NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0327n.06 Nos. 10-1420, 10-1789 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

DANNY MCDOLE, P laintif f-App ellee- Cross Appellant,

v. CITY OF SAGINA W, Defendan t-Appellant-Cross Appellee. ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM THE UNITED STAT ES DIS TRICT COURT F OR THE E ASTERN DISTRICT OF MICHIG AN

O P I N I O N

BEFORE: MOORE and GR IF F IN, Circ uit Jud ges; and QUIST , Senior District Judge. * QUIST, Dis tric t Judge. This is an appea l from a jury verdic t in favor of Plaintiff Danny McDole. Def endant City of Sag inaw terminated McDole following an i n t ernal aff airs investi g ation led by Serg eant Anjanette Tuer, reg arding an incident involving McDole and his subsequent conduct. The jury found that by terminating McDole’ s employ ment the City

of Sag inaw discriminated a g ainst McDole be cause of his race , and aw arde d McDole $1,000,000. F or the re asons set for th below, we a ffirm. B A C K G R O U N D On Fe bruar

y 10, 2006, Def

endant, the City of Sag inaw (the “C i ty ”), terminated Plaintiff, Danny McDole (“Mc Dole”) , from his position as a police office r. McDole, an Afric an Americ an,

The Honora

ble Gordon J

. Quist, United Sta te s Senior District J udg e for the Western District * of Michig an, sitting by

desig nation.Case Nos. 10-1420/1789

McD ole v. City of Saginaw

filed suit. The crux of McDole’ s discrimination c o mpla int alleg es that Serg eant Anjanette Tuer, who conducte d the internal investiga tion of the event, repe atedly demonstrated a rac ial bias ag ainst him. The investigation t hat l ed to McDole’ s firing arose out of an event involvi ng McDole t h at

occur red on October 14, 2005. Acc ording to McDole, while driving to work on October 14, 2005, 1

a sport utilit y vehicle (“SUV” ) p u l l ed u p n ex t to his car and someone in the SUV shouted rac ial epithets at him and threw two bottles at his vehicle. The SUV kept pace with M cD o l e’ s v eh i cle, slowing down and speeding up with it. McDole said that one of the passeng ers was appar ently intox icated and h an gi n g o u t of a window. McDole turned on his dome light to reve al his police uniform to the passeng ers in the SUV, which only esca lated the situation. When the SUV cut him off, McDole exit ed his vehicle with his wea pon draw n, and he identified himself as a police office r. The passeng ers in the SUV expressed conce rn that McDole was a police office r and shouted reque sts that he not shoot them. The SUV then sped off. McDole was able to obtain the SUV’s license plate number. Shortly there afte r, while continuing to work, McDole said that t h e SUV returne d and followed his vehicle closely

. Subsequently , McDole and other police office rs located the driver of the vehicle and took him to jail. The criminal char g es ag ainst the driver and a passeng er wer e later dismiss ed. I n response to a letter from the criminal defe nse attorney repr esenting one person in the SUV and a letter from Sag inaw County ’s prosec uting attorney , an inves t i gat i on of the incident

commence d. Serg eant Allan Og g of the Michig an State Police conducte d a criminal investiga tion,

McDole c ompleted a police repor t after the eve nts occurr ed. 1 2Case Nos. 10-1420/1789

McD ole v. City of Saginaw

and Serg eant Tuer of the City ’s police depar tment conducte d the internal investiga tion. Acc ording
to Tuer and the City ’s police chief , Ger ald Cliff, Og g ’s criminal investiga tion proce eded jointly with Tuer’ s administrative investigation. Acc ording to witnesses and as reve aled during the internal investiga tion, Alejandr o Orne las 2 drove the SUV, Ty Bur

ris was the front passeng er, and Michae l Ca nda was a passeng er in the rea r of the vehicle. The SUV tapped on its brake s when another vehicle closely foll o wed, and Bur ris threw a water bottle out of the window. The driver of the other vehicle, a police office r (McDole ),

swore at them and demande d that they pull over as he pointed a g un at them. The office r threa tened
to kill them and appea

red to g et their license plate number. L ater in the evening , that office r, along with other office rs, arr ived at the same bar Orne las and Bur ris wer e patronizing. McDole handcuf fed Orne las and walked him to the police car . Bur ris exit ed the premises from the rea r. More than one witness repor

