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Keiser v. The Borough of Carlisle

United States District Court, M.D. Pennsylvania

September 13, 2017

MICHAEL T. KEISER, Plaintiff
v.
THE BOROUGH OF CARLISLE, Defendant

          MEMORANDUM OPINION AND ORDER

          Martin C. Carlson United States Magistrate Judge.

         I. Factual and Procedural Background

         This is a workplace age discrimination lawsuit brought by the plaintiff against a local municipality under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 (“ADEA”). The plaintiff in this action, Michael Keiser, worked for 27 years as the Director of Public Works for the Borough of Carlisle before he was fired on May 1, 2014, just hours after formally complaining to his supervisor about what he perceived as his supervisor's repeated ageist and discriminatory comments and criticism. Keiser alleges that his firing constituted unlawful age discrimination and was retaliatory.

         The Borough, and Keiser's supervisor, Mathew H. Candland, Sr., maintain that Candland was compelled to terminate Keiser's employment because it had become impossible to work cooperatively with Keiser; because of fundamental disagreements over significant public-works projects; and because morale had reached an unacceptable low within Keiser's department. Keiser retorts that these given reasons were pretextual cover for his unlawful firing.

         We have previously concluded that this case is riddled with factual disputes that make summary judgment inappropriate. Accordingly, we have scheduled this case for trial in October 2017 and in anticipation of that trial the parties have filed an array of motions in limine, including a motion in limine filed by the plaintiff which seeks to exclude any testimony by Mark Malarich, a witness who was disclosed to the plaintiffs on May 22, 2017. (Doc. 69.)

         With respect to this motion in limine, the pertinent facts can be simply stated: Following Keiser's termination in May of 2014, Mark Malarich was hired as the Carlisle Borough Public Works Director in November of 2014, and remains employed in this capacity. At the time that he was hired Malarich, who was born in 1959 was more than five years younger than the plaintiff, but was older than Candland and was substantially closer in age to Keiser.

         In their response to this motion in limine the defendant has acknowledged that the defense first designated Malarich as a potential witness some five months ago, on May 22, 2017, and has indicated that the proposed testimony of Malarich would be limited to the fact of his hiring, his age, date of hire, and position, as well as the statements allegedly made by Keiser to Malarich on May 5, 2017, relating to Candland, Keiser's employment with the Borough, his future employment plans and something called the Valley Meadows project. The Valley Meadows Storm Water project was a flashpoint between Keiser and Candland, and their disputes regarding this project were a crucial point of conflict in their workplace relationship. Thus, much of what was contested between Candland and Keiser during the time when they worked together related to the Valley Meadow project.

         As we understand it, if he was called as a witness and testified, Malarich would recount that on May 5, 2017, as part of his duties he traveled to Valley Meadows following a heavy rainfall to observe run-off at that site. When he drove to Valley Meadows Malarich encountered Keiser also watching the run-off. Keiser approached Malarich and informed Malarich of his disgust over the Borough undertaking the Valley Meadows Improvement project, stating that it was an unnecessary project that performed no better than the project he had completed while Public Works Director. Keiser further expressed his displeasure with the current Borough Manager and said that he would be running for Borough office once his lawsuit was resolved and would then take care of the problem.

         Alerted to this May 5, 2017, contact between Malarich and Keiser, on May 22, 2017, the defendant submitted a supplemental Rule 26(s) disclosure statement which disclosed Malarich as a potential witness in this matter. This disclosure statement was submitted after the discovery deadline had passed in this case, but Malarich's employment and his institutional role in this litigation as Keiser's successor had been known to all parties long prior to the submission of this supplemental disclosure form. Thus, the Joint Case Management Plan filed in this case on June 17, 2015, identified one of the facts in dispute as: “Plaintiff's replacement, Mark Malarich, an external candidate, was age 55 at the time of his hire in October 2014.” (Dkt. Doc. 10, p. 5, at ¶1.2.23). In addition, Malarich's personnel file was produced on or about July 30, 2015, as part of Defendant's Initial Disclosures (Section B., para. 10) following receipt of an executed Stipulation of Confidentiality. Malarich was also identified in both written and deposition discovery. In written discovery responses dated December 31, 2015, the Borough stated that “Mark Malarich was hired as the Director of Public Works effective November 12, 2014, and remains employed in that capacity.” (Defendant's Answer to Interrogatory No. 4, dated December 21, 2015). Malarich has also been the subject of some deposition testimony by other witnesses in the course of discovery. Moreover, Malarich was identified as Keiser's successor in the summary judgment litigation of this case, and the potential evidentiary relevance of his hiring was thoroughly aired by the parties at that time. Thus, some of the matters that the defendant has proffered it might present at trial through this witness; namely, the fact of his hiring, his age, date of hire, and position have been completely disclosed to all parties for several years.

         What was not previously known was the content of Mr. Malarich's conversation with Mr. Keiser on May 5, 2017. However, to the extent that the defendant's May 22, 2017, Supplemental Rule 26 designation of Malarich as a potential witness was based upon this May 5, 2017, encounter between these two men, it cannot be said that the supplemental disclosure was untimely. Indeed, that May 2017 disclosure could not have been made prior to May 2017 since this conversation allegedly only occurred in May of 2017.

         It is against this backdrop that Keiser has filed a motion in limine seeking to exclude Malarich as a witness. In his motion Keiser advances a single specific argument, contending that the belated disclosure of Malarich as a potential witness compels exclusion of this testimony under Rule 37 of the Federal Rules of Civil Procedure.[1] This motion is fully briefed by the parties and is, therefore, ripe for resolution.

         For the reasons set forth below this motion will be DENIED.

         II. Discussion

         The Court is vested with broad inherent authority to manage its cases, which carries with it the discretion and authority to rule on motions in limine prior to trial. See Luce v. United States, 469 U.S. 38, 41 n.4 (1984); In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev'd on other grounds sub nom., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (the court exercises its discretion to rule in limine on evidentiary issues “in appropriate cases”). Courts may exercise this discretion in order to ensure that juries are not exposed to unfairly prejudicial, confusing or irrelevant evidence. United States v. Romano, 849 F.2d 812, 815 (3d Cir. 1988). Courts may also do so in order to “narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.” Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990) (citation omitted.) Further, it is also well-settled that “[a] trial court is afforded substantial ...


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