In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3036
JOSEPHINE MANUEL,
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99-C-3785—Donald E. Walter, Judge.1
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ARGUED APRIL 3, 2003—DECIDED JULY 9, 2003
____________
Before CUDAHY, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Since 1985, Josephine Manuel,
an African-American female, has worked for the City of
Chicago’s Fleet Management Department, which main-
tains all the City’s motor vehicles, steadily rising in rank
and salary. In recent years, she actively sought out fur-
ther opportunities for advancement, visiting the Depart-
ment of Personnel to review available positions within the
various City departments, pursuing audits of her current
work duties, and communicating regularly with Al John
1
United States District Judge for the Western District of
Louisiana, sitting by designation.
2 No. 02-3036
Fattore, the Department’s Deputy Commissioner for
Administration and one of Manuel’s supervisors, about
possibilities for promotion.
In August 1997, Manuel learned that the Department
had received approval to create a new position of Projects
Administrator, but by the time she became aware of the
position, it had already been filled by Paul Plantz, a white
male. Manuel was surprised that despite her oft-voiced
interest in promotional opportunities, she had not been
advised that the Department was creating the new posi-
tion, that the job opening for the new position was never
publicly posted, and that she therefore never had the
opportunity to apply for it. When another Projects Ad-
ministrator position was expected to open in 1998, she
was not selected for that position either.2
On June 8, 1999, Manuel filed a complaint against
the City, alleging that she had been discriminated against
in the filling of the two Projects Administrator openings
because of her race, sex, or a combination of both, in
violation of Title VII and 42 U.S.C. § 1981. She also
claimed that the City had retaliated against her for bring-
ing the discrimination charges by denying her other
promotion opportunities and subjecting her to new and
increased criticism of her work. The City moved for sum-
mary judgment and the district court granted its motion
with respect to the § 1981 claims (which Manuel conceded)
and the retaliation claim, finding that Manuel failed to
identify any adverse employment actions taken by the
City after she filed her complaint of discrimination. In
addition, the court found that Manuel had failed to estab-
2
Martin Nellis, the only white candidate out of a total of four
candidates, was eventually selected to fill this second vacancy.
The position, however, was never approved by the City’s Bud-
get Office, and thus never funded, so the position was never
actually filled.
No. 02-3036 3
lish a prima facie case of discrimination with respect to
the second Projects Administrator position opening be-
cause that position was never filled. The court denied
summary judgment on Manuel’s Title VII claims involv-
ing the August 1997 Projects Administrator vacancy, and
those claims went to trial before a jury.
Before trial, the City moved in limine to exclude any
evidence of race, sex, or combined race-sex discrimi-
nation toward individuals other than Manuel as irrele-
vant and prejudicial. Manuel objected to any such lim-
itation, as she wished to offer the testimony of Barbara
Sutton who, as the former manager of auditing in the Fleet
Management Department, had the opportunity to wit-
ness Fattore’s interaction with the Department’s employ-
ees—which apparently included several instances of dis-
crimination toward female, African-American employees.
In considering the City’s motion, the district court or-
dered Manuel to provide “a short statement of expected
testimony from Barbara Sutton.” Manuel’s counsel re-
sponded with a letter in which he stated that Sutton
“believes Fattore is a racist because of the way he treats
personnel. . . . [Sutton] and her assistant (also a black
female) were treated badly by Fattore while other
white cabinet members were not. The testimony we
would elicit from Ms. Sutton is as to what she observed
about the treatment of herself, Plaintiff, and other
black employees by Fatorre [sic].” After reviewing Man-
uel’s offer of proof, the district court ruled that “Sutton
may only testify as to her observations of Al Fattore’s
treatment of plaintiff and not as to any other matter.”
Fattore, as Manuel’s supervisor, was a primary wit-
ness during the trial. During his cross-examination, the
City’s attorney and Fattore had the following exchange:
Q. Have you ever treated Josephine Manuel differently
because she’s an African American?
4 No. 02-3036
A. No.
Q. Have you ever treated anyone differently at Fleet
Management because they are African American?
A. No.
(Tr. Trans. at 220.) Manuel argued to the district court
that Fattore’s assertion, elicited by the City’s own attor-
ney, that he had never treated any employee differently
on account of race should have opened the door for her
to offer evidence of race, sex, or combined race-sex dis-
crimination by Fattore toward individuals other than
Manuel—including the testimony of Barbara Sutton.
