GUCKER v. U.S. STEEL CORPORATION

Filing 153

IT IS HEREBY ORDERED, for the reasons stating herein, that the portion of Defendants Motion (Docket No. 99 ) discussed herein is DENIED. IT IS FURTHER ORDERED that Plaintiffs Motion (Docket No. 104 ) is DENIED-IN-PART and GRANTED-IN-PART. IT IS FURTHER ORDERED that the portion of Defendants Motion (Docket No. 131 ) discussed herein is GRANTED. Signed by Judge Nora Barry Fischer on 1/31/2016. (nsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALBERT E. GUCKER

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Plaintiff,
v.
U.S. STEEL CORPORATION,
Defendant.

Civil Action No. 13-583
Judge Nora Barry Fischer

MEMORANDUM OPINION AND ORDER
AND NOW this 31st day of January, 2016, upon consideration of Defendant’s Motion in
Limine (Docket No. 99), Defendant’s Brief in Support (Docket No. 100), Plaintiff’s Response to
Defendant’s Motion in Limine (Docket No. 125), Plaintiff’s Brief in Support of His Response
(Docket No. 126), Plaintiff’s Motion in Limine to Exclude Any Testimony or Evidence That Mr.
Gucker Performed His Job Poorly or That His Co-Workers Said So (Docket No. 104),
Defendant’s Response (Docket No. 121), Defendant’s Motion in Limine to Preclude Plaintiff’s
Supplemental Witnesses (Docket No. 131), Defendant’s Brief in Support (Docket No. 132),
Plaintiff’s Reply (Docket No. 133), argument during the Pretrial Conference held on January 26,
2016 (Docket No. 134), and for the following reasons,
IT IS HEREBY ORDERED that Defendant’s Motion (Docket No. 99) is DENIED.1
Defendant’s Motion is DENIED AS MOOT as to the coworker witnesses’ proffered testimony
concerning Mr. Hubert’s alleged disciplining or mistreating workers who were older or had
health problems. The Motion is DENIED as to the allegations of discrimination generally at the
Irvin Works facility. It is also DENIED as to the coworker witnesses’ proffered testimony
concerning Mr. Gucker’s ability to do his job.
1

This order refers to pages 2 and 3, paragraphs iii, iv, and v of Defendant’s Motion in Limine (Docket No. 99). The
remainder of said Motion has been addressed in Orders filed at Docket Nos. 136, 137, 142, and 144.
1

IT IS FURTHER ORDERED that Plaintiff’s Motion (Docket No. 104) is DENIED-INPART and GRANTED-IN-PART.

As with Defendant’s Motion (Docket No. 99) and as

discussed below, coworker witnesses shall only testify from their own personal knowledge about
Mr. Gucker’s ability to do his job. They shall not relate hearsay unless their testimony meets one
of the exceptions to the hearsay rule. Additionally, they shall not testify as to any alleged
disciplinary action taken by U.S. Steel Corporation against Mr. Gucker as there has been no
evidence of record that such action(s) related to Mr. Gucker’s departure from U.S. Steel
Corporation.
IT IS FURTHER ORDERED that Defendant’s Motion (Docket No. 131) is GRANTED.2
In making these rulings, the Court acknowledges that the Supreme Court affords “broad
discretion to the district court’s evidentiary ruling.” Sprint/United Management Co. v.
Mendelsohn, 552 U.S. 379, 384 (2008). Further, a “district court is accorded . . . wide discretion
in determining the admissibility of evidence under the Federal Rules. Assessing the probative
value of [the proffered evidence], and weighing any factors counseling against admissibility is a
matter first for the district court's sound judgment under Rules 401 and 403 . . . .” United States
v. Abel, 469 U.S. 45, 54, (1984). Further, “so-called ‘me too’ evidence in an employment
discrimination case is neither per se admissible nor per se inadmissible . . . . Rather, the question
of whether evidence of discrimination against other employees by other supervisors is relevant is
fact based and depends on several factors, including how closely related the evidence is to the
plaintiff's circumstances and theory of the case.” Mandel v. M & Q Packaging Corp., 706 F.3d
157, 167 (3d. Cir. 2013) (citations omitted).

