The opinion
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DONNA DAVIS JAVITZ, :
Plaintiff
V. 3:15-CV-2443
(JUDGE MARIANI)
LUZERNE COUNTY, et al., :
Defendants.
MEMORANDUM OPINION
Here the Court considers Defendants Luzerne County, Robert C. Lawton and David
Parsnik’s Motion in Limine to Preclude Evidence Related to Plaintiffs Previously Dismissed
Due Process Claim (Doc. 153). With the motion, Defendants maintain that Plaintiff should
not be allowed to reference or introduce any evidence related to this claim at trial. (/d. □□□
15-16.)
|. BACKGROUND
On December 21, 2015, Plaintiff filed the above-captioned action after she was
terminated from her position as the Director of Human Resources of Luzerne County,
Pennsylvania. (Doc. 1.) Plaintiff was hired for the position on August 4, 2014, and was
terminated on October 26, 2015. (/d. I] 39, 72, 78.) Pursuant to 42 U.S.C. § 1983, the
Complaint contained a Fourteenth Amendment procedural due process claim and a First
Amendment retaliation claim. (/d.) Plaintiff also asserted a Breach of Contract claim and a
claim for Violation of PA Whistleblower Act and Wrongful Termination in Violation of Public
Policy 43 P.S. Section 1423(A). (/d.) Defendants in the action are Luzerne County, Robert
Lawton, County Manager for Luzerne County at all relevant times, and David Parsnik,
Division Head for Administrative Services for Luzerne County at all relevant times. (/d. 2-
4.) Plaintiff subsequently filed an Amended Complaint on February 19, 2016, (Doc. 18) and
a Second Amended Complaint on April 5, 2017, (Doc. 58).
In response to Defendants’ Motion for Summary Judgment (Doc. 66), the Court
issued a Memorandum Opinion (Doc. 108) and Order (Doc. 109) on March 29, 2018,
granting Defendants’ motion in part and directing the Clerk of Court to enter judgment in
favor of Defendants on Plaintiffs Fourteenth Amendment due process claim and First
Amendment retaliation claim. (Doc. 109 fj 2, 3.) The Court also dismissed Plaintiffs state
law claims without prejudice pursuant to 28 U.S.C. § 1367(c)(3). (Id. J 4.)
After the Court denied Plaintiffs Motion for Reconsideration Under Federal Rule of
Civil Procedure 59, Plaintiff appealed the Court’s determination regarding the First
Amendment and Fourteenth Amendment claims. (Docs, 113, 117, 118.) With its October
10, 2019, opinion, the Circuit Court affirmed the Court's ruling regarding the Fourteenth
Amendment due process claim and remanded the matter for further proceedings regarding
the First Amendment retaliation claim. Javitz v. County of Luzerne, 940 F.3d 858 (3d Cir.
2019).
As a result of this decision, the only claim now before this Court is Plaintiffs First
Amendment retaliation claim. Plaintiff claims that she was terminated in violation of her
First Amendment rights after she filed a report with the Luzerne County District Attorney
alleging that Paula Schnelly, AFSCME local president and an employee of the District
Attorney’s office in Luzerne County, illegally recorded a meeting conducted by Plaintiff with
AFSME representatives and union members present. (Doc. 58 Jf 50, 51, 55.) The meeting
had to do with an unfair labor practice charge AFSME had filed with the Pennsylvania Labor
Relations Board against Luzerne County in or about March 2015. (/d. JJ 54-44.)
Defendants contend that “Plaintiff was terminated because of her conduct towards
the unions, her refusal to follow through with hiring a Human Resources Business Partner,
her failure to initiate policies, procedures and initiatives as directed and issues with the
employment application for a candidate for an assistant public defender.” (Doc. 67 { 70
(citing Ex. 7 to Defendants’ Appendix at 42:11-24).)
Trial is set to commence on June 30, 2021. (See Doc. 198.) The parties have filed
numerous motions in limine (Docs. 147, 149, 151, 153, 169, 170), including Defendants’
motion at issue here, which are now ripe for disposition.
Il. STANDARD OF REVIEW
“The purpose of a motion in limine is to allow the trial court to rule in advance of trial
on the admissibility and relevance of certain forecasted evidence.” United States v.
Tartaglione, 228 F. Supp. 3d 402, 406 (E.D. Pa. 2017). A court may exercise its discretion
to rule in limine on evidentiary issues “in appropriate cases.” /n 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, 106 S. Ct. 1348, 89 L. Ed.
2d 538 (1986). Nevertheless, a “trial court should exclude evidence on a motion in limine
only when the evidence is clearly inadmissible on all potential grounds.” Tartaglione, 228 F.
Supp. 3d at 406. “[I]n limine rulings are not binding on the trial judge, and the judge may
always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753,
758 n.3, 120 S. Ct. 1851, 146 L. Ed. 2d 826 (2000). The Supreme Court has long
recognized that “[a] reviewing court is handicapped in an effort to rule on subtle evidentiary
questions outside a factual context.” Luce v. United States, 469 U.S. 38, 41 (1984). Thus,
a district court’s ruling on a motion in limine “is subject to change when the case unfolds.”
