Judges: Williams
Filed: Jun. 27, 2016
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-1687 VENITA MILLER, Plaintiff-Appellant, v. GREENLEAF ORTHOPEDIC ASSOCIATES, S.C., Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10-cv-5867 — James B. Zagel, Judge. _ ARGUED SEPTEMBER 22, 2015 — DECIDED JUNE 27, 2016 _ Before FLAUM, WILLIAMS, and HAMILTON, Circuit Judges. WILLIAMS, Circuit Judge. A growth was discovered on Venita Miller’s pancre
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-1687 VENITA MILLER, Plaintiff-Appellant, v. GREENLEAF ORTHOPEDIC ASSOCIATES, S.C., Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10-cv-5867 — James B. Zagel, Judge. _ ARGUED SEPTEMBER 22, 2015 — DECIDED JUNE 27, 2016 _ Before FLAUM, WILLIAMS, and HAMILTON, Circuit Judges. WILLIAMS, Circuit Judge. A growth was discovered on Venita Miller’s pancrea..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐1687
VENITA MILLER,
Plaintiff‐Appellant,
v.
GREENLEAF ORTHOPEDIC
ASSOCIATES, S.C.,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10‐cv‐5867 — James B. Zagel, Judge.
____________________
ARGUED SEPTEMBER 22, 2015 — DECIDED JUNE 27, 2016
____________________
Before FLAUM, WILLIAMS, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. A growth was discovered on
Venita Miller’s pancreas and she was told that cancer could
not be ruled out without further testing. She told her supervi‐
sor, Linda Miller. (From here, we’ll use their first names to
avoid confusion.) One week later, Linda fired Venita. Venita
2 No. 14‐1687
sued, claiming she was fired because Linda thought she had
a disability. A jury disagreed. Venita asks this court to order a
new trial, arguing the trial judge abused his discretion by ex‐
cluding important evidence, and that abuse of discretion prej‐
udiced Venita at trial. We find that, for the most part, the judge
did not abuse his discretion. In one instance, the judge may
have erred, but he corrected his mistake and Venita has not
shown she was prejudiced. So we affirm the judgment.
I. BACKGROUND
Venita worked as a receptionist for Greenleaf Orthopae‐
dic, and Linda was her supervisor. The relevant events took
place in the autumn of 2009. On Wednesday, September 9,
Venita woke up in pain. She called in sick to work and went
to the emergency room, where she learned that she had a
growth on her pancreas and further testing was needed to de‐
termine whether she had pancreatic cancer. The next day, she
gave Linda the news. Because Venita did not have health in‐
surance and needed money for the testing and other medical
care, she asked if she could forgo taking a vacation and re‐
ceive extra pay instead. Linda agreed.
As Linda knew, Venita was scheduled to serve two weeks
of jury duty, starting the following Monday. But on Monday,
Venita again woke up in pain, and called in sick to jury duty.
For the rest of the week, she went neither to court nor work.
On Friday, she was fired.
Venita sued under the Americans with Disabilities Act, al‐
leging Greenleaf fired her because it thought she had a disa‐
bility. The trial was a credibility contest: Greenleaf’s story was
that Venita pretended she was at jury duty, instead of home
sick, so that she would get paid for the week (she had already
No. 14‐1687 3
used all of her paid sick days for the year). Linda testified in
support of that story. She said she thought Venita was at jury
duty all week, until on Friday another employee reported see‐
ing Venita around town. At that point, Greenleaf called the
court and learned that Venita had not been there all week, and
Linda fired her for having skipped work without notice.
Venita called Linda a liar, testifying that she had told Linda
she was too sick to go to court or to work, and Linda had given
her the week off.1
Venita kept a personal diary, which contained entries that
could arguably have helped the jury decide who was telling
the truth. Specifically, entries from Monday, September 14,
and Tuesday, September 15, purport to document voicemail
messages and phone conversations between Venita and
Linda. Venita sought to introduce these diary entries at trial,
but the judge excluded the entry from the 14th and only ad‐
mitted the entry from the 15th during Venita’s rebuttal case
and through oral testimony (Venita read the entry aloud but
was not allowed to show it to the jury). On appeal, Venita
challenges these decisions. She also challenges the judge’s rul‐
ings concerning her multiple attempts to impeach Linda’s trial
testimony about the messages and conversations.
