Keiser v. The Borough of Carlisle

Filing 104

MEMORANDUM OPINION AND ORDER re 61 MOTION in Limine TO EXCLUDE REFERENCE TO OR ANY EVIDENCE RELATING TO CRIMINAL COMPLAINTS OR CHARGES FILED AGAINST PLAINTIFF filed by Michael T. Keiser. Signed by Magistrate Judge Martin C. Carlson on September 11, 2017. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL T. KEISER,
Plaintiff
v.
THE BOROUGH OF CARLISLE,
Defendant

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Civil No. 1:15-CV-450
(Magistrate Judge Carlson)

MEMORANDUM OPINION AND ORDER
I.

Factual and Procedural Background

This is a workplace age discrimination lawsuit brought by the plaintiff
against a local municipality under the Age Discrimination in Employment Act, 29
U.S.C. §§ 621 (“ADEA”). The plaintiff in this action, Michael Keiser, worked for
27 years as the Director of Public Works for the Borough of Carlisle before he was
fired on May 1, 2014, just hours after formally complaining to his supervisor about
what he perceived as his supervisor’s repeated ageist and discriminatory comments
and criticism. Keiser alleges that his firing constituted unlawful age discrimination
and was retaliatory.
The Borough, and Keiser’s supervisor, Mathew H. Candland, Sr., maintain
that Candland was compelled to terminate Keiser’s employment because it had
become impossible to work cooperatively with Keiser; because of fundamental
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disagreements over significant public-works projects; and because morale had
reached an unacceptable low within Keiser’s department. Keiser retorts that these
given reasons were pretextual cover for his unlawful firing.
With respect to these competing claims and defenses, we have previously
concluded that this case is riddled with factual disputes that make summary
judgment inappropriate. Accordingly, we have scheduled this case for trial in
October 2017 and in anticipation of that trial the parties have filed an array of
motions in limine, including a motion in limine filed by the plaintiff which seeks to
exclude evidence of criminal complaints or charges filed against Keiser prior to his
discharge. (Doc. 61.) The parties have fully briefed this motion in limine, (Docs.
62 and 95.), and this motion is, therefore, ripe for resolution.
These briefs reveal the following factual background relating to this
evidentiary issue: In April of 2014, shortly before his employment with Carlisle
Borough was terminated Keiser was involved in a dispute with a neighbor. The
dispute involved Keiser’s use of weed killer on his property, weed killer that was
alleged to have blown onto a neighbor’s land. When that neighbor complained to
Keiser she alleged that Keiser sprayed additional weed killer in her direction. The
neighbor summoned police who cited Keiser for harassment and disorderly
conduct and admonished him to stop. These citations were reported in the local

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newspaper on April 16, 2014, when this incident took place. These citations were
subsequently dismissed in July of 2014.
Three days prior to Keiser’s termination, on April 28, 2014, the Carlisle
Borough Council held an executive session meeting. Given the public attention
which this police citation had received, the citation and Keiser’s future
employment status were discussed at this meeting. Recollections of this meeting
differ in ways that define disputed issues of fact for trial. Some participants recall
Keiser’s supervisor, Matthew Candland, categorically informing borough council
members that Keiser’s employment was not in jeopardy.

It appears that the

plaintiff wishes to present evidence from these witnesses describing what they
understood to be Candland’s categorical statements on April 28, 2014, that
Keiser’s job was not in jeopardy in order to bolster their claim that the termination
of Keiser’s employment three days later after he complained of age discrimination
in the workplace was retaliatory.
In contrast, Candland and other witnesses allege that Candland’s statements
at this April 28 meeting were much more guarded and limited, and pertained
exclusively to the question of whether Keiser’s dispute with his neighbor and the
harassment citation standing alone provided grounds for his dismissal. In fact,
Candland has indicated that he endeavored to limit his statements to this criminal
citation out of a concern that any broader discussion of Keiser’s workplace job
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performance issues would be reported to Keiser if they were disclosed by
Candland at this executive session meeting. With the recollection of witnesses
sharply divided on this issue, Keiser now moves in limine to preclude any
reference to this criminal citation whatsoever, a ruling which would allow the
plaintiff to present testimony from those witnesses who recalled Candland’s denial
of any plan to terminate Keiser in categorical terms, but would hobble Candland
and other witnesses in any effort to explain the more qualified nature of
Candland’s intended statements at this borough council meeting.
For the reasons set forth below, this motion in limine will be GRANTED in
part, in that we will instruct the parties to refrain from a discussion of Keiser’s
criminal charges, without the prior approval of the court. However, if the plaintiff
wishes to offer evidence relating to this executive session which seeks to present
Mr. Candland’s remarks about Keiser’s future employment in categorical terms,
we will permit Candland and other witnesses to explain that these statements
related solely to news reports that police had been summoned to address a dispute
between Keiser and a neighbor, and Candland simply meant to indicate that this
incident, by itself, would not provide grounds for firing Keiser. We will also
instruct the parties to endeavor to reach a stipulation regarding this issue, while
reserving the right to make a trial ruling relating to the appropriate scope of this
testimony.
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II.

