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Sullivan v. Temple University

United States District Court, E.D. Pennsylvania

February 19, 2014



JAN E. DuBOIS, District Judge.


Plaintiff, Daniel Sullivan, filed suit against defendant, Temple University, under the Age Discrimination in Employment Act ("ADEA") and the Pennsylvania Human Relations Act ("PHRA"). The case arises out of defendant's failure to hire plaintiff for the Community Oral Health Coordinator ("COHC") position at Temple's Dental School. Presently before the Court is plaintiff's Motion in Limine to exclude documents created in relation to his interview for the COHC position. For the reasons that follow, plaintiff's Motion in Limine is granted in part and denied in part.


The facts of the case are set forth in detail in the Court's Memorandum and Order dated March 5, 2013 ruling on defendant's Motion for Summary Judgment and will only be included in this Memorandum to the extent necessary.

Plaintiff, age sixty, worked at Temple University for six years as a Project Manager at the Dental School. Shortly after being hired as Dean of the Dental School, Amid Ismail eliminated plaintiff's position. Before plaintiff's employment ended, defendant posted an opening for a Community Outreach Coordinator ("COC") position. The position was new and included plaintiff's responsibilities as Project Manager in the job description. Forty-six people, including plaintiff, applied for the position, but plaintiff was not selected for an interview. Dean Ismail initially offered the position to Alexia Clarke, his former research assistant.

After plaintiff complained of age discrimination, Temple Human Resources rescinded the offer to Clarke after determining plaintiff should have received an interview for the COC position. Dean Ismail then changed the job description and posted an opening for the position with a new title, Community Oral Health Coordinator ("COHC"). Dean Ismail prepared interview questions to be used by a four-person hiring committee. Sixty-seven people, including plaintiff, applied for the position, and plaintiff was one of five applicants selected for an interview. The hiring committee recommended two applicants for the position, Clarke and Asha Baldon. Dean Ismail again offered the position to Clarke, who accepted.

Defendant seeks to offer in evidence three types of documents: (1) the notes of three members of the hiring committee, (2) a summary of the interviews prepared by the fourth committee member, and (3) an email sent to Dean Ismail containing the recommendation of the hiring committee. The documents are offered to show that the hiring committee and Dean Ismail lacked discriminatory animus when deciding to hire Clarke for the COHC position rather than plaintiff.

The notes of the three committee members contain typewritten questions asked during the interview followed by a space for handwritten notes. The handwritten portions of the notes contain factual statements purportedly related to the answers given during each interview. However, most of the notes do not identify the note-taker or the interviewee, and the notes are repetitive and difficult to read. The summary of the interviews is typewritten and contains factual statements and conclusions about the each applicant's qualifications. The recommendation of the hiring committee is a four-paragraph email sent from one of the committee members to Dean Ismail summarizing the qualifications of the two recommended applicants.


Plaintiff argues that the notes, summary, and recommendation of the interview committee should be excluded as inadmissible hearsay evidence. Hearsay is an out-of-court statement offered into evidence for the truth of the matter asserted. Fed.R.Civ.P. 801(c).

A. Recommendation of Hiring Committee

Defendant argues that the email containing the hiring committee's recommendation is not being offered in evidence to prove the truth of the matter asserted, that is, that Baldon and Clarke are the most qualified candidates for the position. Rather, defendant argues that the email is offered to show Dean Ismail lacked discriminatory animus when deciding not to hire plaintiff. In support, defendant states that Dean Ismail relied on the committee's recommendation in offering the COHC position to Clarke and not plaintiff. Def.'s Resp. to Pl.'s Mot. in Limine to Exclude Alleged Hearsay at 7; Temple Univ.'s Statement of Material Fact ΒΆ 101.

The Court concludes that the recommendation of the committee is not hearsay when offered as evidence of the persons recommended for the COHC position by the hiring committee. When an employer such as Temple presents evidence of a non-discriminatory reason for taking an adverse action, "the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Keller v. Orix Credit Alliance, 130 F.3d 1101, 1108-09 (3d Cir. 1997) (quoting Fuentes v. Perski, 32 F.3d 759, 765 (3d Cir. 1994)); see also Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 332 (3d Cir. 1995) (quoting McCoy v. WGN Cont'l Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992)) ("[T]he inquiry is limited to whether the employer gave an honest explanation of its behavior."). However, before introducing the recommendation in evidence, defendant must lay a proper foundation at trial that ...

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