1 Greenleaf told the jury that it fired Venita for a host of other reasons
too. Still, if the trial judge abused his discretion in excluding evidence that
would likely have helped the jury decide who was telling the truth about
Venita’s week‐long absence, the error would not be harmless because
Greenleaf’s theory was that that week was “the straw that broke the
camel’s back.”
4 No. 14‐1687
II. ANALYSIS
We review a trial judge’s evidentiary rulings for an abuse
of discretion and will not order a new trial if any errors, cu‐
mulatively, were harmless. Nelson v. City of Chicago, 810 F.3d
1061, 1066 (7th Cir. 2016).
A. No Abuse of Discretion in Barring Repetitive Im‐
peachment
At her deposition, Linda testified that she assumed Venita
attended jury duty all week. She made that assumption be‐
cause she knew jury duty had been scheduled and Venita
never said she would not attend. Venita’s lawyer suggested
that Venita informed Linda on Monday that she called in sick
to jury duty. Linda rejected that suggestion, testifying that she
did not think she spoke to or received a voicemail from Venita
at any time during the entire week, and that if the two did
speak, it was only about paying Venita for her vacation time.
Linda’s trial testimony was different. When called during
Venita’s case‐in‐chief, Linda testified that: (i) she remembered
receiving a voicemail, on Monday morning, in which Venita
said she would be at jury duty that day; and (ii) she remem‐
bered having a phone call with Venita, on Monday afternoon,
in which Venita said she was at jury duty. So Linda’s deposi‐
tion testimony was that she assumed Venita was at jury duty,
while her trial testimony was that Venita specifically said that
was so. Venita’s lawyer used Linda’s deposition testimony to
impeach her, pointing out the change in her story.
Linda was called again during Greenleaf’s case‐in‐chief.
On direct examination, she reiterated that until she learned
otherwise on Friday, she thought Venita had been at jury duty
all week. But she was not asked why she thought that, nor was
No. 14‐1687 5
she asked specifically about Monday’s voicemail or phone
conversation. Nonetheless, on cross‐examination, Venita’s
lawyer attempted to impeach Linda a second time concerning
her changing testimony about Monday’s communications.
Greenleaf objected that the topic was beyond the scope of its
direct examination. The judge sustained that objection and
also noted that Venita’s lawyer was “going over old ground.”
Then, during Venita’s rebuttal case, her lawyer gave it an‐
other shot, asking to recall Linda to impeach her again. Revis‐
iting his ruling from Greenleaf’s case‐in‐chief, the judge noted
that even if the topic was not entirely beyond the scope of
Greenleaf’s direct examination, Venita’s lawyer had already
thoroughly addressed the issue, during Venita’s case‐in‐chief.
So the judge denied Venita’s request, rejecting what he called
an attempt “to bang away at a witness who has already been
adequately impeached.”
Having reviewed the trial transcript, it is clear to us that
during Venita’s case‐in‐chief, her lawyer fully explored the
changes in Linda’s testimony from deposition to trial. Under
the applicable deferential standard, see United States v. Bo‐
zovich, 782 F.3d 814, 816 (7th Cir. 2015), we have no trouble
holding that the trial judge was within his discretion to reject
a do‐over. See Fed. R. Evid. 611(a) (directing trial judges to
“exercise reasonable control over the mode and order of ex‐
amining witnesses” to, among other things, “avoid wasting
time” and “protect witnesses from harassment”).
B. Rulings on Diary Entries Do Not Warrant New Trial
Before trial, Venita moved the court to allow her to intro‐
duce entries from her diary at trial. That motion was denied
without prejudice and she renewed it twice during trial. The
6 No. 14‐1687
entry from Monday was never admitted. The entry from Tues‐
day was eventually admitted, but only during Venita’s rebut‐
tal case, and only orally—she read it aloud but was not al‐
lowed to show it to the jury. Venita argues that the judge
abused his discretion in excluding Monday’s entry and in lim‐
iting the presentation of Tuesday’s entry.