2

This Memorandum Opinion and Order refers to page 1 of Defendant’s Motion in Limine (Docket No. 131) that
relates to Tom Amoroso. The portion of the Motion pertaining to Stephen Slane was already addressed in Docket
No. 140.
2

Addressing Plaintiff’s initial proffer of coworker witnesses’ testimony concerning Mr.
Hubert’s alleged disciplining or mistreating workers who were older or had health problems, the
Court notes that during the Pretrial Conference, Plaintiff agreed that he and his attorneys will not
reference Mr. Hubert’s alleged disciplining or mistreating other workers who suffer from health
problems. (Docket No. 134). Moreover, counsel for the Plaintiff agreed that he was not going to
elicit such testimony from coworker witnesses. Therefore, counsel are HEREBY ORDERED to
provide the Court with a joint instruction directed to their respective witnesses prohibiting them
from addressing such subject in general by February 1, 2016 at l:00 p.m. In addition to counsel’s
own instructions, the Court will instruct such witnesses.
Nevertheless, the Court is mindful of Fed. R. EVID. 404(b), which provides that
“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person
in order to show action in conformity therewith. It may however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident . . . .” The Third Circuit applies a four-part test to determine the
admissibility of Rule 404(b) evidence: (1) the evidence must have a proper purpose under Rule
404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its
prejudicial effect under Rule 403; and (4) the district court must charge the jury to consider the
evidence only for the limited purpose for which it was admitted. Becker v. ARCO Chem. Co.,
207 F.3d 176, 189 (3d Cir.2000).
In that regard, evidence tending to show a pattern of disability or age discrimination
could be relevant to the instant case. However, there are limits to what may be offered and such
information could be unduly prejudicial. “To admit evidence under Rule 404(b), the evidence
must have a proper purpose, be relevant, and its probative value must outweigh its potential for

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unfair prejudice.” Phillips v. Potter, 2009 WL 2588830, at *2 (W.D. Pa Aug. 19, 2009)
(Ambrose, C.J.) (citing United States v. Rahamin, 168 Fed. App’x. 512, 519 (3d Cir.2006)). At
present, the Court fails to see a connection between the alleged proffered instances of
discrimination and the allegations of Plaintiff’s Complaint (Docket No. 1). But, Plaintiff’s
counsel has proffered that coworkers Matesic and Hopes may be called to testify that they were
on light duty because of disabilities and that Mr. Hubert allegedly terminated them due to same.
As a number of these projected coworker witnesses have not been deposed nor have they
provided affidavits, to the extent necessary the Court shall hear said testimony in camera as to
whether the above-described proffered coworker testimony is sufficiently connected to Mr.
Gucker. Once the Court has heard the proffered evidence in camera, said testimony shall be
governed by FED. R. EVID. 403.
Rule 403 states, “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” FED. R. EVID. 403. See also In re Paoli R.R. Yard PCB Litigation, 113
F.3d 444, 457 (3d Cir. 1997). This case could devolve into mini-trials, something this Court will
not permit. See e.g., Godwin v. Wellstar Health Systems, Inc., 2015 WL 7313399, at *4 (N.D.
Ga. Nov. 19, 2015) (ruling that allegations of workplace discrimination against individuals other
than the plaintiff were not admissible because it would lead to mini-trials). Moreover, as
Defendant has argued, such testimony could be unduly burdensome and prejudicial as none of

