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Gazvoda v. Secretary of Homeland Security

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

March 13, 2018



          Honorable Thomas L. Ludington Judge

         Plaintiff Anthony Gazvoda filed a complaint against Defendants the Secretary of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”) on November 21, 2015. ECF No. 1. In the complaint, Gazvoda alleges that the Defendants wrongfully denied his request for a reasonable accommodation. Gazvoda is a veteran who has been diagnosed with Post-Traumatic Stress Disorder (“PTSD”) and who requested reassignment from his post as a border patrol agent in Laredo, Texas, to Sault Ste. Marie, Michigan. On April 3, 2017, the parties filed cross motions for summary judgment. The Court denied the cross motions on June 16, 2017. ECF No. 73. In July 2017, the Court docketed a stipulated proposed order which reset deadlines for expert disclosures and reopened expert discovery. ECF No. 77. In September 2017, the final pretrial conference was reset for February 13, 2018, and the bench trial was reset for February 27, 2018. ECF No. 79.

         In late November and early December 2017, the Government filed four pretrial motions raising evidentiary issues in anticipation of the bench trial. ECF Nos. 91, 95, 96, 97. Gazvoda also appealed a magistrate judge decision regarding a previously filed motion to compel. ECF No. 104. On January 16, 2018, Gazvoda filed a motion for sanctions against the Government arguing that it has advanced baseless arguments in one of its motions in limine. In light of the contentious and ongoing motion practice, the bench trial was adjourned to April 10, 2018. ECF No. 113. The pending motions and appeals are now ripe.


         In the June 16, 2017, opinion and order, the Court summarized the facts-disputed and undisputed-at length. ECF No. 73. That summary will be adopted as if restated in full. To the extent certain facts become relevant to the pending motions or the parties disagree regarding whether certain factual issues exist, those disputes will be considered below.


         A motion in limine is “any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 U.S. 38, 40 n.2 (1984). “‘Unlike a summary judgment motion, which is designed to eliminate a trial in cases where there are no genuine issues of material fact, a motion in limine is designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.'” Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013) (quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir.1990)). Motions in limine in civil cases serve a “more limited [] purpose” compared to motions in limine in criminal cases. Id.

         “In a civil action [and unlike in criminal cases], the question [of] whether a particular affirmative defense is sufficiently supported by testimony to go to the jury may often be resolved on a motion for summary judgment.” United States v. Bailey, 444 U.S. 394, 413 n.9 (1980).

In other words, a mechanism already exists in civil actions to resolve non-evidentiary matters prior to trial-the summary-judgment motion. Allowing a party to litigate matters that have been or should have been resolved at an earlier stage not only allows those dissatisfied with the court's initial ruling a chance to relitigate, but also deprives their opponents of the procedural protections that attach at summary judgment.

Louzon, 718 F.3d at 561.

         Accordingly, litigants may not raise non-evidentiary matters in limine-like a challenge to the sufficiency of evidence for a certain defense-in a civil case. Id. at 562 (collecting cases). See also Bell v. Prefix, Inc., No. 05-74311, 2009 WL 3614353, at *1 (E.D. Mich. Nov. 2, 2009) (“‘Normally, motions in limine are not proper procedural devices for the wholesale disposition of theories or defenses.'”) (quoting SPX Corp. v. Bartec USA, LLC, No. 06-14888, 2008 WL 3850770, at *3 (E.D.Mich. Aug.12, 2008)).

         Motions in limine may properly be used to “eliminate[e] evidence that is clearly inadmissible for any purpose.” Indiana Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004). In other words, the “court has the power to exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds.” Id. “A ruling on a motion in limine is no more than a preliminary, or advisory, opinion that falls entirely within the discretion of the district court.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). For that reason, a court may amend its ruling during the course of trial. Luce, 469 U.S. at 41-42.

         In fact, “‘[c]ourts are generally reluctant to grant broad exclusions of evidence in limine because a court is almost always better situated during the actual trial to assess the value and utility of evidence.'” Ohio Willow Wood Co. v. Alps S., LLC, No. 2:04-CV-1223, 2014 WL 3734342, at *2 (S.D. Ohio July 29, 2014) (quoting Weimer v. Honda of Am. Mfg., Inc., No. 2:06-cv-844, 2008 WL 4332525, at *1 (S.D.Ohio Sept.17, 2008)). See also Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975) (“Orders in limine which exclude broad categories of evidence should rarely be employed. A better practice is to deal with questions of admissibility of evidence as they arise.”). The presumption against broadly excluding entire categories of evidence in advance of trial is “particularly strong in a bench trial.” Bank One, N.A. v. Echo Acceptance Corp., No. 04-CV-318, 2008 WL 1766891, at *1 (S.D. Ohio Apr. 11, 2008). “Without the fear that prejudicial or improper evidence will taint the jury, courts are even more inclined to take a wait-and-see approach.” Id.


