UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

RON KLOSOWSKI, 

 Plaintiff, Case No. 15-cv-10636 

v. Honorable Thomas L. Ludington 

BAY CITY, CITY OF, et al., 

 

 Defendants. 

__________________________________________/ 

ORDER GRANTING DEFENDANTS’ MOTION IN LIMINE (51), GRANTING IN PART 

PLAINTIFF’S MOTION IN LIMINE (48) AND DENYING DEFENDANTS’ MOTIONS 

IN LIMINE (46, 47 AND 50) 

 On August 1, 2013, Plaintiff Ron Klosowski filed a complaint in the Circuit Court of Bay 

County alleging 1) tortious interference with advantageous business relationships, 2) tortious 

interference with contractual relationships, and 3) violation of Michigan public policy and the 

Michigan Constitution’s guarantee of free speech, as against Defendants Joe Ledesma and the 

City of Bay City. Not. Rem., Ex. A, Summons and Compl., ECF No. 1. On January 29, 2015, 

Plaintiff filed a First Amended Complaint adding a claim for violation of the First Amendment to 

the United States Constitution, pursuant to 42 U.S.C. § 1983. Not. Rem. at 2, ECF No. 1. 

Defendants removed the case to this Court on February 19, 2015. Id.

 Defendants moved for Summary Judgment on April 4, 2016. Mot. Summ. J., ECF No. 

30. This Court granted the Motion on June 10, 2016. Order Grant. Mot. Summ. J, ECF No. 37. 

Plaintiff filed a Notice of Appeal on July 7, 2016. Not. Appeal, ECF No. 39. On June 21, 2017, 

the Court of Appeals issued an opinion affirming this Court’s order in part, and reversing in part. 

In light of the opinion of the Court of Appeals, a status conference was conducted on August 15, 

2017 at 3:30 p.m. to discuss a schedule for further proceedings and briefing in this matter. 
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 The Court of Appeals reversed this Court’s judgment with respect to the Section 1983 

claims against Defendants Ledesma and Bay City. June 21, 2017, 6th Cir. Op., at 10-11. The 

Court of Appeals found that the constitutional rights at issue were clearly established, precluding 

qualified immunity, and that Ledesma was a final policy maker in that the City delegated the 

authority to Ledesma to regulate the scheduling of contractors. On remand, two elements of 

Plaintiff’s prima facie case of first amendment retaliation are open questions for jury 

consideration, as well as the assessment of damages if liability is determined. Plaintiff, 

accordingly, bears the burden of proof with respect to the following issues: 

1. Protected Speech: Whether Plaintiff’s communication to Ledesma and 

 Mayor Shannon about closing the bridges during the month of December 

 was a communication in his capacity as a citizen about a matter of public 

 concern or alternatively a communication about a matter within his 

 employment responsibilities. 

2. Causation: Whether Plaintiff’s communication to Ledesma and Mayor 

 Shannon was a substantial or motivating factor in Ledesma’s decision not 

 to call Plaintiff back for the 2013 season. 1 

3. Damages: Whether Plaintiff sustained damages reasonably and 

 consequentially as a result of the decision not to call him back for the 2013 

 season. 

 Defendant maintains the burden of proof on the following: 

1. Overriding government interest: Whether Bay City’s interest in promoting 

 the efficiency of the public service function it performs through its 

 employees outweighs Plaintiff’s interest in raising the matter of public 

 concern; and whether Plaintiff’s speech activities unduly interfered with 

 

1

 The Court of appeals decided that Plaintiff had no contractual reliance interest in continued employment by the 

City of Bay City in dismissing his claims for tortious interference with advantageous relationships and contractual 

relationships. They also decided there was no similar legal bar to his claim for first amendment retaliation. 

