United States District Court, E.D. Michigan, Northern Division
ANTHONY A. GAZVODA, Plaintiff,
SECRETARY OF HOMELAND SECURITY, and COMMISSIONER OF UNITED STATES CUSTOMS AND B PROTECTION, Defendants.
DENYING DEFENDANTS' MOTION IN LIMINE TO PRECLUDE EVIDENCE
OF FRONT PAY, GRANTING MOTION IN LIMINE TO PRECLUDE PLAINTIFF
FROM CALLING AGENCY COUNSEL, GRANTING IN PART DEFENDANTS'
MOTION TO LIMIT TESTIMONY OF TREATING PROFESSIONALS, DENYING
PLAINTIFF'S MOTION FOR SANCTIONS, AND OVERRULING
PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S
DECISION ON PLAINTIFF'S MOTION TO COMPEL
Honorable Thomas L. Ludington Judge
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.
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
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.
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
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
Louzon, 718 F.3d at 561.
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)).
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
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
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.
“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
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).
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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
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.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). 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
(“Thornton is agency counsel for CBP and does not have
first-hand knowledge of the facts germane to this case.