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these coworker witnesses have brought claims against it. Hence, Defendant may not be prepared
to fully rebut these claims.3
In regards to potential witness testimony related to Mr. Gucker’s work capacity, “[t]he
modern trend favors the admission of [lay] opinion testimony, provided that it is well founded on
personal knowledge and susceptible to specific cross-examination.” Lightning Lube, Inc. v.
Witco Corp., 4 F.3d 1153, 1175 (3d Cir. 1993) (alterations in original) (quoting Teen–Ed, Inc. v.
Kimball Int'l, Inc., 620 F.2d 399, 403 (3d Cir. 1980)). Under FED. R. EVID. 701,
If a witness is not testifying as an expert, testimony in the form of an opinion is
limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a
fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.
Given same, the proffered coworker witnesses shall only testify from their own personal
knowledge about Mr. Gucker’s work performance, i.e., the duties they saw him undertake and
his ability or capacity to perform same.
Referring to the Plaintiff’s Motion in Limine to Exclude any Testimony or Evidence That
Mr. Gucker Performed His Job Poorly or That His Co-Workers Said So, as previously stated, any
witness may testify as to his own perceptions of Mr. Gucker’s work capabilities. However, to
the extent that either party wants to rely on hearsay, such testimony must fit into one of the
hearsay exceptions. Otherwise, it will be barred. See FED. R. EVID. 802; see also United States
v. Casoni, 950 F.2d 893, 903 (3d Cir. 1991) (“Hearsay is not admissible except as provided by

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The Court notes that these witnesses were disclosed in the initial disclosures. Defendant could have deposed these
witnesses. Their counsel chose not to do so despite an ample discovery period. Additionally, it would seem that
U.S. Steel Corporation has access to personnel files of any coworker witness.
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these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or
by Act of Congress.” (quoting FED. R. EVID 802)). “‘Hearsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Casoni, 950 F.2d at 903 (quoting FED. R. EVID. 801(c)). “Hearsay
is generally inadmissible because the statement is inherently untrustworthy: the declarant may
not have been under oath at the time of the statement, his or her credibility cannot be evaluated at
trial, and he or she cannot be cross-examined.” Ezeagwuna v. Ashcroft, 325 F.3d 396, 406 (3d
Cir. 2003); see also United States v. Console, 13 F.3d 641, 656 (3d Cir. 1993).
Defendant maintains that it should be allowed to present evidence that managers heard
from Plaintiff’s coworkers about his inability to do his job even with restrictions imposed on
him. Defendant argues that such testimony may fall under an exception to the hearsay rule. To
that end, Defendant points to exceptions under FED. R. EVID. 803:
The following are not excluded by the rule against hearsay, regardless of whether
the declarant is available as a witness:
(1)
Present Sense Impression. A statement describing or explaining an event
or condition, made while or immediately after the declarant perceived it.
FED. R. EVID. 803. Before hearsay evidence is admissible as a present sense impression, the
declarant must have personally perceived the event described, the declaration must be an
explanation or description of the event rather than a narration, and the declaration and the event
described must be contemporaneous. See United States v. Mitchell, 145 F.3d 572, 576 (3d Cir.
1998).
In addition, the “state of mind” exception may be in play.
(3)
Then-Existing Mental, Emotional, or Physical Condition. A statement of
the declarant’s then-existing state of mind (such as motive, intent, or plan) or
emotional, sensory, or physical condition (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief to prove the fact
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remembered or believed unless it relates to the validity or terms of the declarant’s
will.
FED. R. EVID. 803(3). This exception essentially exempts statements of the declarant’s thenexisting state of mind from the hearsay rule. See Hale v. McMillen, 363 Fed. App’x 215, 217
(3d Cir. 2010) (under FED. R. EVID 803(3), “statements that otherwise would be hearsay are
admissible to show the declarant's state of mind.”); see also Citizens Financial Group, Inc. v.
Citizens Nat. Bank of Evans City, 383 F.3d 110, 133 (3d Cir. 2004). However, these statements
cannot be offered to prove the truth of the matter asserted as U.S. Steel Corporation concedes.
See e.g., Stelwagon Mfg. Co. v. Tarmac Roofing Sys., 63 F.3d 1267 (3d Cir. 1995). After hearing
proffered testimony regarding any hearsay concerning Mr. Gucker’s ability to do his job, in
camera, the Court will determine whether the proffered testimony falls into one of these hearsay
exceptions.
Plaintiff also argues that information relating to the quality of his work is not germane to
the instant matter, and therefore should be deemed irrelevant. Even before evidence is admitted
on the grounds previously discussed in this Memorandum Order, it must be relevant pursuant to
FED. R. EVID. 401 and admissible under FED. R. EVID 402. Under FED. R. EVID 401, “relevant
evidence” is defined as “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. Under FED. R. EVID 402, “all relevant evidence is
admissible unless the rules of evidence provide to the contrary.” United States v. Sriyuth, 98
F.3d 739, 745 (3d Cir. 1996). Presently, the Court fails to see how evidence pertaining to the
quality of Plaintiff’s work is relevant to his claims of age and/or disability discrimination. Once
again the Court will have to entertain proffered testimony in camera, to make a relevance
determination.

