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Keiser v. The Borough of Carlisle

United States District Court, M.D. Pennsylvania

September 14, 2017



          Martin C. Carlson United States Magistrate Judge.


         This is an employment discrimination action brought by Michael T. Keiser against his former employer, The Borough of Carlisle. Keiser has alleged that his long-term employment as the Director of the Public Works Department with the Borough was unlawfully terminated due to age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (ADEA). Keiser specifically has charged that his supervisor, Matthew Candland, the Borough Supervisor, harbored discriminatory animus towards older employees, and sought to replace them with younger workers solely on the basis of age. The Borough disputes Keiser's allegations, and trial in this dispute is scheduled to commence on October 10, 2017.

         In advance of trial, the parties have filed an array of motions in limine seeking to limit specific areas of potential witness testimony in this case. Now pending before the Court are two of these motions, which the Borough has filed seeking to exclude witnesses from testifying about rumors that they claim to have heard regarding Candland's alleged discriminatory views. (Docs. 73, 75.)

         In the first motion, the Borough seeks to preclude witnesses from testifying about rumors in the Public Works Department that Candland desired turnover of Borough employees or to eliminate older workers, as several witnesses testified to vaguely in their depositions. The Borough has argued that this evidence must be excluded because the witnesses lack personal knowledge regarding the alleged statements, and because the potential testimony would constitute inadmissible hearsay.

         Upon consideration, the Court agrees that the proposed testimony constitutes hearsay - and sometimes double hearsay. Further, it has not been shown that these statements are subject to any applicable exception to the hearsay rules set forth in the Federal Rules of Evidence. Although the plaintiff has attempted to argue that some of the potential testimony should be allowed in to show the effect of the alleged hearsay upon each of the witnesses, the Court finds this argument unpersuasive, since it appears plain that the testimony would be offered to prove the truth of the subject of the rumors. Moreover, the effect of the alleged rumors on the non-party witnesses is irrelevant, prejudicial and potentially confusing.

         In the Borough's second motion, which is closely related to the first, it seeks to prevent similar hearsay testimony that is claimed to have originated with Borough officials - all of whom have, in fact, specifically denied that they were the source of the rumor or otherwise that they shared it with others. The Borough argues that this testimony is also plainly hearsay and not subject to any recognized exception. The plaintiff argues, unpersuasively, that this evidence should be deemed a party admission and, therefore, non-hearsay pursuant to Rule 801(d)(2), but on the current, incomplete factual record we disagree. Even if the witnesses had heard the rumors from the Borough officials, which is certainly disputed, we would still be constrained to find that the testimony constitutes inadmissible hearsay because, at bottom, the alleged statement is still no more than a rumor or something heard from a non-testifying declarant. The fact that a witness intends to say that he heard about a rumor from a Borough official does not mean that the underlying rumor becomes admissible, as the testimony would still amount to double hearsay. We further disagree that extrinsic evidence of these alleged statements-which have been denied by the declarants--should be permitted in order to impeach the anticipated testimony of other Borough employees.


         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). However, courts should be careful before doing so.

         In considering motions in limine which call upon the Court to engage in preliminary evidentiary rulings under Rule 403 of the Federal Rules of Evidence, we begin by recognizing that these “evidentiary rulings [on motions in limine ] are subject to the trial judge's discretion and are therefore reviewed only for abuse of discretion ... Additionally, application of the balancing test under Federal Rule of Evidence 403 will not be disturbed unless it is ‘arbitrary and irrational.' ” Abrams v. Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir.1995) (citations omitted); see Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 161 (3d Cir.1994) (reviewing in limine rulings for abuse of discretion). Yet, while these decisions regarding the exclusion of evidence rest in the sound discretion of the district court, and will not be disturbed absent an abuse of that discretion, the exercise of that discretion is guided by certain basic principles.

         One of the key guiding principles is reflected in the philosophy which shapes the rules of evidence. The Federal Rules of Evidence can aptly be characterized as evidentiary rules of inclusion, which are designed to broadly permit fact-finders to consider pertinent factual information while searching for the truth. The inclusionary quality of the rules, and their permissive attitude towards the admission of evidence, is embodied in three cardinal concepts. The first of these concepts is Rule 401's definition of relevant evidence. Rule 401 defines what is relevant in an expansive fashion, stating:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable *197 or less probable than it would be without the evidence.

