UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

PATRICK SHALTRY,

Plaintiff,

v. Case Number 09-10609-BC

Honorable Thomas L. Ludington

CITY OF SAGINAW, ANJANETTE

TUER, RALPH CATER, THOMAS

FANCHER, GERALD CLIFF,

Defendants.

_________________________________/

ORDER GRANTING DEFENDANT’S MOTION IN LIMINE TO EXCLUDE

PLAINTIFF’S NEW THEORY OF DAMAGES

On February 19, 2009, Plaintiff Patrick Shaltry filed a three-count complaint against

Defendants City of Saginaw, Anjanette Tuer, Ralph Carter, Thomas Fancher, and Gerald Cliff,

arising out of the termination of his employment as a police officer for the City of Saginaw on or

about March 5, 2008. Plaintiff’s claims are brought under Title VII of the Civil Rights Act of 1964,

as amended (“Title VII”), 42 U.S.C. § 2000e et seq., the Michigan Elliott-Larsen Civil Rights Act

(“ELCRA”), Mich. Comp. Laws § 37.2 101 et seq., and the Uniformed Services Employment and

Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4301 et seq.

Subsequent to his discharge, Plaintiff was awarded a “duty disability” pension due to

physical injuries sustained in February and October 2006 and October 2007, retroactive to March

4, 2008. See [Dkt. # 25-2, p. 3-4]. In a decision issued March 30, 2010, as a result of an arbitration

proceeding conducted pursuant to a collective bargaining agreement, an arbitrator found that

Plaintiff’s discharge should be converted to an unpaid disciplinary leave of absence and that he may

be reinstated, provided that he is found to be physically and psychologically fit for duty. The
-2-

arbitrator determined that such a remedy was appropriate based on his finding that Plaintiff was a

“troubled employee,” meriting the application of a heightened “just cause” standard. The arbitrator

noted that the award should not affect Plaintiff’s disability pension. See id. [p. 36].

The case is scheduled for trial on June 1, 2010. Now before the Court is Defendants’ motion

in limine [Dkt. # 24], filed on May 3, 2010, to exclude evidence of a “new theory of damages”

advanced by Plaintiff at a facilitation proceeding held on or about April 16, 2010. Defendants

represent that Plaintiff’s new theory of damages is that “Plaintiff has now stated that future

employers will be less likely to hire him because he sued a former employer.” Federal Rule of Civil

Procedure 26(a)(1)(A)(iii) requires parties to disclose “a computation of each category of damages

claimed,” as well as make available documents or other evidence upon which such computation is

based. Pursuant to Federal Rule of Civil Procedure 37(c)(1), “[i]f a party fails to provide

information or identify a witness as required by Rule 26(a) . . . , the party is not allowed to use that

information . . . to supply evidence . . . at a trial, unless the failure was substantially justified or is

harmless.” The sanction is “automatic and mandatory,” unless the noncompliant party satisfies the

burden of proving harmlessness. Roberts ex rel. Johnson v. Galen of Va., Inc., 325 F.3d 776, 782

(6th Cir. 2003) (quotation omitted).

Plaintiff did not file a response to Defendant’s motion, and the time to do so has passed. In

the absence of any response, it is necessary to conclude that Plaintiff has not proved that

nondisclosure of the described theory of damages was “substantially justified or harmless.”

Moreover, to the extent that the new “theory of damages” is properly characterized as such, rather

than an independent cause of action not plead in the complaint, it was never reasonably disclosed.
-3-

Accordingly, it is ORDERED that Defendant’s motion in limine [Dkt. # 24] to exclude

evidence of Plaintiff’s “new theory of damages” is GRANTED.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: May 21, 2010

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing notice was

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

or first class U.S. mail on May 21, 2010.

s/Tracy A. Jacobs 

TRACY A. JACOBS