ted seeing McDole punch Orne las in the fac e and close the door on Orne las’ leg s. No witness indicated that Orne las resisted in any way . At the jail, the nurse observe d that Orne las had

a chipped tooth and cut lip. At least one office r observe d McDole come to the booking are a, revie w Orne las’ booking sheet, and, at a minimum, attempt to get Or nelas’ attention, if not threa ten him. Additionally , Bur

ris subsequently rec e iv e d th r e a te n in g te le p h o n e c a ll s a

t his persona l phone number. I n fac t, Bur

ris reta ined rec ording s of those messag es. I n his deposition, McDole acknow ledg ed that

McDole disputes some aspec ts of th i s d es cr i p tion, but this rec itation of the events 2 summarizes the fac ts as prese nted in Tuer’ s repor t on the incident. 3Case Nos. 10-1420/1789

McD ole v. City of Saginaw

he left some of those messag es, some of which rec orded simply his brea thing. The last messag e on the tape, w hich McDole admitted to leaving , stated as f ollows: Hey I ’m stallin for y a mutha fucke r, I ’m still here , I ’m still here , I ’m g onna g et y ou mutha fucke r, I

promise I

will ge t y our fuc kin ass y ou mutha fucke r fuc k. The investiga tion found that McDole provided sever al inconsistent statements. So m e o f
t h es e i n co nsistencies involved which vehicle cause d the other vehicle to stop, who left the scen e first, the proxi mity of McDole’ s g un to Bur ris, and how many bottles hit McDole’ s vehicle. Other witnesses also contra dicted McDole’ s asser tions that he did not g o into the bar to detain Orne las, that he had no further contac t with Orne las afte r placing him in the squad car , and that he did not strike Orne las. McDole did admit that he intended to intimi date Orne las by visiti ng him at the jail and that he made four inappropria te phone calls to Bur ris. Tuer’ s repor

t conclude d that McDole had violated

sever al g ener al order s of the police depar tment, including his obliga tion to be truthful to his superiors, to tre at per sons in custody appropr iately , and not to use more tha n rea sonable for ce. On Dec ember 19, 2005, the City ’s office r of employ ee s er v ices ref err ed McDole to an Employ ee Assistance Prog ram (“EA P”). Acc ording to McDole’ s deposition, Tuer direc ted him to make those arr ang ement beca use he was an “ang ry black male.” When McDole hesitated to make the arr ang ements, Tuer contac ted the EAP prog ram and mandated that McDole attend the prog ram. The then-prog ram coordina tor of the EAP prog ram found this ref err al somewhat out of the ordinary beca use, in he r assessment, McDole’ s circ umstances wer e not a s drama tic as others w ho had been
sent for psy cholog ical evalua tions. Dur ing this time, McDole was place d on administrative leave

.

4Case Nos. 10-1420/1789

McD ole v. City of Saginaw

On J anuar

y 3 and 6, 2006, Dr. Z arof f, a psy cholog ist, evalua

ted McDole and conclude d that he met the criter ia for post-traumatic stress disorder (“PTSD”) , m ild sever ity

. McDole repor ted

s l eeplessness and nightmare s rela ted t o the i ncident. The psy cholog ist g ave a good pro gn o s i s fo r

rec overy , which made McDole likely to be fit to return to d u t y af t er a b rief course of thera py . Wit hout the t hera

py , though, the psy cholog ist allowed for t he possi bility that his judgme nt would be im paire d and that he would continue to experience disturbance s in his sleep. Acc ording to the EAP prog ram coordina tor, post-traumatic stress can aff ect decision-making abilities. The EAP coordina tor believe d that McDole should not have participa ted in arr esting Orne las. Police Chief Cliff, Deputy Chief Martin, Personne l D ir e c to r Ra lp h Ca r te r, Serg eant Tuer, and C i t y Attorney s Tom Fa

ncher and Michelle Allen (collec tively the “dec isionmakers”) held a

co n fer ence afte r the conclusion of both investiga tions. Chief Cliff descr ibed the decision t o en d McDole’ s employ

ment as the “re sult” of that confe renc e. After war ds, Carter rec ommended to the city manag er that McDole’ s employ ment be terminated. Tuer descr ibed her role as participa ting in

