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Schultz v. County of Chippewa

United States District Court, W.D. Wisconsin

March 29, 2019




         This case is set for a jury trial commencing May 20, 2019, to resolve plaintiff Elizabeth (Beth) Schultz's claims for failure to promote and retaliation, which she alleges against her former employer, Chippewa County, and its decisionmakers, Brian Kelley and Phillip Montwill. In advance of the Final Pretrial Conference scheduled for May 8, 2019, the court issues the following opinion and order with respect to the parties' pending motions in limine.

         I. Plaintiff's Motion in Limine (dkt. #55)

         In her only motion in limine, plaintiff Schultz seeks to preclude as irrelevant all evidence of or references to “[e]vents or occurrences in Plaintiff's employment prior to her employment with Chippewa County, ” as well as facts relating to her “separation from any [such] employment positions.” (Dkt. #55 at 1 citing Fed.R.Evid. 401.) In particular, she points out that defendants have not asserted an affirmative defense for “after acquired evidence, ” and it is too late to do so now.[1] (Id. at 1-2.) In response, defendants disavow any intent to offer this information about the plaintiff's former employment or termination as a new basis for not promoting plaintiff; however, they also acknowledge an intent to use that information to corroborate concerns defendants Kelley and Montwill claim they raised during the process of interviewing plaintiff for the Lab/Timekeeper job with the County, including her weakness in managing others and personality conflicts with colleagues. (Dkt. #72 at 1-2.) Further, defendants suggest that this “information will help the jury determine the credibility of the witnesses.” (Id. at 2.)

         Under the affirmative defense for after-acquired evidence, “[a]n employer may be found liable for employment discrimination [based on the evidence before it at the time of the adverse action], but if the employer later -- typically in discovery -- turns up evidence of employee wrongdoing [that] would have led to the [same action], then the employee's right to back pay is limited to the period before the discovery of this after-acquired evidence.” Jones v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 75 F.Supp.2d 885 (N.D. Ill. 1999) (quoting Sheehan v. Donlen Corp., 173 F.3d 1039, 1047 (7th Cir. 1999)).[2] Here, defendants argue that the after-acquired evidence regarding plaintiff's prior employment may not by itself relieve them of liability, but would corroborate their concerns about her ability to get along with and manage her colleagues, which they say is part of why they did not promote her. Essentially, they are seeking a backdoor around the ordinary exclusion of this evidence unless pleaded as an affirmative defense by arguing that it is otherwise relevant.[3]

         The principal problem with defendants' attempt to introduce after-acquired evidence is their failure to explain how this evidence is otherwise relevant. Indeed, to the extent that it is being offered to prove that plaintiff misbehaved in this way while employed by the County, it would appear barred as prior bad acts evidence. See Fed.R.Evid. 404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.”); U.S. v. Gomez, 763 F.3d 845, 856 (7th Cir. 2014) (Rule 404(b) “allows the use of other-act evidence only when its admission is supported by some propensity-free chain of reasoning.” (citation omitted)). Similarly, defendants' suggestion that this evidence is somehow relevant in limiting plaintiff's damages, it escapes the court how, except again as readily excluded prior bad acts. Finally, there is the obvious risk of prejudice under Rule 403, even if this evidence has some arguable relevance. In fairness to defendants, however, it is still unclear to the court what specific evidence related to plaintiff's past work for others they hope to offer at trial, and for what purpose.[4]Accordingly, plaintiff's motion in limine is RESERVED for a further, specific proffer by defendants and discussion with counsel for both sides at the Final Pretrial Conference.

         II. Defendants' Motions in Limine (dkt. #48)

         A. Defendants' MIL No. 1: Preclude Introduction of Time-Barred Claims

         As an initial matter, defendants seek to exclude as “time-barred” evidence and testimony concerning any events that predate plaintiff's January 7, 2016 Equal Rights Division complaint by more than 300 days, arguing that such evidence “could lead to confusion and improper inferences that would prejudice Defendants.” (Dkt. #48 at 2-3.) According to defendants, only information from between March 13, 2015, and August 20, 2015 is relevant. (Id. at 3.) For example, defendants identify information from Richard Brand, who retired in February 2015, as being “outside the 300 day period.” (Id.)

         While plaintiff acknowledges that normally “acts occurring more than 300 days before a plaintiff's filing of a discrimination charge with the EEOC are not actionable under Title VII, ” plaintiff needs to establish that her complaints about harassment were made in “good faith” -- that is plaintiff reasonably believed the practices she complained about were unlawful -- making this “background information” relevant. (Dkt. #76 at 1-2 (emphasis added).)

         After summary judgment, the only claims remaining are those for failure to promote and retaliation. (See dkt. #46 at 1, 21, 27.) Both of those claims accrued in August 2015, when she was passed over for the Operator IV-Lab/Timekeeper position. Accordingly, her causes of action are not time-barred. Of course, this still leaves the question whether defendant is seeking to preclude evidence of these past events that are relevant to her failure to promote or retaliation claims. For example, in 2013, Schultz began filling in for Hartman, and she also began assisting him in the lab with the materials testing, which goes to her experience and how she as a candidate compared to Kyle Craker. Accordingly, defendants' MIL No. 1 is also RESERVED for a further, specific proffer by plaintiff and discussion with counsel for both sides at the Final Pretrial Conference.

         B. Defendants' MIL No. 2: Preclude Evidence of Retaliation

         Defendants also seek to prevent plaintiff from offering any evidence of retaliation, it would appear principally based on their misunderstanding of the court's summary judgment decision. (Dkt. #48 at 3-5.) First and foremost, because she had not presented sufficient evidence for a reasonable jury to find that Webber's harassment was sufficiently severe or pervasive to constitute a constructive discharge, the court granted summary judgment on plaintiff's claim for hostile work environment. (Dkt. #46 at 23.) Thus, the court's observation that “the decision of Montwill and Kelley not to promote plaintiff simply does not sound in hostile work environment” (id. at 24) in no way impacts the viability of her retaliation claim, but rather indicates that while a decision not to promote may be part of a pattern of harassment, it does not by itself create a hostile work environment. So, too, plaintiff's inability to go forward with her hostile work environment claim does not foreclose her ability to claim retaliation for making a good faith complaint about sexual harassment. See O'Leary v. Accretive Health, Inc., 657 F.3d 625, 631 (7th Cir. 2011) (“The plaintiff need not show that the practice [s]he opposed was in fact a violation of the statute; [s]he may be mistaken in that regard and still claim the protection of the statute. However, [her] opposition must be based on a good-faith and reasonable belief that [s]he is opposing unlawful conduct.” (internal citations omitted)).[5] Accordingly, defendants' MIL No. 2 is DENIED.

         C. Defendants' MIL No. 3: Preclude ...

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