KACIAN v. DONAHOE

Filing 92

MEMORANDUM OPINION AND ORDER - it is hereby Ordered as follows: Kacian's objections to the Postmaster General's witness list (ECF No. 76 ) are GRANTED IN PART. Kacian's motion in limine to exclude evidence of her accident history or safety record from her employment with the Postal Service (ECF No. 65 ) is DENIED. Kacian's motion in limine to exclude any evidence about the termination of non-Johnstown-based Postal Service employees (ECF No. 67 ) is DENIED. The Postmast er General's motion to exclude certain testimony by Randy Hamonko (ECF No. 70 ) is DENIED. The Postmaster General's motion to exclude certain testimony by Joseph Sarosi (ECF No. 72 ) is DENIED, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 3/8/2017. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
HILLARY A. KACIAN,
Plaintiff,
v.
MEGAN J. BRENNAN, in her official
capacity as Postmaster General of the
United States Postal Service,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 3:12-cv-102
JUDGE KIM R. GIBSON

MEMORANDUM OPINION
On May 16, 2012, Hillary A. Kacian filed this case against the Postmaster General of the
United States Postal Service (“Postmaster General”) for retaliation under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-5(g). 1 Kacian is a former Postal Service employee and
alleges she was fired in retaliation for reporting her supervisor’s sexual harassment. Trial is
scheduled to begin on March 13, 2017.
Currently pending before the Court are several motions in limine. Specifically, Kacian
has moved to exclude at trial any evidence of her accident history or safety record from her
employment with the Postal Service (ECF No. 65) as well as any evidence about the termination
of Postal Service employees who were not based out of the Johnstown Office (ECF No. 67). The
Postmaster General has moved to exclude certain testimony by two of Kacian’s witnesses,
Randy Hamonko and Joseph Sarosi. (ECF Nos. 70, 72.) In addition, Kacian has objected to
three of the Postmaster General’s witnesses and seeks their exclusion. (ECF No. 76.)
Kacian’s complaint also included a claim of hostile work environment, but this claim was dismissed by
stipulation. (ECF No. 17.)

1

For the reasons below, the Court holds as follows: Kacian’s objections to the Postmaster
General’s witness list are GRANTED IN PART. Kacian’s motion to exclude any evidence
regarding her accident history or safety record from her employment with the Postal Service is
DENIED. Kacian’s motion to exclude any evidence about the termination of non-Johnstownbased Postal Service employees is DENIED. And the Postmaster General’s motions to exclude
certain testimony by Randy Hamonko and Joseph Sarosi are DENIED.
I.

Background
In March 2008, Kacian began working for the Johnstown Post Office as a letter carrier.

She alleges that in 2010 her supervisor, George LaRue, began sexually harassing her. On July
14, 2011, Kacian complained to Union President Joseph Sarosi and her supervisor Jeff Hauser
about LaRue’s harassment. Several days later—on July 19, 2011—LaRue observed Kacian while
she was on a delivery route. LaRue saw Kacian drive across an intersection with her vehicle
door open. After making this observation, LaRue filed a disciplinary action against Kacian and
recommended her termination. Kacian was fired effective August 21, 2011.
II.

Analysis
Pending before the Court are four motions in limine—two by Kacian (ECF Nos. 65, 67)

and two by the Postmaster General (ECF Nos. 70, 72). First, Kacian has moved to exclude at
trial any evidence of her accident history or safety record from her employment with the Postal
Service. (ECF No. 65.) Second, Kacian has moved to exclude any evidence of the termination of
Postal Service employees who were not based out of the Johnstown Office. (ECF No. 67.) As
for the Postmaster General, she has moved to exclude certain testimony by a witness Kacian
intends to call at trial, Randy Hamonko, as well as evidence about a disciplinary citation

-2-

Hamonko incurred while working at the Johnstown Post Office. (ECF No. 70.) Similarly, the
Postmaster General has moved to exclude certain testimony by another witness Kacian intends
to call at trial, Joseph Sarosi. (ECF No. 72.) Sarosi was Kacian’s union representative at the time
of her termination.
Pending before the Court also are Kacian’s objections to the Postmaster General’s
witness list (ECF No. 76). Kacian seeks to prevent three of the Postmaster General’s witnesses
from testifying at trial on the grounds that these witnesses were not listed in the Postmaster
General’s initial disclosures. The Court will address the parties’ motions in limine and Kacian’s
objections below, beginning with her objections.
A.