a discussion and prese nting the finding s of her repor t, but not making any rec ommendat i o n . Acc ording to Deputy Chief Martin, he provided input on the extent of punishment and he sug g ested

a “seve re s u s p en s i o n ” o f not less than ten day s. Chief Cliff maintained that he did not know of McDole’ s diag nosis of PTSD at the time of the decision to end McDole’ s employ ment, but admitted that the personne l direc tor, Carter , would have had that information. The EAP prog ram coordina tor stated that she discussed the PTSD results with Carter befor e the City ended McDole’ s employ ment. Carter did not discuss the EAP evaluation or PTSD results with any of the de cisionmakers.

5Case Nos. 10-1420/1789

McD ole v. City of Saginaw

Acc ording to the city manag er, he revie ws rec ommendations reg arding personne l actions for proce dural compliance

. He g ener ally ag ree s with the rec ommendation if it co m p l i es with the collective barg aining ag ree ment. Wit h respe ct to McDole, the city manag er did not rec all specific s reg arding the situation, althoug h he reme mbere d talking to McDole an d h e did not rec all any ref ere nce to a purported rac ial bias by Tuer during his conver sation with McDole. On Fe bruar y 10, 2006, the City

ended Mc Dole’s e mploy ment, based on the finding s of the interna l investiga tion. Almost a y ear later, on Fe bruar y 7, 2 0 0 7 , a

n a r b it r a to r decide d whether McDole’ s termination

was proper under the police of fice r union’s collec tive barg aining ag ree ment. The arbitra tor found that the City ’s decision to end McDole’ s employ ment was proper and that McDole was terminated with “just cause.” The a

rbitrator’ s decision does not re fer to any alleg ed ra cial bias by

Tuer. I n the instant action, howeve r, McDole alleg ed that Tuer acte d ag ainst him based on a rac ially discriminatory animus. He descr ibed sever al rac ial rema rks that Tuer alleg edly made during his employ ment. McDole said that Tuer observe d, appar ently in the context of working on a prostitution sting opera tion, that only Afric an-A merica n men approa ched her and that no Cauca sians did. Also, McDole said that Tuer alleg edly demande d that his “blac k ass” co n t ri b u te to a fund for a holiday party that she had org anized but that he did not attend. One time, he said, Tuer told him how a book, selec ted by

Opra h’s B ook Club, about a black slave who appe are d white, had r esonate d with her. Tuer then alleg edly expressed her view that, just as in that book, a white person would alway s be in

an authority position over a black person and that, despite McDole’ s potent i al , he would never advanc e in the police depar tm en t

. M oreove r, acc ording to McDole, Tuer stated that an Afric an6Case Nos. 10-1420/1789

McD ole v. City of Saginaw

Americ an could not advanc e in t he police depar tment in light of prior poli ce- depar tment scanda ls in the depar

tment involving Afric an-A merica n leade rship. At another time, McDole alleg es that Tuer reiter ated the view that he would not advanc e beca use of his rac e and her belief that members of his rac e ca

nnot and will not advance to positi ons of authority

. McDole also claimed that Tuer told him that she pref err ed to have television came ras captur e

an Afric an-A merica

n office r making a particula r arr est for publicity rea sons, despite the fac t that the

arr estee was quickly rele ased without citation. McDole also reme mbere d a situation when Tuer alleg edly told a suspect to “shut [hi s] black ass up.” Tuer alleg edly expressed the view that the only white women who date black men are overw eig ht and are “tra sh.” McDole also asser ted that Tuer

once sa id that she would neve r date a blac k man. Once , while off- duty , McDole, Tuer, and two others alleg edly attended an event at a sports

are na, at which Tue r purpor tedly observe d that McDole should “ watch his ba ck” beca use no other Afric an-A merica

ns wer e in attendanc e. Acc ording to McDole, Tuer, who was alleg edly drunk, told him that he would witness “white power” on Monday morning ; the foll owing wee k, McDole sa id that three internal investiga tions pending ag ainst him had been deleted. On another occa sion, during roll call, Tuer alleg edly asked McDole why he was not sitti ng with “his people,” which she clar ified meant blac k people. The only other witness to testify to Tuer having made any ina ppropriate rema

rks was a former p olice office r, Patrick Shaltry

. Shaltry testified that Tuer used the word “nig g er” and ref err ed t o McDole’ s mother as a “moolie” wh en T uer and Shaltry saw her in a restaur ant. Shaltry was also

