Ammons v. Chicago Board of Education

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KIM AMMONS, )

) No. 16 CV 4884

Plaintiff, )

)

v. ) Magistrate Judge Young B. Kim

)

CHICAGO BOARD OF EDUCATION, )

) April 15, 2019

Defendant. )

MEMORANDUM OPINION and ORDER

Plaintiff Kim Ammons brings this action against Chicago Board of Education

(“the Board”) for alleged violations of the Americans with Disabilities Act (“ADA”)

and the Family and Medical Leave Act (“FMLA”), arising out of her employment as a

Security Officer at Curie Metropolitan High School (“Curie”). Before the court are

Ammons’s motions in limine Nos. 7 and 81 and the Board’s motions in limine Nos. 12-

27. For the following reasons, Ammons’s motions are denied, the Board’s Motion

No. 15 is granted in part and denied in part, the Board’s Motion Nos. 12, 13, 16, 17,

20, and 24-27 are granted, and the Board’s Motion Nos. 14, 18, 19, 21-23 are denied.

Legal Standard

Although not expressly authorized by the Federal Rules of Evidence, the

authority to make rulings on motions in limine springs from the court’s inherent

authority to manage trials. Luce v. United States, 469 U.S. 38, 41 n.4 (1984); Jenkins

1 Ammons’s Motions in Limine Nos. 1-6 are identical to the Agreed Motions in Limine

Nos. 1-6. Having already granted these six motions, (R. 141; R. 144), these are denied

as moot.

v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). Motions in limine are

used to “exclude evidence before trial in order to prevent the trial from being

interrupted by wrangles over admissibility or the jury from getting a whiff of

prejudicial evidence that may in fact be inadmissible.” Am. Int’l Adjustment Co. v.

Galvin, 86 F.3d 1455, 1463 (7th Cir. 1996). But because the primary aim of motions

in limine is to exclude evidence that is inadmissible on any ground, some rulings are

best left until trial so that the context, foundation, and relevance of the contested

evidence can be better understood. Anglin v. Sears, Roebuck & Co., 139 F. Supp. 2d

914, 917 (N.D. Ill. 2001) (noting that evidence should be excluded in limine only to

the extent that clearly inadmissible evidence is eliminated). As such, neither a ruling

granting a motion in limine, nor a ruling denying one, needs to be the final word on

the matter. The court is free to revisit the following rulings during trial. Luce, 469

U.S. at 41-42.

Analysis

A. Ammons’s Motions in Limine

Ammons filed two motions in limine on March 1, 2019, Nos. 7 and 8. (R. 131,

Pl.’s Mot.) The Board opposes these two motions. (R. 135; R. 136.)

1. Motion No. 7.

Ammons seeks to bar any lay person’s opinions concerning effective security in

schools, including any employees of the Board. (R. 134, Pl.’s Mot. No. 7.) The Board

agrees to Ammons’s motion with the exception of allowing testimony from Jadine

Chou and Brian Bond, the Board’s Chief of Safety and Security and Deputy Chief of

Safety and Security, respectively. (R. 135, Def.’s Resp. at 1.) Ammons argues that

“there has been no evidence submitted during the course of this litigation to

demonstrate that the two individuals . . . [are] more qualified to testify about effective

security in school than [she is] with her twenty plus years as a security officer in the

schools.” (R. 134, Pl.’s Mot. No. 7 at 1.)

The Board asserts that it disclosed both Chou and Bond in its Rule 26(a)(1)

initial disclosures as individuals who would have knowledge about the essential

functions of the school security officer position held by Ammons. (R. 135, Def.’s Resp.

at 2.) The Board adds that in processing Ammons’s ADA request, its Equal

Opportunity Commission Office (“EOCO”) consulted with both Chou and Bond to

discuss what is needed to adequately fulfill the essential functions of Ammons’s role.

(Id.) The Board further asserts that Chou and Bond’s specific job functions afford

them unique personal knowledge of effective safety and security measures at Chicago

Public Schools (“CPS”) and any testimony from them on the subject would be based

on personal knowledge rather than speculation and hearsay. (Id. at 3.) The court

agrees with the Board that both Chou and Bond have the sort of experience and

expansive knowledge that would be relevant in explaining Ammons’s role as a school

security officer as well as effective school security across CPS from their perspective.