Kacian’s Objections to the Postmaster General’s Witness List

On February 21, 2017, the Postmaster General filed her witness list and offers of proof
describing the substance of each witness’s expected testimony (ECF No. 74). In this list, the
Postmaster General identified seven witnesses she intends to call at trial, and one witness she
may call at trial. The next day, Kacian filed objections to the Postmaster General’s witness list
(ECF No. 76), requesting that three of the Postmaster General’s witnesses be excluded because
the Postmaster General neither included these witnesses in her initial disclosures nor ever
supplemented her initial disclosures to include these witnesses.
Specifically, Kacian seeks to exclude as witnesses Denise Johnson, Rodney Hiner, and
Jerry Briton. Johnson is a Postal Service labor-relations specialist for the Western District of
Pennsylvania. (ECF No. 74 at 5.) The Postmaster General intends to call Johnson to
authenticate and admit as business records any documents not
otherwise admitted by stipulation. Ms. Johnson has a lengthy
career in Postal Service administration and can discuss the hiring,

-3-

assignment, classifications, and removal of a wide variety of
employees hired by the Postal Service. Specifically, Ms. Johnson
will testify regarding the large volume of temporary employees
and their specific employment rights. If necessary, she can
discuss the numbers of temporary employees removed within the
district and the variety of reasons that form the basis of such
removal. Ms. Johnson is also familiar with Plaintiff’s case and
employment record to include hiring information, salary, and
discipline. Ms. Johnson, with extensive experience in labor
relations and knowledge of the collective bargaining agreement,
will testify about the requirement of “just cause” as it relates to the
issuance of discipline for transitional employees and other issues
involving the union contract and temporary employees. She will
testify that labor relations had no issue with Plaintiff’s
termination.
(Id. at 5-6.) Hiner worked at the Johnstown Post Office at the same time as Kacian and was her
union representative. The Postmaster General intends to call Hiner to “testify that there was
nothing improper or unusual about [Kacian’s predisciplinary interview] and [he] will agree that
Plaintiff’s safety infraction is a ground that supports removal. He will deny any knowledge of
retaliation in this case.” (Id. at 4.) As for Briton, he is currently a Postal Service Supervisor at
the Johnstown Post Office, but he was a postal carrier at the time of the events underlying this
case and worked with Kacian. The Postmaster General intends to call Britton to
describe the general nature of the Postal Service work floor and
the basic responsibilities of carriers. If necessary, Mr. Britton will
testify that he did not observe any retaliation by Supervisor LaRue
in Plaintiff’s case. He can also comment on the safety infractions
and removals of other employees at the Johnstown Post Office
should this information be deemed admissible.
(Id. at 6.)
The Postmaster General does not dispute that these witnesses were not listed on her
initial disclosures, but argues that their exclusion is not warranted for two reasons. As to all

-4-

three witnesses, the Postmaster General argues that their identities were otherwise disclosed to
Kacian during discovery and known to her. As to Johnson specifically, the Postmaster General
argues further that—even if Johnson should have been included in the Postmaster General’s
initial or supplemental disclosures—this omission was substantially justified or harmless.
Under the Federal Rules of Civil Procedure, a party must generally, without awaiting a
discovery request, disclose to the other parties “the name and, if known, the address and
telephone number of each individual likely to have discoverable information—along with the
subjects of that information—that the disclosing party may use to support its claims or defenses,
unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i). Rule 26(e)
further mandates that parties timely supplement or correct their Rule 26(a) disclosures. A party
who fails to comply with the disclosure requirements of Rule 26(a) or (e) “is not allowed to use
that information or witness to supply evidence . . . at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Substantial justification exists if there is a
genuine dispute about whether the party was required to make the disclosure. See Claude
Worthington Benedum Found. v. Harley, No. 12-cv-1386, 2014 WL 3614237, at *3 (W.D. Pa. July 22,
2014) (citation omitted). And a failure to disclose is harmless “if it involves an honest mistake,
coupled with sufficient knowledge by the other party of the material that has not been
produced.” Smith v. Allstate Ins. Co., 912 F. Supp. 2d 242, 249 (W.D. Pa. 2012) (internal quotation
marks and citation omitted).
Although the imposition of Rule 37(c)(1) sanctions is a matter within the court’s
discretion, “[t]he exclusion of critical evidence is an ‘extreme’ sanction, not normally to be
imposed absent a showing of willful deception or ‘flagrant disregard’ of a court order by the

