Ross T. Moylan filed suit against his former employer, The Meadow Club, Inc., alleging that he was entitled under the Fair Labor Standards Act, 29 U.S.C. § 213(a) (1988), to overtime pay for the nine-month period during which he served as the Meadow Club’s resident chef. After a trial,' the jury entered a verdict for the defendant, and the district court denied Moylan’s motion for JNOV and motion for a new trial. Moylan appealed, alleging numerous evi-dentiary and procedural errors by the district court. In particular, Moylan contends that the Meadow Club should not have been permitted to impeach him with evidence that he failed to mention any claim to overtime compensation at the time he resigned from his position. Finding Moylan’s grounds for appeal without merit, we affirm.
I.
Ross T. Moylan began working for the Meadow Club, a private dining and health facility in Rolling Meadows, Illinois, on September 9, 1987, as a sous chef earning $9.26 per hour. Over the next two years, he steadily worked his way up the culinary ladder. On March 24, 1988, Moylan was promoted to the position of resident chef. In that job, he received a salary of $673 per week, did not punch a time clock, and was never paid for overtime work. Moylan’s duties as resident chef, although sharply disputed at trial, included both supervision of the kitchen help and preparation of food. On January 1, 1989, Moylan became the executive chef of the Meadow Club, and acquired greater financial responsibilities for the kitchen and complete authority over kitchen operations. Only Moylan’s tenure as resident chef — a period of approximately nine months — is at issue in this case, when Moylan worked 1242.5 overtime hours and allegedly earned overtime wages of $5488.46.
Moylan resigned from his post as executive chef on December 9, 1989. In mid-November, Moylan had told the club manager that he wanted to resign; he would stay on through the holiday season, but only on condition that he receive “all the cash due” him. Moylan then prepared a letter that embodied the terms of a severance agreement that he and the manager had worked out. The terms required the Meadow Club to pay Moylan’s salary through the first four days of January 1990 and to settle up various sums that it owed Moylan from previous years, including vacation pay and bonus days off for good work. Neither in his conversations nor in his letter did Moylan mention a claim for overtime pay.
At trial, counsel for the Meadow Club cross-examined Moylan, over vigorous objections, about his meetings with the club manager and asked him to read the December 8 letter to the jury. The letter was then'introduced into evidence. At the conclusion of the cross-examination, the court issued a limiting instruction in accordance with Federal Rule of Evidence 105. The court stated to the jury: "• .
This witness was questioned about whether he had asked for overtime of his employers, and he said he had not. Under the law an employee who has a valid claim for overtime does not lose his right to overtime simply because the employee does not ask for it. Indeed the law provides that even if an employee says don’t pay me overtime, the employee is still entitled to overtime. There is, as I instruct you, no waiver, no voluntary giving up of a claim to overtime absent some circumstances that don’t apply in this case.
So the evidence was not introduced to establish that somehow Mr. Moylan gave up a claim for overtime.
However, evidence can be introduced to show that on a prior occasion a witness may have done or said something that is inconsistent with the witness’ present testimony, and you can consider such acts or statements if you find them to be inconsistent in determining whether or not you are going to believe the witness. In this case the witness has testified that he was not in charge of the kitchen department and as he has said on several occasions that he acted under the direction of a particular person. These statements are being challenged in this case by the defendants, and they have offered this evidence about what he has said or did not say at other meetings on the theory that it is an action or omission or a statement that is inconsistent with the testimony he has given earlier.
Tr. at 136-36. In his closing argument, counsel for the defendant reiterated that Moylan’s letter contained no claim for overtime pay.
II.