For this reason, Ammons’s Motion No. 7 is denied.

2. Motion No. 8.

Ammons seeks to bar any lay person’s opinions and/or testimony regarding the

alleged statistics cited in the Board’s Local Rule 56.1 Statement of Facts, ¶¶ 19, 68,

and 69 regarding the number of fights at Curie during the 2014-2015 school year and

the alleged 2012 District review results and comments. (R. 133, Pl.’s Mot. No. 8.) The

Board responds that Ammons cannot bar its witnesses from testifying to information

within their personal knowledge obtained in the course of performing their work

duties. (R. 136, Def.’s Resp. at 2.) The court finds that the evidence Ammons seeks

to exclude is relevant to explaining why the Board changed its policy regarding the

essential functions of the school security officer role and there is no indication that

this relevance is outweighed by concerns of unfair prejudice. Accordingly, Ammons’s

Motion No. 8 is denied. However, the Board is responsible for laying the proper

foundation to show the relevance of the statistics.

B. The Board’s Motions in Limine

The Board filed 16 motions in limine on March 1, 2019, Motion Nos. 12-27.

(R. 113-130.) In her response, Ammons opposes Motion Nos. 14-24 and 27. (R. 137.)

1. Motion No. 14.

The Board seeks to bar discussion, evidence, argument, or testimony relating

to certain claims or charges brought under Title VII of the Civil Rights Act of 1964,

(“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the ADA, and the

FMLA, including any associated Equal Employment Opportunity Commission

(“EEOC”) and Illinois Department of Human Rights (“IDHR”) charges. (R. 117, Def.’s

Mot. No. 14.)2 More specifically, the Board alleges that because the only issue before

2 Ammons’s Title VII and ADEA claims are in essence an ADA retaliation claim. The

remaining claims in this case are: (1) failure to accommodate in violation of the ADA;

the jury in this case is Ammons’s ADA failure to accommodate claim, as argued in

the Board’s motion to strike Ammons’s jury demand as to her retaliation claims,

(R. 100), the court should not permit any discussions of these unrelated claims,

(R. 117, Def.’s Mot. No. 14 at 2). Ammons responds that the Board argues from the

position that its motion to strike will be granted, and all retaliation claims will be for

a bench trial only. (R. 137, Pl.’s Resp. at 2.) She asks the court to allow all claims to

be introduced to the jury to prove a key element that she engaged in protected

activities. (Id.)

On March 20, 2019, the court granted in part and denied in part the Board’s

motion, striking Ammons’s jury demand as to her ADA retaliation claim, but not her

jury demand as to her FMLA retaliation claim. (R. 139, Mem. Op. at 10.) However,

to avoid having to conduct two separate trials, Ammons is permitted to offer all

evidence as to all claims, and the court will provide appropriate limiting instructions

to the jury. Accordingly, the Board’s Motion No. 14 is denied.

2. Motion No. 15.

The Board moves to bar any discussion, evidence, argument, or testimony

concerning any grievances, including the introduction of grievances filed by Ammons

and/or her union pursuant to any collective bargaining agreement (“CBA”), and any

communications between Ammons and her union representative. (R. 118, Def.’s Mot.

No. 15.) More specifically, Curie’s Principal, Allison Tingwall, issued Ammons a

(2) reprisal discrimination for having exercised her rights under the ADA; and

(3) reprisal discrimination for having exercised her rights under the FMLA.

Notice of Pre-Disciplinary Hearing following an allegation that Ammons abandoned

her assigned shift without following proper protocol. (Id. at 2; R. 77 at 10.) Ammons’s

union filed a grievance on her behalf alleging that the Board violated the CBA when

Tingwall directed Ammons to attend a pre-disciplinary hearing on Veterans’ Day, a

work holiday. (R. 118, Def.’s Mot. No. 15. at 2; R. 77 at 10-11.) The Board seeks to

bar evidence relating to this grievance, or any other grievance, arguing that it is not

relevant to this case. (R. 118, Def.’s Mot. No. 15. at 2.)