-5-

proponent of the evidence.’“ In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 791-92 (3d Cir. 1994)
(quoting Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 905 (3d Cir. 1977)).
Thus, in exercising its discretion to exclude evidence, the court must consider: (1) the prejudice
or surprise of the party against whom the excluded evidence would be 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 the discovery obligation. Nicholas v. Pennsylvania State
University, 227 F.3d 133, 148 (3d Cir. 2000) (citing Konstantopoulos v. Westvaco Corp., 112 F.3d 710,
719 (3d Cir. 1997)).
Applying this standard here, the Court finds that exclusion of Jerry Britton and Rodney
Hiner is not warranted.

Under Rule 26(e), a party is required to supplement her initial

disclosures only if “the additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in writing.” See also Veverka v. Royal
Caribbean Cruises Ltd., 649 F. App’x 162, 166 (3d Cir. 2016) (affirming district court’s decision not
to exclude affidavit from witness whose identity, although not disclosed under Rule 26(a) or (e),
was known to objecting party). After consideration of the parties’ arguments, the Court finds
that the Postmaster General was under no obligation to supplement her initial disclosures with
respect to Jerry Britton and Rodney Hiner because both were already known to Kacian.
Additionally, even assuming that Britton and Hiner’s names should have been included in the
Postmaster General’s initial Rule 26(a) disclosures, their omission appears harmless. See Smith,
912 F. Supp. 2d at 249.

-6-

Regarding Britton, Kacian cannot plausibly argue that his identity was unknown to her.
Britton was Kacian’s coworker at the time of the events underlying this case and—as she stated
in her deposition—she has stayed in touch with him since her termination:
Q.
Do you stay in touch with anybody else from the postal
service besides Joe Sarosi?
A.
The only person I do talk to every now and then is a
guy, Jerry.
Q.
What’s his last name?
A.
Britton.
(ECF No. 84-1 at 3.) Nor can Kacian credibly claim that she was unaware that Britton may
know relevant information; she specifically testified in her deposition that Britton “did witness
some things” regarding the events underlying this case. (See id.) Thus, because it is clear that
Kacian knew both Britton’s identity and that he may possess relevant information, the Court
will not exclude him as a witness for the Postmaster General.
The same is true for Hiner.

The Postmaster General’s initial disclosures included

Kacian’s union grievance file, which contained several documents that were prepared in the
days leading up to her termination. (ECF No. 84-3 at 5-7.) Those documents list Hiner’s name
several times, and are even signed by him. (Id.) To insist that the Postmaster General should
have specifically listed Hiner in her initial disclosures when his name was already included in
the documents included with those disclosures places form over substance. Furthermore, Hiner
was Kacian’s union steward and her representative at her predisciplinary interview. (ECF No.
77 at 15.) Thus, it is clear that Kacian knew both Hiner’s identity and that he may possess
relevant information. The Court will therefore also not exclude Hiner as a witness for the
Postmaster General.

-7-

But the same conclusion does not follow for Denise Johnson. Although Johnson’s name
was disclosed during discovery, she was not brought to the attention of Kacian to such a degree
that it would be reasonable for Kacian to know that Johnson possessed relevant information. To
review, substantial justification exists if there is a genuine dispute about whether the party was
required to make the disclosure, see Claude, 2014 WL 3614237, at *3 (citation omitted), and a
failure to disclose is harmless “if it involves an honest mistake, coupled with sufficient
knowledge by the other party of the material that has not been produced,” Smith, 912 F. Supp.
2d at 249 (internal quotation marks and citation omitted).
The Postmaster General has offered no specific argument that a genuine dispute exists
here. Rather, the Postmaster General’s argument that substantial justification exists is identical
to her argument for why Johnson’s omission was supposedly harmless, namely that “a party
has no duty to formally supplement its initial disclosures with names of witnesses that have
been ‘otherwise made known’ to the opposing party during discovery.” (ECF No. 83 at 4
(citation omitted).)