Accordingly, whether considered by the jury as a matter of causation (i.e. whether the cause of Plaintiff’s 

termination was the City’s conduct or Plaintiff’s failure to return to ITH for another assignment) or a failure to 

mitigate (i.e. Plaintiff’s failure to attempt to maintain his employment relationship with ITH) the parties may argue 

this issue of fact to the jury. Resolution of these issues may depend on the answers to several factual questions (e.g., 

Did ITH have other assignments available? Would those assignments offer comparable pay and work? Would he 

necessarily be entitled to one of the available assignments upon reporting back to ITH? Would ITH limit his options 

considering what occurred at the Bride Tender position? Would ITH terminate their relationship with Plaintiff 

altogether in light of what occurred at his Bridge Tender position?). 
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 the duties and responsibilities of tending the Bascule Bridges. See United 

 States v. Nat'l Treasury Employees Union, 513 U.S. 454, 466, (1995) (“the 

 government bears the burden of justifying its adverse employment 

 decision.”); Baar v. Jefferson Cty. Bd. of Educ., 476 F. App'x 621, 628 

 (6th Cir. 2012) (“public employers must balance their own interests with 

 the First Amendment rights of their employees . . . the school board 

 bears the burden of justifying broader restrictions on speech with ever-

 stronger state interests.”) 

2. Legitimate, non-retaliatory reason: If Plaintiff establishes his prima facie 

 case, Defendant may establish, by a preponderance of the evidence, that 

 the adverse action would still have been taken absent the protected 

 conduct. 

3. Mitigation of damages: Whether Plaintiff failed to mitigate damages 

 following the loss of employment. 

I. 

On February 12, 2018, Defendants filed four motions in limine, and Plaintiff filed one. 

Defendants seek to: 1) exclude Plaintiff’s performance evaluations; 2) strike/limit Plaintiff’s 

claim for wage loss damages; 3) strike/limit Plaintiff’s claim for emotional distress, back pay, 

and future wage loss damages; 4) strike Plaintiff’s claim for unemployment benefits. ECF Nos. 

46, 47, 50, 51. Plaintiff seeks to prohibit Defendants from: 1) introducing evidence of collateral 

sources of income; 2) arguing that Plaintiff’s PTSD is evidence that he did not get along with coworkers; 3) raising the issue that Plaintiff’s daughter received a medical malpractice award. ECF 

No. 48. These will be addressed in turn. 

A. 

First, Defendants seek to exclude Plaintiff’s performance evaluations. Defendants note 

that “It is undisputed that Mr. Ledesma gave Mr. Klosowski high marks on the performance 

evaluations. Plaintiff intends to use these evaluations to establish that Mr. Klosowski was an 

excellent employee.” Mot. at 9, ECF No. 46. Defendants do not dispute that Plaintiff was a 

“technically proficient bridge tender.” Id. at 9. Defendants state that Plaintiff was not terminated 
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because of his performance, but rather was not called back to the bridge because of his “abrasive 

personality and disharmony he created in the workplace.” Id. at 10, 12. Defendants further 

contend that “Plaintiff’s job performance has no impact on Defendant’s interest in regulating 

Plaintiff’s speech . . .” Id. at 12. Finally, Defendants argue that the evaluations are irrelevant 

because Plaintiff was an at-will employee and they were under no obligation to call him back for 

the 2013 season regardless of his performance evaluations. Id. at 12–13. 

Federal Rule of Evidence 401 provides that evidence is relevant if (a) it has any tendency 

to make a fact more or less probable than it would be without the evidence; and (b) the fact is of 

consequence in determining the action. Federal Rule of Evidence 402 provides that irrelevant 

evidence is not admissible. Under Federal Rule of Evidence 403, even relevant evidence may 

still be excluded if its probative value is substantially outweighed by a danger of one or more of 

the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting 

time, or needlessly presenting cumulative evidence. 

