Savidge v. Potter et al

Filing 117

MEMORANDUM - For the reasons set forth in this memorandum, the Motions in Limine will be granted in part and denied in part. An appropriate Order will follow.Signed by Honorable Robert D. Mariani on 1/23/13. (jfg)

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GARY A. SAVIDGE

Plaintiff
3:08-cY-2123
(JUDGE MARIANI)

Y.

PATRICK R. DONAHOE,
Postmaster General
Defendant
MEMORANDUM AND ORDER
In accordance with this Court's Order of August 10, 2012 (Doc. 84), the
parties have filed motions in limine. The motions have been fully briefed and
are now ripe for adjudication.
STANDARD
Under the Federal Rules of Evidence, "[a]1I relevant evidence is
admissible, except as otherwise provided by the Constitution of the United
States, by Act of Congress, by [the Federal Rules of Evidence], 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.
'''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. However, relevant evidence "may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion
of issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence." FED. R. EVID. 403.
DISCUSSION
I.

Plaintiff's Motion in Limine Precluding Defendant's Exhibit 4, VA
Medical Record Because It Is Confidential, Irrelevant, and
Prejudicial

Plaintiff argues that Defendant should not be permitted to introduce
Plaintiff's medical record from the Veteran's Affairs Hospital relating to his
involuntary inpatient psychiatric treatment. Plaintiff argues that Defendant
raises the medical records for an improper motive; Defendant, however,
argues that the records are admissible for the purpose of establishing the
degree of preexisting emotional trauma suffered by Plaintiff prior to the
alleged discrimination on the part of Defendant.
Under the Federal Rules of Evidence, Defendant should be permitted to
introduce evidence of prior psychological or psychiatric conditions
experienced by Plaintiff because such evidence is relevant to whether the
emotional trauma claimed to have been inflicted upon Plaintiff by Defendant
is, in whole or in part, a result of the alleged discrimination at issue in this
case. Defendant is therefore entitled to proffer such evidence solely to rebut
Plaintiff's evidence that any emotional problems from which he might suffer
are attributable to the alleged discrimination.
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Further, consistent with Judge Connor's Order of September 30, 2011
(Doc. 69), the Court will not exclude "evidence as it relates to Savidge's claim
for emotional damages," but Plaintiff shall have the right to object to evidence
that Plaintiff believes is improperly offered at trial. Counsel for the parties will
not be permitted to raise the shooting accident in opening statements or
thereafter, unless the matter is discussed at side bar and the Court "deems
such evidence admissible in light of the testimony on emotional distress
damages." Evidence relating to the accidental shooting shall not be used as
character evidence.
Accordingly, Plaintiffs Motion in Limine to preclude the admission of
Plaintiffs psychiatric records will be granted in accordance with the above
limitations.
II.

Plaintiffs Motion in Limine Precluding Defendant's Exhibits That
Are Not Complete

Plaintiff seeks to preclude the admission of Defendant's Exhibits 5 and
21. Exhibit 5 "purports" to be an incomplete portion of the collective
bargaining agreement between the United States Postal Service and the
American Postal Workers Union. Defendant filed an Amended Brief in
Opposition to the Motion in Limine, and informed the Court that it would
provide the entire collective bargaining agreement as Exhibit 5(a).

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Accordingly, Plaintiff's Motion in Limine will be denied as moot with regard to
the use of a portion of the collective bargaining agreement.
Exhibit 21 contains two letters from the United States Postal Service to
Plaintiff dated January 29, 2008, and January 28, 2008, respectively. Plaintiff
objects that the January 29, 2008 letter should not be admitted into evidence
without the January 28, 2008 letter that was allegedly "sent in error and
retracted" by the January 29, 2008 letter.
The Court will not prohibit Defendant from introducing the January 29,
2008 letter into evidence, as it is a separate and distinct correspondence from
the letter sent the prior day. Although the January 29, 2008 letter is related to
the earlier correspondence, the earlier letter is not part and parcel of the later
one in a way that renders it incomplete by itself. Accordingly, Plaintiff's Motion
in Limine to preclude the entry of the January 29, 2008 letter into evidence will
be denied.
III.