Moylan’s main argument on appeal is that the Meadow Club should not have been permitted to impeach him with evidence that he failed to seek overtime pay at the time of his resignation. Moylan contends that such evidence was excluded on his. motions
in limine,
that it was improper impeachment, and that it was independently inadmissible as irrelevant under
Wirtz v. Turner,
Before trial, Moylan presented two motions in limine, the first divided into multiple parts. Moylan had originally alleged that his termination' by the Meadow Club was a retaliatory discharge, but he dropped this claim before trial. Part II of the first motion in limine 1 therefore sought to exclude evidence relating to “the circumstances surrounding [Moylan’s] termination ... on the grounds that such claims have been waived by the plaintiff, and any such evidence is unrelated, immaterial and irrelevant to any issue of claim relating to overtime wages.” Plaintiff’s Motion in Li-mine at 2. This part of the motion was granted. Part III aimed to prevent admission of certain documentary evidence, and was denied. Part IV aimed at the testimony of three potential defense witnesses; the district court declined to rule on the motion at the time. The second motion in limine sought to exclude all evidence suggesting that “plaintiff acquiesced in the wages paid to him during the alleged overtime wage liability period ... on the grounds that such acquiescence is not controlling or relevant to the issue of back overtime wages due under FLSA.” Plaintiff's Motion in Limine (No. 2) at 1. The district court also declined to rule on this motion. 2
Moylan argues on appeal that introduction of the letter and cross-examination concerning the severance agreement violated the court’s order
in limine.
Moylan contends that “[defendant was clearly admonished that it could not introduce evidence of the circumstances of plaintiff’s resignation for purposes of impeachment, yet that is precisely what defendant did, to plaintiff’s prejudice.” Plaintiff’s Brief at 19. Appellant’s 'argument is disingenuous and without basis in the record. Read literally, part II of the first motion
in limine
indeed prohibited all references to the events surrounding Moylan’s resignation. But the purpose of granting the motion— as counsel explained verbally at sidebar and spelled out in the motion itself — was only to prevent the Meadow Club from arguing against a retaliatory discharge claim that Moylan had himself initiated and then abandoned. The district court obviously did not mean to bar all mention of events that bore any connection to plaintiff’s resignation. Indeed, the court declined to rule on Moylan’s second motion to exclude precisely this evidence. Moylan cannot use the broad language of his first motion
in limine
— language he drafted
The method of impeachment in this case was impeachment by omission, a well-established, if slightly uncommon, subcategory of impeachment by contradiction. The theory of impeachment by omission is that “if [a] former statement fails to mention a material circumstance presently testified to, which it would have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent” to be admitted to impeach the present testimony. 1 John W. Strong,
McCormick on Evidence
§ 34 at 114-15 (4th ed. 1992);
see also
3 Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Evidence
If 607[06] at 607-97 (1992); 3A James H. Chadbourn,
Wigmore on Evidence
§ 1042 at 1057 (rev. ed. 1970). For example, in
United States v. Standard Oil Co.,
The Meadow Club argues that Moylan’s failure to mention his claim to overtime pay in his December 1988 letter and conversations, at a time when he was trying to settle up accounts with his employer, amounted to an admission that he did not deserve any overtime wages. That implicit admission, in turn, undercut his trial testimony that his job as resident chef was non-managerial in nature and thus governed by the FLSA overtime provisions. At issue was the credibility of Moylan’s description of his job in the kitchen — the tasks he performed, his financial responsibilities, his relationship with the kitchen staff, and so on. If Moylan believed while he was working at the Meadow Club that the tasks he performed as resident chef did not entitle him to overtime pay, that evidence casts a long shadow over his story at trial that in fact he occupied a non-managerial position and thus qualified for additional compensation. 3
Moylan argues that the evidence should not have been admitted because it offended the well-established rule that employees cannot waive their entitlement to overtime wages under the FLSA. In
Brooklyn Savings Bank v. O’Neill,
In effect, Moylan argues that the evidence introduced for impeachment ran afoul of Rule 403, because its prejudicial effect, insofar as it suggested to the jury that Moylan had waived his claim, outweighed its probative value as impeachment evidence. At the outset, we note that “a trial judge’s assessment of relative probative value and unfair prejudice is generally accorded great deference because of his first-hand exposure to the evidence and his familiarity with the course of the trial proceeding.”