Ammons did not respond to the Board’s motion. Therefore, any objection to

this motion is waived. See Graves v. Theil, No. 01 CV 7714, 2002 WL 31455973, at

*1 (N.D. Ill. Oct. 31, 2002) (“When a party does not respond to a motion, the issue is

treated as conceded unless there is good reason not to do so.”). Instead, Ammons

asserts that “Mr. Reeves”3 would be able to testify to his attempts to work with the

Board to help her secure reasonable accommodations, to conversations he engaged in

with both her and the Board, and to his submission of proposed break changes to the

Board. (R. 137, Pl.’s Resp. at 1-2.) Because Ammons waived any objection to the

Board’s motion to exclude the mention of any grievances, the Board’s Motion No. 15

is granted to the extent that Ammons is barred from introducing any evidence or

testimony concerning any grievances the union may have filed on her behalf.

3 Ammons identified Tremaine Reeves as her union representative in her

interrogatory responses. (R. 120-2 at 6.)

3. Motion No. 16.

The Board seeks to strike undisclosed witnesses from Ammons’s witness list

and to bar Ammons from offering evidence at trial or making arguments to the jury

related to them. (R. 119, Def.’s Mot. No. 16.) In particular, the Board asserts that

Ammons failed to disclose David Reyes, Ceasar Perez, Mike Oliver, “Mohammad,”

and Trumaine Reeves in her Rule 26(a)(1) initial disclosures. (Id. at 1.) The Board

further argues that Ammons improperly disclosed Shoshanna Smith in her

Rule 26(a)(1) initial disclosures. (Id.) Ammons argues that she properly disclosed

Smith and Reeves “in her Rule 26(a)(1) initial disclosures and interrogatories.”

(R. 137, Pl.’s Resp. at 3.) As to Reyes and Perez, Ammons asserts that she named

them during her August 29, 2017 deposition. (Id.) She further argues that the Board

had ample time to review the records to determine if it wanted to depose each of these

witnesses. (Id.)

Federal Rule of Civil Procedure 37(c)(1) enforces the requirements of

Rule 26(a) and 26(e)(2) and provides in pertinent part that “[a] party that without

substantial justification fails to disclose information required by Rule 26(a) or

26(e)(1), is not, unless such failure is harmless, permitted to use as evidence at trial

. . . any witness . . . not so disclosed.” Ultimately, the effect of Rules 26(e) and 37 is

to exclude undisclosed evidence unless the information is made known to the other

side in the context of the case itself. See Se-Kure Controls, Inc., v. Vanguard Prod.

Grp., No. 02 CV 3767, 2007 WL 781253, at *6 (N.D. Ill. March 7, 2007).

Notably, Ammons makes no mention of “Mohammad” in her response to the

Board’s motion and therefore has waived any objection regarding the presentation of

this witness’s testimony. See Graves, 2002 WL 31455973, at *1. The court finds that

while Ammons had an obligation to seasonably supplement her Rule 26(a)(1)

disclosures, such supplements are required only in certain circumstances, such as

when the additional information “has not otherwise been made known to the other

parties during the discovery process . . . .” See Fed. R. Civ. P. 26(e)(1)(A); David v.

Caterpillar, Inc., 324 F.3d 851, 856 (7th Cir. 2003). In this case, the remaining four

witnesses were identified in the course of discovery. Ammons identified Smith,

Reeves, and Reyes in her interrogatory responses as individuals who either “possess

knowledge relating to any fact defense or material issues involved in this case,” or

“witnessed any alleged failure to accommodate and/or retaliation.” (R. 120-2, Ex. B.

at 2, 4, 6.) During her deposition Ammons revealed that Perez was promoted over

her even though she was more qualified, which formed the basis of her 2014 IDHR

claim. (R. 58-1 at 244; R. 58-35.) Ammons also described an incident in which Perez,

while acting as her supervisor, called her to Principal Tingwall’s office after she asked

him for a break in accordance with her EOCO accommodation. (R. 58-1 at 154-55.)

During that meeting, Tingwall allegedly threatened to fire Ammons. (Id. at 155.) See

Cox v. Prime Fin. Mortg. Corp., No. 05 CV 4814, 2006 WL 1049948, at *2 (N.D. Ill.