Defendant's Motion in Limine

A. Introduction of FMLA Leave Material
Defendant seeks to preclude the introduction of Plaintiff's Family
Medical Leave Act paperwork because Plaintiff does not state an FMLA claim.
Plaintiff claims that this paperwork will demonstrate that his 26 unscheduled
absences in 2006 and 2007 were incorrectly coded in Defendant's computer
system, and that this error resulted in Plaintiff appearing to miss an
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unacceptable amount of unexcused work. Defendant argues that the FMLA
paperwork is irrelevant to the question of whether Defendant regarded Plaintiff
as being disabled.
Plaintiffs FMLA paperwork is relevant, however, because it was
contained in Plaintiffs personnel file to which Defendant and his decision­
makers possibly had access. The FMLA paperwork contains medical
information that a reasonable jury might view as showing that the Defendant's
proffered "legitimate, non-discriminatory reason" for its denial of the Plaintiffs
request for a transfer to a custodial position, i.e., that his attendance record
was unacceptable due to Plaintiffs absences from work, was instead a pretext
for Plaintiffs unlawful discrimination based on having improperly perceived
Plaintiff as disabled. Defendant, in his Reply Brief in Support of his Motion in
Limine (Doc. 110), acknowledges that "Savidge's attendance records were
reviewed by Human Resources (Kathy Gill) and labor relations (Paula McKee)
in relation to the second reassignment in 2008." (Doc. 112, p. 1) Plaintiff, in
his Brief in Opposition to Defendant's Motion in Limine (Doc. 103), argues that
"[r]egardless of whether Plaintiff has raised a[n] FMLA claim in this action, the
important caveat that the Defendants continue to ignore is the fact that the
failure to assign FMLA leave to Plaintiffs absences is the justification provided
for the second adverse employment decision." (Doc. 103, p. 5) It will be
Plaintiffs burden, therefore, as part of the introduction of Plaintiffs Exhibit 1 to
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show that the "failure to assign FMLA leave to Plaintiff's absences" is in whole
or in part attributable to one or more of the persons who made the decision to
deny Plaintiff's second request, in 2008, for transfer to a custodial position,
e.g., Franco, Gill, McKee, or that after the decision to deny the Plaintiff's
request for transfer to the custodial position was made, and he was apprised
of the adverse decision, he brought to the attention of anyone of the decision
makers acting on behalf of Defendant his claim that the absences attributable
to him should have been excused as FMLA-sanctioned absences.
Accordingly, Plaintiff will be permitted to provide testimony regarding his
FMLA paperwork in the manner prescribed above and Ihe may enter Exhibit 1
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into evidence once such testimony is adduced.
B. Challenge to Scope of Plaintiff's Testimony Wi,h Regard to His Ability
to Advance
!

Defendant argues that Plaintiff should not be pernjlitted to testify that he
would have been able to advance to higher than a level i6 pay grade if Plaintiff
was granted a transfer request. Defendant claims that Plaintiff never held a
,

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custodial position with the United States Postal Service, i and is thus unable to

provide personal knowledge about advancement in such positions. Defendant
argues that any testimony offered by Plaintiff on this su~ject would be
speculation.

