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Erbe v. Potter

April 22, 2010

GEORGE J. ERBE, PLAINTIFF
v.
JOHN E. POTTER, DEFENDANT



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Plaintiff George Erbe ("Erbe"), a former employee of the United States Postal Service ("USPS"), brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17. Presently before the court is defendant's motion in limine (Doc. 73), which seeks to exclude certain evidence for lack of relevance. For the reasons that follow, the motion will be granted in part and denied in part.

I. Factual Background*fn1

During the time that plaintiff was employed by the USPS as a Rural Carrier Associate ("RCA"), he suffered back spasms on one occasion, and he considered the spasms to be work-related. However, USPS policy required plaintiff to report any injury or accident immediately, and because plaintiff had reported no accident, plaintiff's supervisor decided to remove him "from the rolls of the Postal Service" by letter dated August 25, 2006. Plaintiff then filed a grievance with his union regarding his removal. His union grievance was settled, pursuant to a settlement agreement which stated, "The notice of separation issued to [Erbe] will be reduced to a long term suspension for time served[,]" and which required plaintiff "to make himself available for a fitness for duty examination to be scheduled by USPS." A few weeks after his union grievance settled, plaintiff sought EEOpre-complaint counseling for an "age and gender discrimination case."

Shortly thereafter, a fitness for duty examination was scheduled with Dr. Bruce Goodman. Dr. Goodman's final assessment was "[m]oderate [r]isk/restriction recommending that lifting more than 40 pounds would require assistance." Plaintiff contests the validity of Dr. Goodman's conclusion. Nevertheless, the USPS informed plaintiff that as an RCA, he "was required to lift seventy (70) pounds[,]" which is the maximum allowable mailing weight, without assistance, because plaintiff worked alone. Citing Dr. Goodman's conclusion that plaintiff should not more than forty pounds without assistance, the USPS concluded that "we are unable to consider you for re-employment or reinstatement as a Rural Carrier Associate." Accordingly, plaintiff was not reinstated.

Plaintiff alleges that defendant, the Postmaster General, took adverse actions against him-specifically, terminating his employment-in retaliation for his involvement in the Equal Employment Opportunity ("EEO") process, in violation of Title VII.*fn2 Defendant's pending motion in limine (Doc. 73) seeks to enjoin plaintiff from introducing the following evidence at trial: (1) the testimony of Craig Jenks; (2) evidence relating to Erbe's August 2006 termination; (3) evidence challenging the terms of the settlement agreement; (4) evidence concerning the incidents which gave rise to Erbe's withdrawn EEO matter; and (5) testimony from Erbe concerning how much he can lift.

II. Discussion

A. Testimony of Craig Jenks

Defendant anticipates that plaintiff will ask Craig Jenks, a rural letter carrier, to testify to such information as (1) the weight of packages that he has been required to deliver, both during the Christmas season and at other times of the year, (2) the fact that he can use a dolly to lift heavy items, and (3) the fact that he has spoken to another letter carrier with similar experience. Defendant contends that the court should not permit Jenks to testify, because plaintiff failed to provide information about Jenks or identify him as a potential witness, and because Jenks's experiences are not relevant to plaintiff's claims. In addition, defendant argues that any testimony provided by Jenks should be based on his personal knowledge, not hearsay.

Under Rule 37(c)(1) of the Federal Rules of Civil Procedure, "[i]f a party fails to... identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that... witness to supply evidence... at a trial, unless the failure was substantially justified or is harmless." FED. R. CIV. P. 37(c)(1). Defendant argues that, under this rule, Jenks's testimony should be excluded from evidence. Plaintiff's response essentially amounts to an argument that his failure to identify Jenks was substantially justified. Specifically, plaintiff asserts that, as a result of the fact that defendant relied on a declaration from Laurie McKinsey in its motion for summary judgment, plaintiff needed a witness "in the letter carrier craft to rebut the averments of McKinsey." (Doc. 76 at 3). Accordingly, plaintiff found Jenks, a witness he was not aware of until after he received defendant's motion for summary judgment, (id.), and he provided Jenks's declaration in his opposition to summary judgment, (see Doc. 54-4). In light of these circumstances, the court is not persuaded that Jenks's testimony should be excluded on the basis that plaintiff failed to identify Jenks earlier. The court will therefore turn to defendant's alternative basis for excluding Jenks's testimony: relevance.

Evidence is relevant if it renders a material fact either more or less probable than it would have been absent the evidence, and relevant evidence is, as a general rule, admissible. FED. R. EVID. 401, 402. Defendant argues that Jenks's experiences have no relevance, because Jenks is not similar to plaintiff. Defendant observes that Jenks is a letter carrier, not an RCA as plaintiff was, and that Jenks and plaintiffs have different job requirements and different routes. Although defendant presents well-reasoned arguments suggesting that Jenks's testimony would lack probative value, the court does not find that exclusion of his testimony is warranted at this juncture. The court cannot presently ascertain the potential relevance of Jenks's testimony. At the time of trial, by contrast, the parties will have the opportunity to develop the record, and the court can consider the evidence in context. Therefore, the court finds that a pretrial exclusion of Jenks's testimony would be premature. See In re Diet Drugs Prods. Liab. Litig., 369 F.3d 293, 314 (3d Cir. 2004).

Defendant also objects to the admission of hearsay testimony into evidence. Hearsay is any oral or written "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." FED. R. EVID. 801(c). Unless it falls within one of Federal Rules' exceptions, hearsay testimony is not admissible evidence. See FED. R. EVID. 802.

According to defendant, Jenks may attempt to provide information outside his personal knowledge, such as the specific weight of packages he has delivered, and statements that another letter carrier made to him about lifting heavy packages and using a dolly.

The court agrees that the latter part of Jenks's anticipated testimony is inadmissible hearsay. Jenks cannot offer the statements of another letter carrier to prove the truth of the matters asserted-for instance, that this individual was required to deliver heavy packages on only a few occasions, and that he used a dolly supplied by the post office on those occasions. However, the court is not persuaded that it should prohibit Jenks from testifying to the weight of packages he has delivered. At trial, the court will afford plaintiff the opportunity to establish whether this information is ...


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