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Finally, in regards to the potential testimony of Tom Amoroso, Plaintiff’s Supplemental
Witness List was late per the Court’s Pretrial Order. (Docket No. 62). While there is an
exception for witnesses who are offered purely for impeachment, per this Court’s Pretrial Order,
Plaintiff’s witness list and proffers were due on December 7, 2015. Mr. Amoroso was not
among those listed on Plaintiff’s timely Witness List. (Docket Nos. 79 and 81). Instead, he
appears on Plaintiff’s Supplemental Witness List (Docket No. 130) on January 22, 2016, over a
month late and on the eve of trial, without leave of Court.
Mr. Amoroso shall not testify at trial for the following reasons. First, Mr. Amoroso’s
disclosure was late.4 FED. R. CIV. P. 26(a) requires a party to make initial disclosures and to
provide the opposing party with the name and contact information of each witness. FED. R. CIV.
P. 26(a)(3)(A)(i). FED. R. CIV. P. 26(e) sets forth a party's continuing obligation to supplement
its initial disclosures and responses to discovery requests, if the initial disclosures or responses
are incomplete or incorrect. “Unless the court orders otherwise, these disclosures must be made
at least 30 days before trial.” FED. R. CIV. P. 26(3)(B). Failure to abide by the disclosure
requirements in these provisions is governed by FED. R. CIV. P. 37(c)(1), which provides that
“[i]f a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not
allowed to use that information . . . to supply evidence . . . at a trial, unless the failure was
substantially justified or is harmless.”
As previously stated above, “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by . . . unfair prejudice, . . . undue delay, wasting time, or
needlessly presenting cumulative evidence.” FED. R. EVID. 403. Further, a district court judge
may exclude a witness’s testimony after a failure to obey a pretrial order. See De Laval Turbine,
4

