BRANCH v. BRENNAN

Filing 156

MEMORANDUM OPINION & ORDER re 154 Order on Motion in Limine,,,,,,,,,,,,, Signed by Judge J. Nicholas Ranjan on 8/19/19. (dny)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH
AMY BRANCH,
Plaintiff,
vs.
MEGAN BRENNAN, UNITED STATES
POST MASTER GENERAL,
Defendant.

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Civil Action No. 2:17-CV-00777
Judge J. Nicholas Ranjan

OPINION ON MOTIONS IN LIMINE AT ECF 110, 118, 115, 104, 102, 120, and
112
This is an employment discrimination case brought under Title VII of the Civil Rights
Act of 1964. A jury trial is set to begin on August 26, 2019. On August 16, 2019, this Court
entered an Order on the above-titled motions at ECF 154. Below is the Court’s reasoning in
support of that Order:
1) As to Defendant’s Motion in Limine to Exclude Testimony by Thomas Linder (ECF
110), the Motion is DENIED.
The Post Office moved to exclude the testimony of Post Office manager Thomas Linder,
arguing that Mr. Linder has no relevant knowledge to the issues in this case because he has little
recollection of Ms. Branch and was not involved in her termination. In response, Plaintiff argues
that Richard Gurneal, the decision-maker who terminated Ms. Branch, stated under oath in a
2012 affidavit that Mr. Linder was Ms. Branch’s supervisor on the day he terminated Ms.
Branch.
The Court finds, based on Fed. R. Evid. 401 and 402, that Mr. Linder’s testimony may be
relevant to the instant matter since he was Ms. Branch’s direct supervisor at the time in question.
Whatever, if anything, Mr. Linder may know or recall goes to the weight of the evidence.
2) As to Defendant’s Motion in Limine to Exclude Testimony by George Spencer (ECF
118), the Motion is GRANTED.
The Post Office moved to exclude the testimony of George Spencer, Labor Relations
Director for the National Alliance of Postal and Federal Employees. The Post Office argues that
Mr. Spencer has no relevant knowledge to the issues in this case because he did not work directly
with Ms. Branch and was not involved in her termination. In response, Ms. Branch argues that

