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Kacian v. Brennan

United States District Court, W.D. Pennsylvania

March 8, 2017

HILLARY A. KACIAN, Plaintiff,
v.
MEGAN J. BRENNAN, in her official capacity as Postmaster General of the United States Postal Service, Defendant.

          MEMORANDUM OPINION

          KIM R. GIBSON UNITED STATES DISTRICT JUDGE

         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.)

         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-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.

         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 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, 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 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 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 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.

         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 ...

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