United States District Court, W.D. Pennsylvania
OPINION AND ORDER ON MOTIONS IN LIMINE
Cynthia Reed Eddy, United States Magistrate Judge
an action brought by Plaintiff Walker Mikulan under the
Family and Medical Leave Act, 29 U.S.C. § 22601 et
seq., the Age Discrimination in Employment Act, 29
U.S.C. § 621 et seq., and the Pennsylvania
Human Relations Act, 43 P.S. § 951 et seq.
Trial is set to begin in this matter on June 5, 2017 and
there are a total of twelve motions in limine
pending before the Court. The Court will address the motions
facts of the case are well known to the parties, it is
unnecessary to repeat them in detail here. Thus, the Court
will state only the facts that are needed to put the
following rulings in the appropriate context. Mikulan was
employed by Allegheny County from 1984 until August 2013,
working at the Allegheny County Jail for that whole time. He
started as a corrections officer and eventually became a
Major, which is the third highest rank at the jail, only
below the Deputy Warden and the Warden. In October 2012,
Orlando Harper became the Warden of the jail. According to
Mikulan, Warden Harper immediately began harassing Mikulan
and another Major, Ronald Pofi, both of whom were over the
age of 55. Mikulan contends that Warden Harper viewed FMLA
leave negatively, allegedly stating on one occasion that the
Jail needed to “combat FMLA, ” and that Harper
targeted Mikulan because of Mikulan's use of intermittent
in late 2012, Deputy Warden William Emerick issued Mikulan
three disciplinary actions. First, in December 2012, Emerick
gave Mikulan a “counseling session” for
Mikulan's alleged failure to ensure that jail staff
completed a “roll call book.” Second, in February
2013, the day that Mikulan returned from a month-long FMLA
leave, Mikulan was issued a warning for his alleged
“failure to properly monitor Overtime Justification
Sheets.” Third, on July 29, 2013, Mikulan was issued a
warning for allegedly not timely turning in “Property
Accountability Sheets.” According to Mikulan, these
three disciplinary actions were baseless and initiated at the
direction of Warden Harper.
Harper terminated Mikulan's employment on August 13,
2013. At the time of the termination, Warden Harper did not
provide a reason for the termination. But Warden Harper
testified extensively about his decision to terminate Mikulan
in his deposition:
Q: Were those two sections in fact the basis for your
decision to terminate Major Mikulan?
A: My decision to terminate Major Mikulan was the three
insubordinate incidents that he had that has been noted in
his disciplinary file.
Q: All of the information that you are aware of that relates
to those three incidents that were the bases for Major
Mikulan's termination is contained within his
disciplinary file; is that correct?
Q: Was your decision to terminate Walter Mikulan based on
anything other than the documentation that is found in his
A: Absolutely not.
Harper Dep. at 94-95, 103.
Harper was questioned about an answer to an interrogatory
indicating that Mikulan's “lack of support”
for Warden Harper was identified as the reason for
Q: Please tell me every piece of information, to the extent
you haven't already told me, that would support your
contention in the answer to interrogatories that Major
Mikulan's quote, “lack of support for the warden
was hindering the warden's ability to achieve the goals
he had set for the jail.”
A: The three incidents of insubordination that's in his
Q: Again, give me every piece of information in your
possession that would support the contention that Major
Mikulan was “unable to supervise staff, follow
instruction, failed to provide guidance and did not
satisfactorily perform his duties as a major at the Allegheny
A.: The three incidents of insubordination in his
Q: You are not aware of any other information other than the
information in the disciplinary file that would support any
of the allegations made in this complaint; is that correct
--excuse me, made in this answer?
Q: Have you terminated anyone other than Major Mikulan due to
a perceived lack of support of your objectives?
A: I didn't terminate Major Mikulan for lack of support
for my objectives. I terminated Major Mikulan for his three
insubordinate violations that took place.
Harper Dep. at 116-117, 136.
Mikulan asserts in his motions that it would be inappropriate
to allow the County to point to any evidence of Mikulan's
purported “lack of support” for Warden Harper
beyond what Warden Harper specifically testified about in the
above excerpts. However, the County provided the following
deposition testimony not offered by Mikulan, which arguably
contradicts Mikulan's assertion that Harper's
testimony was so limited:
Q: What was the basis for your decision not to give Mikulan a
suspension of some particular number of days?
A: As I stated previously, Mr. Mikulan apparently did not
agree with how I was managing the jail. He did not agree with
a lot of the changes I wanted to make.
Major Mikulan was the third highest ranking official in the
jail, and I can't have someone on my team that do not
agree with how I manage.
I cannot have the third highest ranking official on my team
be insubordinate on three different occasions. I cannot have
somebody on my team that don't want to take the agency in
the direction that I wanted to take the agency in.
And as a new warden, I need people on my team that want to
take the agency in the direction I ...