United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER ON MOTIONS IN LIMINE
F. Cox, United States District Judge
her termination as City Administrator, Plaintiff Natasha
Henderson (“Henderson”) filed this action against
the City of Flint and its Mayor, asserting multiple claims.
Henderson's only remaining claim is her claim against the
City of Flint that she was wrongfully terminated in violation
of Michigan's Whistleblower's Protection Act. That
sole claim is scheduled to proceed to a jury trial, beginning
on May 1, 2019. This Court heard oral argument on motions in
limine on April 29, 2019. This Opinion and Order addresses
the evidentiary issues presented in the three motions in
limine filed by the parties.
her termination as City Administrator, Henderson filed this
action against the City of Flint and Mayor Karen Weaver
(“Weaver”), asserting multiple claims. During the
course of the case, Henderson agreed to the dismissal of her
breach of contract claim and her public policy tort claim.
the close of discovery, Defendants filed a summary judgment
motion challenging Henderson's three remaining claims: 1)
a First Amendment retaliation claim brought under § 1983
(Count I of Henderson's Amended Complaint); 2) wrongful
termination in violation of Michigan's
Whistleblowers' Protection Act (“WPA”) (Count
II); and 3) a defamation claim against Weaver under Michigan
law (Count V).
Opinion & Order issued on August 9, 2017, this Court
granted summary judgment in favor of Defendants as to all
three remaining claims. Henderson appealed.
unpublished decision, the United States Court of Appeals for
the Sixth Circuit reversed as to this Court's grant of
summary judgment on the WPA claim only. Henderson v. City
of Flint, 751 Fed.Appx. 618 (6th Cir. 2018). As
explained in that opinion:
The crux of this case is Henderson's allegation that she
was fired because she urged Flint's Interim Chief Legal
Officer Anthony Chubb to investigate potentially unethical
conduct by Mayor Weaver. According to Henderson, Weaver
directed that private donations be funneled to an
organization she formed under 26 U.S.C. § 527 (527
Organization) rather than a City-approved nonprofit fund
administered by the Community Foundation of Greater Flint.
Henderson alleges that Chubb informed Weaver of
Henderson's request for an investigation and that this
caused her to be fired.
Id. at 620.
majority concluded that an issue of fact existed for trial as
to Henderson's WPA claim and remanded as to that claim
majority concluded that, taken in a light most favorable to
Henderson, “the temporal proximity of her report and
termination, the possible pretextual nature of the stated
reasons for her termination, and the questions regarding
Chubb's motivations to tell Weaver of the report create
triable issues of fact appropriate for resolution by a
jury.” Henderson, 751 Fed.Appx. at 628. The
majority found that facts concerning Chubb's own
settlement with the City could constitute circumstantial
evidence that would “permit an inference that
Chubb's testimony was swayed by his bias or
motive.” Id. In that regard, the majority
As to Weaver's knowledge of Henderson's report,
Henderson argues that there exist disputes of material fact
about when Chubb informed Weaver. The only evidence
supporting Chubb's and Weaver's timeline is their own
testimony - testimony that, according to Henderson, is
unreliable. Henderson argues Chubb had the motivation to
lie about whether he informed the Mayor at first because he
hoped for a permanent appointment as Chief Legal Officer and
later because he wanted leverage in settlement
negotiations. Chubb testified that he asked the Mayor to
appoint him to the permanent post, explaining that he
“had shown [his] support for her and that [he] thought
it was time that happened.” (RR. 33-5, Page ID 725).
Chubb initially laid out his timeline during an interview
that occurred after Chubb learned that he had not been
selected for the position, but less than a week before he
settled his own employment suit against Flint for $56,
000. When Chubb was deposed approximately six months
later, he could not remember the date on which he had spoken
to the Mayor about the report, but he was sure the
conversation had occurred after Henderson's termination.
(RR. 33-5, PageID 730).
Although Henderson has offered no evidence conclusively
establishing that Chubb lied, this is not the type of
circumstance in which we would expect such evidence to be
readily available. The proffered evidence does permit an
inference that Chubb's testimony was swayed by his bias
or motive . . .
Id. at 627 (emphasis added).
remand, Henderson agreed to a stipulation and order
dismissing Weaver from this action, with the
“understanding of the parties that Karen Weaver was at
all times relevant an agent of the Defendant City of Flint
pursuant to MCL 15.361, and, to the extent allowed by law,
such agent's actions, conduct, and statements are
attributable to and binding on the Defendant City of
Flint.” (ECF No. 57).