Defendants contend they have never called Plaintiff’s performance into question in this 

case, and have no intention of doing so at trial. Reply at 2, ECF No. 62. This is inaccurate. In 

fact, Defendants have suggested that Plaintiff had an “abrasive personality” and caused 

“disharmony in the workplace,” which they contend was the justification for Ledesma’s decision, 

and not Plaintiff’s communication with the mayor. Mot. at 12, ECF No. 46. Defendants have also 

produced an affidavit accusing Plaintiff of workplace misconduct including raising his voice at a 

fellow employee, engaging in a verbal altercation, acting outside the scope of his responsibilities 

as a bridge tender, endangering motor vehicle operators, criticizing Ledesma behind his back, 

and undermining Ledesma’s authority. ECF No. 46-2. Thus, the reason for Ledesma’s decision is 

at issue, and the performance evaluations are probative of that reason. 
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Nor can Defendants argue that the performance evaluations are only probative of 

Plaintiff’s technical proficiency as a bridge tender. Indeed, the performance evaluations contain 

categories for “cooperation/teamwork,” as well as “personality.” See ECF No. 14-9. These 

categories are directly relevant to the accusations Defendant Ledesma made in his affidavit. 

These evaluations are also relevant to the issue of whether Plaintiff caused disharmony in the 

workplace due to his alleged pattern of antisocial conduct, or whether the “disharmony” 

Defendants refer to is only related to his communication with Ledesma and the Mayor. 

Defendants also argue that the performance evaluations are not an accurate representation 

of Plaintiff’s performance, as Ledesma only gave Plaintiff high marks on his performance 

evaluations so as not to jeopardize Plaintiff’s relationship with ITH or the availability of other 

employment. Mot. at 10. Defendants explain that “while [Ledesma] may have issues with some 

employees, he tried to be more lenient on the written reviews so as not to jeopardize an 

employee’s ability to find subsequent temporary assignments.” Id. Perhaps this is true. 

Defendants will have an opportunity to introduce any evidence of performance related issues that 

were not memorialized in the evaluations, and explain what they think the performance 

evaluations reflect. The jury will determine if their explanation is believable. 

Finally, Defendants argue that the performance evaluations are irrelevant because 

Plaintiff is an at-will employee, and Defendants had no obligation to rehire him irrespective of 

how he performed. The Supreme Court has long rejected Justice Holmes’ famous dictum that a 

policeman “may have a constitutional right to talk politics, but he has no constitutional right to 

be a policeman.” Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 674 

(1996). The modern doctrine of unconstitutional conditions holds that the government “may not 

deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of 
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speech even if he has no entitlement to that benefit.” Id. (quoting Perry v. Sindermann, 408 U.S. 

593, 597, (1972)). Simply put, irrespective of whether Plaintiff had any entitlement to continued 

employment, Plaintiff had an entitlement to exercise his protected rights without suffering 

adverse employment consequences. He had this entitlement regardless of his status as an at-will 

employee. Defendants had a corresponding obligation not to take adverse action against him for 

exercising a protected right. The jury will determine if that is what took place, and the 

performance evaluations are probative of the Defendants’ reason for the termination. 

Accordingly, Defendant’s motion in limine to exclude the performance evaluations will be 

denied. 

B. 

 Next, Defendants seek to strike and/or limit Plaintiff’s claim for wage loss damages. ECF 

No. 47. In support of the motion, Defendants argue as follows: 1) Plaintiff’s claim is barred 

because he failed to mitigate damages; 2) Plaintiff’s claim is barred because his PTSD renders 

him unemployable; and 3) any amount of damages should be set off by the amount he has 

received in un-employability benefits. Defendants’ use of the motion in limine is improper. A 

motion in limine “is any motion, whether made before or during trial, to exclude anticipated 

prejudicial evidence before the evidence is actually offered.” Louzon v. Ford Motor Co., 718 

F.3d 556, 561 (6th Cir. 2013) (quoting Luce v. United States, 469 U.S. 38, (1984)). When a 

motion in limine does not raise questions about admissibility of evidence or that evidence would 

be prejudicial, the motion will be denied. See Louzon, 718 F.3d at 561–62. Mitigation is an 

inherently factual issue. It is also an affirmative defense upon which Defendants bear the burden 

of proof. Thus, a motion in limine is not a proper medium to litigate damage mitigation. 
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 Defendants also argue that Plaintiff’s wage loss claim is barred by his “unemployability.” 