Id. While this is particularly so if the actual testimony at trial differs from what was
anticipated in a party's motion in limine, but “even if nothing unexpected happens at trial, the
district judge is free, in the exercise of sound judicial discretion, to alter a previous in
limine ruling.” Id. at 41-42.
Further, while motions in limine may serve as a useful pretrial tool that enables more
in-depth briefing than would be available at trial, a court may defer ruling on such motions “if
the context of trial would provide clarity.” Frintner v. TruePosition, 892 F. Supp. 2d 699, 707
(E.D. Pa. 2012). Indeed, “motions in limine often present issues for which final decision is
best reserved for a specific trial situation.” Walden v. Georgia-Pacific Corp., 126 F.3d 506,
518 n.10 (3d Cir. 1997). Thus, certain motions, “especially ones that encompass broad
classes of evidence, should generally be deferred until trial to allow for the resolution of
questions of foundation, relevancy, and potential prejudice in proper context.” Leonard v.
Stemtech Health Scis., Inc., 981 F. Supp. 2d 273, 276 (D. Del. 2013). Moreover, “pretrial
Rule 403 exclusions should rarely be granted. . . . [A] court cannot fairly ascertain the
potential relevance of evidence for Rule 403 purposes until it has a full record relevant to
the putatively objectionable evidence.” In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859
(3d Cir. 1990) (emphasis in original).
Ill. ANALYSIS
With the pending motion, Defendants assert that Plaintiff should not be allowed to
reference or introduce any evidence related to her due process claim which has been
dismissed. (Doc. 153 fff 15-16.) Defendants cite the following specific evidence which
should be excluded: Personnel Code, Home Rule Charter, Ethics Code, the meetings
related to her termination, the alleged absence of a Loudermill Hearing, any evidence
related to her purported career service status, and any testimony about other employees
receiving due process or other discipline. (Doc. 153 {| 15.)
In their supporting brief, Defendants maintain that the listed evidence, evidence upon
which Plaintiffs due process claim was based, should be precluded on two grounds:
introduction of the evidence will confuse and mislead the jury; and any probative value of
the evidence would easily be outweighed by its potential prejudicial effect pursuant to
Federal Rule of Evidence 403. (Doc. 154 at 5-7.) Defendants do not elaborate upon the
former. As to the latter, they contend that introduction of the listed evidence would lead the
jury to unnecessarily consider unrelated due process issues when deciding if Plaintiffs
complaint to the District Attorney was the reason Plaintiff was terminated. (/d. at 8.)
Plaintiff responds that Defendants do not assess whether the Luzerne County
Personnel Code, Personnel Policy and Home Rule Charter are probative of her First
Amendment claim and certain evidence can be relevant to both her pending First
Amendment retaliation and the dismissed due process claim. (Doc. 167 at 7-8.) Plaintiff
further asserts that she
must be permitted to introduce evidence of Defendants’ intentional failure to
follow their own written employment policies following Plaintiffs protected
speech. Defendants’ willful disregard for these polices may serve to “deter a
person of ordinary firmness” from exercising his or her First Amendment rights.
If Plaintiff is prohibited from introducing this evidence at trial, the jury will have
no context from which to determine whether Defendants’ actions were in fact
retaliatory.
(Doc. 167 at 10.) Plaintiff does not point to any basis for the relevancy, in the First
Amendment Retaliation context, of evidence of the meetings associated with her
termination, the alleged absence of a Loudermill Hearing, any evidence related to her
purported career service status, and any testimony about other employees receiving due
process or other discipline. (See Doc. 167.)
Defendants reply that they are not opposed to the introduction of evidence related to
the Personnel Code, Personnel Policy and Home Rule Charter as they relate to the
selection and promotion of employees, applications or job duties of the witnesses. (Doc.
173 at 4.) Similarly, they do not objection to the use of the documents to rebut Defendants’
assertions of a legitimate and non-retaliatory basis for Plaintiffs termination. (/d.)
Based on the foregoing, the parties appear to agree that the Personnel Code,
Personnel Policy, and Home Rule Charter should not be excluded from introduction at trial
as they related to Plaintiff's First Amendment Retaliation claim. The Court agrees with this
assessment. Thus, while Plaintiff will be precluded from presenting evidence for the
purpose of establishing or otherwise referencing a due process claim arising out of her
termination because that claim was dismissed and affirmed on appeal, Plaintiff will not be
precluded from introducing evidence related to the policies and procedures of Luzerne
County to the extent that such policies or procedures or other evidence are related to her
First Amendment retaliation claim. At trial, should Defendants believe that Plaintiff is
offering evidence that relates to her dismissed due process claim, they shall have the
obligation to timely object to such evidence.
IV. CONCLUSION
For the reasons set out above, Defendants Luzerne County, Robert C. Lawton and
David Parsnik’s Motion in Limine to Preclude Evidence Related to Plaintiffs Previously
Dismissed Due Process Claim (Doc. 153) will be granted as modified. An appropriate Order
is simultaneously filed with this Memorandum Opinion.
7 Vitals
Robert D. Mariani
United States District Judge