the pre-limitations period. Mennis v. Prime Hospitality
Corp., No. 03-4191, 2004 WL 1987229, at *8 (D. Minn. Sept. 7, 2004) (internal quotation marks
and citation omitted). There is sufficient overlap for the conduct to be related to the same hostile
work environment claim.*

The relatedness between Hicks’ attempts to hold Moore’s hand and the remainder of her
hostile work environment claim seems more attenuated. See Lucas, 367 F.3d at 727 (acts “‘so
discrete in time or circumstances that they do not reinforce each other cannot reasonably be
linked together into a single chain, a single course of conduct, to defeat the statute of

limitations”). However, based on the parties’ submissions, it is not clear what evidence Moore

5The District also argues there is a difference in subject matter, but fails to explain how the
subject matter differed. As a result, the court declines to address this perfunctory argument further.

6



hostile work environment claim, and even if it were, the court finds that the prejudicial value
substantially outweighs any probative value; the evidence is barred under Rules 402 and 403.

The issue, then, is whether the pre-limitations conduct and conduct within the limitations
period can be viewed as part of the same hostile work environment. The District argues that the
pre-limitations conduct is not related to the conduct within the limitations period, The court,
however, cannot agree. The District raised the same argument in its motion for summary
judgment, arguing that all conduct prior to October 12, 2000 is time-barred. Although the district
court’s opinion makes no reference to the statute-of-limitations argument, the district court
denied summary judgment. (District court order of 5.12.04, docket 67.) If the pre-limitations
conduct were not part of Moore’s hostile work environment claim, it is doubtful that her claim
could have survived summary judgment based solely on the incident with Wysocki and the
second-hand conversation. The reasonable inference is that by denying summary judgment, the
district court has already rejected the District’s position, albeit implicitly.

Even disregarding that inference, the District has failed to persuade the court that
exclusion of the pre-limitations evidence is warranted. For example, the District argues that
there is a substantial gap between Hultgren’s derogatory comments in early 2000 and the betting
conversation. It is not clear exactly when the betting conversation occurred, but the gap was less
that two years. Regardless, as the Supreme Court explained in Morgan, it does not matter if
there was a gap between the conduct “so long as each act is part of the whole.” Morgan, 536

U.S. at 118. Given that Hultgren was involved in both incidents,‘ the gap in time does not affect

‘According to plaintiff’s trial brief, Hultgren was involved in more than these two incidents. It is
unclear why plaintiff would fail to make that point in opposition to the motion in limine.

5


a 4a

claims of sexual harassment. Moore no longer intends to use the fake bomb incident in support
of her retaliation claim, however. In fact, in December 2003, Moore filed a motion in limine to
exclude all evidence relating to the fake bomb incident. The District opposed the motion,
arguing that the fake bomb incident was relevant to the credibility of Moore’s claims. (Def.’s
Resp. to Pl.’s Motions in Limine at 4.) The district court granted the motion, finding that the
danger of unfair prejudice substantially outweighed the probative value and further finding that
consideration of the evidence effectively would require a trial within a trial. (istrict court order
of 12.17.03, docket 48.)

The District now asks the court to alter the prior ruling excluding the fake bomb
evidence,'* advancing new theories of admissibility. Specifically, the District contends that the
fake bomb evidence is admissible under Rule 404(b) as proof of a scheme or plan," and also is
necessary to rebut Moore’s claims of emotional distress and damages.

In the Seventh Circuit, evidence of prior acts is admissible under Rule 404(b) only if it
satisfies a four-part test. Gastineau v. Fleet Mortgage Corp., 137 F.3d 490, 494 (7* Cir. 1998).
First, the “evidence must be directed toward establishing something at issue other than a party’s
propensity to commit the act charged[.]” Id. Second, the “other act must be similar enough and
close enough in time to be relevant to the matter at issue[.] Jd. Third, the “evidence must be

such that the jury could find that the act occurred and the party in question committed it{.]” Jd. at

‘SA ruling on a motion in limine is interlocutory in nature and subject to change during the
course of the trial.” Berggruen v. Caterpillar, Inc., No. 92 C 5500, 1995 WL 708665, at *1 (ND. Ill.
Nov. 29, 1995).

