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,

Defendant.

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OPINION AND ORDER DENYING PLAINTIFF’S 

MOTION FOR JUDGMENT AS A MATTER OF LAW

Now before the Court is Plaintiff Patrick Shaltry’s motion for judgment as a matter of law

pursuant to Federal Rule of Civil Procedure 50 [Dkt. # 47], which was filed on December 9, 2010.

Specifically, Plaintiff asserts that the issue of Defendant’s business judgment as a legitimate, nondiscriminatory reason for Plaintiff’s termination has already been rejected by an arbitrator and

should not be submitted to a jury. Defendant filed a response on December 23, 2010 [Dkt. # 50].

Defendant generally alleges that Plaintiff’s Rule 50 motion is untimely and that it is not collaterally

estopped from presenting its business judgment as a defense to Plaintiff’s discrimination claims

because the arbitrator did not address the same ultimate issues as in the instant action. Plaintiff filed

a reply on December 29, 2010 [Dkt. # 52]. For the reasons provided hereafter, Plaintiff’s motion

will be DENIED.

I

The instant action arises out of events leading up to Plaintiff’s discharge from his

employment as a police officer with the City of Saginaw effective March 2008. Plaintiff had been

the subject of several complaints filed by citizens for his on-duty conduct, and after the Saginaw
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Police Department (the “Police Department”) investigated these complaints Plaintiff was found to

be in direct violation of several Saginaw Police Department General Orders. Following receipt of

the final complaint, Plaintiff was placed on administrative leave. While on administrative leave,

Plaintiff also required military leave for his duties as a member of the United States Air Force.

Plaintiff did not notify the Police Department that he was taking military leave as is required under

Department policy. The Police Department found Plaintiff to subsequently be uncooperative in

answering questions regarding his military leave because Plaintiff did not believe such notice was

necessary or reasonable given his being on administrative leave. As a result of the citizen complaints

the Department received and his being uncooperative during the investigation into his military leave,

Plaintiff was relieved of his duties as a Saginaw Police Officer. Plaintiff subsequently filed a three

count Complaint in this matter alleging: (1) violations of the Uniformed Services Employment and

Reemployment Rights Act, 38 U.S.C. § 4301, et seq.; (2) hostile work environment and retaliation

based on gender in violation of Title VII, 42 U.S.C. § 2000e et seq.; and (3) hostile work

environment and retaliation based on gender in violation of the Michigan Elliott-Larsen Civil Rights

Act, M.C.L. § 37.2101 et seq.

Before Plaintiff filed the instant action, he and his union challenged his discharge in an

arbitration proceeding established by the collective bargaining agreement between the City of

Saginaw (“City”) and the Police Officers Association of Michigan (“POAM” or “Union”). The

stipulated issue for determination by the arbitrator was: “Was there just cause for the termination

of Grievant’s employment? If not, what shall the remedy be?” (Pl.’s Mot. for Judgment as a Matter

of Law Ex. 1 at 5.)

In an Opinion and Award dated March 30, 2010, Arbitrator Stanley T. Dobry found that
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while the City properly suspended Plaintiff, Plaintiff was a “troubled employee” and therefore a

heightened “modified just cause standard” was applicable. (Pl.’s Mot. for Judgment as a Matter of

Law Ex. 1 at 15-16.) Under that standard, the arbitrator determined that there was not just cause for

Plaintiff’s termination. (Pl.’s Mot. for Judgment as a Matter of Law Ex. 1 at 35.) The arbitrator also

found that although Defendant had legitimate reasons for suspending Plaintiff as a punishment for

his transgressions, Plaintiff’s discharge should be converted into an unpaid disciplinary leave of

absence because of the mitigating factors and Defendant basing its discharge decision on some

unproven charges. (Id.)

Before trial, Defendant filed a memorandum of law opposing the admissibility of the

arbitration decision [Dkt. # 25]. Defendant argued that the arbitral decision should be excluded in

its entirety. Plaintiff, through his response to Defendant’s memorandum of law, sought to have only

the portion of the arbitral decision favorable to him admitted as evidence–the finding that there was

not just cause for his termination–while excluding the majority of the arbitrator’s rationale and

detailed explanation for reaching the final decision. The Court found that there was no basis for the

arbitration award to be admissible as evidence at that juncture in the case [Dkt. # 27]. 

The case initially proceeded to trial on June 8, 2010. On the third day of trial, it became

apparent to the Court that the case could not be tried in the number of days anticipated, and a

mistrial was declared. After the mistrial, the Court directed the parties to address whether the

outcome of the arbitration affected Plaintiff’s damages or causes of action, given that Plaintiff’s

discharge had been converted into a disciplinary leave of absence and provides that Plaintiff is to

be reinstated to his former employment when he becomes physically and mentally fit for duty. [Dkt.