April 20, 2006) (explaining that a party has “no obligation to provide supplemental

or corrective information that has been otherwise made known to the parties in

writing or during the discovery process, as when a witness not previously disclosed is

identified during the taking of a deposition”); Weiland v. Linear Constr., Ltd., No. 00

CV 6172, 2002 WL 31307622, at *2 (N.D. Ill. Oct. 15, 2002) (holding that the Rule

26(e) duty to supplement initial disclosures was satisfied when the other party

learned the identities of witnesses during another witness’s deposition). Moreover,

the court finds that Smith was properly disclosed in Ammons’s Rule 26(a)(1) initial

disclosures, and failing to identify Smith’s current address was harmless.

Accordingly, the Board’s Motion No. 16 is granted only as to the witness identified as

“Mohammad.”

4. Motion No. 17.

The Board seeks to strike undisclosed expert witnesses Drs. Elizabeth Klor

Glass and Gary Ogurkiewicz and to bar Ammons from offering evidence at trial or

making arguments to the jury related to those witnesses. (R. 120, Def.’s Mot. No. 17.)

Ammons has no objection to excluding the doctors from testifying as expert witnesses.

(R. 137, Pl.’s Resp. at 4.) Instead, she contends that they will serve as fact witnesses,

and that she disclosed them in her interrogatory responses. (Id.)

If a witness is to give testimony based on scientific, technical, or otherwise

specialized knowledge, Rule 26(a)(2) requires a formal disclosure, notwithstanding

any prior disclosure of the witness under Rule 26(a)(1) or the fact that the witness is

“already known . . . through prior discovery.” Musser v. Gentiva Health Servs., 356

F.3d 751, 757 (7th Cir. 2004). “The exclusion of non-disclosed evidence is automatic

and mandatory under [Federal] Rule [of Civil Procedure] 37(c)(1) unless non-

disclosure was justified or harmless.” Id. at 758. It is clear that Ammons failed to

disclose Drs. Glass and Ogurkiewicz as expert witnesses as required under Rule

26(a)(2). (R. 137, Pl.’s Resp. at 4.) The harm caused by Ammons’s failure to properly

disclose the treating physicians as expert witnesses is not harmless. However,

allowing Ammons to call them as fact witnesses does not cause the same kind of

incurable prejudice to the Board. See, e.g., Johnson v. Target Corp., 487 Fed. Appx.

298, 301 (7th Cir. 2012) (district court properly limited treating physician to factual

testimony because plaintiff did not disclose treating physician as an expert).

Moreover, the Board was not completely in the dark about the possibility of the

doctors testifying about Ammons’s medical condition as she identified them in her

interrogatories as anticipated witnesses. (R. 120-2, Ex. B at 7.) Accordingly, the

Board’s Motion No. 17 is granted to the extent that the doctors are not allowed to

testify about information that goes beyond the individual observations they made

during their treatment of Ammons. In other words, they may not provide testimony

that would amount to expert opinions as defined under Federal Rule of Evidence 702.

The Board’s Motion No. 17 is granted only to the extent that Drs. Glass and

Ogurkiewicz may not offer expert opinions.

5. Motion No. 18.

The Board seeks to bar any discussion, evidence, argument, or testimony

pertaining to claims or allegations other than Ammons’s ADA failure to accommodate

claim. (R. 121, Def.’s Mot. No. 18.) Ammons asks the court, pending the court’s ruling

on the Board’s motion to strike, to allow her to present evidence of prior charges of

discrimination and complaints that she made to her employer and outside agencies

prior to April 29, 2015. (R. 137, Pl.’s Resp. at 4.) Because Ammons is allowed to

present all evidence on all claims, she is allowed to present evidence relating to the

time period relevant to this case. For this reason, the Board’s Motion No. 18 is denied.

However, the Board is not barred from raising objections to specific questions as this

ruling only applies to its request to exclude prior to trial.

