Keiser v. The Borough of Carlisle
MEMORANDUM OPINION AND ORDER - IT IS HEREBY ORDERED THAT the Boroughs motion to exclude certain speculative testimony of current and former employees and Linda Ciccolello as more fully described in the motion (Doc. 77 .) is GRANTED. Signed by Magistrate Judge Martin C. Carlson on September 14, 2017. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL T. KEISER,
THE BOROUGH OF CARLISLE,
Civil No. 1:15-CV-450
(Magistrate Judge Carlson)
MEMORANDUM OPINION AND ORDER
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
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 that the Borough has filed to exclude what it
describes as “irrelevant and speculative testimony about other employees.” (Doc.
83.) In this motion, the Borough requests that the Court enter an Order that would
preclude the plaintiff from soliciting testimony from a number of witnesses that
amounts to little more than their own, or others’, subjective anxiety about their job
security as they became older or were beset with deteriorating health. (Doc. 77.)
The defendant also seeks to preclude a former Borough Council member, Linda
Ciccolello, from offering her own speculation as to the reasons that a number of
employees left the Borough. The defendant argues that the evidence is in some
respects based upon rumors and other hearsay regarding Candland’s alleged bias
against older workers, and thus should be deemed inadmissible for the similar
reasons to those set forth in a separate motion in limine that the Court has since
granted. (Doc. 73.) The defendant also argues that the evidence is irrelevant to the
issues in this case, and even if arguably relevant would be needlessly confusing to
the jury and highly prejudicial to the defense.
For his part, the plaintiff concedes that the speculation testimony that is
contained in deposition testimony of Linda Ciccolello is not properly admissible,
and he concedes the motion with respect to this potential evidence. He similarly
concedes that testimony from Don Reisinger about a former employee, Rodney
Garner’s fears regarding his job security because of Matt Candland’s alleged
preference for younger workers is both unduly speculative and inadmissible as
hearsay. However, he argues that he should be able to elicit testimony from
Theodore Weber and Brian Richardson, arguing that this testimony is relevant and
admissible, although he provides relatively little in the way of argument on either
score. It appears that he wishes to present this evidence in order to provide support
for the narrative that Candland had fomented a culture of fear and anxiety within
the Public Works Department that caused older employees to become fearful that
their continued employment was in jeopardy.
Based on the scant testimony that actually appears to be remaining in issue
and subject to the defendant’s motion in limine, and finding that the testimony is of
questionable relevance, confusing as to the issues actually being tried, risks the
potential for significant prejudice, and in some cases lacks an apparent foundation,
the motion as to the specific testimony identified will be granted. The Court
recognizes that in some instances witnesses should be granted leeway to explain
their state of mind, but in the case of the testimony that remains subject to this
motion, it appears to rely on a foundation of rumor-based evidence and concerns
that the Court has already found constitute impermissible hearsay. The evidence is
also of dubious relevance, since it is little more than individual employees’
expressing their own subjective worries about not only the effect of age on their
future employment, but also their individual medical issues and other concerns,
matters that seem unrelated to the issues being tried regarding Keiser’s termination
and retaliation claims.
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
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).
The issues raised by these three motions in limine aptly illustrate why courts
should often refrain from ruling on these questions of relevance and prejudice in
the abstract. At the outset, the legal principles which guide our analysis of these
questions are broadly framed and are often fact-specific, requiring us to assess
factual matters as they arise at trial. On this score, 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
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. One of
the most significant of these limitations is embodied in Rule 403 of the Federal
Rules of Evidence, which 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
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.
Turning to the motion before the Court, the Borough seeks to exclude
testimony from Theodore Weber, a current employee who testified during his
deposition that he had concerns about being able to maintain his employment
because his “knees were getting bad” and because of rumors that “they were going
to try to get rid of the older people.” (Doc. 78, Ex. A, at 45-46.) Other witnesses,
including Tom Hamilton and Don Reisinger offered some limited testimony that
echoed the concerns that Weber had. In addition, Reisinger and Brian Richardson
both offered some speculative testimony regarding the reason Rodney Garner, a
former Borough employee, decided to retire in his 60s while battling cancer. The
plaintiff concedes that Reisinger’s testimony would amount to inadmissible
hearsay, but nevertheless argues that Richardson should be able to testify about his
own speculation for Garner’s separation, which seems to be that Garner was
worried about his health and his age and thought that he might be a candidate for
termination, though Richardson’s testimony is extremely limited, is admittedly
speculative and ultimately amounts to little more than a recollection that four years
prior to the deposition he had “some form of conversation with he [Garner] was
concerned about the fact that he had cancer and that his age that he was on the
chopping block. Something along those lines.” (Doc. 78, Ex. D, at 34-35.)