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The Court disagrees. Plaintiff may offer testimony regarding his
personal knowledge of advancement in custodial positions with Defendant's
organization. Plaintiff may not provide speculative testimony, but only
information to which he can attest with his own first-hand knowledge.
Defendant may object at trial to any testimony Plaintiff seeks to offer without
proper foundation showing Plaintiff's personal knowledge. See, FED. R. EVID.
602.
Similarly, Plaintiff may testify as to the emotional distress he allegedly
suffered as a result of his non-selection for a custodial position. Plaintiff may
describe his first-hand experiences, and may also testify as to any
medications he was prescribed, as well as any increases in dosage he was
prescribed or types of medications added as well as the dates when such
increases in dosage or added medications were first taken by him. Plaintiff
may not, however, offer testimony concerning the medical purpose for such
medications nor can he offer testimony about the medical reasons that any
such medications were prescribed. Plaintiff may, however, testify in
accordance with FED. R. EVID. 803(3) as to his then-existing state of mind or
emotional sensory or physical condition, including mental feeling, pain or
bodily health. Further, Plaintiff may testify, pursuant to F.R.E. 803(4) as to any
statement he made which is reasonably pertinent to medical diagnosis or
treatment as well as any statement he made in connection with such medical
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diagnosis or treatment which describes medical history, past or present
symptoms or sensations, their inception or their general cause. The foregoing
statement should not be interpreted as authorizing the Plaintiff to provide or
express an opinion as to the medical cause of any condition with which he
may be afflicted. Such testimony must be offered by a physician.
C. Defendant's Hearsay Objections to Exhibits 3 and 7
Defendant argues that Plaintiff should not be permitted to introduce
proposed Exhibit 3, an April 15, 2008 union grievance, because it is
impermissible hearsay. The exhibit states: "Mr. Savidge's disability was
commented on by Maintenance Manager Rick Franco to Clerk President John
Kishel and Maintenance Craft Director John Wright." Defendant argues that if
Plaintiff wants the jury to hear the comment referenced in the exhibit, both
John Kishel and John Wright will have to testify. Defendant also maintains
that Exhibit 3 is irrelevant, and that its mention of the word "disability" is
misleading and prejudicial.
Plaintiff, on the other hand, argues that Exhibit 3 should not be excluded
as hearsay because it falls under the business records exception.
The business records exception permits admission of documents
containing hearsay provided foundation testimony is made by "the
custodian or other qualified witness," that: (1) the declarant in the
records had personal knowledge to make accurate statements;
(2) the declarant recorded the statements contemporaneously
with the actions that were the subject of the reports; (3) the

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declarant made the record in the regular course of the business
activity; and (4) such records were regularly kept by the business.
United States v. Pelullo, 964 F.2d 193,200 (3d Cir. 1992){citing Furst, 886

F.2d at 571; Fed.R.Evid. 803(6».
The grievance may be introduced pursuant to F.R.E. 803(6): "Records
of a Regularly Conducted Activity," provided the foundation criteria required
under 803(6){A){B){C){D) and (E) are satisfied. Further, to the extent that
there are hearsay statements set forth in the grievance, Rule 805 requires that
such hearsay, in order to be admissible, conform with an exception to the
hearsay rule. Thus, the grievance in this case reveals that the "grievant and/or
steward" who filed a grievance are "Gary Savidge/John Kishel." Plaintiff will
thus be required to offer the testimony of Mr. Kishel as to the assertions set
forth in the grievance as to which he, Plaintiff, does not have personal
knowledge.
The statement contained in the grievance is also relevant to Plaintiff's
cause of action regarding whether Defendant perceived Plaintiff as suffering
from a disability. Plaintiff will not be permitted to offer the statement as
evidence of a disability, but rather, to show that Defendant may have
perceived Plaintiff as being "disabled." Accordingly, Plaintiff will be permitted
to enter the grievance (Plaintiff's Exhibit 3) into evidence subject to the above
requirements.

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Defendant further objects to Plaintiff's introduction of Exhibit 7, which
contains Plaintiff's EEO affidavit. In this affidavit, Plaintiff describes a
conversation between Franco and Kishel, but does so in his own words: "he
did not think that I could do the job or that I could not even climb a latter (sic)."
This is inadmissible hearsay and will be excluded from trial unless John Kishel
first testifies as to the content of his conversation with Franco and, in dOing so,
provides his testimony as to what was said to him by Franco or Franco himself
acknowledges the statement which is recorded in Plaintiff's EEO Affidavit. A
description of the conversation as translated by Plaintiff is insufficient to
constitute proper evidence offered to prove the truth of a matter asserted
consistent with FED. R. EVID. 801 (c). Accordingly, Plaintiff's Exhibit 7 is
properly subject to objection with respect to any hearsay statements
contained in it unless such statements are presented as the testimony of the
person who made slJch statements.
D. Defendant's Motion to Preclude Exhibits 2,5,6, and 22
Defendant contends that Plaintiff intends to introduce a "progress note
from his medical record" dated September 1, 2004, as Exhibit 2. This same
note is also included as a part of Exhibit 22. Defendant argues that the notes
should be excluded because they are irrelevant to the question of a perceived
disability.