6. Motion No. 19.

The Board seeks to bar any discussion, evidence, argument, or testimony to the

jury pertaining to any conversation or written communications with the Board’s

EOCO, particularly Corinne Leak (also known as Donna Leak), regarding any claim

other than her failure to accommodate claim stemming from her request for an

accommodation in April 2015. (R. 122, Def.’s Mot. No. 19.) Ammons responds that

allowing her to present evidence of protected activity, such as her contact and/or

complaints made to the Board’s EOCO, is relevant to establish the timing and content

of her initial attempts to submit an ADA request and complaint. (R. 137, Pl.’s Resp.

at 5.) Because Ammons is allowed to present all relevant evidence supporting all of

her claims, the Board’s Motion No. 19 is denied.

7. Motion No. 20.

The Board seeks to bar any discussion or evidence related to damages she is

not permitted to recover or that are otherwise to be decided by the court rather than

the jury. (R. 123, Def.’s Mot. No. 20.) Ammons acknowledges that she is not able to

recover punitive damages, but believes the discussion of lost income and time off work

is relevant and important for the jury to hear to determine her non-pecuniary

damages in this matter. (R. 137, Pl.’s Resp. at 5.)

The ADA incorporates the remedies available to a plaintiff in a Title VII

discrimination action, see 42 U.S.C. § 12117(a); 42 U.S.C. § 1981a(a)(2), including

compensatory damages “for future pecuniary losses, emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary

losses.” 42 U.S.C. § 1981a(b)(3). However, equitable remedies such as back pay,

reinstatement, and front pay are generally decided by the court. See Pals v. Schepel

Buick & GMC Truck, Inc., 220 F.3d 495, 499-501 (7th Cir. 2000). The court precludes

Ammons from introducing detailed testimony or evidence regarding her lost income

and time off work, as this information is not for the jury’s consideration when

determining compensatory damages in this case. See Arroyo v. Volvo Grp. N. Am.,

LLC, No. 12 CV 6859, 2017 WL 2985649, at *2 (N.D. Ill. July 13, 2017) (holding that

“back pay and front pay are excluded from the definition of compensatory damages”).

However, Ammons must be granted some latitude to talk about having to miss work

and having no income for that time if these things cause her to suffer emotional

distress. Accordingly, the Board’s Motion No. 20 is granted only to the extent that

Ammons is precluded from offering evidence to calculate her lost wages. In the event

the court finds in favor of Ammons on her ADA retaliation claim, a separate hearing

will be scheduled to receive additional evidence on equitable remedies to be awarded.

8. Motion No. 21.

The Board seeks to bar any discussion, evidence, argument, or testimony,

including the introduction of any materials or communications between Ammons and

Sedgwick CMS (“Sedgwick”)4 regarding any discussions about short-term disability

benefits with the Board’s Office of Employee Engagement. (R. 124, Def.’s Mot.

No. 22.) The Board further asserts that the only relevance Ammons’s short-term

disability benefits have is with respect to her mitigation and damages. (Id. at 3.)

Ammons disagrees and argues that this information should be considered by the jury

because it is relevant to whether she was “qualified as it relates to her time off during

her short-term leave.” (R. 137, Pl.’s Resp. at 6.) The Board’s Motion No. 21 is denied.

The court prefers to hear how this information is offered and in what context before

ruling on its relevance. The Board is directed to raise its objection when appropriate

at trial.

9. Motion No. 22.

The Board seeks to bar Ammons from introducing unauthenticated

photographs taken at unknown dates, times, and locations by unknown individuals

and to bar her from offering evidence at trial or making arguments to the jury related

to the photographs. (R. 125, Def.’s Mot. No. 22.) Ammons responds that she has

informed the Board that Smith took the photographs and can testify as a witness

with knowledge pursuant to Federal Rule of Evidence 901(b)(1). (R. 137, Pl.’s Resp.

4 Sedgwick is a third-party vendor that was previously in charge of handling

disability benefit requests from Board employees.

at 7.) Under Rule 901, authentication is proper if the proponent “produce[s] evidence

sufficient to support a finding that the item is what the proponent claims it is,” Fed.

R. Evid. 901(a), such as the testimony of a witness with knowledge, Fed. R. Evid.

901(b)(1). The Board’s Motion No. 22 is denied. The court permits Ammons to lay

the proper foundation to offer and admit photographs. The Board may then renew

its objection if applicable at trial.