Monday’s entry reads as follows:2
Called in sick today work & jury duty. Thank
you God for letting jury duty understand & be‐
lieve me. Who in the world would fake a sick‐
ness like this. Spoke w/ Dan he said call [illegi‐
ble] & fax over my ER papers & Doctor note.
Thank you Lord! I will not be in contempt of
court.
Left a msg for Linda to call back.
Called Linda said she got my msg. I reminded
her I had JD this week. She said our Doc’s
wouldn’t write an excuse for me. Hopefully my
ER papers will be enough.
* Call St. Therese for records. *
Thank you Dear Lord.
[Illegible]
Tuesday’s entry reads:
Called in sick today asked Linda if Dwight
could p/u my check instead of mom. She said
OK will leave at the front desk. Also OK to have
2 The diary is handwritten. For completeness and accuracy, images of
the relevant pages are included in the appendix to this opinion.
No. 14‐1687 7
a few days off. I told her where I’d be for cover‐
age. She said that’s fine. Thank you Lord. God is
Good all the time!
[Illegible]
Called JD & told them I can’t get a Doc excuse
until I f/u w/ my Doc but will still fax ER stuff.
OK per Dan.
Called St. Therese — Reg Records I have to req
in person & pay a fee.
Venita first argues that these entries were admissible as
“present sense impressions” under Federal Rule of Evidence
803(1). We easily reject that argument because Venita offered
no evidence that the entries describe the relevant events with‐
out calculated narration, nor that they were made while she
was perceiving the events or immediately thereafter. See
United States v. Boyce, 742 F.3d 792, 797 (7th Cir. 2014).
Her second argument, however, merits greater discussion.
She contends that Greenleaf suggested her story—that Linda
gave her the week off—was a lie, fabricated to help her win
this lawsuit. She argues that her diary entries are admissible
to rebut that allegation, as they were created before the law‐
suit was filed—indeed, before she was fired—when she had
no motivation to lie. “Prior consistent statements that are of‐
fered to rebut a charge of recent fabrication or improper influ‐
ence or motive are not hearsay.” United States v. Alviar, 573
F.3d 526, 541 (7th Cir. 2009) (citing Fed. R. Evid. 801(d)(1)(B);
Tome v. United States, 513 U.S. 150, 157–58 (1995)). “Such state‐
ments are admissible if they satisfy a four‐part test: (1) the de‐
clarant testifies at trial and is subject to cross‐examination; (2)
8 No. 14‐1687
[her] prior statement is indeed consistent with [her] trial tes‐
timony; (3) the statement is offered to rebut an explicit or im‐
plicit accusation of recent fabrication; and (4) the statement
was made before the declarant had a motive to fabricate.” Al‐
viar, 573 F.3d at 541. A prior statement does not fall within
Rule 801(d)(1)(B), even if it is consistent with the witness’s in‐
court testimony, unless it has some potential to rebut the al‐
leged link between the in‐court testimony and the witness’s
recent improper motive. Tome, 513 U.S. at 157–58 (“[T]he ques‐
tion is whether A.T.’s out‐of‐court statements rebutted the al‐
leged link between her desire to be with her mother and her
testimony, not whether they suggested that A.T’s in‐court tes‐
timony was true. The Rule speaks of a party rebutting an al‐
leged motive, not bolstering the veracity of the story told.”).
When a central witness’s in‐court testimony is attacked as
a recent fabrication, the precise contours of the attack may be
unclear. Rarely will the attack apply to the entirety of the wit‐
ness’s testimony. So determining whether a witness’s past
statement has any potential to rebut the allegation will neces‐
sarily involve an exercise of the trial judge’s discretion. Here,
Venita and Linda testified differently on both (1) whether
Linda knew Venita missed jury duty on Monday; and (2)
whether Linda knew Venita would miss both jury duty and
work for the rest of the week. The judge found that the key
dispute in the case concerned the rest of the week, not solely
or primarily Monday. There is some merit to that framing.