After hearing argument on the issue, the court indi-
cated that it believed the City had, in fact, opened the
door to such evidence, but “the door is going to let way
too much in. We will be trying cases that are—have no
relationship to this.” (Tr. Trans. at 228.) The court there-
fore denied Manuel’s request to introduce evidence of
other instances of discrimination,—including an Equal
Employment Opportunity Commission (“EEOC”) com-
plaint previously filed by Sutton against Fattore—but
agreed to provide a limiting instruction to the jury to
address any prejudice Manuel may have suffered as
the result of the jury’s hearing the question and answer
from Fattore.3
The jury ultimately found that Manuel had failed to
prove her claims of discrimination, and judgment was
3
The court instructed the jury as follows: “Ladies and gentle-
men, when Mr. Fattore was on the stand, he was asked the
question, ‘Have you ever treated anyone differently at Fleet
Management because they are African Americans,’ to which
he answered, ‘No.’ I am going to strike that question and that
answer from the evidence that you are to consider. The question
and the answer are not proven and you are to disregard the
question and answer in their entirety.” (Tr. Trans. at 230-31.)
No. 02-3036 5
entered in favor of the City. Manuel brought this appeal
seeking a new trial, arguing that her original trial was
flawed because of the two evidentiary rulings by the dis-
trict court discussed above—leading to the court’s erron-
eous exclusion of evidence relating to other alleged acts
of discrimination by the City. We affirm the judgment
below.
ANALYSIS
We review evidentiary rulings by the district court
for abuse of discretion. Young v. James Green Mgmt., Inc.,
327 F.3d 616, 621 (7th Cir. 2003). “The decision whether
to admit evidence is a matter peculiarly within the com-
petence of the trial court and will not be reversed absent
a clear abuse of discretion.” Simplex, Inc. v. Diversified
Energy Sys., Inc., 847 F.2d 1290, 1292 (7th Cir. 1988)
(quotation omitted).
Manuel argues that the district court’s initial decision
to exclude evidence of other instances of discrimination
was erroneous because it was offered to prove the City’s
discriminatory intent as well as the pretextual nature
of its justifications for failing to promote her. As such, she
argues that the evidence was not only relevant (in-
deed, important) to her case, but was fully admissible
under Federal Rule of Evidence 404(b), which provides
that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.” FED. R. EVID. 404(b).
She contends that the continued exclusion of her evi-
dence, even after the City opened the door to the issue
during the cross-examination of Fattore, was further
error, directing us to the D.C. Circuit’s discussion of the
6 No. 02-3036
“Opened Door Doctrine” in Griffin v. Wash. Convention Ctr.,
where that court noted that “[o]nce the door is opened,
the other party can get through it otherwise irrelevant
evidence to the extent necessary to remove any unfair
prejudice which might otherwise have ensued.” 142 F.3d
1308, 1312 (D.C. Cir. 1998) (quoting United States v. Baird,
29 F.3d 647, 654 (D.C. Cir. 1994)). Manuel argues that
while her other-acts evidence was always relevant to her
case, it became necessary once the City improperly in-
quired into Fattore’s treatment of other employees. The
district court therefore abused its discretion in exclud-
ing that evidence.
Other-acts evidence may be relevant and admissible in
a discrimination case to prove, for example, intent or
pretext. See FED. R. EVID. 404(b); see also Vance v. S. Bell
Tel. & Tel. Co., 863 F.2d 1503, 1511 n.5 (11th Cir. 1989)
(“The discriminatory intent element can be proven by di-
rect or circumstantial evidence. . . . Thus, the jury prop-
erly could have considered evidence of discriminatory
acts . . . directed at employees other than the plaintiff, as
tending to show the existence of racial animus in the
present case.” (quotation omitted)).