Discussion

The Court is vested with broad inherent authority to manage its cases, which
carries with it the discretion and authority to rule on motions in limine prior to trial.
See Luce v. United States, 469 U.S. 38, 41 n.4 (1984); In re Japanese Elec. Prods.
Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev’d on other grounds sub
nom., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (the
court exercises its discretion to rule in limine on evidentiary issues “in appropriate
cases”). Courts may exercise this discretion in order to ensure that juries are not
exposed to unfairly prejudicial, confusing or irrelevant evidence. United States v.
Romano, 849 F.2d 812, 815 (3d Cir. 1988). Courts may also do so in order to
“narrow the evidentiary issues for trial and to eliminate unnecessary trial
interruptions.” Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir.
1990) (citation omitted).
However, courts exercise great caution before indulging in pre-trial rulings
excluding evidence. Parties frequently invite courts to make pre-trial rulings on
issues of prejudice, relevance and admissibility through motions in limine. The
United States Court of Appeals for the Third Circuit has cautioned us, however,
that “pretrial [rulings regarding evidentiary] exclusions should rarely be granted. . .
. Excluding evidence as being more prejudicial than probative at the pretrial stage
is an extreme measure that is rarely necessary, because no harm is done by
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admitting it at that stage.” In re Paoli R. Yard PCB Litig., 916 F.2d 829, 859 (3d
Cir. 1990); see also Spain v. Gallegos, 26 F.3d 439, 453 (3d Cir. 1994) (noting that
the Third Circuit’s “cautious approach to Rule 403 exclusions at the pretrial stage .
. . .”). Moreover, the Third Circuit has characterized Rule 403, the rule permitting
exclusion of evidence, as a “trial-oriented rule” and has warned that “[p]recipitous
Rule 403 determinations, before the challenging party has had an opportunity to
develop the record, are . . . unfair and improper.” In re Paoli R. Yard PCB Litig.,
916 F.2d at 859. However, it is also well-settled that “[a] trial court is afforded
substantial discretion when striking a . . . balance with respect to proffered
evidence, and a trial judge’s decision to admit or exclude evidence . . . may not be
reversed unless it is arbitrary and irrational.” McKenna v. City of Philadelphia,
582 F.3d 447, 461 (3d Cir. 2009).
Legally, there are several different bases for motions in limine. First, such
motions are filed when it is alleged that evidence is going to be offered which is
improper under the Federal Rules of Evidence. In considering motions in limine
which call upon the Court to engage in preliminary evidentiary rulings under Rule
403 of the Federal Rules of Evidence, we begin by recognizing that these
“evidentiary rulings [on motions in limine] are subject to the trial judge's discretion
and are, therefore, reviewed only for abuse of discretion ...

Additionally,

application of the balancing test under Federal Rule of Evidence 403 will not be
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disturbed unless it is ‘arbitrary and irrational.’ ” Abrams v. Lightolier Inc. 50 F.3d
1204, 1213 (3d Cir.1995) (citations omitted); see Bernardsville Bd. of Educ. v.
J.H., 42 F.3d 149, 161 (3d Cir.1994) (reviewing in limine rulings for abuse of
discretion). Yet, while these decisions regarding the exclusion of evidence rest in
the sound discretion of the district court, and will not be disturbed absent an abuse
of that discretion, the exercise of that discretion is guided by certain basic
principles.
One of these key guiding principles is reflected in the philosophy which
shapes the rules of evidence.

The Federal Rules of Evidence can aptly be

characterized as evidentiary rules of inclusion, which are designed to broadly
permit fact-finders to consider pertinent factual information while searching for the
truth. The inclusionary quality of the rules is embodied in three cardinal concepts.
The first of these concepts is Rule 401's definition of relevant evidence. Rule 401
defines what is relevant in an expansive fashion, stating:
“Relevant evidence” means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.
Fed. R. Evid. 401.
Adopting this view of relevance it has been held that: “Under [Rule] 401,
evidence is relevant if it has ‘any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable
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than it would be without the evidence.’ [Therefore] ‘It follows that evidence is
irrelevant only when it has no tendency to prove the fact. Thus the rule, while
giving judges great freedom to admit evidence, diminishes substantially their
authority to exclude evidence as irrelevant.’ ” Frank v. County of Hudson, 924 F.
Supp. 620, 626 (D.N.J.1996) citing Spain v. Gallegos, 26 F.3d 439, 452 (3d
Cir.1994) (quotations omitted).
This quality of inclusion embraced by the Federal Rules of Evidence is
further buttressed by Rule 402, which generally defines the admissibility of
relevant evidence in sweeping terms, providing that:
All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, by Act of
Congress, by these rules, or by other rules prescribed by the
Supreme Court pursuant to statutory authority. Evidence which
is not relevant is not admissible.
Fed. R. Evid. 402.
Thus, Rule 402 expressly provides that all “[r]elevant evidence will be admissible
unless the rules of evidence provide to the contrary.” United States v. Sriyuth, 98
F.3d 739, 745 (3d Cir.1996) (citations omitted).