Henderson's only remaining claim is her claim against the
City of Flint that she was wrongfully terminated in violation
of Michigan's WPA.
parties have filed three motions in limine, which were all
heard by the Court on April 29, 2019.
Defendant City Of Flint's Motion In Limine
City of Flint filed one Motion in Limine that raises multiple
issues, which are addressed below.
Evidence Of Settlement Negotiations Of Henderson's
City's motion first asks the Court to preclude Henderson
from introducing evidence relating to settlement negotiations
between her former attorney and Defendant's former
Interim City Attorney, Anthony Chubb. The City's motion
attaches, as Exhibit 4, a letter from Henderson's former
attorney to Chubb, essentially saying lets discuss and
explore a possible resolution of the claims. It is marked as
“Confidential Settlement Communication.” The
City's motion also attaches, as Exhibit 5, emails between
the attorneys for the parties that discusses dates and times
for those discussions to take place. Henderson's
attorney's email states he would like to talk on February
22, 2016. Chubb's email includes, “Let's have
an ongoing understanding that all communications between us
related to this matter are subject to MRE/FRE 408.”
City's motion asserts that this evidence should be
precluded for three reasons: 1) is precluded by Fed.R.Evid.
408; 2) it is not relevant; and 3) its probative value is
outweighed by the danger of unfair prejudice under
response, Henderson contends that: 1) the evidence is not
barred by Fed.R.Evid. 408, because the evidence is not being
presented to prove the validity of Henderson's claims; 2)
the evidence is relevant as to the issue of when Chubb first
told Weaver of Henderson's report; and 3) its probative
value outweighs any potential unfair prejudice.
also states that while she believes the probative value of
the communications outweighs any possible unfair prejudice
and the documents should be presented as they appear, she is
willing to redact any specific information in her proposed
exhibits that “Defendant believes specifically refers
to offers of settlement.” (Pl.'s Br. at 3).
April 29, 2019 hearing, Counsel for the parties expressed
that they may be able to agree upon a stipulation that would
resolve this issue. If the parties are unable to so, they
should advise the Court and the Court will make a ruling on
Chubb's Own Release And Settlement Agreement
City's motion states that Henderson has indicated that
she “intends to introduce, and will likely refer to or
elicit testimony with respect to the terms, as well as the
surrounding facts and circumstances, which may have led to a
Confidential General Release and Separation Agreement entered
into between Defendant and former interim City Attorney,
Anthony Chubb on or about June 7, 2016.” (Def.'s
Br. at 7). That agreement is attached as Exhibit 6 to
Defendant's motion, with the amount redacted. The City
contends that “Chubb's settlement and release
agreement, as well as any related facts, lack relevance, are
bereft of any probative value” with respect to the
jury's determination of Henderson's claim.
(Id. at 8).
response, Henderson asserts that Chubb's settlement and
release agreement is relevant to the issues to be decided at
trial and explains:
A primary fact question for the jury is whether Mayor Weaver
knew that Plaintiff had reported alleged financial misconduct
to Chubb. Both in his interview with Basiga (Pl.'s Ex. Q,
¶ 80) and in his deposition testimony, Chubb claimed
that he had not discussed Plaintiff's report of
misconduct with the Mayor until after Plaintiff's
termination. Chubb's credibility on this claim is an
important point, and any evidence that offers a motive to lie
or bias should be presented to the jury so that the jury may
appropriately weigh Chubb's credibility. Plaintiff's
Exhibit P is directly relevant to proving that Mayor Weaver
did know that Plaintiff had reported alleged financial
misconduct prior to firing Plaintiff, because it makes it
more likely to be true that Chubb had a strong motive to lie
when he claimed she did not know.
Chubb answered questions regarding when he told Mayor Weaver
about Plaintiff's emails reporting misconduct and asking
that it be investigated for the first time when he was
interviewed by Basiga on May 31, 2016. (Pl.'s Ex. Q.)
Plaintiff's Exhibit P demonstrates that Chubb's $56,
000 settlement with the City of Flint was signed merely one
week after that interview, on June 7, 2016. A jury could
rightly conclude that Chubb must have been in the middle of
negotiating his settlement with the City at the time he was
interviewed by Basiga. Because Chubb's interview was
approximately two weeks later than all other interviews
conducted by Basiga, the jury could also infer that Chubb
delayed his interview with Basiga until he neared the end of
his settlement discussions and had at least a general
agreement as to the amount.