Fed. R. Evid. 401.

         Adopting this broad view of relevance it has been held that: “Under [Rule] 401, evidence is relevant if it has ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' [Therefore] ‘It follows that evidence is irrelevant only when it has no tendency to prove the fact. Thus the rule, while giving judges great freedom to admit evidence, diminishes substantially their authority to exclude evidence as irrelevant.' ” Frank v. County of Hudson, 924 F.Supp. 620, 626 (D.N.J.1996) citing Spain v. Gallegos, 26 F.3d 439, 452 (3d Cir.1994) (quotations omitted).

         This quality of inclusion embraced by the Federal Rules of Evidence, favoring the admission of potentially probative proof in all of its forms, is further buttressed by Rule 402, which generally defines the admissibility of relevant evidence in sweeping terms, providing that:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Fed. R. Evid. 402.

         Thus, Rule 402 expressly provides that all “[r]elevant evidence will be admissible unless the rules of evidence provide to the contrary.” United States v. Sriyuth, 98 F.3d 739, 745 (3d Cir.1996) (citations omitted). While these principles favoring inclusion of evidence are subject to some reasonable limitations, even those limitations are cast in terms that clearly favor admission of relevant evidence over preclusion of proof in federal proceedings. Thus, Rule 403, which provides grounds for exclusion of some evidence, describes these grounds for exclusion as an exception to the general rule favoring admission of relevant evidence, stating that:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Fed. R. Evid. 403 (emphasis added).

         By permitting the exclusion of relevant evidence only when its probative value is “substantially outweighed” by other prejudicial factors, Rule 403 underscores the principle that, while evidentiary rulings rest in the sound discretion of the court, that discretion should consistently be exercised in a fashion which resolves all doubts in favor of the admission of relevant proof in a proceeding, unless the relevance of that proof is substantially outweighed by some other factors which caution against admission.

         Notwithstanding the Rules' inclusive character, other rules serve to place limits on the testimony that may be offered at trial to help ensure the reliability of the evidence that a party seeks to present. Rule 602 of the Federal Rules of Evidence provides that a fact witness “may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Fed.R.Evid. 602. In addition, Rule 802 provides that hearsay evidence is inadmissible unless otherwise permitted by statute or other rules of evidence. Fed.R.Evid. 802. Rule 801 defines hearsay as a statement by a declarant who does not testify at trial which is offered in evidence to prove the truth of the matter asserted in the statement. Fed. R. 801(c).

         In the motions before the Court, the defendant seeks a pretrial ruling precluding witness testimony regarding rumors about Matthew Candland's alleged pattern of eliminating the employment of older workers and replacing them with younger workers both in Carlisle and in his previous employment in Sykesville, Maryland. Although the Borough does not seek to preclude any testimony from witnesses who claim to have heard firsthand Candland make ageist or discriminatory comments, the Borough does seek to prevent witnesses from testifying at trial that they had heard about rumors of such comments being made, or that they heard about such alleged comments from individuals other than Candland - particularly where all of those other individuals have either denied that they heard Candland make any such statements or that they shared them with others. In making this argument, the Borough argues that the witnesses should be prevented from offering this rumor testimony both because the witnesses have no personal knowledge regarding Candland making the alleged comments, and because the rumors themselves constitute double hearsay - first, by testifying about the fact of rumor in general, and second in testifying about its content - in order to prove that Candland was biased against older workers.

         The Borough has submitted portions of depositions testimony given by a number of witnesses regarding rumors that circulated within the Public Works Department that Candland desired turnover of older Borough employees and sought to have them replaced with younger hires. In all cases cited by the Borough, however, no witness was able to provide a sufficient foundation for the introduction of this testimony.

         For example, Theodore Weber, a Borough employee since 2011, testified during his deposition about rumors that Candland was interested in achieving employee turnover every seven years and toward that end was aiming to replace older workers. His testimony is candid that it is based entirely on a rumor that even he could not trace:

Q: I am asking about your age. Why did you tell Don Reisinger that you were worried that you might be fired because of your age?
A: I heard that there was rumors that within seven years, they were going to try to get ...

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