On July 15, 2020, the 7th Circuit affirmed a jury verdict in favor of an employer-defendant in an age and race discrimination and retaliation case under the Age Discrimination in Employment Act (“ADEA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). Henderson v. Wilkie, Secretary, U.S. Department of Veterans Affairs, No. 19-1369 (7th Cir. July 15, 2020). The case went to trial on the plaintiff’s claim that he was not selected for a promotion on the basis of his race. The other claims were decided against the plaintiff on summary judgment. The jury returned a verdict in favor of the defendant, and the district court entered final judgment. The plaintiff appealed on evidentiary grounds.

The plaintiff contended on appeal that the district court improperly excluded certain evidence, including testimony of witnesses that were not disclosed and evidence regarding events that occurred after the selection process. The first motion in limine was to bar the plaintiff’s witnesses from testifying on subjects not disclosed in the plaintiff’s interrogatory answers. The plaintiff argued that the district court abused its discretion in granting the motion. Twice during the trial the plaintiff’s attorney attempted to elicit the objected-to testimony, even though the defendant had not opened the door to the testimony. The 7th Circuit concluded that although the district court had actually not ruled on the motion, the defense counsel waived the issue because he told the court that he did not intend to ask witnesses about those subjects. A district court’s evidentiary rulings are highly discretionary, and the plaintiff failed to bear his heavy burden to overturn them.

The plaintiff also appealed the exclusion of evidence of events that occurred after the defendant selected another employee for the position in question. The plaintiff contended that after the defendant’s manager selected another employee for the position, he had discriminated against African-Americans in other instances. The district court ruled that it would not permit evidence that the manager had taken discriminatory action against the other African-Americans after he awarded the position to other employee. The plaintiff argued that this post-selection evidence was crucial to proving discriminatory intent on the part of the manager. However, the district court determined that, because many of those instances were still in litigation, their admission into evidence would create unwarranted confusion (a trial within a trial). The 7th Circuit concluded that the district court did not abuse its discretion in excluding this evidence. The slight additional value from this evidence was outweighed by the risk of jury confusion.

The plaintiff also argued that after the other employee’s selection, he was the subject of disciplinary scrutiny. He wanted to present testimony about disciplinary matters implicating the other employee that had occurred after his selection. The district court excluded this evidence because it was not relevant to the manager’s alleged discriminatory animus at the time of the selection, and was prejudicial.