"Under Rule 404(b), evidence of other crimes, wrongs or acts is admissible if offered “as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident[.]” Fed, R. Evid. 404(b) (emphasis added).

18



Policy. According to Moore, these parts of the Report prove that the District’s policy, and its
implementation of the policy, were deficient, thus corroborating “plaintiff's claim that defendant
failed or refused to legitimately investigate claims of sexual harassment.” (PI.’s Consol. Resp. at
9)

In its amended motion in limine, the District argues that the Baird Report is not relevant,
is inadmissible hearsay, that the danger of unfair prejudice outweighs any probative value, and
that Moore is attempting to offer inappropriate expert testimony. Moore counters that the Report
is relevant, and that it is admissible under the public record exception to the hearsay rule, Fed. R.
Evid. 803(8)(C).’ For the reasons that follow, the court grants the District’s amended motion in
limine because even if the Baird Report’ is relevant, it is hearsay that does not qualify for
admission under the public records exception, and the prejudicial value substantially outweighs
the probative value.

There is no dispute that the Baird Report is a collection of out-of-court statements offered
for the truth of the matter asserted, and thus, is hearsay. Fed. R. Evid. 801(C) and 802;
Hawthorne Partners v. AT&T Tech., Inc., No. 91 C 7167, 1994 WL 63054, at *5 (N.D. Il. Feb.
17, 1994), As a result, the Report is admissible only if it falls within one of the exceptions to the

hearsay rule. Fed. R. Evid. 802. Although Moore contends the Baird Report qualifies for

"These were the sole arguments Moore raised in opposition to the motion in limine regarding the
Baird Report. (On the same day that Moore filed Plaintiffs Consolidated Responses to Defendant’s
Motions in limine, the District filed its amended motion in limine regarding the Baird Report. Although
the court gave Moore time to respond to the amended motion in limine, she failed to do 80.)

*For ease of reference, the court refers to the “Baird Report” rather than to the specific findings
that Moore seeks to admit. However, the court’s ruling pertains only to the specific findings of the Baird
Report that Moore seeks to admit, i.e. (1) the discussion in the Baird Report relating to Baird’s
reinvestigation into sexual harassment allegations raised by Shirley Edenberg and Saleema Ali, and (2)
Baird’s discussion and recommendations relating to the Districts sexual harassment policy.

8



as
Maye Order For (06/97)

United States District Court, Northern District of Illinois

igned Jud Sitting Judge if Other
ange Magistrate Judge Nan R. Nolan than Asigned Judge
CASE NUMBER 02 C 4040 DATE 11/19/2004
CASE Neshawn Moore vs. Metropolitan Reclamation District
TITLE

of the mation being presented.)

[in the following box (a) indicate the party filing the motion, e.g., plaintifT, defendant, 3rd party plainti({.and (b) state brietly the nature

incident is granted. Enter Memorandum Opinion and Order.

(1) @ {For further detail see order attached to the original minute order.]

occurring prior to 10/14/04 is denied. Defendant’s amended motion in limine to exclude evidence related to an investigation
conducted by Callie Baird is granted. Defendant's motion in limine to exclude evidence related to alleged sexual harassment
against Saleema Ali is denied. Defendant’s motion in limine to exclude evidence relating to Diana Gunn is granted is part and
denied in part. Defendant's motion in limine to exclude evidence relating to conversations between Ron Hultgren, Jerry
Culhane & Paul Wysocki is denied. Defendant’s motion in limine to allow for admission of evidence related to the fake bomb