But under Federal Rule of Evidence 403, otherwise
relevant evidence may nonetheless be excluded by the
district court “if its probative value is substantially out-
weighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay.” FED. R. EVID. 403. As instructed by Rule 403,
the district judge was required to balance those factors
before determining whether to allow Manuel to present
Sutton’s testimony regarding other alleged acts of dis-
crimination by Fattore. In our review of the district
court’s decision to exclude this evidence, “[t]he relevant
inquiry is not how the reviewing judges would have ruled
if they had been considering the case in the first place,
but rather whether any reasonable person could agree
No. 02-3036 7
with the district court.” Rehling v. City of Chicago, 207
F.3d 1009, 1017 (7th Cir. 2000) (quotation omitted). “The
balancing of probative value and prejudice is a highly
discretionary assessment, and we accord the district
court’s decision great deference, only disturbing it if no
reasonable person could agree with the ruling.” United
States v. Thomas, 321 F.3d 627, 630 (7th Cir. 2003).
We do not believe that the determination made by the
district court, after it had weighed the probative value of
the proffered evidence against its potential for unfair
prejudice, confusion or delay, was something with which
a reasonable person could fairly disagree. Manuel’s offer
of proof made pursuant to the court’s order was rather
perfunctory, offering little more than the assertion that
Sutton “believes Fattore is a racist because of the way
he treats personnel,” and promising that this inflam-
matory characterization would be backed up by Sutton’s
testimony of “what she observed” in how Fattore treated
black employees including Manuel and herself. The offer
of proof contains little by way of specific examples of
discriminatory actions by Fattore—thereby significantly
limiting its probative value for supporting Manuel’s case
against the City.
In contrast, labeling Fattore a “racist” had the potential
of being unfairly prejudicial to the City’s case. And the
potential for confusing or even misleading the jury by
engaging in a series of mini-trials over the other accusa-
tions of discrimination by Fattore was significant. If that
evidence had been admitted by the district court, the
parties would have no doubt argued over the truthful-
ness of those allegations, necessarily shifting the focus of
the trial from Manuel’s allegations to Sutton’s. It was
reasonable for the district judge to have concluded that
the risk of unfair prejudice, confusion of the jury, and
undue delay outweighed the slight probative value of the
other-acts evidence.
8 No. 02-3036
The problem of confusion and delay persisted even after
the City opened the door to other-acts evidence. It is
generally true that when one party opens the door to
otherwise inadmissible evidence, the opposing party may
be given the opportunity to inquire into those matters it-
self. See Young, 327 F.3d at 627 (citing United States v.
Anifowoshe, 307 F.3d 643, 649 (7th Cir. 2002) (“This cir-
cuit has held on numerous occasions that when a party
questions a witness on a subject, even though that sub-
ject may not be strictly relevant to the case, the party
cannot complain on appeal if the opposing party subse-
quently introduces evidence on the same subject.” (quota-
tions omitted))).
But we have also emphasized that “the Rules of Evi-
dence do not simply evaporate when one party opens
the door on an issue.” United States v. Bursey, 85 F.3d 293,
296 (7th Cir. 1996) (citations omitted). Even after the
door has been opened, the district court is required
to weigh the need for and value of curative admissibility
of previously inadmissible evidence (including whether
a limiting instruction to the jury would obviate the need
for any curative admissibility) against the potential for
undue delay, confusion, and prejudice. Confusion of the
jury was an especially pressing problem with respect
to Sutton’s testimony regarding her earlier EEOC com-
plaint. That complaint had never been formally resolved,
ensuring a mini-trial over the issues she had raised in
that earlier complaint. The determination made by
the district court—“the defense has opened the door, but
the door is going to let way too much in. We will be try-
ing cases that . . . have no relationship to this”—was
a reasonable one.
To the extent that Manuel argues that her trial
was tainted because the jurors heard Fattore assert that
he had never treated anyone in his department differ-
ently because of their race, and that she was precluded
No. 02-3036 9
from challenging that assertion, we think the district
court adequately addressed that concern by giving the
jury a limiting instruction, telling them to disregard the
answer given by Fattore. We assume that jurors follow the
instructions they are given. See United States v. Bell, 980
F.2d 1095, 1098 (7th Cir. 1992).
CONCLUSION
Given the relatively slight probative value of the offer
of proof submitted by Manuel in support of her efforts to
include the testimony of Barbara Sutton, as well as the
potential for unfair prejudice, juror confusion, and delay
inherent in allowing a number of “mini-trials” over
other allegations of discrimination, we do not believe
the district court abused its discretion in excluding this
other-acts evidence. The judgment is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-9-03