In support of these arguments, the Postmaster General points to two

declarations by Johnson that were disclosed in this case. The first declaration, dated February
14, 2013, is a one-paragraph document wherein Johnson affirms the accuracy of a set of the
Postmaster General’s discovery responses. (ECF No. 83-1 at 4.) The second declaration, dated
May 9, 2013, was submitted by the Postmaster General in support of summary judgment and is
somewhat more substantive; it is three-paragraph document wherein Johnson explains her job
title, her functions, and affirms the accuracy of a list of transitional employees. (ECF No 83-2 at
2.)

-8-

While these declarations technically disclosed Johnson’s name, they did not reasonably
place Kacian on notice that Johnson may possess relevant information to such a degree that
Johnson’s absence from the Postmaster General’s disclosures was justified. To allow a party to
circumvent disclosure requirements on the basis that the witness’s name was included in two
stray declarations would render the disclosure requirements hollow.

The receiving party

would be left guessing about which actors truly possessed relevant information, and would
even be wise to depose every person affirming the accuracy of discovery responses. In this
case, Johnson’s two declarations were insufficient for disclosure purposes, and neither
substantial justification nor harmlessness justifies her omission.
The Court is mindful that “[t]he exclusion of critical evidence is an ‘extreme’ sanction,
not normally to be imposed absent a showing of willful deception or ‘flagrant disregard’ of a
court order by the proponent of the evidence.’“ In re Paoli R.R. Yard, 35 F.3d at 791-92. There is
no indication, however, that Johnson’s testimony in this case is “critical” evidence. Based on the
Postmaster General’s offer of proof, Johnson will be called to authenticate and offer into
evidence documents not admitted by stipulation and to discuss several topics related to labor
relations and employee discipline. (ECF No 74 at 5-6.) To the extent that other witnesses cannot
authenticate documents offered by the Postmaster General, the Court will allow Johnson to be
called for that purpose only.
But the Postmaster General is calling several other witnesses that appear knowledgeable
about and capable of discussing labor relations and employee discipline. For example, the
Postmaster General is calling Mike Olsavsky—the former Postmaster of the Johnstown Post
Office—and two current supervisors at the Johnstown post Office, Cheryl Cernetich and Jason

-9-

Whorl. Olsavsky “has worked for the Postal Service for over 25 years, which include[d] a
variety of different supervisory and management positions and positions in labor relations at
district headquarters.” (ECF No 74 at 3.) Olsavsky thus seems qualified and able to testify to
labor relations and employee discipline. And Cernetich and Whorl—along with the other
managerial employees the Postmaster General intends to call—appear similarly qualified and
able to testify to labor relations and employee discipline.
Furthermore, even if the Court assumes that Johnson’s testimony is “critical evidence,”
exclusion of these areas of testimony is still appropriate. See Nicholas, 227 F.3d at 148. Kacian
will suffer significant prejudice if Johnson is allowed to testify because she is poorly equipped
to prepare for Johnson’s testimony; she has not deposed Johnson, has not directed any
discovery toward Johnson, and thus does not know—exactly—what Johnson will testify to.
With less than a week to trial, Kacian lacks the ability to cure that prejudice. Although allowing
Johnson to testify would not disrupt the trial and while there is no indication of bad faith or
willfulness by the Postmaster General, the Court finds that the surprise and prejudice factors
are significant enough here to bar part of Johnson’s testimony. Thus, Johnson will be allowed to
testify only for the purposes of authenticating and offering into evidence documents not
admitted by stipulation. 2
B.

Kacian’s Motion to Exclude at Trial Any Evidence of Her Accident History
or Safety Record from Her Employment with the Postal Service

Kacian argues that any evidence of her accident history or safety record from her
employment with the Postal Service should be excluded at trial because that evidence is
For the reasons in Section II.C of this memorandum opinion, Johnson will be allowed to testify also that
non-Johnstown-based transitional employees have been terminated for safety infractions

2

-10-

irrelevant, and because—even assuming it is relevant—it would confuse the jury. (ECF No. 66
at 1.) Kacian points to certain discovery in this case for the proposition that her accident history
or safety record played no part in her termination. Thus, she reasons, her accident history and
safety record are irrelevant. Although Kacian has made a compelling argument for how she can
impeach the Postmaster General’s witnesses at trial, her argument does not justify the exclusion
of her accident history or safety record.
Evidence is relevant if it “has any tendency to make a fact more or less probable than it
would be without the evidence; and . . . the fact is of consequence in determining the action.”
Fed. R. Evid. 401.