MOTION:
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.] ;
(2) Oo Brief in support of motion due
(3) i) Answer brief to motiondue___. Reply to answer briefdue___.
(4) Oo Ruling/Hearingon__setfor___at
(5) Oo Status hearing[held/continued to] [set for/re-set for]on__—_—sset fort |
(6) a Pretrial conference(held/continued to] [set for/re-set for]on__—ssetfor__—saat__—
(7) o Trialfset for/re-set for] on___at
(8) im [Bench/Jury trial} [Hearing] held/continued to__ at.
(9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) O Local Rule 41.1 COFRCP41(a)(1) OFRCP41(a)(2).
(10) 1} (Other docket entry} Defendant's motion in limine to exclude evidence regarding any acts of sexual harassment

No notices required, advised in open court.
3

10 notices required.
N quire number of notices

Document
Number

F] Novices nated by judge's so NOV 22 2004

Notitied counsel by telephone.

date docketed

Docketing to mail notices. £
Mail AO 450 form. docking deputy iia

Copy to judge/magistrate judge.

1171972008

date mailed notice

courtroom OS:o Hd Gi AGUNGOZ

hmb deputy’s tmb
initials
Datehime received in": J
centrat-Clerk’s Office + railing deputy initials



803(8)(C)].” (Def.’s Reply at 10.)

Moreover, even if the Report were admissible under the public record exception, “the
district court retains significant discretion as to whether such material ought to be admitted.”
Young v. James Green Mgmt., Inc., 327 F.3d 616, 624 (7" Cir. 2003). Here, even if the Baird
Report qualified for admission under a hearsay exception, the court would exclude the Report
under Rule 403 because the prejudicial effect of the Baird Report substantially outweighs its
probative value due to the potential for confusing or misleading the jury. There is a possibility
that the jury would give substantial weight to the findings in the Baird Report that Moore seeks
to admit, even though those findings have no direct connection to the merits of Moore’s claim.’®
As a result, the jury might reach a conclusion regarding Moore’s claim without properly
assessing the evidence at trial.

Because the court finds that the Baird Report is hearsay that does not fall within the
public records exception, and because the prejudicial value of the Report substantially outweighs

its probative value, the court grants the District’s motion in limine."'

°lf the Baird Report qualified as a public record, the court would still have to assess whether
there are circumstances that indicate lack of trustworthiness. Fed. R. Evid. 803(8)(C); Young v. James
Green Mgmt., Inc., 327 F.3d 616, 624 (7* Cir. 2003). Because the Baird Report does not represent the
factual findings of a public agency made pursuant to authority granted by law, the court need not evaluate
the trustworthiness of the Report. Nevertheless, it is worth noting that whether the Report contains
trustworthy fact findings is a subject open to dispute, particularly in light of Baird’s disclaimer that the
summary includes examples of “alleged conduct in the workplace. For a variety of reasons there was no
way to substantiate or refute some of these comments.” (Baird Report at 14.)

‘Not surprisingly, Moore does not seek to admit into evidence Baird’s analysis of Moore’s
sexual harassment complaint; Baird concluded that Moore’s claim was unsubstantiated.

'Tp its motion, the District sought to exclude “testimony, documents, reports or other evidence or
arguments related to an investigation conducted by Callie Baird... .” (Am. Mot. at 1.) The briefs
focused only on the Report, however, so this ruling is limited to the admissibility of the Report. The
court understands that Moore seeks to use at trial certain witness statements taken by Baird. This ruling

11



“constitute[d] a finding by and on behalf of EPA resulting from extensive investigations” of the
site conducted pursuant to law. Jd. at 619. This conclusion is supported by the EPA’s extensive
involvement with the investigation and the report. For example, the EPA closely managed the
consultant’s investigation, the “field work and analysis were performed at the direction and under
the guidance of EPA,” the “proposed work plans were reviewed for conformity with EPA
methodology and standards,” and the EPA reviewed all drafts of the report for technical accuracy
and regulatory compliance. Jd. at 621-622. Additionally, the EPA approved the report and
released it to the public. Id. at 619.