United States v. Briscoe,
Moylan insists, however, that the impeachment by omission was only a subterfuge to put before the jury evidence that would not otherwise have been admissible. Moylan cites two cases in which this court held that such tactics require reversal. In
United States v. Webster,
Neither case, however, applies to the instant situation. In Webster and Taylor, evidence was admitted under the guise of impeachment that would otherwise have been inadmissible—in Webster, because it was hearsay; in Taylor, because it was irrelevant. Here the evidence was not hearsay, but rather a party admission under Federal Rule of Evidence 801(d)(2). Nor was it irrelevant; the letter, with the omission, would have been admissible to show Moylan’s understanding at the time of his resignation. Introduction of the letter here was not “subterfuge,” because the evidence had legitimate impeachment and substantive uses. 4
III.
Moylan raises several other claims. At closing argument, counsel for the Meadow Club several times described Moylan’s claim for overtime wages as a “hold up”. Moylan now argues that “[ijmputing plaintiff with a crime” is improper and constitutes grounds for a new trial. We disagree. As a general matter, “improper comments during closing argument rarely rise to the level of reversible error,”
Valbert v. Pass,
Still focusing on the closing arguments, Moylan argues that the district court erred in reversing the order of summations. It is customary for the party bearing the burden of proof to open and close the argument.
Silver v. New York Life Ins. Co.,
Finally, Moylan cites a litany of errors in the instructions given to the jury, most of which border on the frivolous.
5
As mentioned above, the only issue remaining in dispute at closing was whether Moylan was exempt from the FLSA’s overtime provisions, which in turn depended on whether Moylan was employed in a bona fide executive capacity. 29 U.S.C. § 213(a)(1) (1988). The district court instructed the jury on this legal standard, but used the term “exempt manager” instead of “bona fide executive.” Moylan contends that he was prejudiced by this substitution in nomenclature because the class of “managers” is broader than the class of “bona fide executives,” and thus it was easier to prove that he belonged to the former. The district court, however, expressed concern that the jury might be confused by the statutory term, since none of the witnesses spoke of “bona fide executives” and since Moylan’s title at one point had been “executive chef.” The court nevertheless drew on the Labor Department’s regulations defining “bona fide executive” to explain the concept of “exempt manager” to the jury. It also instructed the jury to focus on duties, rather than titles, to determine whether the plain
For the foregoing reasons, the judgment of the district court is Affirmed.
Notes
. Part I contained only prefatory material.
. The court stated that it would review the evidence later at an offer of proof. Moylan complains that the letter was admitted without such an offer ever occurring, but the district court did not condition admissibility on that requirement.
. Moylan argues that the letter could not be introduced as impeaching evidence because he never denied writing it. Moylan misconceives the nature of impeachment by omission. The statement being impeached was not that Moylan did not have conversations with the club manager or did not write a letter in December 1988, but the statement that he deserved overtime pay-
. Moylan claims that the jurors, in a conversation with the judge held after the verdict was announced, revealed that the impeaching evidence had had a prejudicial effect. The judge allegedly told counsel that jurors believed Moy-lan was willing to work for less money in the kitchen in order to attain the "golden ring” of a promotion. Moylan somehow regards this incident as a "textbook example" of unfair prejudice, reading these comments as showing that jurors swallowed the waiver argument whole. We see no reason to accept Moylan’s spin on these remarks; an equally plausible interpretation is that the jury believed Moylan labored in a menial job at first so that he could eventually become head chef. In any case, such speculation about the' mental processes of jurors is completely without legal effect. Rule 606(b) of the Federal Rules of Evidence bars jurors from testifying about the reasons for their decisions; a jury's verdict cannot be impeached by extrajudicial statements of the jurors.
See Sims' Crane Service, Inc. v. Ideal Steel Products, Inc.,
. Moylan charges that the district court should have instructed the jury that parties cannot contract to waive overtime pay, despite the fact that he neither submitted nor asked for such an instruction. In fact, the court instructed: "If an employee is not an exempt manager, he cannot waive his right to overtime wages.” Moylan also contends that the court should have given his proposed instruction concerning the measure of damages. Counsel for the Meadow Club, however, stated to the jury at closing that if Moylan was found non-exempt, they should award him the entire amount he sought.