Mr. Spencer may provide relevant testimony regarding the rights of a casual employee at the
Post Office.
The Court agrees with the Post Office’s position. Based on the parties’ filings, it appears
that Mr. Spencer can provide no testimony as to the termination at issue in Ms. Branch’s
complaint. Further, his testimony about how casual employees are intimidated by management
is not only irrelevant, but poses a serious risk of confusing the jury, and is therefore inadmissible
under Rule 403. 1
3) As to Defendant’s Motion Regarding Note Memorializing Plaintiff's Threat (ECF
115), the Motion is GRANTED.
The Post Office moved to introduce a note written by a former Post Office employee,
Sandra Roberts, on the date of Plaintiff’s termination that memorializes Plaintiff’s alleged threat
of violence against a superior. The Post Office argues that the note should be admitted because
1) it is not hearsay since it is not “offer[ed] in evidence to prove the truth of the matter asserted,”
Fed. R. Evid. 801(c), but rather to show its effect on Mr. Gurneal, who relied upon the note and
its contents in terminating Ms. Branch; and 2) even if it were hearsay, Ms. Roberts’s note, which
was attached to a termination memorandum, is a business record admissible under the business
records exception. See Fed. R. Evid. 803(6). Ms. Branch responds by arguing that, under Fed.
R. Evid. 901, the note is inadmissible because Ms. Roberts will not be at trial to authenticate the
note.
The Court finds that the note is admissible because it is not being admitted for the truth of
its contents. See e.g. Jones v. Univ. of Pa., No. 00-2695, 2003 WL 21652083, at *4 n.3 (E.D. Pa.
Mar. 20, 2003) (“[S]o long as complaints received by an employer are offered to show the state
of mind of the employer (a crucial factor in discrimination cases), and not offered to prove the
truth of the matter asserted, such complaints do not constitute hearsay.”). Further, it falls under
the business record exception even if the note were hearsay, since it is attached to the termination
memorandum and is kept as part of the Post Office’s personnel records. See Martin v. Funtime,
Inc., 963 F.2d 110, 116 (6th Cir. 1992) (affirming admissibility of personnel files as business
records under Rule 803(6)). Finally, the note may be authenticated by Mr. Gurneal, as recipient
of the note, rather than solely Ms. Roberts. Bouriez v. Carnegie Mellon Univ., No. Civ.A. 022104, 2005 WL 2106582, at *5 (W.D. Pa. Aug. 26, 2005) (“[Rule 901] does not require the
author to authenticate a document, but other facts and circumstances can provide ample basis for
authentication.”).
4) As to Defendant’s Motion in Limine to Exclude Evidence of Previously Dismissed
Claims (ECF 104), the Motion is GRANTED IN PART.
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Generally, the terms and conditions of casual employees, including the circumstances under
which their employment is renewed, may be relevant to Phase II of this trial regarding an award
of back pay or front pay. But the Court finds Mr. Spencer’s testimony on this point to be
cumulative and of little utility, given that it is undisputed that he was a non-supervisory
employee with no human resources duties.
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The Post Office moved to exclude evidence of previously dismissed claims, arguing
under Fed. R. Evid. 401, 402, and 403 that evidence of Ms. Branch’s retaliation claims should be
excluded since the Court dismissed these claims on summary judgment. Ms. Branch’s retaliation
claims had been that 1) she was retaliatorily terminated in 2012 because she had filed a 2010
Equal Employment Opportunity complaint for sexual harassment (“Claim 1”), and 2) the Post
Office did not rehire Ms. Branch in 2015 due to her unlawful 2012 termination (“Claim 2”). In
response, Ms. Branch argues that evidence of Claim 1 is relevant because the Post Office will
introduce evidence that Ms. Branch was “moved around” the Post Office because of poor work
performance, while Ms. Branch maintains it was in retaliation to the 2010/2011 sexual
harassment allegation. Further, Ms. Branch argues that evidence of Claim 2 is relevant to the
issue of mitigation of damages.
The Court is persuaded that if the Post Office opens the door and introduces evidence that
Ms. Branch was “moved around” the Post Office due to poor work performance prior to her
2012 termination, then Ms. Branch may introduce evidence regarding the 2010/2011 sexual
harassment allegation. Using the evidence in this way will minimize the risk of jury confusion,
and is not evidence relating specifically to the retaliation claim that was dismissed. However,
evidence of Claim 2, regarding her attempts to be rehired by the Post Office in 2015, is only
relevant to Phase II of the trial and therefore must be excluded at Phase I. The Motion is
therefore granted in part.
5) As to Defendant’s Motion in Limine to Preclude and/or Limit Plaintiff's Claim for
Economic Damages (ECF 102), the Motion is DENIED.
The Post Office moved to preclude and/or limit the economic damages available to Ms.
Branch, arguing that Ms. Branch violated the disclosure obligations of Fed. R. Civ. P. 26 by
failing to provide medical or financial records and by not timely supplementing initial
disclosures. The Post Office further argues that because Ms. Branch applied for social security
benefits post-termination, all back pay and front pay should be limited. In response, Ms. Branch
argues that the Motion is really a motion for summary judgment rather than a motion in limine.
She further argues that initial disclosures have been supplemented twice, and that those
disclosures include damages calculations based on the documentation in her employment file,
which the Post Office produced. Ms. Branch did not see the need to reproduce these documents
to the Post Office in order to make a back and front pay calculation. Further, Ms. Branch intends
to put forth evidence regarding mitigation through her own testimony at trial.
The Court finds that Ms. Branch, through recently retained pro bono counsel, timely
supplemented her damages calculations under Fed. R. Civ. P. 26. Because these calculations