Here, in contrast, there is no evidence suggesting that the Baird Report can be deemed a
finding by the District. The Report presents Baird’s investigation and suggestions, not the
District’s. Baird’s investigation was not done under strict supervision by the District—Baird
conducted an independent, outside investigation. More importantly, even if the Report could be
fairly characterized as the District’s report rather than Baird’s, the Report still would not qualify
under the public record exception. Investigative findings are admissible “only if they relate to
matters the agency is authorized to investigate[.]” Mueller & Kirkpatrick, 4 Fed. Evidence, §
456 at 567 (2d ed. 1994). Whereas the EPA is authorized under CERCLA to investigate
environmental contamination, Davis, 826 F. Supp. at 619, the District has no comparable legal
authority. The District is not the Equal Employment Opportunity Commission, authorized by
law to investigate sexual harassment claims; rather, it is an agency that treats and disposes of
sewage. The court agrees with the District that “a sexual harassment report prepared by a private

law firm for a sewarage agency does not fit within the exception to hearsay provided by [Rule

10



intends to present regarding Hicks, As a result, the court cannot conclude that “the evidence is
clearly inadmissable on all potential grounds,” and thus cannot rule on the admissibility of the
evidence without the context of trial. Brown, 2004 WL 407001, at *1.

For the reasons explained above, the District’s motion in limine to exclude evidence of
conduct that occurred prior to October 14, 2000 is denied.

B. Amended Motion in Limine to Exclude Evidence Related to An Investigation
Conducted by Callie Baird

The District further asks the court to exclude all evidence telating to an investigation
conducted by attorney Callie Baird into sexual harassment at the Metropolitan Water
Reclamation District. In or around 2003, the District retained Baird to conduct an independent
investigation into allegations of sexual harassment at the District between 1992 and 2003. After
her investigation, Baird prepared a sexual harassment investigative report for the District, dated
May 23, 2003 (“the Baird Report”), which consists of a fifty-five page summary’ and eight
individual reports regarding Baird’s reinvestigation into individual sexual harassment
complaints. At trial, Moore wants to “introduce into evidence certain findings of the Report
which contradict the findings and conclusions of the prior ‘in-house’ investigations by the
District, [and] which directly refute the District’s defense that it took reasonable steps to respond
to allegations of sexual harassment, including the plaintiff's.” (PI.’s Consol. Resp. at 8.)
Specifically, Moore plans to introduce (1) the discussion in the Baird Report relating to Baird’s
reinvestigation into sexual harassment allegations raised by Shirley Edenberg and Saleema Ali,

and (2) Baird’s discussion and recommendations telating to the District’s sexual harassment

‘The summary consists of an introduction, history of investigation, summary of investigation,
conclusion and recommendations.



mas

be unfair.” Gastineau, 137 F. 3d at 495. In this case, excluding the evidence presents a greater
danger of unfair prejudice than admitting it. The District should be allowed to present its theory
without diluting it. Admitting the evidence will not unfairly affect a jury’s ability to objectively
assess the evidence, make credibility determinations, and reach a verdict. Because the probative
value of the fake bomb evidence is not substantially outweighed by the danger of unfair
prejudice, the evidence passes the test for admissibility under Rule 404(b).

However, the court is mindful of the need to prevent the trial to devolve into a trial within
a trial on the fake bomb incident. The court will allow Casanova, Dr. Gonzalez (Moore’s
treating psychologist,) and Dr. Rossiter (a psychiatrist the District hired to evaluate Dr.
Gonzalez) to testify as to any statements Moore made to them regarding the fake bomb incident.
The court excludes under Rule 403 any reference to the state charge pending against Moore,
testimony from the investigating officers, and reports stemming from the investigation into the
fake bomb incident.