Irrelevant evidence is inadmissible.

Fed. R. Evid. 402.

To establish

retaliation, a plaintiff must show: (1) that she engaged in a protected activity; (2) adverse action
taken by the employer either after or contemporaneous with the employee’s protected activity;
and (3) a causal connection between the protected activity and the adverse action. Daniels v.
Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015). Because the parties have stipulated that the
first and second elements are satisfied in this case, the principal issue is whether there was a
causal connection between Kacian’s protected activity and her termination. (See ECF No. 64 ¶¶
1, 3.)
Here, evidence of Kacian’s accident history or safety record is directly relevant to that
issue. 3 If Kacian’s accident history or safety record is sparse, a factfinder could conclude that
they played no role in her termination and that any claim to the contrary is frivolous. Similarly,

A conditional-relevance issue exists here in that Kacian’s accident history or safety record must have
been reviewed by a decisionmaker to be relevant. See Fed. R. Evid. 104(b) (“When the relevance of
evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that
the fact does exist.”). At this preliminary stage, based on the Postmaster General’s representations about
the testimony to be elicited at trial, the Court is satisfied that conditional relevance is satisfied.
3

-11-

if Kacian’s accident history or safety record is voluminous, a factfinder could conclude that they
were the reasons for her termination.
The Court is also unconvinced that admission of Kacian’s accident history or safety
record would confuse the jury. Federal Rule of Evidence 403 authorizes the court to “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.” Kacian has made no credible
argument that the probative value of her accident history or safety record is substantially
outweighed by a danger of confusing the jury, and the Court does not see how it would be.
In this case, factual questions appear to exist as to who, exactly, made the decision to
terminate Kacian, and on what basis that decision was made. Kacian argues that the Postmaster
General’s interrogatory responses and the deposition testimony of George LaRue firmly
establish that it was solely LaRue who made the decision to fire Kacian, and that he did not base
his decision on Kacian’s accident history or safety record. The Postmaster General in turn
argues that Mike Olsavsky, the Postmaster of the Johnstown Post Office, made the ultimate
decision, and that Olsavsky considered Kacian’s accident history and safety record. Stated
simply, these are the exact kinds of questions best resolved by factfinders.
Kacian spins a creative argument that Olsavsky’s review of her accident history or safety
record is irrelevant because she is relying on a “cat’s paw” theory of liability. 4 Under a cat’s

As explained by the United States Supreme Court, “[t]he term “cat’s paw” derives from a fable
conceived by Aesop . . . . In the fable, a monkey induces a cat by flattery to extract roasting chestnuts
from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the
chestnuts and leaves the cat with nothing.” Staub v. Proctor Hosp., 562 U.S. 411, 415 n.1 (2011) (citation
omitted).

4

-12-

paw theory, an employee may “hold his employer liable for the animus of a supervisor who
was not charged with making the ultimate employment decision.” Staub, 562 U.S. at 415. In
cat’s paw cases, an employer is liable when one of its agents commits an action based on
retaliatory animus that was intended to cause, and was the proximate cause of, an adverseemployment decision. Id. at 411; see also Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 330 (3d Cir.
2015) (citing Staub, 562 U.S. at 422). Kacian reasons that—because she is alleging that only
LaRue harbored retaliatory animus toward her—it is irrelevant whether Olsavsky reviewed her
accident history or safety record in providing his final approval.
Not so. Even under a cat’s paw theory of liability, Kacian will have to establish (1) that
LaRue harbored retaliatory animus toward her, (2) that he acted on that animus with the intent
to cause an adverse-employment decision, and (3) that LaRue’s actions were the proximate
cause of the adverse-employment decision. See Jones, 796 F.3d at 327-28, 330-31. Proximate
cause requires “some direct relation between the injury asserted and the injurious conduct
alleged,” and excludes links that are “remote, purely contingent, or indirect.” Staub, 562 U.S. at
419 (citation and internal quotation marks omitted). Kacian’s accident history and safety record
are therefore relevant because their contents will likely make it more or less probable that
LaRue’s actions were the proximate cause of her termination. And this remains true even if
Olsavsky was the ultimate decisionmaker; the things he did—or did not—consider in reaching
his decision relate to whether LaRue’s actions were the proximate cause for the decision.
Thus, the Court will not bar the Postmaster General from offering evidence regarding
Kacian’s accident history or safety record from her employment with the Postal Service.