# 40]. Discovery and motions practice were reopened as to these limited issues, with the motion
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cutoff date extended until September 30, 2010. [Dkt. # 40; Dkt. # 43]. Plaintiff then filed the instant

motion, asserting that the substance of the arbitration award should result in a directed verdict on

the issue of Defendant’s proffering a legitimate, non-discriminatory reason for Plaintiff’s discharge

pursuant to Rule 50.

II

Employment discrimination cases based on circumstantial evidence employ the burdenshifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If the plaintiff

provides circumstantial evidence of discrimination, the employer can then rebut this by proffering

a legitimate, non-discriminatory reason for its action. See Hendrick v. Western Reserve Care

System, 355 F.3d 444, 459-60 (6th Cir. 2004). Plaintiff contends a directed verdict pursuant to Rule

50 is appropriate in this case to remove the issue of Defendants’ legitimate non-discriminatory

reason for Plaintiff’s termination from the jury’s consideration. Rule 50(1) provides that: 

“[i]f a party has been fully heard on an issue during a jury trial and the court finds

that a reasonable jury would not have a legally sufficient evidentiary basis to find for

the party on that issue, the court may: (A) resolve the issue against the party; and (B)

grant a motion for judgment as a matter of law against the party on a claim or

defense that, under the controlling law, can be maintained or defeated only with a

favorable finding on that issue.

In its response, Defendant first emphasizes that Rule 50 does not apply to this situation

because the issue has not been fully heard during a jury trial, and Rule 50 is not a rule of evidentiary

exclusion or issue preclusion. Plaintiff asserts that under Rule 50(a)(2), a motion for judgment as

a matter of law can be brought at any time, even before evidence is submitted to a jury. Plaintiff

suggests he is seeking to prevent Defendant from offering evidence of its legitimate, nondiscriminatory reason for Plaintiff’s termination pursuant to the doctrine of collateral estoppel.

Defendant notes that if Plaintiff’s motion is construed as a motion falling under a different rule such
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Plaintiff also emphasizes that Defendant, who was the defendant in McDole, argued in

McDole that factual determinations by an arbitrator could not be re-litigated in a subsequent

discrimination lawsuit. The Court, however, disagreed with Defendant and denied its motion to bar

the plaintiff from re-litigating factual issues decided at arbitration. Plaintiff does not explain how

Defendant’s argument in the McDole case applies to the instant case, especially given that the Court

found this argument–which Plaintiff now attempts to make–to be unconvincing. Furthermore,

Plaintiff provides no support for his argument that Defendant is bound by its unsuccessful legal

argument made in a previous, unrelated case with a different plaintiff.

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as a motion in limine or for summary judgment based on collateral estoppel, it should still be denied

as untimely because the dispositive motion filing deadline of September 30, 2010 has passed.

Plaintiff also has not sought leave to file his untimely motion or provided good cause for further

extension of the deadline, and the motion may thus be denied on those grounds. However, the issue

of whether collateral estoppel applies to the findings of the arbitrator is relevant to the manner in

which the impending trial will proceed, and the Court’s independent review of the issue presented

by Plaintiff’s motion is justified.

Plaintiff contends that the arbitrator found Defendant’s proffered reasons for Plaintiff’s

termination to not be reasonable and thus constituted a violation of the collective bargaining

agreement between POAM and the City. Plaintiff offers this Court’s previous decision in McDole

v. City of Saginaw [07-13697 Dkt. # 32], as supporting his contention that the arbitrator’s decision

precludes Defendant’s offering evidence of its legitimate, non-discriminatory reasons for Plaintiff’s

termination at trial. The Court noted in McDole that both state and federal law gives binding effect

to factual findings made by an arbitrator.1 See Cole v. West Side Auto Employees Federal Credit

Union, 583 N.W.2d 226, 229-30 (Mich. Ct. App. 1998); Porter v. City of Royal Oak, 542 N.W.2d

905 (Mich. Ct. App. 1995). However, the Court also stated that the arbitration’s factual findings did

not have a binding effect. [07-13697 Dkt. # 32]. This was because the plaintiff in McDole did not
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arbitrate his statutory claim under Michigan’s Elliot-Larsen Civil Rights Act, as did the plaintiff in

Porter. Additionally, the union involved in McDole, as opposed to plaintiff himself, submitted his

claim that he was wrongfully discharged by his employer to arbitration thus making the holding in

Cole inapposite. The holdings in Porter and Cole are equally inapposite in the instant case as the

plaintiff similarly did not arbitrate his claims under the anti-discrimination statutes and his union–as

opposed to Plaintiff himself–submitted the wrongful discharge claim to arbitration. 