There is one final issue. Despite the District’s argument to the contrary, the fake bomb
incident has no bearing on Moore’s damages for emotional distress. According to the District, its
ability to defend against Moore’s claim for emotional distress and damages will be severely
prejudiced if the fake bomb evidence is excluded because the fake bomb incident “is a
component of her emotional distress.” (Mot. 17). The District therefore must be allowed to
submit evidence to show that Moore’s claims of emotional distress are false, either in whole or in
part. In support of its argument, the District explains that Moore testified that the fake bomb
incident had a significant effect on her emotional well-being, and that she had to take two months

off of work because she was afraid for her life and afraid to return to work. Further, the fake

21


The District contends that Moore fails to allege any acts that occurred within the
limitations period, and that even if she did, any acts within the limitations period are not related
to the pre-limitations conduct. From what the court was able to discern from the briefs, Moore
bases her hostile work environment claim on at least the following conduct.' During the pre-
limitations period, Moore claims that (1) between January and August 2000, co-worker Ricky
Allen exposed himself to her on four occasions, (2) in early 2000, Ron Hultgren asked her who
she dates, if she dates outside her race, and who she has sex with and also made a derogatory
comment about women in general, and (3) in 1998, Don Hicks attempted to hold her hand.
Moore further claims that during the limitations period (4) she witnessed Allen and Sophia Evans
having sex in the locker room, (5) Paul Wysocki backed her into the wall and expressed his
fondness for her, and (6) Don Hicks told her that he overheard a conversation in which Wysocki,
Culhane and Hultgren were discussing who would be the first to have sex with her.”

As a threshold matter, the court rejects the District’s argument that Moore alleges no acts
of sexual harassment during the limitations period. In its motion, the District describes two
allegations regarding incidents that occurred within the limitations period: the incident with
Wysocki backing Moore into a wall and the betting conversation between Wysocki, Culhane and

Hultgren.? Notwithstanding those allegations, the District argues that there are no acts of

"This list is not intended to be exhaustive. In fact, a review of plaintiffs trial brief indicates that
there are additional allegations that were not mentioned in the briefs relating to this motion in limine.
Additionally, the descriptions of the conduct are derived solely from the District’s characterization;
Moore did not provide specific characterizations in her response brief.

>The motion in limine seeking to exclude evidence regarding this conversation is denied, as
explained below.

3Moore’s allegation that she witnessed Allen and Evans having sex is addressed separately
below.


ray

be relevant to Moore’s theory that the District’s in-house “EEO” manager Frances Wilkins
conducted ineffective investigations into sexual harassment claims. The District argues that
proof of an ineffective investigation into Ali’s claim, by itself, cannot establish that Wilkins
failed to properly investigate Moore’s claim. That may be true. But it is clear that, at a
minimum, Moore intends to challenge the reasonableness of Wilkins’ investigation into her own
claim as well. Moreover, the District plans to defend the case by showing the reasonableness of
its responses to sexual harassment claims, which likely will involve not only how the District
handled Moore’s claim, but what its policy is, etc. Without the context of trial, the court cannot
conclude that the information is irrelevant. Further, the court disagrees that the prejudicial value
substantially outweighs the probative value.

Accordingly, the motion in limine to bar evidence relating to Saleema Ali is denied.

D. Motion in Limine to Exclude Evidence Relating to Diana Gunn

The District also seeks to exclude any evidence relating to Diana Gunn, whose
employment at the Stickney plant overlapped with Moore’s. Based on the content of a statement
Gunn gave during the course of an investigation into Moore’s allegations, the District argues that
Gunn’s testimony and any materials related to her testimony are inadmissible because they are
irrelevant under Rule 402, unduly prejudicial under Rule 403, and inadmissible under Rule
404(b). The District further argues that Gunn’s testimony lacks foundation, is based on rumors
and conjecture, and would involve hearsay. After reviewing Gunn’s statement, it is evident that
parts of her statement were based on rumors, gossip, and events that Gunn learned of after she
left the Stickney plant. However, when Moore responded to the motion in limine, she specified

the testimony she seeks to elicit from Gunn, which is limited to Gunn’s observations while she

14


a

E. Motion in Limine to Exclude Evidence Relating to Conversation Between
Ron Hultgren, Jerry Culhane & Paul Wysocki Overheard by Donald Hicks