We agree with the Borough that this especially limited and speculative
testimony lifted from short excerpts in the deposition record lacks relevance in this
case because it does not have “any tendency to make the existence of any fact that
is of consequence to the determination of the action more or less probable than it
would be without the evidence.” Fed. R. Evid. 401. As best as the Court can tell,
the evidence regarding Weber amounts to little more than his own articulated
concerns over his health and its potential impact on his job, and also implicates
rumors that were circulating within the Public Works Department that Candland
had a preference for younger workers.1 There is no evidence that Weber was ever,
The Court has previously ruled that the plaintiff may not have witnesses testify
about rumors and other hearsay concerning Candland’s preference for younger
in fact, subject to any alleged discriminatory or retaliatory treatment, and his
subjective anxiety would thus seem to have especially limited relevance to Keiser’s
claims. Even if the evidence could be said to have some relevance in this case, the
Court agrees that under Rule 403 it would be properly excludable because its
limited probative value would be substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, and would otherwise be a waste of the jury’s time.
The Court finds the dispute over Brian Richardson’s speculative recall of the
reasons why Garner separated from employment to be particularly confusing.
Richardson’s testimony is extremely limited in this area, and would seem to offer
little substantive support for the plaintiff’s case other than, perhaps, to suggest that
other employees had concerns that their own health and advancing age placed their
continued employment at risk. Aside from the questionable relevance, it also
appears that Richardson lacks an adequate foundation regarding the reasons why
Garner elected to retire, since it is not based on his own personal knowledge, and
his testimony about what Garner may have told him would appear plainly to
constitute hearsay under Rule 801 in that it would be offered as a statement given
by an out-of-court declarant offered to prove the truth of the reasons why he left
his job. Fed. R. Evid. 801(c).
workers and his intention to replace older employees because the testimony lacks
an adequate foundation and is hearsay.
The plaintiff has already conceded that Don Reisinger would not be
competent to testify about similar conversations that he had with Garner, since the
testimony would be hearsay.
The Court cannot perceive why Richardson’s
testimony would not be excluded for the same reason, and the general rule that
hearsay statements are not admissible unless they are subject to an exception set
forth in Rule 804 or unless another rule provides that the statement is non-hearsay.
As best the Court can tell from his brief, the plaintiff’s only argument on this score
is that because Brian Richardson was a “manager,” his deposition testimony about
his own subjective recollection of a conversation he had with Rodney Garner
should be deemed non-hearsay as a statement of the Borough itself. (Doc. 84, at
3.) The plaintiff has offered no legal support for this assertion, and the Court does
not agree that Richardson’s testimony about Garner’s alleged out-of-court
statements somehow become admissible simply because Richardson functions in
an unspecified managerial capacity for the Borough, particularly since the
testimony is not about a statement that Richardson himself made, but is about
something that Rodney Garner is claimed to have said. Nothing in Rule 801(d)(2)
provides for the interpretation or conclusion the plaintiff has suggested. Finally,
the Court’s confusion on the basis for this particular evidentiary dispute strongly
suggests that the introduction of this evidence in the way the plaintiff proposes
would risk confusing the fact finder at trial, and the especially limited testimony is
of such little probative value that it “is not worth the problems that its admission
may cause.” Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343 (3d Cir. 2002).
AND NOW, this 14th day of September 2017, for all of the foregoing
reasons, IT IS HEREBY ORDERED THAT the Borough’s motion to exclude
certain speculative testimony of current and former employees and Linda
Ciccolello as more fully described in the motion (Doc. 77.) is GRANTED.
/S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?