United States District Court, E.D. Michigan, Southern Division
KENNETH J. BOUCHARD, Plaintiff,
CITY OF WARREN, Defendant.
ORDER REGARDING DEFENDANT'S MOTION IN LIMINE
HONORABLE DENISE PAGE HOOD CHIEF JUDGE.
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.
motion seeks a ruling regarding five evidentiary matters.
Defendant's Policies, Rules, and Procedures
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).
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.
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
Discriminatory Actions Against Any Other Person(s)
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.
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.
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 ...