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Keiser v. Borough of Carlisle

United States District Court, M.D. Pennsylvania

September 18, 2017



          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.

         With respect to these competing claims and defenses, 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 defendant that seeks to exclude portions of deposition testimony from Brian Richardson, Donald Reisinger, and Linda Cecconello on the grounds that their testimony constitutes inadmissible lay opinion testimony. (Doc. 79).

         In its motion and accompanying brief the defendant identified this allegedly objectionable opinion testimony in the following fashion: First, with respect to Brian Richardson, Richardson testified in his deposition that Candland was “cocky” and a “know-it-all.” (Doc. 80-1, Ex. A 19-20). Asked to explain, Richardson testified that “there were things that he changed under his - it's my understanding under his direction that made our jobs harder.” (Id., 19). More specifically, “[h]e made us get rid of some of the dump trucks, and he replaced them with little tiny dump trucks.” (Id., 19-20). Richardson could not think of other examples. (Id., 20). Although he was unable to speak to whether Candland might harbor an age bias, Richardson provided his impression that Candland was a person who believed things must be done his way and was not open to being challenged. (Id., 27-28).

         As for Donald Reisinger, in his deposition he was asked about Candland's trustworthiness and testified that “he [Candland] didn't prove that to me.” (Doc. 80-1, Ex. B. 30-31). Reisinger also testified to his impression that Candland was the “type who always thought he knew best, ” (Id., 33), and opined that that Candland did not have “any business poking his nose into the manner in which workers were doing the gatehouse project” and that “it probably wasn't the best use of his time.” (Id., 35).

         Finally, in her deposition testimony the defendant noted that former Councilmember Linda Cecconello opined that Candland had “not achieved the objective of responsibly managing the fiscal affairs of the Borough.” (Doc. 80-1, Ex. C 27). Cecconello also testified to her belief that Candland was responsible for a broad and “dynamic” shift - “a slipping of morale and it just went from bad to worse in all of the departments, not just Public Works, Finance, the police station. I mean it was all departments.” (Id., 36.) In addition, Cecconello also testified that she did not discuss with Candland any complaints that she received “[b]ecause he retaliates.” (Id., 41). Asked to expound, Cecconello stated that “it puts their job in jeopardy” and “he retaliates” based upon the following:

A. I had one person say to me that if they didn't like working for him, they could leave. Everybody is like afraid to say anything. I have never seen anything like it, I really haven't. I mean, I've seen people that have concerns for their job, but they really felt if they spoke up that they were in jeopardy . . . don't recall. It may have come from Mr. Candland himself, but I don't know. ***
Q. Did employees specifically tell you that they were afraid because of Candland?
A. Not specifically because of Candland. In the past year Brian Richardson left. He was our traffic guy. And his words to me were I saw the writing on the wall.

(Id., 42).

         In response to the Borough's motion in limine which sought to exclude this specific testimony as inadmissible lay opinion evidence, Keiser conceded that testimony from Cecconello regarding Candland's management of the Borough's finances was inadmissible. Keiser asserted, however, that the testimony of Richardson and Reisinger, as well as Cecconello's testimony concerning her opinion that Candland was prone to retaliate against others should be admitted at the trial of this case. (Doc. 85).

         With the parties' positions framed in this manner, this motion in limine is ripe for resolution. For the reasons set forth below, this motion in limine will be GRANTED in part and DENIED in part. The motion will be granted in that we will instruct the plaintiff not to solicit that testimony from Cecconello regarding Candland's management of the Borough's finances. Additionally, the plaintiff may not solicit testimony from Cecconello in which she describes Candland as someone who “retaliates.” As for the cited testimony of Reisinger and Richardson, we will not exclude their testimony in a wholesale fashion as lay opinion testimony since in our view much of the testimony cited by the defense is more properly characterized as descriptions of conduct on Candland's part, rather than expressions of lay opinion. We will, however, entertain relevance objections at trial to particular and prolonged inquiry into these inter-personal matters which may have only limited relevance to the issues properly before the jury.

         II. ...

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