Defendants explain that “Plaintiff and his doctors have confirmed that he has been unemployable 

since August 2012 due to his service-connected PTSD.” Mot. at 17. Defendants contend that the 

evidence shows that Plaintiff was unable to maintain substantial gainful employment during the 

time he was unemployed, and was thus eligible for Individual Unemployability benefits from the 

Veterans Administration. Id. If the facts are as Defendants represent them, then Defendants are 

correct that, regardless of any adverse employment decision, backpay would not be recoverable 

for any period where Plaintiff would have been unable to perform his job as a bridge tender. See 

Virostek v. Liberty Twp. Police Dep’t/Trustees, 14 F. App'x 493, 505–506 (6th Cir. 2001) 

(backpay not recoverable where there was no causal connection between adverse employment 

decision and economic damages because plaintiff would have needed to take medical leave for 

shoulder surgery irrespective of the adverse decision by defendant). Whether Plaintiff was in fact 

unemployable is a factual issue of causation to be addressed at trial and to be proved by the 

Defendants. It is not an issue to be resolved via a motion in limine.

C.

 Defendants also seek to strike and/or limit Plaintiff’s claim for emotional distress, back 

pay, and future wage loss. ECF No. 50. First, the requested relief is largely duplicative of the 

previous motion, though it raises different arguments. Defendants argue: 1) Plaintiff cannot 

establish actual injury caused by the alleged constitutional deprivation; 2) there is insufficient 

evidence to support a claim for mental anguish; and 3) the facts cannot support a claim for wage 

loss damages. As explained above, the existence of an actual injury, and its causal connection to 

any constitutional violation, is a factual question for the jury. Defendants also argue that Plaintiff 

cannot recover wage loss damages because he had no right to continued employment. As 
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discussed above, Plaintiff’s status as an at-will employee is not a legal bar to his first amendment 

retaliation claim. The potential impact of the nature of his employment with ITH on causation 

and damages was discussed above at footnote one. 

D. 

 Finally, Defendants move to strike Plaintiff’s claim for unemployment benefits, arguing 

that they are a collateral source and are not recoverable. ECF No. 51. As Defendants explain: 

The temporary assignment as bridge tender ran from March through December. 

At the end of each temporary assignment, Plaintiff applied for and received 

unemployment benefits as a “laid off worker.” After Plaintiff’s temporary 

assignment was permanently terminated, Plaintiff again applied for and received 

unemployment benefits. However, this time the unemployment benefit extended 

from December, 2012 to June 2013. 

 Defendants argue that the termination of Plaintiff’s assignment did not preclude him from 

seeking other employment, and thus they are not responsible if he was subsequently unable to 

receive three months of unemployment each year. Defendant is correct that unemployment 

compensation is generally to be disregarded in damage calculation, as it is derived from a 

collateral source. See Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1170 (6th 

Cir.), opinion amended on denial of reh'g, 97 F.3d 833 (6th Cir. 1996) (“Unemployment 

compensation is paid not to discharge an obligation of the employer but to carry out social 

policies of the state. Thus, unemployment benefits are collateral benefits which the district court 

should disregard in making its award.”); Rasimas v. Michigan Dep’t of Mental Health, 714 F.2d 

614, 628 (6th Cir. 1983). 

 Indeed, Plaintiff cites to the same authority in his own motion contending that 

unemployment benefits should not be deducted from backpay. Mot. at 2, ECF No. 48. 

