Sixth Circuit Limits Second-Bite Motions in Limine

"You don't get a second bite at the apple."  Words that strike fear into the heart of any litigator--it means that you had a chance to do something about your problem, you took it, your strategy didn't work, and now you won't get another opportunity to fix the problem, even though you have now thought of some ingenious ways to do so.
That's the story behind the Sixth Circuit limiting a party’s ability to exclude evidence before trial.  Specifically, the Court held that district courts may not entertain motions in limine (which are used to preclude the presentation of specific evidence in advance of trial) involving issues that were previously raised, or should have been raised, in a failed motion for summary judgment. The court held that these kinds of motions intrude on the jury’s role as the fact-finder and deny the opposing party the procedural protections of summary judgment.
In Louzon v. Ford Motor Company, the employee plaintiff took an approved leave of absence from his employer, Ford, to visit family in Gaza.  While abroad, security issues in the region caused Israel to close its boarders, making it impossible for the plaintiff to return back to the United States.  Ford initially extended his leave of absence, but by the time he was able to return, the extension expired and Ford terminated his employment.
The plaintiff sued Ford alleging age and national origin discrimination as well as retaliation.  After the court denied Ford’s motion for summary judgment, it filed a motion in limine to exclude plaintiff’s evidence of comparable employees on the basis that none of them were similarly situated as a matter of law.  The district court granted Ford’s motion and ultimately granted summary judgment in its favor.
The Sixth Circuit held that the district court improperly considered non-evidentiary issues in limine and vacated the grant of summary judgment.  Specifically, the court held that summary judgment is the proper mechanism to resolve non-evidentiary matters before trial.  Allowing a party to litigate issues that have been or should have been resolved at an earlier stage not only allows those dissatisfied with the court’s initial ruling a chance to re-litigate, but also deprives their opponents of the procedural  protections attached at summary judgment.
This decision means that employers will no longer be able to utilize motions in limine as a second bite at the apple when an initial summary judgment motion fails.
Thanks to my associate Susan Baker for this blog entry.

Worker’s Compensation Retaliatory Discharge: Termination vs. Layoff vs. Suspension

A recent Illinois worker’s compensation retaliation case demonstrates a subtle, but important distinction for employers, especially those that use seasonal employees, or lay off workers while keeping them subject to recall.

The facts of the case, which originated out of Illinois’s 3rd District in Peoria, are a little confusing. Plaintiff was a registered nurse working in a rehabilitation unit in a medical center. She injured her knee, which required surgery to repair the damage and resulted in her having a 20 pound lifting restriction, which ultimately became permanent. This limitation disqualified the employee from her RN position; the company HR representative then mistakenly advised the employee that she was going to be terminated within 30 days if she could not find work within the medical facility. The company ultimately issued plaintiff a letter indicating she was terminated on June 18, 2008 (yes, it took 5 years for this case to make its way to just a first level appeal) and the plaintiff henceforth acted as if that was the date she was fired. In the meantime, the company attempted to rescind its termination by notifying Plaintiff that she could return to work, but by then the plaintiff had moved and taken another position with another employer.

Plaintiff sued for retaliatory discharge, under the Illinois Worker’s Compensation Act, claiming that she was fired in retaliation for filing a worker’s compensation claim. She ultimately amended this to allege not a retaliatory discharge, but rather a retaliatory failure to recall to work. Based on plaintiff’s admissions in her pleadings that she was terminated on June 18, 2008, the trial court granted summary judgment for the employer, and the Appellate Court affirmed.

The Appellate Court’s opinion raises an interesting point of law on retaliatory discharge claims with respect to worker’s compensation. Specifically, an employee who has been fired by her employer can generally only sue for retaliatory discharge. She may not sue for failure to rehire or failure to recall, which are expressly reserved, under Illinois law, for claims by seasonal employees (failure to rehire when seasonal hiring begins) or regular employees on leave or temporary layoff (failure to recall). In other words, in Illinois, a terminated employee gets only a retaliatory discharge claim. The Appellate Court noted that it would not allow a claim for failure to rehire or recall for a terminated employee because Illinois courts will not force an ongoing employment relationship between hostile parties when it can use monetary damages to compensate the unfairly terminated employee.

The vast majority of retaliation claims under workers compensation will be for retaliatory discharges, while failure to rehire/recall will be reserved for those rare circumstances where there are seasonal employees in play, or layoffs and leaves of absences occurring and the employment relationship is ongoing. Here, the plaintiff’s failure to recognize that she could not assert a retaliatory failure to rehire/recall claim since she had admitted she was terminated, worked as an effective bar to her lawsuit.