In addition to the timing of the settlement making it more
likely that Chubb's testimony was not credible, the
amount of the settlement payment is also relevant to
demonstrate Chubb's motive to lie because the settlement
amount is far larger than previous severance agreements that
were in place for other Flint executive and appointed
employees. Previous agreements for other employees were
established and approved by Pete Bade, Jody Lundquist, and
Plaintiff. The jury could rightly conclude that Chubb had an
original severance agreement in place that had also been
approved by Bade, Lundquist, and Plaintiff that was
comparable to the amounts received by other City employees,
but that he negotiated a higher amount because of his
upcoming interview with Basiga regarding Plaintiff's
claims against Mayor Weaver. Chubb would have lost the
leverage to negotiate a higher settlement amount had he
admitted to Basiga that he told Mayor Weaver about
Plaintiff's reporting of misconduct.
Chubb's settlement agreement is also relevant because it
makes it more likely to be true that Mayor Weaver was aware
of the approved employee severance agreements. The fact that
the Mayor signed Chubb's agreement herself, rather than
CFO Lundquist - who testified that she did not know about
Chubb's agreement until after it was signed by the Mayor
and Chubb - demonstrates that the Mayor wanted to keep
Chubb's agreement as quiet as possible. This evidence
again could allow a jury to question the credibility of both
Chubb and Mayor Weaver.
(Pl.'s Br. at 5-7).
correctly notes that the majority of the Sixth Circuit panel
that decided the appeal in this matter expressly discussed
this evidence as relevant circumstantial evidence of
Chubb's bias or motive to lie about when he told Weaver
of Henderson's report. See Henderson, 751
Fed.Appx. at 627-28.
Court DENIES the City's motion as to
this issue and shall allow Chubb's settlement and release
agreement, and testimony regarding same, to be admitted at
trial. It is relevant evidence and its probative value is not
substantially outweighed by a danger of unfair prejudice or
confusion of the issues.
MLive Article Dated February 8, 2018
City's motion asks the Court to preclude Henderson from
introducing an Mlive news article, dated February 8, 2018, at
trial. In response, Henderson states that she no longer
intends to use that article. As such, this issue is
DENIED AS MOOT.
Evidence And Testimony Regarding Henderson's Dismissed
next section of its brief, the City asks the Court to
“preclude Henderson from presenting evidence relating
to any of her dismissed claims.” (Def.'s Br. at
11). This section of the City's brief appears to make
three arguments: a) Henderson conceded that the City did not
breach her employment agreement; thus testimony or documents
related to Henderson's alleged future economic damages is
irrelevant and prejudicial; b) Henderson's proposed
Exhibit N relates to the dismissed breach of contract claim;
and c) Henderson's proposed exhibits concerning her
hiring security relates solely to her dismissed defamation
claim against Weaver or claims that were never filed, and
therefore, should be excluded.
response, Henderson “agrees that argument and evidence
regarding her dismissed claims should not be admitted at
trial.” (Pl.'s Br. at 8). Henderson then addresses
the City's challenges to her proposed Exhibits N (the
February 23, 2016 Letter from City Council to the Governor)
and Y (an email and invoicing relating to security hired by
Henderson). Henderson asserts that those exhibits are not
presented as evidence or argument as to her dismissed claims,
“but rather to provide evidence disputing Mayor
Weaver's alleged justifications for terminating
Plaintiff's employment and for establishing [her]
damages.” (Id. at 9).
Testimony Or Documents Related To Henderson's Alleged
Future Economic Damages
first argument in this section, the City asserts that
“Henderson conceded that Defendant did not breach her
employment agreement; thus testimony or documents related to
Henderson's alleged future economic damages is irrelevant
and prejudicial.” (Def.'s Br. at 12).
City's supporting argument then states:
It is undisputed that Henderson's executed Employment
Agreement (Ex. 1) governed the terms of her employment and
the termination of same. Under the express terms of the
Agreement, Henderson's employment was to end by February
22, 2020, but it could be terminated earlier under Paragraph
6.1 of the Agreement, either with or without cause.
(Id.; Ex. 10, Henderson Dep. 50-52, 64). Based on
Paragraph 6.1 of the Agreement, if her employment ended
earlier than February 22, 2020, then Henderson's maximum
recovery was limited to a sum equivalent to six months'
salary as severance and a payout of her accrued but unused
PTO. (Ex. 1, Agreement; Ex. 10, Henderson Dep. 52-53, 62-64).
It is undisputed that Henderson received both of these
things. (Ex. 2, Payout; Ex. 10, Henderson Dep. 52-53).
Tellingly, Henderson voluntarily dismissed her breach of
contract claims and, thus, she has already conceded that
there was no breach of contract. (Dkt. #27, Dismissal.)
Therefore, any testimony or documentation relating to
purported “lost wages” should be precluded as it