-13-

C.

Kacian’s Motion to Exclude Any Evidence of the Termination of Postal
Service Employees Who Were Not Based out of the Johnstown Post Office

Kacian’s second motion in limine seeks to prevent the Postmaster General from offering
evidence regarding the termination of Postal Service employees who were not based out of the
Johnstown Post Office. (ECF No. 67.) Kacian states that she “anticipates that the Defendant will
attempt to enter into evidence a spreadsheet that lists transitional employees who have been
terminated throughout the Western District of Pennsylvania and that the Defendant will seek
. . . testimonial evidence of the same through Denise Johnson, a Labor Relations Specialist.” (Id.
¶¶ 1-2.) Kacian argues that this evidence should be excluded because it is irrelevant and
because, even assuming it is relevant, it would confuse the jury. (ECF No. 68 at 1.)
Specifically, Kacian argues that the Postal Service has no set policy to determine the
severity of infractions but instead relies on the discretion and judgment of the supervisor who
reviews the infractions.

(ECF No. 68 at 2 (citing Michael Oslavsky deposition excerpts).)

According to Kacian, the circumstances surrounding the termination of non-Johnstown-based
transitional employees are therefore irrelevant. (See id.) Kacian appears to argue further that
merely introducing a spreadsheet listing employees and the reasons for their termination
presents foundational issues because determining “why an employee was terminated requires
an in depth discussion of all of the circumstances surrounding the termination, not simply a
listing of the alleged act itself.” (Id.)
In her response, the Postmaster General does not appear to dispute any of Kacian’s
factual claims, but instead argues for an all-or-nothing approach. (See ECF No. 83.) She states
that Kacian intends to introduce evidence regarding Johnstown-based transitional employees

-14-

and urges the Court to bar all evidence regarding “the circumstances and disciplinary decisions
made in other [transitional-employees’] cases (both in Johnstown and throughout the district).”
(Id. at 5.) If the Court does allow Kacian to introduce evidence surrounding Johnstown-based
transitional employees, the Postmaster General requests that she be allowed to introduce
evidence regarding non-Johnstown-based transitional employees as rebuttal evidence. (Id.)
As a threshold matter, the Court rejects the Postmaster General’s suggestion that an allor-nothing approach toward evidence of the termination of transitional employees is
appropriate. Not all the evidence regarding the termination of transitional employees carries
the same weight in this case; evidence about Johnstown-based transitional employees is more
relevant because that is the post office at issue in this case. Thus, the Court will neither bar all
evidence regarding transitional employees nor blanketly admit all such evidence.
Evidence of the termination of non-Johnstown-based transitional employees is at least
marginally relevant because it can establish that it is not unheard of for transitional employees
to be terminated for driving-safety infractions. But that appears to be the only point on which
this evidence would be relevant. If disciplinary action for transitional employees is entirely up
to the discretion of the supervisor in question, then evidence of the termination of nonJohnstown-based transitional employees tells us almost nothing about Kacian’s termination. It
may very well be true that transitional employees in post offices other than Johnstown’s were
terminated or disciplined for minor safety infractions. Conversely, transitional employees in
other post offices may have been treated more leniently than Johnstown-based transitional
employees. But Kacian worked in the Johnstown office, and the relevance of the leniency or
strictness of supervisors in other offices seems attenuated at best.

-15-

Nevertheless, marginal relevance is still relevance. And the Court does not think this
area of inquiry would confuse the jury or take up significant time. Because evidence regarding
the termination of non-Johnstown-based transitional employees can establish that it is not
unheard of for transitional employees to be terminated for safety infractions, the Court will not
bar such testimony. Furthermore, because it appears Denise Johnson is the only witness who
can testify to this point, the Court will widen the scope of Johnson’s permitted testimony to
include this narrow area. If the Postmaster General can lay the necessary foundation and if
Johnson possesses personal knowledge about the terminations she intends to testify about, then
Johnson may testify that non-Johnstown-based transitional employees have been terminated for
safety infractions. 5

Other than that, for the reasons in Section II.A of this memorandum

opinion, Johnson will be allowed to testify only for the purposes of authenticating and offering
into evidence documents not admitted by stipulation.
This leaves the matter of the spreadsheet of terminated transitional employees (ECF No.
68-1).