Additionally, the District asks the court to exclude, in limine, evidence relating to a
conversation that Don Hicks allegedly overheard between Ron Hultgren, Jerry Culhane, and Paul
Wysocki regarding who would be the first Person to receive oral sex from Moore. Although
Moore did not hear the conversation herself, Hicks telayed the substance of the conversation to
her. As explained below, because none of the District’s arguments warrant exclusion of the
evidence, the motion in limine is denied,

First, the District argues that the conversation is irrelevant because Moore did not hear it
herself. The court disagrees. Although without more, such “through the grapevine’ or ‘second-
hand’ conduct is not sufficiently pervasive or severe to create a hostile work environment,”
Mason, 233 F.3d at 1046 n.9, the overheard conversation is not Moore’s sole evidence. Just as
evidence regarding harassment experienced by others is relevant to a plaintiff's hostile work
environment claim if the plaintiff knew about the harassment, e.g., Caterpillar, 2004 WL
2092003, at *10, the demeaning betting conversation is relevant to Moore’s claim even though
she did not hear the conversation first-hand.

Second, the District contends that the conversation is not sufficiently severe or pervasive,
standing alone, to create a hostile work environment. But as explained earlier, this argument
reflects a misunderstanding of what the law requires. “Courts should not carve up the incidents
of harassment and then separately analyze each incident, by itself, to see if each rises to the level
of being severe or pervasive.” Mason, 233 F.3d at 1045. The conversation need not be

actionable in isolation, it need only be an act contributing to a hostile work environment.

16


IL. The District’s Motions in Limine
The District has filed six motions in limine, which shall be addressed in turn.

A. Motion in Limine to Exclude Evidence Regarding Any Acts of Sexual
Harassment Occurring Prior to October 14, 2004

The District asks the court to bar Moore from introducing any evidence regarding acts of
sexual harassment that occurred prior to October 14, 2000. In Illinois, in order to litigate an
employment discrimination claim, a person must file an EEOC charge within 300 days of the
alleged discrimination. Hall v. Bodine Elec, Co., 276 F.3d 345, 352 (7" Cir. 2002). Here, Moore
filed her EEOC charge on August 10, 2001. The question presented is whether acts that fall
outside of the statute of limitations—i.e., acts occurring before October 14, 2000—are actionable
as part of Moore’s hostile work environment claim.

The answer depends on whether the pre-limitations acts and the acts within the
limitations period are sufficiently related to constitute a single hostile work environment claim.
In National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 117 (2002), the Supreme
Court held that “[p]rovided that an act contributing to the claim occurs within the filing period,
the entire time period of the hostile environment may be considered by a court for purposes of
determining liability.” In order to be timely, Moore needed only to file her EEOC charge within
300 days of any act that is part of the hostile work environment. Jd, at 118. To be part of a
single claim, however, the pre-limitations acts must bear some relation to the acts within the
limitations period. Id. “A court’s task is to determine whether the acts about which an employee
complains are part of the same actionable hostile work environment practice, and if so, whether

any act falls within the statutory time period.” Jd. at 120.


sae

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION myo i
NESHAWN MOORE, ) DOCKETED
)
Plaintiff, ) NOV 9 2 2004
)
v. ) No. 02 C 4040
) ory sesh
) Magistrate Judge NaSesNoten” a vnc:
METROPOLITAN WATER RECLAMATION )
DISTRICT OF GREATER CHICAGO )
Defendant. )

ME iM. IN, RD)

Plaintiff Neshawn Moore sued her employer Metropolitan Water Reclamation District of
Greater Chicago (“the District”) for sexual harassment and retaliation in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e. The parties have consented to the
jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is
now before the court for ruling on the District’s motions in limine.