10. Motion No. 23.

The Board seeks to bar discussion of, reference to, or evidence pertaining to

Ammons’s “good character,” such as personal and professional accomplishments and

her role as a foster parent. (R. 126, Def.’s Mot. at 23 (citing Fed. R. Evid. 404(a)(1)

(“Evidence of a person’s character or character trait is not admissible to prove that

on a particular occasion the person acted in accordance with the character or trait.”)).

Ammons contends that such evidence is essentially her basic background and

personal information and goes to an essential element of the case, whether she was

qualified for her security officer position. (R. 137, Pl.’s Resp. at 8.) The court finds

no reason why Ammons cannot establish her background and qualifications without

discussing the “good character” evidence the Board seeks to bar. See United States

v. Greschner, 647 F.2d 740, 742 (7th Cir. 1981) (“Character evidence, although

relevant, generally is not admissible for the purpose of proving that a person acted in

conformity with that character.”). However, the Board’s Motion No. 23 is denied so

that Ammons has some latitude to describe her background. The Board is free to

raise an objection at trial if the questions get too close to eliciting “character

evidence.”

11. Motion No. 24.

The Board seeks to bar lay witnesses from giving medical opinions. (R. 127,

Def.’s Mot. No. 24.) More specifically, the Board seeks to bar Ammons or other

laypersons from testifying or making remarks and/or arguments or giving opinions

regarding the causation of any alleged medical condition, diagnosis, future prognosis,

and future medical expenses related to her medical condition. (Id. at 1.) Ammons

does not object to the motion and explains that her treating physicians Drs. Glass

and Ogurkiewicz may testify to a diagnosis or condition they observed first-hand and

about any medical opinions rendered during her treatment. (R. 137, Pl.’s Resp. at 9.)

Because Ammons’s treating physicians are testifying as fact witnesses, the doctors

are limited to testifying about facts and circumstances surrounding their own

treatment of Ammons and are precluded from rendering medical opinions or

reviewing material outside of their own medical records. See Johnson, 487 Fed. Appx.

at 301. For this reason, the Board’s Motion No. 24 is granted.

12. Motion No. 27.

The Board seeks to bar Ammons and any other witness from speculating as to

other security guards having a chair and/or sitting down while working. (R. 130,

Def.’s Mot. No. 27.) Ammons agrees to exclude speculative testimony regarding other

security guards having a chair and/or sitting down while working, but seeks to allow

testimony from any witness with first-hand knowledge of this information based on

his or her personal observations. (R. 137, Pl.’s Resp. at 10.) Under Rule of Evidence

Rule 602(a), “a witness may testify to a matter only if evidence is introduced sufficient

to support a finding that the witness has personal knowledge of the matter. Evidence

to prove personal knowledge may consist of the witness’s own testimony.”

Accordingly, the Board’s Motion No. 27 is granted.

13. Motion Nos. 12, 13, 25, and 26.

The Board also moves to exclude the following from trial: (1) Motion No. 12

seeks to exclude discussions or evidence relating to damage awards in other cases;

(2) Motion No. 13 seeks to bar references or arguments asking the jurors to consider

what they would accept to avoid a similar incident and/or “Golden Rule” appeals

(citing Fed. R. Evid. 403; United States v. Roman, 492 F.3d 803, 806 (7th Cir. 2007)

(“[A] ‘Golden Rule’ appeal in which the jury is asked to put itself in the defendant’s

position is universally recognized as improper because it encourages the jury to

depart from the neutrality and to decide the case on the basis of personal interest and

bias rather than on the evidence.”) (internal citation and quotation marks omitted);

(3) Motion No. 25 seeks to bar testimony referencing, inferring, or otherwise offering

testimony as to other litigation involving the Board; and (4) Motion No. 26 seeks to

bar Ammons and other witnesses from offering speculative testimony or discussion

regarding any alleged discrimination faced by them or other Board employees.

Ammons does not object to these motions and, therefore, they are granted.

Conclusion

For the foregoing reasons, Ammons’s Motion Nos. 7 and 8 are denied, the

Board’s Motion No. 15 is granted in part and denied in part, the Board’s Motion

Nos. 12, 13, 16, 17, 20, and 24-27 are granted, and the Board’s Motion Nos. 14, 18,

19, 21-23 are denied.

ENTER:

fo g B. Kim

nited States Magistrate Judge

17