Venita’s lawyer tried to get Linda to say that she fired Venita
for lying about her whereabouts on Monday, but Linda re‐
sisted that characterization, saying that Venita’s infraction
was failing to tell Greenleaf where she was all week. Twice
during closing arguments, Venita’s lawyer stated that “the
No. 14‐1687 9
key conversation” was the one Venita said happened on Tues‐
day, not Monday. Whether we would have reached the same
conclusion is irrelevant—an exercise of discretion was re‐
quired and we cannot say that the trial judge abused that dis‐
cretion. See United States v. Abel, 469 U.S. 45, 54 (1984) (noting
that a “district court is accorded a wide discretion in …
[a]ssessing the probative value of [proffered evidence], and
weighing any factors counseling against admissibility”).
Venita’s diary entry for Monday says that Venita reminded
Linda that she had jury duty all week, Linda refused to get
Greenleaf’s doctors to write a note excusing Venita from jury
duty, and Venita was “hopeful[]” that the documents she al‐
ready had would suffice. The judge found the entry silent on
the key question: whether Venita told Linda that she would
not be attending jury duty for the rest of the week. That si‐
lence is not surprising—Venita testified that it was not until
Tuesday that she spoke with the jury department and was “ex‐
cused for the rest of the week.” The judge’s finding is sup‐
ported, so excluding Monday’s entry was not an abuse of dis‐
cretion.
Tuesday’s entry, on the other hand, is not silent on the key
question. That entry says that Venita and Linda spoke on
Tuesday and that Linda gave Venita “a few days off.” That’s
consistent with Venita’s version of the facts and relevant to the
material dispute. (Linda testified that she didn’t give Venita
any days off—indeed, the two did not speak on Tuesday). The
trial judge appears to have agreed. Although he initially ex‐
cluded the entry, he later revisited and reversed that ruling,
so the entry was admitted at trial. Nevertheless, Venita argues
that the judge’s handling of the entry prejudiced her, for sev‐
eral reasons.
10 No. 14‐1687
First, Venita complains that because the judge initially ex‐
cluded the entry, she was only able to present it during her
rebuttal case, not her case‐in‐chief. But we cannot order a new
trial based on an error that does not affect a party’s “substan‐
tial rights,” Nelson, 810 F.3d at 1066; Fed. R. Civ. P. 61, and
Venita has not shown that her substantial rights were affected
by the order of the presentation.
Second, Venita complains that, although she was allowed
to read the entry, she was not allowed to display it. But the trial
judge noted that there was no benefit to displaying the entry
because Greenleaf was not suggesting that Venita read it
aloud incorrectly. Venita’s lawyer contended that Greenleaf
was suggesting that the entry was fraudulent—it was actually
created after Venita was fired. But as the judge noted, display‐
ing the entry would in no way help the jury determine when
it was written. On appeal, Venita offers no substantive re‐
sponse to that point, nor does she otherwise explain how her
substantial rights were affected by the judge’s decision.
Finally, Venita argues that she was harmed by the judge’s
decision to admit Tuesday’s entry while at the same time ex‐
cluding Monday’s. She argues that because the jurors learned
that a diary existed, but did not see (or hear) an entry from
Monday, they likely inferred that no entry was made that day.
Venita does not explain how that inference would have been
detrimental to her, but even assuming the inference was made
and it was detrimental, the argument is a loser. First, the ar‐
gument fails because we have already concluded that the
judge did not abuse his discretion in excluding Monday’s en‐
try. Further, Venita was not barred from introducing the fact
that a diary entry from Monday existed; the bar went only to
No. 14‐1687 11
the entry’s content. Finally, any error was invited. Venita’s re‐
newed motion explicitly asked only to admit Tuesday’s entry,
not Monday’s. See United States v. Addison, 803 F.3d 916, 919
(7th Cir. 2015) (“It is well‐settled that where error is invited,
not even plain error permits reversal.”).
In sum, the trial judge did not abuse his discretion in pre‐
venting multiple impeachment attempts on the same topic,
nor in excluding Monday’s diary entry. And Venita has not
shown that she was harmed by the limitations placed on her
presentation of her diary entry from Tuesday.
III. CONCLUSION
We AFFIRM the district court’s judgment.
12 No. 14‐1687
APPENDIX
September 14, 2009
No. 14‐1687 13
September 15, 2009