rely upon documents produced by the Post Office, she had no burden of producing those same
documents back to the Post Office. Further, Ms. Branch’s evidence of mitigation through her
own testimony should be permitted, particularly since the Post Office deposed Ms. Branch on
this subject, and since it is the Post Office’s burden to prove lack of mitigation. See Booker v.
Taylor Milk Co., Inc., 64 F.3d 860, 864 (3d Cir. 1995) (“Although the statutory duty to mitigate
damages is placed on a Title VII plaintiff, the employer has the burden of proving a failure to
mitigate.”). Finally, the Court finds that Ms. Branch’s application for social security benefits is
no reason to exclude her testimony as being inadmissible, though it could be grounds to limit the
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amount of back pay or front pay that could be awarded in this case, and so may be relevant
during Phase II of the trial as to damages. See, e.g., Shomide v. ILC Dover, Inc., 521 F.Supp. 2d
324, 334-35 (D. Del. 2007) (“‘As a general rule an employment discrimination plaintiff will not
be allowed back pay during any periods of disability’ and ‘an employer who has discriminated
need not reimburse the plaintiff for salary loss attributable to the plaintiff and unrelated to the
employment.’” Further, “the doctrine of judicial estoppel prevents plaintiff from telling the SSA
that he is disabled and unable to work but later telling this court that he is entitled to front pay
because he can perform his former job.”).
6) As to Defendant’s Motion in Limine to Preclude Extrinsic Evidence and Limit the
Scope of Questions About Witness Richard Gurneal (ECF 120), the Motion is
GRANTED in PART.
The Post Office moved to exclude evidence of Mr. Gurneal’s resignation from the Post
Office under Fed. R. Evid. 608, 611, and 403. The Post Office argues that Mr. Gurneal’s past
conduct which led to his resignation is irrelevant as it happened over two years ago, is unduly
prejudicial, and would not meaningfully bear on Mr. Gurneal’s credibility. The Post Office
further argues that, should questioning be permitted, under Fed. R. Evid. 608(b) extrinsic
evidence should be precluded. In response, Ms. Branch argues that Mr. Gurneal’s prior conduct
involves dishonest activities which may be investigated at cross-examination under Fed. R. Evid.
608 and that such activities do not have to have occurred recently in order to bear on his
credibility.
The Court find that a witness’s character for truthfulness is an issue for the jury’s
consideration, and evidence that tends to show deceit is admissible to establish a lack of
truthfulness, not a witness’s character. See United States v. Irizarry, 341 F.3d 273, 311-12 (3d
Cir. 2003). Here, Mr. Gurneal’s past conduct leading to his resignation arguably involved lying,
which is goes to his truthfulness. See United States v. Davis, 183 F.3d 231, 256-57 (3d Cir.
1999) (finding “clearly proper” the admission of defendant’s forty-four day suspension for
“misappropriating departmental gasoline for use in his personal vehicle and putting a false name
in a gas log”). Although Mr. Gurneal’s questioned conduct occurred two years ago, it is not so
long ago as to be irrelevant to his character for truthfulness. Guy Chem. Co., Inc. v. Romaco
Inc., No. CV 3:2006-96, 2009 WL 10690053, at *1 (W.D. Pa. Oct. 26, 2009) (rejecting that
alleged counterfeiting that occurred nine years prior was “too remote in time”). While the Court
will allow questioning as to Mr. Gurneal’s past conduct, Fed. R. Evid. 608(b) generally bars the
introduction of extrinsic evidence. Accordingly, the Motion is granted in part, as Ms. Branch
may ask questions but not introduce extrinsic evidence.
7) As to Plaintiff’s Motion in Limine to preclude evidence of Plaintiff’s employment
terminations and negative performance from before and after her employment
position in question at the Post Office (ECF 116 at p. 2), the Motion is GRANTED IN
PART.
Ms. Branch moved to exclude evidence of employment terminations and negative
performance from before and after her employment position in question at the Post Office,
arguing under Fed. R. Evid. 401, 402, and 403 that such evidence is irrelevant and too remote to
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this case. In response, the Post Office stipulates that it will not introduce evidence regarding Ms.
Branch’s pre-Post Office employment, but that the Motion should be denied to the extent that
Ms. Branch seeks to preclude evidence related to: 1) her conduct during her recent employment
with the Postal Office (from March 17, 2012 to May 11, 2012); and 2) her subsequent
employment following her termination from the Postal Office, since it directly addresses the
issue of mitigation of damages.
The Court finds that Ms. Branch’s performance from March 17, 2012 to May 11, 2012 is
relevant to Phase I of the trial as it pertains to the Post Office’s non-discriminatory reasons for
termination, but that post-employment performance may only be relevant to Phase II regarding
mitigation of damages. Accordingly, the Motion is granted in part.
8) As to Plaintiff’s Motion in Limine to preclude Defendant from introducing Plaintiff’s
prior or current Equal Employment Opportunity complaints (ECF 116 at p. 4), the
Motion is DENIED.
Ms. Branch moved under Fed. R. Evid. 401, 402, and 403 to exclude evidence of her
prior or current EEO complaints and findings, conclusions, and/or determinations made by the
EEO and/or the Pennsylvania Unemployment Compensation Office. In response, the Post Office
stipulates that it will not affirmativly introduce evidence regarding EEO complaints and/or
determinations made by the EEO or the Pennsylvania Unemployment Compensation Office at
trial.
Therefore, the parties stipulate that there will be no evidence introduced regarding EEO
complaints. The Motion is denied as moot, except that the Court notes that, consistent with No.
4 above, Ms. Branch may introduce testimony regarding the 2010/2011 alleged harassment
incident if the Post Office opens the door.
9) As to Plaintiff’s Motion in Limine to preclude Defendant from introducing Plaintiff’s