         Defendants have raised a number of pretrial evidentiary objections. In the first, Defendants seek to prevent Gazvoda from introducing evidence supporting a claim for front pay. In the second and third, Defendants seek to limit or exclude the testimony of certain witnesses. Defendants have also filed objections to certain of Gazvoda's pretrial disclosures. For the following reasons, Defendants' motion to preclude front pay evidence will be denied, the motion exclude the testimony of agency counsel will be granted, the motion to limit expert witness testimony will be granted in part, and the objections to pretrial disclosures will be overruled.



         When “an employee is improperly discharged, ” reinstatement “‘is the presumptively favored equitable remedy.'” McKelvey v. Sec'y of U.S. Army, 450 F. App'x 532, 537 (6th Cir. 2011) (quoting Roush v. KFC Nat'l Mgmt. Co., 10 F.3d 392, 398 (6th Cir.1993)). But reinstatement is not appropriate in all cases, including “where the plaintiff has found other work, where reinstatement would require displacement of a non-culpable employee, or where hostility would result.” Roush, 10 F.3d at 398. Accordingly, plaintiffs may seek an award of front pay, but “the initial ‘determination of the propriety of an award of front pay is a matter for the court.'” Arban v. W. Pub. Corp., 345 F.3d 390, 406 (6th Cir. 2003) (quoting Roush, 10 F.3d at 398).

         “The decision to award front pay damages is ‘governed by the sound discretion of the trial court.'” Wilson v. Int'l Bhd. Of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 83 F.3d 747, 756 (6th Cir. 1996) (quoting Davis v. Combustion Eng'g, Inc., 742 F.2d 916, 923 (6th Cir. 1984)). For that reason, “[n]o per se rule governs the appropriateness of front pay damages in a particular case.” Id. The ultimate question “is whether front pay damages are needed in a particular case to make the plaintiff whole.” Id. at 757.

Several factors must be considered when determining the propriety of an award of front pay, including “an employee's duty to mitigate, the availability of employment opportunities, the period within which one by reasonable efforts may be re-employed, the employee's work and life expectancy, the discount tables to determine the present value of future damages and other factors that are pertinent on prospective damage awards.”

Arban, 345 F.3d at 406 (quoting Roush, 10 F.3d at 399).


         Defendants argue, first, that “[b]ecause Plaintiff was a BPA for less than a year, has a demonstrated ability to earn a comparable salary, is currently working, and is early in his work expectancy, front pay is not appropriate as a matter of law.” Mot. Preclude Front Pay at 8, ECF No. 95. Second, Defendants argue that “[e]ven if Plaintiff could establish an entitlement to front pay at trial, Plaintiff does not have sufficient evidence to support an award.” Id.

         Defendants are essentially arguing that Gazvoda has identified insufficient evidence to justify an award of front pay. Defendants' requested remedy for that failure is to preclude Gazvoda from submitting any evidence supporting its claim of front pay. In other words, Defendants are seeking exactly what the Sixth Circuit forbade in Louzon: the exclusion of an entire category of evidence based on the argument that the Plaintiff will produce insufficient evidence to support the theory. 718 F.3d at 561. Defendants' sufficiency of the evidence argument simply cannot be raised in a motion in limine.

         The legal standards articulated above make clear that the propriety of a front pay award is fact-dependent. There is no per se rule governing whether to award front pay, and thus a variety of factors must be considered. Wilson, 83 F.3d at 756. In their motion in limine, Defendants argue consideration of those factors counsel against an award of front pay. But that argument goes to the merits of the inquiry. It is not an evidentiary issue regarding the admissibility of the underlying evidence. Defendants' argument thus begs the question: whether Gazvoda should be prevented from presenting evidence supporting a front pay claim because Gazvoda will produce insufficient evidence to prevail on that claim.

         A review of Defendants' factual arguments simply underscores this conclusion. Defendants argue, first, that a front pay award is inappropriate because Gazvoda has found other full-time employment. That may be true, but the ultimate question is whether front pay is necessary to make Gazvoda whole. Wilson, 83 F.3d at 757. The fact that Gazvoda has found other employment is relevant to that question, but does not operate as an automatic prohibition on front pay. Defendants also argue that “[t]he length of Plaintiff's remaining work expectancy . . . makes an award of front pay damages inappropriate.” Mot. Preclude Front Pay at 7. A plaintiff's work and life expectancy is undoubtedly relevant to the determination of whether front pay is appropriate, but other factors must also be considered. Arban, 345 F.3d at 406. Defendants have not demonstrated that evidence of front pay is inadmissible for any purpose. To the contrary, Defendants' arguments can only be resolved through an adjudication on the merits of the front pay claim. The motion in limine to preclude evidence of front pay will be denied.