Plaintiff, however, attempts to distinguish the present case from the factual situation in

McDole by noting that the arbitrator’s decision goes to the very defense which Defendant will seek

to utilize at the time of trial. Plaintiff does not explain how this would change the outcome of the

application of Porter or Cole, especially given this Court’s extensive discussion in its McDole

decision regarding the inapplicability of collateral estoppel to arbitration decisions made pursuant

to collective bargaining agreements, when, as here, the prior arbitration proceeding was brought on

behalf of the plaintiff by the union. See [07-13697 Dkt. # 32] (noting that “[l]ike the U.S. Supreme

Court and the Sixth Circuit Court of Appeals, a Michigan court of appeals has concluded that

collateral estoppel does not preclude litigation of factual issues decided in a labor arbitration

proceeding governed by a collective bargaining agreement when the plaintiff subsequently brings

a lawsuit alleging violations of state civil rights statutes”) (citation omitted);Gomez-Mesquita v. City

of Detroit, No. 06-12844, 2007 WL 2225859, at *4-5 (E.D. Mich. Aug. 2, 2007) (finding collateral

estoppel did not apply to either plaintiff’s federal or state statutory civil rights claims when the prior

arbitration proceeding was brought on behalf of the plaintiff by the union).

Both Michigan courts and the Sixth Circuit have held that collateral estoppel does not apply

to an action under anti-discrimination statutes where a previous arbitration addresses only
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contractual issues, such as collective bargaining rights under a collective bargaining agreement. See

Nance v. Goodyear Tire & Rubber Co., 527 F.3d 539, 547 (6 th Cir. 2008); Arslanian v. Oakwood

United Hosps., Inc., 618 N.W.2d 380, 385 (Mich. Ct. App. 2000). As noted in Nance, “the expertise

of the arbitrators lies in the application of facts to the terms of an employee’s contract or collective

bargaining agreement, [while] the expertise of the federal courts lies in the application of facts to

anti-discrimination statutes.” 527 F.3d at 548. Certain facts may have one meaning under a

collective bargaining agreement but an entirely different meaning for the purposes of an antidiscrimination statute, making the “legal and factual issues raised in [the plaintiff’s discrimination]

claim . . . beyond the competence of the ordinary arbitrator whose primary expertise concerns the

demands and norms of industrial relations.” Id. at 549 (emphasis in original) (citation and quotation

omitted). Furthermore, if a plaintiff does not expressly waive his right to bring claims in federal

court, a prior arbitration does not preclude the Court from reconsidering all factual issues underlying

a statutory claim. Id. Here, the arbitrator’s task was to determine whether there was just cause for

Plaintiff’s termination under the applicable collective bargaining agreement. The arbitrator was not

called upon to decide whether the discharge violated any anti-discrimination statutes and Defendant

contends it is not precluded from putting forth a factually-based defense to Plaintiff’s discrimination

claim in the instant action.

Defendant additionally argues that collateral estoppel is inapplicable because the arbitrator

did not determine whether Sgt. Tuer, who is now dismissed from the case, sexually harassed or

retaliated against Plaintiff as Plaintiff has alleged in his complaint. As a result, the arbitration did

not involve the “same ultimate issues” as the instant case, nor were those issues “actually litigated”

as is required in applying collateral estoppel. VanDeventer v. Mich. Nat. Bank, 172 Mich. App. 456,
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463 (Ct. App. 1988). Furthermore, the arbitrator’s decision did not find fault with Defendant’s

proffered reasons for Plaintiff’s discharge, but instead found that the mitigating factors warranted

a different punishment. As a result, there is not a factual basis for precluding Defendant from

presenting its legitimate non-discriminatory reasons for termination. 

The arbitration decision in the instant case addresses the wrongful discharge claim brought

by Plaintiff’s union and not Plaintiff’s claims under the anti-discrimination statutes. Accordingly,

collateral estoppel does not bar Defendant from re-litigating the factual and legal issues determined

in the prior arbitration proceeding with respect to both Plaintiff’s federal and state claim. As a

result, Plaintiff’s motion will be DENIED.

III

Accordingly, it is ORDERED that Plaintiff’s motion for judgment as a matter of law [Dkt.

# 47] is DENIED.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: January 20, 2011

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 January 20, 2011.

s/Tracy A. Jacobs 

TRACY A. JACOBS