Defendants cite these cases for the proposition that unemployment benefits should not be added 

to backpay as a form of compensation. These cases directly support the former proposition, but 
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also indirectly support the latter, inasmuch as they provided that unemployment compensation 

ought to be “disregarded” altogether when calculating damages. Thus, as both parties 

acknowledge, unemployment compensation generally cannot be considered in calculating 

damages at all, whether adding to backpay (by the jury) or deducting from backpay (by the 

Court). Accordingly, evidence relating to unemployment compensation will be excluded. 

E. 

 Plaintiff seeks to prohibit Defendants from: 1) introducing evidence generally of 

collateral sources of income; 2) arguing that Plaintiff’s PTSD is evidence that he did not get 

along with co-workers; 3) raising the issue that Plaintiff’s daughter received a medical 

malpractice award. ECF No. 48. The parties agree that any evidence relating to Plaintiff’s 

daughter’s medical malpractice award should be excluded. 

 Plaintiff’s argument with respect to unemployment compensation benefits was addressed 

above at subsection D. This is the only “collateral source” Plaintiff discusses in any detail, 

despite referring to various pension benefits and social security in his heading and his statement 

of requested relief. Accordingly, these will not be addressed. 

 Plaintiff also requests that Defendants be “estopped from arguing that the Plaintiff’s 

receipt of VA benefits for post-traumatic stress disorder prohibited the Plaintiff from working 

and/or is evidence that he did not get along with co-workers.” Id. at 4. Plaintiff’s precise 

argument is difficult to ascertain. Construing Plaintiff’s motion as requesting that Defendants be 

precluded from introducing evidence of the fact of his PTSD diagnosis for the purpose of 

establishing a propensity for antisocial or disruptive behavior, the Court will grant the motion 

and Defendant will be precluded from introducing that evidence for that purpose, as it is 

prohibited by Federal Rule of Evidence 404. See, Chien van Bui v. City and County of San 
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Francisco, 2018 WL 1057787, at *3 (N.D. Cal. Feb. 27, 2018) (precluding Defendants from 

introducing evidence of “past acts or mental illness to prove that [Plaintiff] acted in conformance 

with them on a particular occasion.”); Cain v. Esthetique, 182 F. Supp. 3d 54, 70 (S.D.N.Y. 

2016) (“if a personality disorder is associated with manipulative or paranoid behavior, a 

defendant may hope to use evidence that the plaintiff had such a disorder at the time of the 

incident in question to suggest that the person was engaging in manipulative and paranoid 

behavior on that particular occasion. If a court is to admit evidence of the disorder, however, it 

must be for some ostensibly permissible purpose, rather than for this overt purpose of suggesting 

that a fact finder infer a particular propensity”) (quoting The Disordered and 

Discredited Plaintiff: Psychiatric Evidence in Civil Litigation, 31 CARDOZO L. REV. 749, 802 

(2010)). 

 It also appears that Plaintiff seeks to preclude Defendants from pursuing their theory 

regarding the impact of an unemployability determination on damage calculation. Plaintiff has 

offered no legal authority for the proposition that this evidence should not be evaluated by the 

jury. 

II. 

 Accordingly, it is ORDERED that Defendants’ motions in limine, ECF Nos. 46, 47, and 

50, are DENIED. 

 It is further ORDERED that Defendant’s motion in limine to exclude evidence of 

unemployment benefits, ECF No. 51, is GRANTED. 

It is further ORDERED that Plaintiff’s motion in limine, ECF No. 48, is GRANTED in 

part, and Defendants are precluded from 1) introducing evidence of the fact of Plaintiff’s PTSD 

diagnosis for the purpose of establishing a propensity for anti-social or disruptive behavior; and 
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2) introducing evidence relating to Plaintiff’s daughter’s medical malpractice litigation or award, 

and 3) introducing evidence of unemployment benefits. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: March 13, 2018 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on March 13, 2018. 

 s/Kelly Winslow 

 KELLY WINSLOW, Case Manager