7Case Nos. 10-1420/1789

McD ole v. City of Saginaw

terminated for miscon d u ct and filed his own lawsuit ag ainst the City for discrimination based on

rac e. McDole said that he complained to his superiors about some of Tuer’ s conduct and rema rks. Acc ording to Mc Dole, his supe riors made clea r their disinterest in his complaints and stated in his evalua tions that he complained that other s were “out to g et him.” McDole filed suit ag ainst the C ity , alleg ing employ ment discrimination ag ainst him based

on rac e, in violation of Title VI I and Michig an state law, and also alleg ing disability discrimination, i n violation of Michig an state law. The district court g rante d summary judgme nt on McDole ’s disability discrimination claim. The rac e discrimination claims proce eded to a jury trial, at the conclusion of which the jury awa rded McDole $950,000 in economic damag es and $50,000 in noneconomic da

mag es. A N A L Y S I S The City did not file any pre-

judgme nt or post-judgme nt motions pursuant to F eder al Rule of Civil Procedur e 50. The City did f ile a motion for a ne w trial pursua nt to Rul e 59. A failure to raise a Rule 50 po s t -j u d gm ent motion bars this Court from direc ting the district court to enter judgme nt contra

ry to the one it had permitted to stand. Cone v. W

. Va. Pulp & Paper Co. , 330 U.S. 212, 218, 67 S. Ct. 752, 756 (1947). I n the event we find any reve rsible err or, the City ’s relief would be limited to a new tria l. Moreove r, in the event this Court finds any mis t ak es m ad e b y the district court, jury instructions can cure the defect. “Although pr ejudice that aff ects the fairne ss of a proce eding can

8Case Nos. 10-1420/1789

McD ole v. City of Saginaw

cer tainly be grounds for a new trial, when such p re j u d ice is cure d by instructions of t he court, the motion for a new trial should be denied.” Holmes v. City of Massillon , 78 F.3d 1041, 1046-47 (6th Cir. 1996) (citations and inter nal quotations omitt ed). I. The district co u rt d id not err by adm itting evidence of McD ole’s EAP evaluation an d McDole’ s diagn osis of P TSD. Prior to trial, the City filed a motion in limine seeking to exclude evidenc e of McDole’ s EAP evalua tion and the PTSD diag nosis by arg uing: a) it was not rele vant; and b) i t wa s h ighly prejudicia l. The district court r uled as follows: At this point , Plaintiff has not shown that either the evalua tion or diag nosis of PTSD is rele vant bey ond the alleg at ion that Def endant require d Plaintiff to underg o the evaluation beca use he was an “ang ry

black man.” Acc ording ly , to the extent that Plaintiff doe s not show that either piece of evidenc e is probative of r ace discrimination at trial, the evidenc e will be excluded under Fe dera l Rule of Evidence 402. (R. 33 at 7.) At trial, the district court a llowed the evide nce, sta ting: The court is satisfied that based on the connec tion betwee n t h e i n i t ial ref ere nces . . . to rac e at the i nception o f t he direction to the EAP , and the fac t that results of the EAP wer e share d with the decision maker s is enoug h to g et it within the rea lm of basic re levanc e. (R. 174 at 5.) The City first arg ues that the EAP evalua tion and diag nosis of PTSD are not rele vant beca use the City never established that the City normally , if ever , co n sidered such information in making employ ment decisions. There fore , the City arg ues, knowledg e of t h e P T SD diag nosis is not

