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Henderson v. City of Flint

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

April 30, 2019

Natasha Henderson, Plaintiff,
City of Flint, Defendant.


          Sean F. Cox, United States District Judge

         Following 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.


         Following 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.

         Following 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).

         In an Opinion & Order issued on August 9, 2017, this Court granted summary judgment in favor of Defendants as to all three remaining claims. Henderson appealed.

         In an unpublished decision, the United States Court of Appeals for the Sixth Circuit reversed as to this Court's grant of summary judgment on the WPA claim only.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.

         The majority concluded that an issue of fact existed for trial as to Henderson's WPA claim and remanded as to that claim alone.

         The 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 stated:

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).

         After 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).

         Accordingly, Henderson's only remaining claim is her claim against the City of Flint that she was wrongfully terminated in violation of Michigan's WPA.


         The parties have filed three motions in limine, which were all heard by the Court on April 29, 2019.

         A. Defendant City Of Flint's Motion In Limine

         The City of Flint filed one Motion in Limine that raises multiple issues, which are addressed below.

         1. Evidence Of Settlement Negotiations Of Henderson's Claims

         The 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.” (Id.).

         The 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 Fed.R.Evid. 403.

         In 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.

         Henderson 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).

         At the 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 this issue.

         2. Chubb's Own Release And Settlement Agreement

         The 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).

         In 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).

         Henderson 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.

         The 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.

         3. MLive Article Dated February 8, 2018

         The 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.

         4. Evidence And Testimony Regarding Henderson's Dismissed Claims

         In the 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.

         In 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).

         a. Testimony Or Documents Related To Henderson's Alleged Future Economic Damages

         As its 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).

         The 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 is ...

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