statements that the government is conspiring against Plaintiff (ECF 116 at p. 5), the
Motion is GRANTED.
Ms. Branch moved under Fed. R. Evid. 401, 402, and 403 to exclude evidence of
statements she made at deposition that the Post Office is conspiring against her, including by
tampering with her mail and other statements regarding the government’s interference with this
case and her livelihood. Ms. Branch argues that such statements are irrelevant in that they have
no probative value since they do not establish the likelihood, or lack thereof, of racial
discrimination. In response, the Post Office offers cases from other Circuits which have found
that certain mental conditions are relevant to cross-examination of a witness’s credibility.
The Court agrees with Ms. Branch’s arguments. This type of evidence has little
probative value and is substantially outweighed by the danger of unfair prejudice. The cases
cited by the Post Office are distinguishable from the instant matter because they suggest that
evidence of mental illness should only be introduced when the witness has already been
diagnosed with a hallucinogenic mental condition. For instance, the Post Office cites United
States v. Butt, 955 F.2d 77, 83 (1st Cir. 1992), which actually held that the district court properly
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deemed a witness’s medical history irrelevant where “[t]he district court was impressed, as are
we, by the absence of a formal psychiatric diagnosis or of any ‘diagnosis ... of a mental illness
which [would] prevent[ ] [the witness] from perceiving matters truthfully and testifying about
them.’” Here, there is no evidence in the record that Ms. Branch has been diagnosed with a
condition which would prevent her from perceiving matters truthfully and testifying about them.
10) As to Plaintiff’s Motion in Limine to preclude Defendant from introducing evidence
regarding Plaintiff’s reputation for being unable to get along with work colleagues
and supervisors (ECF 116 at p. 6), the Motion is DENIED.
Ms. Branch moved under Fed. R. Evid. 401, 402, and 403 to exclude evidence of her
alleged reputation of poor interaction with work colleagues and supervisors at the Post Office.
Ms. Branch argues that such character evidence is prejudicial and will confuse the jury over the
central issue of this case – whether the Post Office discriminated by terminating Ms. Branch
because she is African American. In response, the Post Office argues that evidence related to
Ms. Branch’s interpersonal problems with her colleagues and supervisors is directly relevant to
the issue of why Ms. Branch was terminated on May 11, 2012. The Post Office also notes that
since Ms. Branch intends to introduce evidence at trial of an incident that occurred in April 2012
involving an interpersonal conflict with another employee, Jason Best, she will open the door
regarding her reputation for conflict at the Post Office.
The Court agrees with the Post Office and finds that such evidence regarding Ms.
Branch’s reputation for getting along with others is admissible. It is relevant to the central issue
in the case—whether Ms. Branch was terminated based on race or based on her conduct at work,
including any performance-related issues. The Motion is denied.
11) As to Plaintiff’s Motion in Limine to preclude Defendant from introducing evidence
related to the Court’s summary judgment ruling on retaliation claims (ECF 116 at p.
7), the Motion is GRANTED.
Ms. Branch moved under Fed. R. Evid. 401, 402, and 403 to exclude evidence regarding
the Court’s summary judgment ruling on her retaliation claims. In response, the Post Office
agrees that it will not introduce such evidence.
The Motion is therefore granted, except that the Court notes that, consistent with No. 4
above, Ms. Branch may introduce testimony regarding the 2010/2011 alleged harassment
incident if the Post Office opens the door.
12) As to Plaintiff’s Motion in Limine to exclude evidence of Plaintiff’s criminal history
(ECF 116 at p. 8), the Motion is GRANTED.
Ms. Branch moved to exclude evidence of her criminal history, and the Post Office has
agreed not to introduce such evidence. The Motion is granted as agreed-to.
13) As to Plaintiff’s Motion to present affidavits from Post Office employees in the EEO
file (ECF 116 at p. 10), the Motion is GRANTED.
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Ms. Branch moved under Fed. R. Evid. 802(d)(2) to present affidavits from Post Office
employees in the EEO file as evidence since they are not hearsay. The Post Office agrees to the
admission of such affidavits as non-hearsay, subject to redaction of any inadmissible doublehearsay and mention of prior EEO complaints.
The Motion is therefore granted as agreed-to. To the extent there are any disputes as to
redactions, the parties should raise those with the Court as soon as possible.
14) As to Plaintiff’s Motion to exclude evidence that Plaintiff would have garnered
through deposition testimony and motion to preserve for appeal (ECF 116 at p. 12),
the Motion is DENIED.
Ms. Branch moved to exclude “evidence that Defendant may use against Plaintiff that
Plaintiff would have garnered through deposition testimony.” Ms. Branch cites to no authority
for this request, although does cite to a case concerning the ability of a pro se client to reopen
discovery after retaining counsel. See Childers v. Slater, 197 F.R.D. 185 (D.D.C. September 18,
2000). Ms. Branch further seeks to preserve the issue of whether the Court should have
reopened discovery for appeal. In response, the Post Office argues that Ms. Branch’s request is
nonspecific as to what evidence is at issue and would prejudice the Post Office. It further argues
that a motion in limine is not the appropriate vehicle to preserve Ms. Branch’s right to appeal.
The Court finds that Ms. Branch’s requested relief is too vague; further, the Court will
not overturn Judge Phipps’s prior ruling regarding reopening discovery in this case. Therefore,
the Motion is denied.
DATED this 19th day of August, 2019.
BY THE COURT:

/s/ J. Nicholas Ranjan
J. NICHOLAS RANJAN
United States District Judge

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