9Case Nos. 10-1420/1789

McD ole v. City of Saginaw probative since it can only be used as evidenc e of rac e discrimination if the City co n s i d er ed such information with other similarly situated employ ees, w hich he did not show. The City also arg ues that the evidenc e should have been excluded under Fe d er al Rule of Evidence 403. I n sum, the City say s that the jury was introduced to the arg ument t h at M cDole’ s punishment was too sever e beca use: a) the City was partially responsible for the incident by sending McDole to assist in the arrest of Orne las; and b) the C ity should have considere d t he P TSD when deter mining the sever ity of McDole’ s punishment. These emotional considerations, the City arg ues, have nothing to do wi t h McDole’ s rac e discrimination claim since the sever ity of McDole’ s punishment w as not at issue. The City also arg ues that the jury instructions did not cur e prejudice resulting from the jury hear ing inadmissible evidenc e. See United States v. Blakene y , 942 F.2d 1001, 1030-31 (6th Cir. 1991) (While “prope rly prepa red cura tive instructions are often sufficie nt to cure any prejudice resulting from the jury hear ing inadmissible evidenc e, . . . cura tive instructions do not

cure all prejudicia l problems”). Evi d en t i ar y ruling s are revie wed for an abuse of discretion, and a district court’s deter mination will be reve rsed only if the abuse of discretion ca u s ed more than harmless err or. Maday v. Pub. Librari es of Saginaw , 480 F.3d 815, 819 (6th Cir. 2007) (citation omitted). “Abuse of discretion is define d as a definite and firm conviction that the trial court committed a clea r err or of judgme nt.” Tobin v. Astra Pharm. Prods. , 993 F.2d 528, 542 (6th Cir. 1993) (citation omitted). More than harmless err or means that the evidenc e would have cause d a diffe rent outcome at trial. Morales v. Am . Honda Motor Co. , 151 F.3d 500, 514 ( 6th Cir. 1998); see also Fe d. R. Civ. P . 61.

10Case Nos. 10-1420/1789

McD ole v. City of Saginaw

“Releva nt” means the evidenc e has any tendenc y to make the exis tence of any fac t that is of conseque nce to the de termination of the a ction more or le ss probable tha n it would be without the evidenc e. F ed. R. Evid. 401. “The standard f or re levanc y

is ‘extremely liberal’ under the Fe dera l Rules of Evidence.” Dortch v. Fowler , 588 F.3d 396, 400 (6th Cir. 2009) (citing United St ates v. W hittingt on , 455 F.3d 736, 738 ( 6th Cir. 2006)). Even rele vant evidenc e should be excluded if its probative value is substantially outweig hed by the dang er of unfair prejudice

. Fe d. R. Evid. 403. “‘U nfair prejudice ’ means an undue tendenc y to sug g est [a] decision on an improper basis, commonly , though not nece ssarily , an emotional one.” W hittingt on , 455 F.3d at 73 9 (citation and quotation omitted). “I n revie wing the trial court’s decision for an abuse of discretion, the appellate court must view the evidenc e in the ligh t most favor able to its proponent, g iving the evidenc e its maxi mum rea sonabl e probative forc e and its minimum rea sonable pre

judicial value.” Id. (citation and quota tion omit ted). A. The district c ourt did not abuse its discretion. The district court did not abuse its discretion by admitting the ev idence of the EAP evalua tion and the PTSD diag nosis. As the district court noted, it is not difficult to see how this evidenc e meets the minimum t hreshold of r eleva nce. T hat the EAP evaluation occur red makes it more likely

that Tuer made the “ang ry black man” comment to McDole reg arding the need for an EAP evalua tion. Moreove r, testimony s h o we d t h at Carter and Tuer knew of the EAP evalua tion and the PTSD diag nosis, but withheld it from the decisionmake rs. Thus, it allowed McDole to arg ue that the City

11Case Nos. 10-1420/1789

McD ole v. City of Saginaw

did not consider the EAP evalua tion or PTSD diag nosis, unlike other employ ees simil arly situated, wher e the de cisionmakers c onsidered a ll of the rele vant circ umstances. Contrary to the City ’s arg ument, Chief Cliff testified that EAP evalua tions wer e utiliz ed “quite often” to ensure that the d isc iplinary members did not overlook any thing. Fur thermore , Carter did not dispute rec eiving the PTSD diag nosis a nd he also testified that he did not share the repor ts when he met with the decisionmake rs sever al wee ks later to terminate McDole’ s employ ment. On top of that, Chief Cliff testified that the EAP evalua tion a nd diag nosis of PTSD c ould ha ve had an impact on the manag ers’ decision to terminate McDole’ s employ ment. All of this testimony makes the evalua tion and diag nosis highly probative beca use it sug g ests that the City normally considere d this ty pe of information when disciplining employ ees, but did not in McDole’ s case , and ultimately terminated McDole on some other ba sis. W hateve r pre judicial and emotional ef fec t the diag nosis of PTSD had on the jury

