The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JEFFREY KENGERSKI, )
)
) 2:17-cv-1048
v. )
)
COUNTY OF ALLEGHENY, )
)
)
Defendant. )
MEMORANDUM ORDER
Before the Court are motions filed by Plaintiff Jeffrey Kengerski
[ECFs 134, 136, 138, 140, 142] and Defendant County of Allegheny [ECFs 144
through 150]. The Court issues this omnibus order resolving the motions as follows.
I. PLAINTIFF’S MOTIONS
A. Plaintiff’s motion regarding acknowledgment sheets
[ECF 134] and corresponding brief [ECF 135].
The motion is GRANTED in part and DENIED in part. Policies from before
Plaintiff’s employment are not relevant to any claims or defenses in this case. To the
extent Defendant wishes to introduce evidence of these acknowledgments, they must
accord with the relevant corresponding policies. ECF 164, ¶ 11.
B. Plaintiff’s motion regarding advice of counsel [ECF
136] and corresponding brief [ECF 137].
The motion is GRANTED in part and DENIED in part. By testifying at his
deposition that he consulted with the Law Department in reaching his decision to
terminate Plaintiff’s employment, Warden Harper put his conversation with the Law
Department at issue. ECF 119, p. 3. But Warden Harper would not testify as to
the contents of his conversation throughout discovery on privilege grounds. ,
ECF 137-2. To permit Defendant to assert that Warden Harper acted in good faith
by relying on legal advice, without having to reveal what was said, gives the factfinder
the impression that Defendant followed this advice. , No.
15-1007, 2017 WL 2374430, at *6 (W.D. Pa. May 31, 2017) (Eddy, J.) (“It would be
extremely unfair to allow the County to withhold this evidence from Mikulan in
discovery and then allow the County to turn around and argue that it did not
discriminate against Mikulan based on the withheld legal advice.”). Evidence that
Warden Harper consulted with the Law Department is therefore excluded.
By contrast, no such privilege exists regarding communications with county
managers, and Defendant disclosed the County Manager’s Office as potentially
having discoverable information. Evidence pertaining to Warden Harper’s
consultation with the County Manager’s Office is therefore admissible, and Plaintiff’s
motion is DENIED as it pertains to them.
C. Plaintiff’s motion to preclude testimony from Officers
Brown, Tucker, and Coulter [ECF 138] and corresponding brief
[ECF 139].
The motion is GRANTED in part and DENIED in part. To the extent Plaintiff
challenges the veracity of the reports, the officers who drafted them will be allowed
to testify to defend their veracity. Otherwise, absent a specific proffer, any other
testimony from Officers Brown, Tucker, and Coulter is irrelevant.
D. Plaintiff’s motion regarding disciplinary action [ECF
140] and corresponding brief [ECF 141].
The motion is DENIED. Warnings to an employee before the protected activity
took place are relevant to support the employer’s non-retaliatory reason for later
terminating that employee. , 503 F. Supp. 3d
276, 314 (W.D. Pa. 2020) (Hornak, C.J.) (attempts to manage “pre-existing
performance deficiencies after the employee has engaged in protected activity do not
necessarily raise an inference of retaliatory animus”);
, No. 18-12136, 2021 WL 3475620, at *7 (S.D.N.Y. Aug. 5, 2021);
, 149 F. Supp. 3d 136, 145 (D.D.C. 2016). Plaintiff’s
objections go to the weight of the evidence, which is a question left to the jury.
E. Plaintiff’s motion regarding the personnel board and
unemployment compensation determinations [ECF 142] and
corresponding brief.
As Defendant has not filed a response, the motion is GRANTED.
II. DEFENDANT’S MOTIONS
A. Defendant’s motion #1 to exclude evidence of those not
similarly situated [ECF 144].
The motion is DENIED. Whether proffered comparators are similarly situated
to the plaintiff is a question of fact for the jury. , No.
14-7696, 2018 WL 1087494, at *5–6 (D.N.J. Feb. 28, 2018), aff’d, 767 F. App’x 238 (3d
Cir. 2019).
At this juncture, these proffered comparators are sufficiently similarly situated
to Plaintiff for the jury to decide this issue. , 441 F. App'x
879, 882 (3d Cir. 2011).
B. Defendant’s motion #2 to exclude testimony of Lauri
Kengerski [ECF 145].
The motion is DENIED. Plaintiff first disclosed the existence of this witness
in discovery and revealed his intent to call her in January 2022. ECF 113, p.4.
Defendant did not object at that time or any other time before filing this motion.
Given the time between the disclosure and trial, any prejudice to Defendant is limited
such that nondisclosure is harmless. , No. 05-514, 2007 WL
853480, at *5 (W.D. Pa. Mar. 16, 2007) (Ambrose, J.) (“[I]f the identity of those
persons or entities appeared on documents produced during discovery, or were
revealed in response to interrogatories, then Plaintiffs’ other failures do not justify
the extreme sanction of excluding the evidence.” (internal quotation marks omitted));
, No. 2:11-CV-1588-TFM, 2015 WL
4377766, at *3 (W.D. Pa. July 15, 2015) (McVerry, J.) (no surprise where defendants
knew of witness’s identity during discovery period and could have deposed but chose
not to).
C. Defendant’s motion #3 to exclude evidence of outcomes
of HR investigation [ECF 146].
The motion is GRANTED. The probative value of the findings and conclusions
of a human resources investigation concerning an employee who is not similarly
situated to Plaintiff is substantially outweighed by the risk of confusion, delay, or
prejudice. Fed. R. Evid. 403. Any evidence pertaining to the results of the
investigation into the allegations against Officer Brown are therefore excluded.
D. Defendant’s motion #4 to exclude the testimony of
Robert Bytner [ECF 147].
As Plaintiff does not intend to call this witness to testify, the motion is
DENIED without prejudice.
E. Defendant’s motion #5 to exclude reporter’s voicemail
[ECF 148].
The motion is GRANTED. The Court believes the voicemail is most likely
hearsay ( ., cannot be divorced from the truth of the matter), but even if it is not,
Plaintiff has offered no evidence that he can authenticate it. The only indicia that
the voicemail was left by a reporter—its only probative value—is the content of the
voicemail itself. Consequently, its probative value is outweighed by the risk of unfair
prejudice, waste, or confusion. Fed. R. Evid. 403.
F. Defendant’s motion #6 to preclude retaliation claims
without foundation [ECF 149].
The motion is DENIED, but with some qualification. Any “retaliation” suffered
by Plaintiff at the hands of Officers Coulter, Tucker, and Brown is not relevant to
establish any sort of adverse action, given these officers’ lack of knowledge of
Plaintiff’s involvement in Ms. McCall’s termination. Plaintiff though seeks to proffer
this evidence to show that Plaintiff complained about this harassment to Warden
Harper, and Warden Harper treated these complaints less seriously than the
complaint made by Plaintiff about Ms. McCall. For this limited purpose, the Court
finds this evidence to be relevant.
G. Depending on how the evidence comes in, the Court may include
a limiting instruction as part of its final jury instructions.
Defendant’s motion #7 to preclude failure to promote
claims [ECF 150].
The motion was resolved by the Court’s September 21, 2022, Order. ECF 169.
*********************
Dated: September 23, 2022
BY THE COURT:
/s/ J. Nicholas Ranjan
J. Nicholas Ranjan
United States District Judge