sides’ memoranda reveal about Cannizaro and Jastrowski, the
statements ascribed to them are nonhearsay under Rule
801(d) (2) (D) and are hence admissible: They are of course being
offered against a party, they were made by agents (employees) of
a party during the existence of the employment relationship and
they were (despite defendants’ assertion to the contrary)
concerning matters within the scope of the employment
relationship.

On one thing defense counsel are right: Those statements
are prejudicial to their clients. But as our Court of Appeals’
caselaw has repeatedly reminded counsel and trial courts alike,
all probative evidence is by definition prejudicial to the
litigant against whom it is offered--that is indeed the predicate
for admissibility. It is only unfair prejudice that enters into
the balancing process under Rule 403, and there is nothing unfair
about the admission of the challenged statements for evaluation
by the factfinders at trial.* Accordingly defendants’ motion is
denied.

Ex-Employees Jastrowski, Lydon and Zloch (Dkt. 28)

Once again defendants seek to play ostrich. As with the

statements ascribed to Cannizaro and Jastrowski that were dealt

2 It need scarcely be said that the statements at issue

here are a world apart from the “stray remarks” characterization
used in some employment discrimination cases that reject the
imposition of liability on an employer.

5


probative force precludes admissibility. So that aspect of
defendants’ motion is granted, albeit with the possibility of
having to be reexamined if evidence along the same lines that did
have probative value were to be proffered at trial (with adequate
advance notice to defense counsel, of course).

Matters stand in a much different posture as to Wright.
Accordingly to Gagner Dep. 84:

When I was the general sales manager, Dave Cannizaro

wanted me to let go of Willie Wright for his age and

disability. And I flat out refused.

He said he couldn’t keep up with the younger guys and

the crew, and yet he was selling maybe one car less

than the others, which to me isn’t--so he fired him

himself.
Any such statements by Cannizaro have already been found to be
nonhearsay, and hence testimony ascribing such statements to him
is admissible. Accordingly defendants’ motion in that respect is
denied, and testimony from Gagner--and of Wright if offered--to
the effect reflected in the above-quoted deposition testimony
will be admissible at trial.

Conclusion

What follows is a nonspecific summary of what has gone
before--it is stated in this abbreviated form primarily to
facilitate the elimination of defendants’ motions in limine from
this Court’s computer-generated list of pending motions. In sum,

although more precisely dealt with in the foregoing text:

1. Defendants’ Dkt. 22 is denied.


be fired because they were too old to do their job.
(Gagner Tr. at 147, 148);

8. An unknown individual in corporate allegedly
told Cannizaro to fire Lydon and Zloch. (Gagner Tr. at
149); and

9. An unknown individual in corporate allegedly
told Cannizaro that he had to fire Gagner because he
was “too old to do the job” and “one of the old guys.”
(Gagner Tr. 150).

According to defendants, those statements are inadmissible
hearsay, to which defendants’ Motion 93 adds the following as a
claimed further disqualifier:
Neither Cannizaro nor Jastrowski played any role
whatsoever in the decision to terminate Gagner, and
neither were [sic] employed at Madden when Gagner’s
employment was terminated.
As for the just-stated contentions, defense counsel might

perhaps consider a refresher course in evidence, most

particularly in the area of hearsay vel non.' From what both

1 Here as later in this memorandum order, this Court need

not pause to parse either the cases cited on defendants’ behalf
or the propositions for which those cases are said to stand.

Some of those are rightly stated, while others are not. One good
example of the latter is defense counsel’s effort to place more
baggage than it can carry on the discussion of hearsay in
Williams v. Pharmacia, Inc., 137 F.3d 944, 950-51 (7** Cir.

1998). By sharp contrast with the situation there, the
statements attributed to Cannizaro and Jastrowski, both of whom
were directly involved in carrying out firing decisions (though
they were not themselves the ultimate decisionmakers), were well
within the scope of their employment-~and the statements by their
superiors that the two of them reported were of course nonhearsay
as well. Indeed, the perspective voiced in Williams itself (137
F.3d at 950) strongly supports a conclusion here quite opposite
from that urged by defendants. But in all events, what is most
important is that the cited cases are really beside the mark in
terms of the issues posed for this Court.

4


with in the preceding section, defense counsel urge the same type
of myopic arguments in an effort to bar any evidence regarding
the age discrimination claims by ex-employees Jastrowski, John
Lydon (“Lydon”) and William Zloch (“Zloch”). Here are Motion
q12-3:

2. Jastrowski, Lydon, and Zloch were not employed
by Madden when Gagner’s employment was terminated and
played no role whatsoever in Madden’s decision to
terminate Gagner’s employment. As such, Jastrowski,
Lydon, and 2loch have no personal knowledge about the
central issue in this case, namely whether Gagner was
terminated because of his age.

3, David Cannizaro, the individual who made the
decisions to terminate Jastrowski, Lydon, and Zloch,

was not employed by Madden when Gagner’s employment was

terminated and played no role in the decision to

terminate Gagner’s employment. Therefore, Cannizaro

has no relevant evidence for Gagner’s claim. Further,

Madden General Manager Eric Soto, who made the decision

to terminate Gagner’s employment, was not employed at

Madden when Jastrowski, Lydon, and Zloch were

terminated and played no role in their terminations.

Accordingly, Gagner is not similarly situated to

Jastrowski, Lydon, and Zloch.