cannot be said to be unfair prejudice that outweig hs its probative value. There fore , the district court did not commit “cle ar error ” by finding the evidence releva nt,

nor did the district court, viewing the probative value of the evidenc e in the light most favor able to McDole, a

buse its discretion by

not excluding the evide nce unde r Rule 403. B. N o prejudice Second , had the district court commit ted any err or, t he jury instructions cure d any defe ct. The district cour

t provided the following instruction to the jury : An employ er may terminate an employ ee for misconduct, even if the conduct is a manifestation of an employ ee’ s medical condition. Howeve r, if y ou find that it was the ordinary proce dure of the defe ndant to consider such info rm at i o n when making employ

men t d ec i sions, evidenc e the plaintiff was trea ted differ ently may 12Case Nos. 10-1420/1789

McD ole v. City of Saginaw

support an inferenc e of discrimination to the ex tent the di ffe renc e in trea tment can rea sonably

be attributed to ra ce. (R. 119 at 117-18.) This instruction informed the jury that even if McDole’ s actions wer e the result of his PTSD, the jury should not base their decisio n o n their empathy for McDole. Second, the instructions informed the jury to consider the PTSD in deciding whether the City discriminated ag ainst McDole only if the jury first found that the City normally considere d that ty pe of information. The jury was there fore char g ed to first find the PTSD evidenc e rele vant befor e considering it, and then it was told for what purposes it should consider the evidenc e. Th u s , t he district court’s limit ing instruction eff ectively addre ssed the City ’s conce rns that this evidenc e led to a decision based upon “irre levant” evidenc e or a

n impermissible “emotional” ba sis. II. The district court did not err by adm itting evidence of allegedly disp arate tre atm ent. Be fore trial, the City moved in limine to exclude evidenc e reg arding assault alleg ations made ag ainst Offic ers Bic kel and Be ll in a lawsuit filed ag ainst them. T h e City arg ued that the assault alleg ations wer e not sufficie ntly simil ar to the misconduct for which the City terminated McDole to be rele vant. The district court did not immediately rule on the motion and said that the admissibili ty of the evidenc e rema ined open. The district court allowed testimony from McDole and Chief Cliff reg arding the incident to deter mine whether

the fac ts sur

rounding the incident wer e simil ar to that of McDole ’s termination.

13Case Nos. 10-1420/1789

McD ole v. City of Saginaw

The City arg ues that the assault alleg ations wer e admitted throug h improper questioning and hear say . Additionally , the City say s that Bic kel and Be ll are not compar able in all rele vant aspec ts, and there fore cannot be considere d “similarly situated” to McDole. Specifica lly , the City say s that Smith v. Leggett W

ire Co. , 220 F.3d 752 (6th Cir. 2000), and McM illan v. Castro , 405 F.3d 405 (6th Cir. 2005), establish that employ ees are not simil arly situated for purposes of establishing disparate
trea tment wher e they are disciplined by differ ent d ec i s i o n m akers. Her e, neither Tuer, nor Chief Cliff, had any involvement in any decision reg arding Bic kel and Be ll. Fur thermore , the City alleg es that the circ umstances surrounding t h e Bickel and Be ll incident are marke dly differ ent from McDole’ s situation, and thus cannot be c ompare d. First, contra

ry to the City ’s arg ument, this circ uit does not have an inflexi ble require ment that employ ees must have had the same decisionmake r to be “similarly situated.” McM illan , 405 F.3d
at 414. Additionally , bey ond having simil ar decisionmake rs, whether Bic kel and Be ll wer e simil arly situated to McDole was a question that the jury could decide afte r hear ing the testimony

. I n fac t, the district court provided instruc tions to t he jury reg arding this matter. ( See Part I I I , infra .) Second, the district court did not abuse its dis cre tion by allowing evidenc e, via testimony from Chief Cliff (R. 116 at 7 9 -8 1) and McDole (R. 115 at 17-19), reg arding the Bic kel and Be ll incident. When the City objected to the improper form of questions, McDol e’ s co u n s el laid the foundation and altere d the form of his question. Then, when McDole finished questioning eac h of the witnesses reg ard i n g t h i s matter, the City never moved to strike the evidenc e on the basis that Bic kel and B ell did not have similar circ umstances, thus not prese rving the issue.