         Having said that, the briefing on this motion in limine does serve to frame the relevant issues. Defendants' argument that Gazvoda is not entitled to front pay is compelling. In the motion in limine, Defendants provide a summary of Gazvoda's post-CBP employment. Mot. Preclude Front Pay at 5. That summary reveals that Gazvoda has worked for a number of employers since leaving CBP and has received wages roughly commensurate with his compensation at CBP. In response, Gazvoda contends that these positions were temporary and “did not provide nearly the same opportunities for upward mobility.” Def. Resp. Mot. Preclude Front Pay at 7-8. That may be true, but Gazvoda should be prepared to explain why those facts matter. Gazvoda's ability to move between jobs quickly suggests that temporary employment has not harmed his compensation. To the extent Gazvoda contends that he has a right to compensation for lost opportunities at advancement, he should be prepared to support that assertion.

         The parties also dispute what Gazvoda's salary with CBP was during the relevant time period. The Government contends that Gazvoda is a GL-9, Step 1, which corresponds to a yearly salary of $49, 029. Gazvoda contends that he achieved the level of GL-11 in 2013 and GL-12 in 2014. Gazvoda has provided pay stubs which corroborate that assertion and reflect an increase in pay. See Pay Stubs, ECF No. 100, Ex. B. Because Gazvoda was on leave without pay during this time period, he did not actually receive the pay increase. But the pay stubs at least suggest that, had he been transferred, he would have received the increase in pay level. The parties should be prepared to resolve these factual issues at trial.


         Defendants' second motion is limine requests that the Court preclude Gazvoda from calling Ryan Thornton, an attorney working for Defendants, as a witness. Mot. Precl. Pl. Agency Counsel, ECF No. 96. Mr. Thornton is agency counsel for Customs and Border Patrol. On December 30, 2016, Defendants responded to Plaintiff's first set of interrogatories. On March 30, 2017, two individuals verified that the interrogatory answers were accurate: Mr. Thornton and Cindy Hornbaker, a supervisory mission support specialist with CBP. Interr. Ans. at 18-19, ECF No. 96, Ex. 1. Gazvoda has disclosed Mr. Thornton as a potential fact witness. Pl. Supp. Discl. at 2, ECF No. 96, Ex. 2; Pretrial Discl. at 2, ECF No. 82. Gazvoda suggests that Mr. Thornton possesses “[k]knowledge of Defendant CBP's policies and procedure regarding requests for reasonable accommodation . . . [and] knowledge of Defendant CBP's hiring procedures, pay grades, and promotion opportunities. Mr. Thornton is also familiar with this litigation.” Pl. Supp. Discl. at 2.

         Defendants argue that Gazvoda should be prevented from calling Mr. Thornton as a witness because he is agency counsel for CBP. Gazvoda argues that Mr. Thornton has rendered himself a fact witness by verifying that CBP's interrogatory answers were true to the best of his knowledge.

         Pursuant to Federal Rule of Civil Procedure 33(b)(1)(B), interrogatories directed towards a “governmental agency” must be answered “by any officer or agent, who must furnish the information available to the party.” Pursuant to Rule 33(b)(5), “[t]he person who makes the answers must sign them, and the attorney who objects must sign any objections.” Defendants' counsel, Jennifer Newby, signed the answers, while Mr. Thornton (agency counsel) and Ms. Hornbaker, verified that the responses were true and correct based upon their personal knowledge and review of available information. Interr. Ans. at 18-19.

         If an organization uses an officer or agent to answer interrogatories, “[t]he person is not required to have personal knowledge of any or all of the information sought, and indeed cannot limit his answers to matters within his personal knowledge. Rather, the person must reasonably ensure that the answers provided accurately furnish the information available to the organization.” Rule 33 Commentary at Footnotes 83-86.[1]

         Contrary to Gazvoda's assertion, then, the fact that Mr. Thornton verified the answers does not necessarily prove that he has personal knowledge of the underlying information provided in the answers. To the contrary, Mr. Thornton's assertion that the answers are true based on his “personal knowledge” and review of available information suggests simply that he has made the required investigation into the agency's knowledge and information.[2]See Shepherd v. Am. Broad. Companies, Inc., 62 F.3d 1469, 1482 (D.C. Cir. 1995) (confirming that an agency representative need not have personal knowledge for every answer).[3] And, in fact, Defendants contend that Mr. Thornton does not possess personal knowledge of the underlying facts. See Mot. Precl. Pl. Agency Counsel 4-5 (‚ÄúThornton is agency counsel for CBP and does not have first-hand knowledge of the facts germane to this case. ...

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