City of Chicago
Richard M. Daley, Mayor

Department of Law

Mara S. Georges

Corporation Counsel September 28, 2005

Suite 1020

30 North LaSalle Street Honorable Milton I. Shadur

Chicago, Mlinois 60602 . oar

(312) 744-5100 United States District Judge

(312) 744-3989 (FAX) 219 S. Dearborn, Ste. 2388

(312) 744-5131 (ITY)

heep:/fwww.ci.chi ius RE: Waters v. City of Chicago, 02 C 4762

Dear Judge Shadur:

Please find attached courtesy copies of the City of Chicago’s motions in limine.
The City of Chicago withdraws its motion in limine regarding the testimony of
Peter Vrdolyk. The City of Chicago reserves the right to object to this testimony
at trial.

If you have any questions or would like to discuss this matter you may
contact me at 312-744-7472.

Sincerely,
Pa (Come

TORRICK WARD
Senior Counsel

Ce: Daniel O’Brien
Burke and O’Brien
33 North LaSalle Street, 20" Floor

BUILDING CHICAGO TOGETHER



denied, its motion to exclude certain testimony of Peter Vrdolyak
has been withdrawn and is accordingly denied as moot, and its
motion to exclude evidence of Waters’ earlier lawsuit against it
is granted on the basis stated in the preceding paragraph. As
for the second of those motions, City has stated that it
“reserves the right to object to this testimony at trial”--but in
that respect this Court has already advised counsel that if and
to the extent that any objections at trial prove to be disruptive
and unduly impede the trial’s progress (thus subverting the basic
purpose that motions in limine are designed to serve), this Court
will take that into consideration in dealing with the then-

asserted objections.

Cell. OS tus

Mifton I. Shadur
Senior United States District Judge

Date: October 11, 2005


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DANIEL B. WATERS,

Plaintiff,

)
)
}
)
Vv. ) No. 02 C 4762
CITY OF CHICAGO,

Defendant.

MEMORANDUM ORDER

During the pretrial conference that this Court {pursuant to
its regular practice) held with counsel for the parties following
their joint submission of a proposed Final Pretrial Order
(“FPTO”), a portion of the discussion related to narrowing the
issues that had been identified by each side in Section (m) of
the FPTO as potential motions in limine. Because agreement was
reached at that time as to a number of the potential issues that
the parties had identified, only three motions by defendant City
of Chicago (“City”) remain for consideration.

Following entry of the FPTO, the parties have complied with
the schedule this Court had then set for submissions regarding
those three matters. At this point all three of City’s motions
are ripe for decision.

First, City seeks to bar testimony by Michael Clatch
(*Clatch”) about statements assertedly made to him by Anthony
Tripoli (“Tripoli”) as to the asserted desire to get rid of

Waters at some point about a year before he was actually fired


(Waters had been placed on paid administrative leave before the
firing). For purposes of the motion this Court accepts City’s
contentions that acting foreman Tripoli, although then acting in
a supervisory capacity, was a comparatively low-level employee
who played no part in the decision to fire Waters. Clatch was
also an acting foreman at the time.

Because Clatch’s proposed testimony as to Tripoli’s asserted
statements is offered for its truth, it would obviously be
inadmissible as hearsay if it did not qualify as nonhearsay under
Fed. R. Evid. (“Rule”) 801(d)(2)(D). But the problem with City’s
position is that the level of Tripoli’s employment does not trump
the facts--to summarize the Rule 801(d) (2) (D) standards--that
Tripoli was City’s employee, that the statements ascribed to him
were made during the existence of that employment relationship
and that they concerned a matter within the scope of his
employment. And a factfinding jury could reasonably infer that
management’s then-existing mindset toward Waters was relevant,
even though the firing decision took place later and was
implemented by someone other than the persons who assertedly
communicated that mindset to Tripoli. Unlike the situations in
the cases relied on by City, Tripoli was not conveying his own
obviously inadmissible opinion, but rather that of upper
management. In sum, City’s motion to exclude the Clatch

testimony is denied.


Next among the motions in limine advanced by City was its
effort to exclude certain testimony by Peter Vrdolyak. Although
Waters’ counsel has filed a brief and exhibits in opposition to
that motion, it has been rendered moot by City’s attached
September 28, 2005 letter withdrawing that motion in limine,
while “reserv[ing] the right to object to this testimony at
trial.” That obviates the need for any current ruling by this
Court (as to City’s claimed reservation of rights, see the
Conclusion section).

Finally, City has moved to exclude evidence as to Waters’
earlier lawsuit against it--a lawsuit that ended with a 1994
settlement agreement. Although Waters’ response says that he
“does not seek to submit the settlement agreement itself into
evidence in this case,” he tries to argue that his later rehiring
in the Department of Transportation pursuant to that settlement
agreement is “relevant evidence” in describing his history with
City. Because Waters’ explanation can be tested effectively only
in the context of his testimony at trial, this Court grants
City’s motion without prejudice to an examination of the
specifics of Waters’ proposed testimony in the course of the
trial.

Conclusion

For the reasons stated in this memorandum order, City’s

motion to exclude a portion of the Michael Clatch testimony is