But once again those contentions seek to gloss over--or more
accurately to ignore entirely--the clear admissibility of
evidence that tends to support Gagner’s claim that defendants had
and pursued a program of ridding the Madden complement of its
older employees. Although it is well understood that the list of
permissible grounds for admissibility in Rule 404(b) is simply
illustrative rather than exhaustive, even that limited list

includes proof of motive and intent--rubrics under which a

proposed showing of age-based discrimination against the three

6


2. Defendants’ Dkt.

in part.

3. Defendants’ Dkt.
4. Defendants’ Dkt.

5. Defendants’ Dkt.

in part.

24

26

28

30

is

is

is

is

granted in part and denied

denied.
denied.

granted in part and denied

Cables DS) Gade

Milton I.

Date: November 30, 2005

Shadur
Senior United States District Judge


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SCOTT GAGNER, )
Plaintiff, }
v. No. 04 C 1152
AUTONATION, INC., et al.,
Defendants.
MEMORANDUM ORDER
With this age discrimination action brought by Scott Gagner
(“Gagner”) having arrived at the Final Pretrial Order stage that
is the prelude to trial, the three corporate defendants--
AutoNation, Inc., AN/MF Acquisition Corporation d/b/a Joe Madden
Ford (“Madden”) and AutoNation USA Corporation--have collectively
filed five motions in limine. Those motions have now been fully
briefed, are therefore ripe for decision and will be addressed
here in the order that they appear in the court docket.

Ray LeFevour’s Criminal Conviction (Dkt. 22)

Madden’s former General Manager Ray LeFevour (“LeFevour”)
has been convicted of a federal crime that, according to
defendants, was wholly unrelated to Gagner’s age discrimination
claim. Although Gagner asserts otherwise, he has provided no
specific linkage between the two events.

At this point in time LeFevour is apparently relied on by
defendants as the source of ascribing key knowledge to Gagner

that the latter says he did not have. If then LeFevour were to


named individuals fits comfortably.

Here too Rule 403 balancing does not insulate defendants
against the admission of evidence as to the subject matter of
their motion, which must be and is denied. By definition, of
course, this ruling does not speak to every particular of
evidence that may be proffered at trial--those determinations can
be made on an informed basis as they arise at that time.

Ex-Employees Prowell and Wright (Dkt. 30)

Except for pointing out that ex-employee John Prowell
(*Prowell”) resigned rather than being terminated, defendants
motion to bar evidence as to Prowell and ex-employee Willie
Wright (“Wright”) is a virtual carbon copy of the motion just
dealt with in the preceding section of this memorandum order. In
turn Gagner’s counsel has responded by filing a virtual carbon
copy of the responsive memorandum to that other defense
memorandum.

But there is a substantive difference between the earlier-
discussed situation and that posed by this defense motion. It
appears from Gagner’s deposition that the only thing he can
adduce regarding Prowell is the latter’s own belief that he was
the victim of age discrimination, something that caused him to
give up by resigning rather than waiting for an expected firing.
If that (or Prowell’s own testimony to the same effect) is all

that Gagner has to offer in that regard, its obvious lack of


testify to that effect at trial, his conviction would obviously
become available to serve as impeachment under Fed. R. Evid.
(“Rule”) 509(a) (2). And if any statement by LeFevour about the
asserted linkage were to be admissible on a basis other than his
own testimony (an issue that this Court does not now confront),
impeachment via his criminal conviction might then also become
admissible.

Accordingly defendants’ motion to bar any evidence of
LeFevour’s criminal conviction is denied. It will remain for
trial to see precisely how the issues in that respect will play
out.

Scope of Gagner’s Charge (Dkt. 24)

Gagner’s EEOC charge asserted that he was the victim of age
discrimination when his employment was terminated. Defendants
have moved to exclude any claim by Gagner that he had also been
the victim of a discriminatory demotion, and Gagner has not filed
a response to that motion.

It is of course true that Gagner cannot advance a
substantive claim that seeks to hold defendants liable in damages
on a claim that goes beyond his charge of discrimination and his
subsequent Complaint in this action, But whether evidence
regarding any pre-termination actions on defendants’ part may be
probative as to the alleged existence of discriminatory intent in

firing Gagner is another matter--one that may emerge only in the


matrix of trial.

Accordingly defendants’ motion to bar any such substantive
claim is granted. Here too the lesser issue--the potential
admissibility at trial of any evidence that may be proffered in
that respect--must necessarily await the trial, so that the
motion for an outright bar of such evidence is denied for now.

“Stray Remarks” and Hearsay (Dkt. 26)

During Gagner’s deposition he ascribed to Madden’s former
General Manager David Cannizaro (“Cannizaro”) and its former
Sales Manager James Jastrowski (“Jastrowski”) statements
described this way in defendants’ supporting Mem. 2:

1. Cannizaro and Jastrowski allegedly told Gagner
that corporate “wanted the old people out.” (Gagner Tr.
at 66);

2. Cannizaro allegedly told Gagner that someone
in corporate told him to get rid of the old people.
(Gagner Tr. at 67);

3. Jastrowski allegedly told Gagner that
AutoNation “ran their stores with younger managers and
the older people couldn’t do the jobs properly.”
(Gagner Tr. at 70);

4. Jastrowski allegedly informed Gagner that an
unknown individual in corporate instructed him to
terminate Gagner’s employment. (Gagner Tr. at 70);

5. Cannizaro told Gagner that he was allegedly
supposed to terminate Gagner “with the old people.”
(Gagner Tr. at 95);

6. Cannizaro allegedly asked Gagner “you are
still here you old man?” (Gagner Tr. at 97);

7. An unknown individual in “corporate” allegedly
told Cannizaro that John Lydon and William Zloch should