United States District Court, W.D. Pennsylvania
HILLARY A. KACIAN, Plaintiff,
MEGAN J. BRENNAN, in her official capacity as Postmaster General of the United States Postal Service, Defendant.
GIBSON UNITED STATES DISTRICT JUDGE
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). 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.
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.)
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-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.
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.
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 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
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.
Kacian's Objections to the Postmaster General's
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.
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, 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.)
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 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.
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).
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
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)).
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 Fed.Appx. 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.
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
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 ...