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Plaintiff's medical record is generally irrelevant to the question of
whether Defendant perceived Plaintiff as being disabled. The record would
only be relevant if Plaintiff could establish that this record, including the
progress note, was seen by any of Defendant's employees who participated in
the decision to refuse Plaintiff's transfer request. Because the question for the
jury is one of perception, and not the existence of an actual disability, the
introduction of Plaintiff's medical record, except as stated herein, would only
serve to confuse and mislead the jury. Accordingly, the introduction of such
evidence will not be permitted absent a showing by Plaintiff that Defendant or
his decision makers saw the medical records in question.
Exhibits 5 and 6 contain the union's request for Plaintiff's custodial test
scores dated April 30, 2008, and a union grievance worksheet regarding the
denial of information dated May 15, 2008, respectively. These exhibits may
have relevance with respect to Plaintiff's claim that the reasons offered by
Defendant for its refusal to grant him a transfer to a custodial position,
particularly including Defendant's claim that Plaintiff had an unacceptable
attendance record, were a pretext for unlawful discrimination. Accordingly,
Defendant's Motion as to these exhibits is denied without prejudice and may
be renewed at trial when the exhibits are introduced and Plaintiff presents its
arguments for their relevance and admissibility.

II

The portion of Plaintiffs Exhibit 22 containing the VA's decision that
Plaintiff is disabled may have probative value depending upon the evidence
adduced at trial as to the Defendant's knowledge of the VA decision. Whether
Plaintiff had a disability as determined by the VA is irrelevant for the purpose
of determining whether Defendant perceived Plaintiff as being disabled. Thus,
Exhibit 22 may not be permitted into evidence unless Plaintiff can establish
that Defendant or his decision-makers saw the documents, which would then
make them relevant to the perception of disability analysis.
The VA's perception of Plaintiff as being 40% disabled, if known by
Defendant and his decision-makers, could reasonably have influenced those
in a position to transfer Plaintiff. Thus, if Plaintiff can show that Defendant and
his decision-makers had access to the content of Exhibit 22, it will be
permitted to be introduced at trial; however, absent such a showing, Plaintiff
will not be permitted to use the contents of Exhibit 22 to prove its case as the
exhibit would be irrelevant to Plaintiffs cause of action and would only serve
to mislead the jury. If Exhibit 22 is entered into evidence, Plaintiff must
provide a copy without handwriting and highlighting, and the exhibit will need
to be authenticated at trial.

E. Compliance with Federal Rule 26
Defendant contends that Plaintiff has identified 46 witnesses for trial, but
has refused to disclose the subject matter of the information within each
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witnesses possession in contravention of Rule 26(a)(1 )(A)(i). Plaintiff argues
that an Amended Disclosure provided the names and known contact
information of all witnesses, as well as a generalized statement as to their
knowledge of the case.
Rule 26 is to be construed broadly, especially given that Defendant's
disclosures are similarly ambiguous to those provided by Plaintiff. Under the
Rule, the parties are required to disclose the relevance of each witness, but
neither side has done so beyond a meager, catch-all in which they indicate
that the witness may have information related to the case. This is, however,
sufficient, especially because the official positions of the witnesses are
generally identified. Accordingly, the Court finds that Plaintiff has complied,
albeit barely, with its obligations under Rule 26, and Plaintiff will not be
precluded from using the witnesses listed in its disclosures at trial.
CONCLUSION

For the reasons set forth in this memorandum, the Motions in Limine will
be granted in part and denied in part. An appropriate Order will follow.

DATE: January 23,2013
Robert D. Mariani
United States District Judge

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