The Court recognizes that Plaintiff asserts that Mr. Amoroso was listed in Plaintiff’s interrogatory answers in
response to U.S. Steel’s first set of discovery requests. (Docket No. 133 at 5, n.6). However, neither party has
disclosed the answers to the Court.
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Inc. v. West India Industries, Inc., 502 F.2d 259, 263 (3d Cir. 1974); Southard v. Independent
Towing Co., 453 F.2d 1115, 1119-1120 (3d Cir. 1971); LaMorte v. Penn Central Transportation
Co., 450 F.2d 956, 957 (3d Cir. 1971) (per curiam). And, “[a]lthough the procedural rules
governing federal civil litigation do not explicitly authorize a district court to set time limits for a
trial, a district court has inherent power ‘to control cases before it,’ provided it exercises the
power “ ‘in a manner that is in harmony with the Federal Rules of Civil Procedure.’” Duquesne
Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 609 (3d Cir. 1995).
Prior to excluding evidence, the United States Court of Appeals for the Third Circuit has
held that a district court must consider:
(1) the prejudice or surprise of the party against whom the excluded evidence
would have been admitted;
(2) the ability of the party to cure that prejudice;
(3) the extent to which allowing the evidence would disrupt the orderly and
efficient trial of the case or other cases in the court; and,
(4) bad faith or willfulness in failing to comply with a court order or discovery
obligation.
Nicholas v. Pennsylvania State University, 227 F.3d 133, 148 (3d Cir. 2000).
Turning to the first two Nicholas factors, Defendant is prejudiced because Mr. Amoroso
was disclosed as a witness a little over a week before the start of trial. Further, to the extent that
Plaintiff claims prejudice, Plaintiff and/or other former coworkers scheduled to appear can speak
to the subjects described in Mr. Amoroso’s proffer. (Docket No. 130).
Relative to the third Nicholas factor, allowing Mr. Amoroso to testify would conflict with
this Court’s ability to control the trial of this case. See FED. R. CIV. P. 1 (The rules of Civil
Procedure “should be construed, administered, and employed by the court and the parties to
secure the just, speedy, and inexpensive determination of every action and proceeding.); see also
Duquesne Light Co., 66 F.3d at 609 (“The rules repeatedly embody the principle that trials

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should be both fair and efficient.”). Furthermore, “[t]he court should exercise reasonable control
over the mode and order of examining witnesses and presenting evidence so as to . . . avoid
wasting time.” FED. R. EVID. 611. And, the Federal Rules of Evidence “should be construed so
as to . . . eliminate unjustifiable expense and delay . . . .” FED. R. EVID. 102.
The Court points out that Counsel had an opportunity to discuss its pretrial deadlines at
the Status Conference held on July 15, 2015 (Docket No. 61). The Pretrial Order which issued
following same (Docket No. 62) established that Plaintiff’s witness disclosures were due on
December 7, 2015. At no time between July 15, 2015 and December 7, 2015 did Plaintiff seek
leave to enlarge that period. In fact, the Court convened a Telephonic Status Conference on
January 6, 2016 (Docket No. 93) upon consideration of Plaintiff’s Motion to Modify Pre-Trial
Scheduling Order (Docket No. 91) and Plaintiff did not seek leave to disclose additional
witnesses during said Status Conference or in his Motion. In addition, Plaintiff did not address
this issue at a Telephonic Preliminary Pretrial Conference held with the Court’s law clerks on
January 19, 2016.
Finally, in regards to the fourth Nicholas factor, the Court does not have strong evidence
of purposeful bad faith or willfulness in failing to comply with a court order or discovery
obligation. However, Plaintiff has not shown good cause why the Court should permit this late
submission to allow Mr. Amoroso to testify, did not seek leave of Court to disclose additional
witnesses, and did not have an agreement with Defendant as to same. In fact, Defendant opposes
Mr. Amoroso’s testimony. (Docket Nos. 131 and 132). Plaintiff had ample time to list Mr.
Amoroso, and additional time to seek leave after he was required to provide the disclosure, yet
he did neither. Thus, Plaintiff is bound by these inactions. “[A] civil litigant is bound by the

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action or inaction of his attorney.” Ford v. City of Philadelphia, 335 Fed. App’x 229, 229 (3d
Cir. 2009) (quoting Walker v. Sun Ship, Inc., 684 F.2d 266, 269 (3d Cir.1982)).
Second, allowing Mr. Amoroso to testify would waste the Court’s, jurors’, and parties’
time as his projected testimony appears to be cumulative to other coworker witnesses and Mr.
Gucker. See FED. R. EVID. 611. It is thus proper for a district court to exercise its discretion to
avoid repetition of testimony. See ATD-American Co. v. Krueger Int’l, Inc., 2014 WL 3952848,
at *20, (E.D. Pa. August 12, 2014) (citing Dean v. Specialized Sec. Response, 876 F.Supp. 2d
549, 553 (W.D. Pa. 2012).
IT IS SO ORDERED.

s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge

cc/ecf: All counsel of record

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