The spreadsheet lists 28 transitional employees—with their names redacted—who

worked in the Western District of Pennsylvania but were terminated between a specific
timeframe.

(See id.)

The spreadsheet includes a brief description of the basis for their

termination and their removal date. (Id.) None of the listed transitional employees worked in
the Johnstown Post Office. (Id.) Although the Postmaster General has provided no reason why
the spreadsheet is relevant, it appears relevant for the same reasons that Johnson’s testimony on

The Court will not, however, permit a roving examination into the specifics and contours of each of
those terminations—by either party. Both parties lament that testimony or evidence concerning other
transitional employees would require “mini trials” and waste significant time. (See ECF Nos. 67 at 3; 83 at
5.) Given the marginal relevance of evidence concerning the termination of non-Johnstown-based
employees, the Court does not see the need for extensive examination about those terminations.

5

-16-

this topic would be relevant; to establish that at least some transitional employees have been
terminated for safety infractions.
Kacian’s argument that none of the listed employees were based out Johnstown is well
taken. But that does not make the spreadsheet completely irrelevant, and Kacian is welcome to
probe that point on cross-examination. As for Kacian’s argument that Johnson “does not have
any personal knowledge of the employees or the incidents that led to the terminations,” the
Court will reserve its ruling on that objection for trial. Thus, the Court will not exclude the
terminated transitional-employees spreadsheet at this time.
D.

The Postmaster General’s Motion to Exclude Certain Testimony by and
Regarding Randy Hamonko

The Postmaster General has moved to exclude certain testimony by and about Kacian’s
boyfriend, Randy Hamonko. (ECF No. 70.) Hamonko, like Kacian, is a former transitional
employee at the Johnstown Post Office.
currently live together.

Hamonko and Kacian began dating in 2010 and

The Postmaster General seeks to bar Hamonko from testifying

“regarding his placement on administrative leave for failing to process 91 pieces of mail that
occurred shortly after Ms. Kacian’s termination.” (Id. at 1.) The Postmaster General states that
Kacian will offer this evidence to establish a pattern of antagonism directed at her and argues
that this evidence is both impermissible “me too” evidence and irrelevant because it is too
attenuated from the issues in this case.
At this preliminary stage, the Court will not exclude testimony regarding Hamonko’s
placement on administrative leave. Hamonko’s placement on administrative leave—roughly
four weeks after Kacian’s termination—may indeed be probative on the issue of retaliatory

-17-

animus. Furthermore, even assuming that this evidence is “me too” evidence, such evidence is
neither per se admissible nor per se inadmissible. Mandel v. M & Q Packaging Corp., 706 F.3d
157, 167 (3d Cir. 2013) (citation omitted). “[T]he 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.” Id. (citation omitted). Applying those factors here does not weigh in favor of
exclusion; Hamonko’s placement on administrative leave is not too dissimilar or far removed
from Kacian’s termination to be irrelevant, and this evidence supports Kacian’s theory of the
case in that a jury could find it probative of retaliatory animus. Thus, the Court will not bar
testimony regarding Hamonko’s placement on administrative leave.
E.

The Postmaster General’s Motion to Exclude Certain Testimony by Joseph
Sarosi

Lastly, the Postmaster General has moved to exclude certain testimony by Joseph Sarosi.
(ECF No. 72). Sarosi was Kacian’s union representative at the time of her termination. (Id.) The
Postmaster General states that “Sarosi will testify about the cases of other employees at the
Johnstown Post Office, the various infractions committed by these employees, and his opinion
that these employees were treated more favorably than [Kacian],” and argues that this
testimony would be improper lay opinions, speculative, irrelevant, waste time, and confuse the
jury. (Id.; see also ECF No. 73.) The Postmaster General requests that the Court exclude any
testimony by Sarosi about the cases of other employees, the types of infractions that led to
discipline in the Johnstown Office, and testimony that Kacian and Hamonko were the only