These principles favoring

inclusion of evidence are, however, subject to some reasonable limitations.
For example, Rule 403 provides grounds for exclusion of some potentially
irrelevant but highly prejudicial evidence, stating that:
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
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prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
Fed. R. Evid. 403 .
By permitting the exclusion of relevant evidence only when its probative
value is “substantially outweighed” by other prejudicial factors, Rule 403
underscores the principle that, while evidentiary rulings rest in the sound discretion
of the court, that discretion should consistently be exercised in a fashion which
favors the admission of relevant proof unless the relevance of that proof is
substantially outweighed by some other factors which caution against admission.
One category of evidence which courts recognize is fraught with the
potential for prejudice and issue confusion relates to the presentation of evidence
concerning criminal charges which do not result in a conviction. On this score, it
has recently been observed that:
The Third Circuit has held that:
evidence of an acquittal from a criminal proceeding is inadmissible in
a civil proceeding unless used in “limited occasions when otherwise
inadmissible testimony may be admitted as rebuttal.” Am. Home
Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 325 (3d
Cir. 1985) (holding evidence of an acquittal in a criminal arson case
inadmissible in a civil arson case). It has been explained elsewhere:
The rationale for excluding such a dismissal or acquittal
from evidence in a civil trial is obvious. While a
conviction can be considered a judicial determination of
guilt, a dismissal, acquittal, or failure to prosecute may
simply reflect an inability to meet the requisite burden of
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proof. The danger that a jury will accept a nonconviction as determinative outweighs any probative
value that such evidence may hold.
Cunningham v. Wash. Gas Light Co., 1988 WL 90400, *1 (D.D.C.
1988).
Bounds v. Taylor, 77 Fed.Appx. 99, 107 (3d Cir. 2003). See also,
Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 147 (3d Cir. 2002)
(“[E]vidence of non-arrest, like evidence of nonprosecution or
acquittal of a crime, is generally inadmissible in a civil trial
concerning the same incident.”).
Burdyn v. Borough, No. 3:12-CV-2236, 2017 WL 394335, at *3
(M.D. Pa. Jan. 26, 2017).

Mindful of these concerns, we believe that eliciting specific testimony
relating to the harassment and disorderly conduct charges filed against Keiser as a
result of a neighborhood dispute, charges which were later dismissed, would be
unduly prejudicial and could lead to juror confusion and speculation on collateral
matters. Therefore, we will instruct all parties to refrain from eliciting testimony
regarding these specific criminal charges without the court’s prior express
approval. However, we also recognize an inherent unfairness if Keiser is permitted
to present testimony from witnesses describing Candland’s statements at this
borough council meeting as a categorical assertion that Keiser’s job was not in
jeopardy without allowing Candland and other witnesses to explain that they were
simply responding to specific new media reports that police had been required to
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intervene in a dispute between Keiser and a neighbor and were merely attempting
to state that this incident, standing alone, would not provide a basis for terminating
Keiser’s employment. In our view permitting the defense some limited leeway to
explain the factual context of these statements is necessary to allow the defendant
to respond to the suggestion that Candland had categorically denied any intention
to discharge Keiser just three days prior to the termination of his employment.
We believe, however, that this goal can be accomplished without reference
to the filing of specific charges through more limited testimony that Candland was
responding to questions raised by April 16, 2014, press reports which indicated
that police had been summoned to a dispute between Keiser and a neighbor,
without foraying into the question of whether criminal charges were filed, and
what the disposition of those charges might have been. Towards this end, we will
instruct the parties to endeavor to reach a stipulation regarding this issue, while
reserving the right to make a trial ruling relating to the appropriate scope of this
testimony in the absence of a stipulation by the parties.
An appropriate order follows.
III.

Order

For the foregoing reasons, IT IS ORDERED that the plaintiff’s motion in
limine, (Doc. 61.), is GRANTED in part as follows: All counsel and witnesses are
prohibited from referring to or eliciting specific testimony relating to the
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harassment and disorderly conduct charges filed against Keiser as a result of a
neighborhood dispute, charges which were later dismissed. However, if Keiser
presents testimony from witnesses describing Candland’s statements at this
borough council meeting as a categorical assertion that Keiser’s job was not in
jeopardy, then Candland and other witnesses may explain that they were simply
attempting to respond to specific news media reports that police had been required
to intervene in a dispute between Keiser and a neighbor and were merely
attempting to state that this incident by itself would not provide a basis for
terminating Keiser’s employment. IT IS FURTHER ORDERED that the parties
are to endeavor to reach a stipulation regarding this issue, while we reserve the
right to make a trial ruling relating to the appropriate scope of this testimony in the
absence of a stipulation.
So ordered this 11th day of September 2017.

/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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