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.

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ORDER REJECTING SUBMISSION OF NONCOMPLIANT JURY INSTRUCTIONS,

DIRECTING PARTIES TO RESUBMIT JURY INSTRUCTIONS, AND DETERMINING

ADMISSIBILITY OF ARBITRATION AWARD

This matter was originally scheduled for trial to commence on May 4, 2010. A final pretrial

conference was held on April 20, 2010. At the final pretrial conference, it became apparent that

several issues required attention prior to trial and that a short adjournment of the trial date and an

additional final pretrial conference were necessary. Thus, a second final pretrial conference is

scheduled for May 19, 2010, and the trial is scheduled to commence on June 1, 2010. Two of the

issues that required attention at the first pretrial conference, jury instructions and an arbitration

award, now require further attention.

I

Pursuant to the case management and scheduling order, the parties were required to provide

to chambers, on or before April 13, 2010, “a single set of proposed stipulated jury instructions” after

undertaking “a concerted, good faith effort to narrow the areas of dispute and to discuss each

instruction with a view to reaching agreement as to an acceptable form.” As of the first final pretrial
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conference held on April 20, 2010, the parties had not provided joint proposed jury instructions to

chambers. Thus, in an order subsequent to the final pretrial conference, the Court directed the

parties to submit joint proposed jury instructions in compliance with the Court’s case management

and scheduling order on or before May 10, 2010.

On May 13, 2010, the parties submitted to chambers what purports to be joint proposed jury

instructions, along with disputed instructions. The jury instructions were submitted in an

incomprehensible format, and almost entirely without citation to legal authority. The Court’s case

management and scheduling order clearly provides:

The parties are to provide to chambers a single set of proposed stipulated jury

instructions on the date fixed for submission. The Court will provide proposed

opening and closing instructions, and counsel are responsible for all instructions

related to their specific claims or defenses. . . . In addition, each party shall

separately submit any additional proposed instructions (in the same form and

manner) to which any other party objects.

[Dkt. # 9, pp. 5-6].

Despite the language of the Court’s order, the parties did not submit “a single set of

proposed stipulated jury instructions,” and “separately submit any additional proposed instructions.”

Instead, the parties have provided one document purporting to consist of both jointly agreed upon

instructions and disputed instructions. In this case, such noncompliance with the Court’s order is

not a mere technicality, because it is impossible to decipher which instructions the parties have

agreed upon, which additional instructions are being submitted by Plaintiff, and which additional

instructions are being submitted by Defendants. While the parties have provided a “key” to aid the

Court in interpreting the document submitted, the various types of bracketing, underlining, and

strikethrough contained within the document leave the document incomprehensible. For example,

some portions of the instructions contain both underlining and strike through, or bracketing and
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underlining. Such provisions are impossible to accurately interpret. Moreover, if the Court were

to remove portions of the instructions with underlining, strike through, or bracketing, in an attempt

to find the agreed upon instructions, many of the instructions are simply left incomplete and

indecipherable.

In addition, the case management and scheduling order provides that “[e]ach instruction shall

contain references to authority (e.g., ‘Devitt and Blackmar, Section 11.08’).” [Dkt. # 9, pp. 5-6].

Of the ten pages of instructions submitted, only three instructions contain any reference to legal

authority. Legal authority is necessary for the Court to evaluate the propriety of the instructions

requested. Based on the above, the jury instructions submitted to the Court on May 13, 2010 will

be rejected. The parties will once again be directed to submit “a single set of proposed stipulated

jury instructions,” and “separately submit any additional proposed instructions,” with references to

authority for each instruction. Continued noncompliance with the Court’s order may result in

appropriate sanctions.

II

At the first final pretrial conference, it became apparent that the parties had recently

concluded arbitration proceedings, and that it would likely be necessary to determine whether the

arbitration award will be admitted as evidence for the jury to consider. The parties were directed

to provide briefing as to this issue. The parties’ briefs [Dkt. # 25, 26] have clarified that neither

party seeks to admit the arbitral decision in its entirety.

Defendants argue that the arbitral decision should be excluded in its entirety. Defendants

acknowledge that the U.S. Supreme Court has stated that an “arbitral decision may be admitted as

evidence and accorded such weight as the court deems appropriate.” Alexander v. Gardner-Denver
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Co., 415 U.S. 36, 60 (1974). Factors that are relevant to admissibility include “the existence of

provisions in the collective-bargaining agreement that conform substantially with Title VII, the

degree of procedural fairness in the arbitral forum, adequacy of the record with respect to the issue

of discrimination, and the special competence of particular arbitrators.” Id. at 60 n.21; Nance v.

Goodyear Tire & Rubber Co., 527 F.3d 539, 549 (6th Cir. 2008).

Defendants contend that the arbitral decision should not be admitted in this case for four

main reasons. First, Defendants argue that the provisions of the collective bargaining agreement do

not “substantially conform” to the federal statues under which Plaintiff’s claims are brought (Title

VII and the Uniformed Services Employment and Reemployment Act (“USERRA”)). Second,

Defendants contend that the arbitration proceedings did not address substantial issues related to

Plaintiff’s claims of discrimination in this litigation, particularly Plaintiff’s claims of retaliation and

violation of USERRA. Third, Defendants emphasize that the arbitrator was not “specially

competent” with respect to claims of gender discrimination, sexual harassment, or USERRA.

Fourth, and finally, Defendants argue that the arbitral decision should also be excluded under

Federal Rule of Evidence 403 because any “probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, [and] misleading the jury.”

In response, Plaintiff did not specifically address Defendants’ arguments or any of the factors

identified in Alexander. Rather, Plaintiff asserts that it is “willing to agree with the Defendants that

the arbitration [decision] in its entirety should not be introduced to the jury.” However, Plaintiff

inserts the caveat that the following information from the arbitral decision should be submitted to

the jury:

[T]he stipulated question submitted to arbitration and which appears on page 5 of the

arbitration opinion & award [i.e. “Was there just cause for the termination of
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Grievant’s employment?”] and the arbitrator’s answer to the stipulated question

which appears on page 35 of the arbitration opinion and award [i.e. “Taking all of

this into account, the Stipulated Issue (page 5) is answered, No”] along with the

caption to the opinion and award and the introduction caption along with the first

paragraph of the introduction on page 2 of the arbitration opinion & award, the

caption for the stipulated issue, the conclusion and award caption on page 35 and the

date and signature spot for the arbitrator so as to give the jury context.

Pl. Br. 3. Notably, Plaintiff has not provided authority for admitting as evidence only the portion

of the arbitral decision that is favorable to Plaintiff, while excluding the majority of the arbitrator’s

rationale and detailed explanation for reaching the final decision. Based on the above, there is no

basis for the Court to find at this juncture that the arbitration award is admissible as evidence in this

case.

III

Accordingly, it is ORDERED that proposed jury instructions submitted by the parties on

May 13, 2010 are REJECTED.

It is further ORDERED that the parties are DIRECTED to submit joint proposed jury

instructions in compliance with the Court’s case management and scheduling order [Dkt. # 9] dated

April 9, 2009 on or before May 21, 2010.

It is further ORDERED that the arbitral decision is INADMISSIBLE.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: May 18, 2010
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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 18, 2010.

s/Tracy A. Jacobs 

TRACY A. JACOBS