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Bouchard v. City of Warren

United States District Court, E.D. Michigan, Southern Division

August 24, 2017

KENNETH J. BOUCHARD, Plaintiff,
v.
CITY OF WARREN, Defendant.

          ORDER REGARDING DEFENDANT'S MOTION IN LIMINE [#51]

          HONORABLE DENISE PAGE HOOD CHIEF JUDGE.

         I. INTRODUCTION

         On July 7, 2017, Defendant filed a motion in limine in which it failed to indicate whether it sought concurrence from Plaintiff, as required by E.D. Mich. L.R. 7.1. On July 31, 2017, Plaintiff filed a response without objection to the untimeliness of Defendant's motion or Defendant's failure to seek concurrence. Defendant has not filed a reply.

         II. ANALYSIS

         Defendant's motion seeks a ruling regarding five evidentiary matters.

         A. Defendant's Policies, Rules, and Procedures

         Defendant believes that Plaintiff might attempt to litigate the underlying issue of the illegality or inappropriateness of Defendant's policies, rules, and procedures regarding properties that were: (1) eligible for federal block grants; (2) bundled and auctioned by Macomb County after tax foreclosure; (3) subject to nuisance abatement by Defendant; and/or (4) rental properties. Defendant argues that any such evidence is not relevant because it does not matter whether Plaintiff's allegations regarding those policies, rules, and procedures are true. Citing Pace v. Edel-Harrelson, 499 Mich. 1, 7 (2016).

         Plaintiff responds that he does not intend to argue the illegality of the policies, rules, and procedures about which he blew the whistle, and he does not object to the exclusion of that evidence at trial - so long as he is not required to demonstrate that those policies, rules, and procedures are illegal. Plaintiff further indicated that he will produce evidence regarding the content of the September 24, 2013 City Council meeting (at which the legality or appropriateness of Defendant's policies, rules, and procedures regarding the types of properties noted above were questioned) for purposes of providing context for who retaliated against him and why.

         The Court finds that the parties have stipulated, and the Court concludes, that evidence regarding the legality of Defendant's policies, rules, and procedures about which Plaintiff blew the whistle shall be excluded at trial. Pursuant to Plaintiff's representation and the absence of any objection by Defendant, the Court will allow Plaintiff to produce evidence of the content for the September 24, 2013 City Council meeting for purposes of providing context regarding who allegedly retaliated against Plaintiff and why. Accordingly, Defendant's motion in limine is granted in part and denied in part with respect to the Defendant's policies, rules, and procedures about which Plaintiff blew the whistle.

         B. Discriminatory Actions Against Any Other Person(s)

         Defendant expresses concern that Plaintiff may try to introduce evidence that Defendant retaliated or discriminated against other individuals in the past. Defendant asserts that such information should be excluded: (1) as irrelevant because it would have no bearing on the claims at issue; and (2) because its probative value is substantially outweighed by danger of unfair prejudice, confusion of the issues, misleading the jury, or undue delay.

         Plaintiff states that the Court should not preemptively grant a blanket, unspecific preclusion of evidence regarding past discriminatory or retaliatory acts. Although past acts of retaliation or discrimination cannot serve as the basis for the jury's determination of whether any retaliation or discrimination occurred in this case, the Court agrees that it cannot make a determination regarding all evidence that might be related to a past event without any context of the events at issue. Defendant's motion in limine is denied without prejudice as it pertains to evidence that Defendant retaliated or discriminated against employees in the past.

         C. Daniel Smith

         Defendant moves to exclude as irrelevant any evidence regarding the circumstances involved when the position of City Planner III in the Planning Department held by Daniel Smith was eliminated in 2004 as a result of “upsetting management.” Because Daniel Smith was in the union, he remained employed but was assigned to drive a truck as a foreman in the Department of Public Works. Defendant contends that Wuerth's statements as to the basis for Daniel Smith's change in status (i.e., “upsetting managment”) was nothing more than Wuerth's personal feelings about an event that occurred: (1) about 10 years prior to the events in this case; and (2) under a different Mayor with whom Wuerth assumed Daniel Smith did not get along. Defendant maintains that, even if evidence of Daniel Smith's change in status is ...


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