1 Legal Standard

As part of a federal court’s inherent authority to manage trials, the court may exclude
evidence through motions in limine. Brown v. Joswiak, No. 02 C 4622, 2004 WL 407001, at *1
(N.D. Ill. Feb. 24, 2004). However, evidence should be excluded in limine “only when that
evidence is clearly inadmissable on all potential grounds.” Jd. Certain evidentiary rulings must
wait until trial, in order for the court to make an accurate evaluation regarding admissibility
within the context of the trial. Jd. Additionally, denial of a motion in limine does not mean that

the evidence at issue will be admitted at trial—appropriate objections can be raised at trial. Jd.

Re



Cc. Motion in Limine to Exclude Evidence Relating to Alleged Sexual
Harassment Against Saleema Ali

The District also seeks to exclude evidence relating to allegations of sexual harassment
raised by Saleema Ali, a Maintenance Laborer in the A Shift at the District’s Stickney Water
Reclamation Plant. According to the District, Ali complained for the first time on December 4,
2001 that she had been sexually harassed by a co-worker who, in a one-time incident, massaged
her thighs. The District raises numerous reasons for exclusion, including that Ali did not work
the same shift as Moore, that Ali’s allegations post-dated Moore’s, and that the nature of the
harassment is different. Based on these reasons, the District argues the evidence is irrelevant
under Fed. R, Evid. 402 and that the value of the evidence is outweighed by the danger of unfair
prejudice under Fed. R. Evid. 403.'2 Moore responds that the evidence is relevant to establish
(i) the existence of a sexually hostile work environment at the Stickney plant and (ii) that the
District’s in-house “EEO” manager Frances Wilkins conducted ineffective investigations into
sexual harassment claims. As explained below, the motion in limine is denied.

To the extent the District argues that a co-worker’s one-time experience of harassment is
not relevant to Moore’s hostile work environment claim, the District has failed to establish that

the evidence regarding Ali is “clearly inadmissable on all potential grounds.” Brown, 2004 WL

does not address the admissibility of those exhibits; the court will address that issue at the pretrial
conference.

"The District also raised a challenge under Rule 404(b), arguing that evidence of other wrongs
“is not admissible to prove the character of a person in order to show an action in conformity therewith.”
Fed. R. Evid. 404(b). This objection is overruled because the District failed to develop this argument in
any meaningful manner and it is unclear how Rule 404(b) could apply. For example, given that Ali and
Moore complained about different harassers, the District’s 404(b) argument seems inapplicable regarding
whether Ali’s experience is admissible for purposes of establishing the existence of a hostile work
environment.

12



worked at the Stickney plant—namely, her observation that “Neshawn used to wear dresses to
work, but she stopped wearing make-up and wearing pants . .. .”"° (P1.’s Consol. Resp. at 14.)
The court agrees that Gunn may testify regarding that observation, provided that it is, in fact,
based on Gunn’s personal observations while working at the Stickney plant. Despite the
District’s argument to the contrary, this observation is circumstantial evidence relevant to the
impact of the purportedly hostile work environment on Moore. The evidence is not unduly
prejudicial, either, so Rule 403 is not a bar. As for Rule 404(b), it is unclear how that rule could
apply. The motion in limine regarding Diana Gunn is denied to the extent the District seeks to
bar testimony regarding Gunn’s observations of Moore.

In response to the motion in limine, Moore argues only for admission of Gunn’s
observation that Moore stopped wearing dresses and makeup. As a result, Moore evidently
concedes that testimony regarding Gunn’s explanation for the change in Moore’s dress (‘‘so that
people would stop treating her like they were treating her”),'* Gunn’s experiences at the plant
unrelated to Moore (e.g., “I have been in a situation where my ass was grabbed”), as well as any
testimony based on rumors, gossip, and information Gunn heard after she left the Stickney plant,
are all inadmissible. The motion in limine is therefore granted as it pertains to those aspects of

Gunn’s testimony.

“This statement is ambiguous, but the court assumes Gunn meant that Moore started wearing
pants instead of dresses.

“Gunn’s explanation is likely either based on speculation or a hearsay statement from Moore,
and thus would be inadmissible.

15