income other than unemployment compensation (for which he is no longer eligible) and public
aid. Though it is true, as Checkpoint suggests, that this situation might change, it does not
appear at all likely that Escobar could pay any significant portion of the claimed costs anytime
soon. And though he lost at trial, his claims were at least colorable. Because we deny an award
of costs, we need not address Escobar’s other objections to the bill of costs.
Conclusion
For the reasons stated above, the Court denies plaintiff's motion to alter or amend the

judgment or in the alternative for a new trial [docket #42-1, 42-2] and declines to tax costs

WAUWYUMRMLAE,_-

against plaintiff.

MATTHEW F. KENNELLY
United States District Judge
Date: October 23, 2003


The Court also rejects Escobar’s argument that we should have instructed the jury that a
negative evaluation could constitute actionable adverse action. The point was waived, as
Escobar did not object to the absence of this instruction when given an opportunity to do so. He
claims that he brought up the point at an earlier conference in chambers, but the Court gave the
parties a more-than-adequate opportunity to raise on the record any objections to the instructions,
and Escobar did not make this one.

Verdict form: The verdict form did not erroneously or confusingly require the jury to find
in Escobar’s favor on both his race and national origin claims to prevail. The jury was clearly
advised in the instructions that this was an either-or proposition.

Jury’s request for transcript: The jury’s request for a transcript of the deposition of
Garrett Weirauch was properly denied. Only excerpts of the deposition were read, and the parties
did not have available, and could not make available in a reasonable time, a redacted version
including only the excerpts that were read.

Weight of the evidence: The Court disagrees with Escobar’s argument that the verdict
was against the manifest weight of the evidence. The jury was entitled to believe Checkpoint’s
witnesses who testified regarding the reasons for his discharge and who denied the claims of
harassment. Even if a reasonable jury could have come out the other way, that does not warrant a
new trial.

Bill of costs: The Court exercises its discretion to deny an award of costs due to
Escobar’s demonstrated indigence. See Congregation of the Passion v. Touche Ross & Co., 854
F.2d 219, 221 (7th Cir. 1988); see also, Reed v. International Union, 945 F.2d 198, 204 (7th Cir.

1991). Escobar has been unemployed since December 2000; he has no assets and no source of


‘Minate Order Form (C6/97)

United States District Court, Northern District of Illinois

Name of Assigned J Sitting Judge If Other
anor Miogiancte ace Matthew F. Kennelly thas Assigned Judge
CASE NUMBER 02 C 3672 DATE 10/23/2003
CASE Escobar vs. Checkpoint Systems
TITLE
[in the following box a) indicate the party filing the motion ¢., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]
DOCKET ENTRY:

qa a Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due ____

(3) im Answer brief to motion due___. Reply to answer briefdue__.

(4) a Ruling/Hearingon____ssetfor____saat

(5) QO Status hearing[held/continued to] (set for/re-set for] on__setfor__at

(6) Qo Pretrial conference[held/continued to] (set for/re-setfor}on__—setfor__— ss at_
(7) o Trial[set for/re-set for]on__—at

(8) q [Bench/Jury trial] [Hearing] held/continuedto__at

(9) Oo This case is dismissed {with/without] prejudice and without costs[by/agreement/pursuant to)

COFRCP4(m) CiLocal Rule 41.1 COFRCP41(a\(1) CIFRCP41(a)(2).

(io) «i [Other docket entry] For the reasons set forth on the attached Memorandum Opinion and Order,
the Court denies plaintiffs motion to alter or amend the judgment or in the alternative for a new trial (42-
1, 42-2) and declines to tax costs against plaintiff.

a1) if [For further detail see order attached to the original minute order.]
'No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

o | Docketing to mail notices,

Mail AO 450 form. ANGI LSI LSIT sn
Copy to judge/magistrate judge. Ee be
coutroom = Je Hd LZ L309
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JULIO ESCOBAR, )
Plaintiff, ,
vs. ; Case No. 02 C 3672
CHECKPOINT SYSTEMS, INC., }
Defendant. . ,

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:
Julio Escobar sued his former employer, Checkpoint Systems, Inc., under Title VII of the
Civil Rights Act of 1964, alleging that Checkpoint terminated him due to his race, national

origin, and/or in retaliation for complaining about discrimination, and that he was subjected to a 2
a)

hostile work environment by supervisors based on his race and/or national origin. .A jury found? he s
. . . . : ?
against him after a trial. Escobar has moved to alter or amend the judgment, or for anew trial. & ‘ €
@

He has also objected to Checkpoint’s bill of costs.

Voir dire: Escobar argues that comments by certain prospective jurors who were later
stricken may have tainted the remainder of the panel. This argument was waived, as Escobar
raised no objection during the trial at all, let alone during the voir dire, when the Court could
have taken corrective action. In any event, there is nothing to indicate that any actual taint
occurred.

Evidence issues: The Court did not err in permitting Checkpoint to introduce a glue pan

supposedly from the machine Escobar operated so that certain witnesses could illustrate their

5S



testimony. The evidence was relevant. Escobar does not make a credible claim of prejudice and
does not say what he could have or would have done differently had Checkpoint identified the
exhibit sooner. And finally, his argument regarding the significance of this evidence is, in the
Court’s view, rather overblown.

The Court also did not err in excluding as cumulative the testimony of Escobar’s mother
and brother. After Checkpoint objected to these witnesses, the Court asked Escobar’s counsel to
give a proffer of their expected testimony. Based on that proffer, the testimony was in fact
unduly cumulative in a way that far outweighed its probative value. In any event, Escobar does
not make a viable argument that he was prejudiced by the exclusion. In his reply, he suggests
that Checkpoint was permitted to put on cumulative testimony, but the Court disagrees, and in
any event we do not recall any objection along these lines by Escobar at the trial.

Jury instructions: Escobar objects to the Court’s failure to instruct the jury on the so-
called “Hicks inference,” that is, for failure to give an instruction that if the jury disbelieved
Checkpoint’s reasons for terminating Escobar, it was entitled to infer that Checkpoint had
violated the law. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Escobar also
objects on the grounds that the instruction we gave explaining what he had to show was
confusing. The Court disagrees on both points. The Court followed the Seventh Circuit’s clear
direction from Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir. 1994), that the jury in an
employment discrimination case should be instructed simply to determine whether the employer
would have acted as it did if the employee had not been not a member of the protected class, but
everything else was the same. The instruction was simple and understandable. The Hicks

inference was appropriately left for argument by counsel.