-18-

transitional employees who were terminated since Sarosi became union president in 2009. (ECF
No. 73 at 4.)
The Postmaster General’s arguments are unconvincing. Under Federal Rule of Evidence
701, a layperson may testify to an opinion if that opinion is rationally based on the witness’s
perception, helpful to clearly understanding the witness’s testimony or to determining a fact in
issue, and not based on scientific, technical, or other specialized knowledge within the scope of
Rule 702. Although the Postmaster General argues that Sarosi lacks firsthand knowledge of the
disciplinary cases he intends to testify to, it is not clear if this is true. In her witness list, Kacian
states that Sarosi will
testify about his involvement in the meeting in which Ms. Kacian
reported George Larue for sexual harassment. He can testify as to
his observations as the union president in regard to the types of
infractions that led to discipline in the Johnstown office. He also
can confirm that, as of March 2013, the only transitional
employees who had been terminated since he became president in
2009 were Ms. Kacian and Mr. Hamonko.
(ECF No. 58 at 1.) Based on Kacian’s offer of proof, it appears Sarosi will testify specifically
about his involvement and personal observations—thus satisfying Rule 701. If Kacian is unable
to or does not lay the requisite foundation for Sarosi’s testimony, the Postmaster General is
welcome to raise that objection during trial. But the Court will not exclude his testimony as
improper lay opinion at this time.
Nor will the Court exclude Sarosi’s testimony on the grounds of speculation, relevance,
waste of time, or confusion of the issues. Sarosi’s testimony, if based on his own involvement
and observations, is unlikely to be speculative.

As for relevance, his testimony about

disciplinary cases at the Johnstown Post Office relates to the central issue in this case: whether

-19-

Kacian’s termination was motivated by a retaliatory animus. Although the Postmaster General
is correct in stating that the relevance of Sarosi’s testimony will depend in part on whether the
disciplinary cases he knows about involved similarly situated employees, that argument goes to
the weight of the testimony rather than its admissibility. Even if none of the other employees
were similarly situated to Kacian, Sarosi’s testimony would still be relevant if it supported the
inference that the Johnstown Post Office was generally lenient about disciplinary issues. And
the Court does not believe that the probative value of Sarosi’s testimony—even if it necessitated
inquiry by the Postmaster General into the bases for his testimony—is substantially outweighed
by a risk of wasting time or confusing the issues. If that belief turns out to be incorrect, the
Court will take steps during trial to address any delay or confusion.
Thus, the Court will not limit Sarosi’s testimony at this time.
III.

Conclusion
For the foregoing reasons, Kacian’s objections to the Postmaster General’s witness list

are GRANTED IN PART. Kacian’s motion to exclude any evidence regarding her accident
history or safety record from her employment with the Postal Service is DENIED. Kacian’s
motion to exclude any evidence about the termination of non-Johnstown-based Postal Service
employees is DENIED. And the Postmaster General’s motions to exclude certain testimony by
Randy Hamonko and Joseph Sarosi are DENIED. A corresponding order follows.

-20-

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
HILLARY A. KACIAN,

)

Plaintiff,

)

Case No. 3:12-cv-102

)

JUDGE KIM R. GIBSON

)

v.

)
)

MEGAN J. BRENNAN, in her official
capacity as Postmaster General of the
United States Postal Service,

)
)

)
)

Defendant.

)

ORDER
NOW, this 8th day of March 2017, upon consideration of the parties' motions in limine,
Hillary Kacian's objections to the Postmaster General's witness list, and all related filings, and
for the reasons set forth in the memorandum opinion accompanying this order, it is HEREBY
ORDERED as follows:
1.

Kacian's objections to the Postmaster General's witness list (ECF No. 76) are
GRANTED IN PART as follows:
A. Kacian's objections to Jerry Britton and Rodney Hiner are DENIED.

Thus, the Postmaster General may call Jerry Britton and Rodney Hiner at
trial.
B. Kacian's objection to Denise Johnson is GRANTED IN PART.

The

Postmaster General may call Denise Johnson at trial for the following
purposes only:
i. To authenticate and offer into evidence documents not admitted
by stipulation.
ii. To testify that non-Johnstown-based transitional employees have
been terminated for safety infractions.
2. Kacian' s motion in limine to exclude evidence of her accident history or safety
record from her employment with the Postal Service (ECF No. 65) is DENIED.

3. Kacian's motion in limine to exclude any evidence about the termination of nonJohnstown-based Postal Service employees (ECF No. 67) is DENIED.
4.

The Postmaster General's motion to exclude certain testimony by Randy
Hamonko (ECF No. 70) is DENIED.

5. The Postmaster General's motion to exclude certain testimony by Joseph Sarosi
(ECF No. 72) is DENIED.

BY THE COURT:

KIM R. GIBSON
UNITED STATES DISTRICT JUDGE

-2-