14Case Nos. 10-1420/1789

McD ole v. City of Saginaw Finally , the district court cure d any p re j u d i ce that occur

red throug h improper questioning with the jury

instructions. The cour

t instructed the jury

as follows: T h e evidenc e in this case includes only what the witnesses said while they wer e testi fy ing under oath, the exhibit s that have be en per mitted into evidenc e and the stipulations that the lawy ers have ag ree d to. Nothing e lse is evidence

. The lawy ers’ statements and arg ume n ts a r e not evidenc e. Their questions and objections are not evidenc e. M y ruling s are not evidenc e. And m y comments and questions are not evidence

. (R. 119 at 106.) This instruction cured the defe ct, if any , due to improper que stioning by McDole. T h e d i s t rict court did not abuse its discretion and a new trial is not war rante d due to t h e introduction of assault alleg ations reg arding Bic kel and B ell. III. The jury instructions do n ot warrant a new trial. A. “Similarly

situated” I nstruction The City arg ues that the district court committed reve rsible err or in instructing t h e j ury reg arding whether other employ ees wer e to be deeme d “similarly situated” to McDole. The district court instructe d the jury

as follows: The plaintiff does not have to produce direc t evidence of intentional discrimination. I ntentional discrimi n at i o n m ay be inferr ed from the exis tence of other fac ts. For example, evidenc e that other employ ees eng ag ed in conduct that was simil ar to the plaintiff’s conduct and wer e disciplined by simil ar decision maker s as the plaintiff may support an infere nce of discrimination t o t he extent that the differ ence in treatment c an re asonably be re lated to ra ce. (R. 119 at 117.)

15Case Nos. 10-1420/1789

McD ole v. City of Saginaw

The City arg ues that the district court err ed beca use “[b] y requiring only simil ar conduct and simil ar decisionmake rs, the instruction established a broade r g roup of pot en t ial compar able employ ees than is supported by the rele vant case law.” (De f.’s Br

. at 40-41.) The City asked for the following instruction:

Th e plaintiff does not have to produce direc t evidenc e of intentional discrimination. I ntentional disc ri m i n at i on may be inferr ed from the exis tence of other fac ts. For example, evide n ce that simil arly situated employ ees wer e trea ted more favor ably than the plaintiff for the same or simil ar conduct m ay support an infere nce of discrimination to th e ex t ent that the differ ence in trea tment can rea sonably

be attributed to ra ce. To be “similarly situated,” the plaintiff and the employ ees to whom he compar es himself do not have to be exactly the same, but they must be simil ar in all rele vant aspec ts. What aspec ts are rele vant depends on the fac ts and circ umstances of this case. Ge nera lly

speaking , rele vant aspe cts include whether the plaintiff and the ot her employ ees dealt with the s ame decisionmak er s , we re subject t o the s ame standards, and eng ag ed in the s ame conduct wit hout differ ent or m i tiga ting factors that would distinguish their conduc t or the employ er’ s treatment of them for it. (R. 62 at 2.) On appea l, the City arg ues that the district cour t erre d by not instructing the jur

y that th e s a me decisionmake rs must be involved and by not instructing the jury that compar able empl o y e e s must have been eng ag ed in the “same conduct” without such differ entiating or mitigating circ umstances that would disting uish their conduct or the City ’s trea tment of them for it. The district court’s ref

usal to g ive a jury instruction is revie wed under an abuse- of- discretion standard. Nolan v. Mem

phis City Schs. , 589 F.3d 257, 264 (6th Cir. 2009). “Appe llate courts do not revie w j ury instructions for technical error .” Cox v. Treadway , 75 F.3d 230, 234 (6th Cir. 1996). I nstead, we “‘r eview the jury char g e as a whole to deter mine whether it fairly and adequately submits the issues and the law to the jury .’” Id. (quoting Un i t ed S t a t es v. Carr , 5 F.3d 986, 992 (6th Cir. 16Case Nos. 10-1420/1789

McD ole v. City of Saginaw 1993)). A new trial is require d only when “the instructions, taken as a whole, are misleading or g ive

an inadequa te understanding of the law.” Arban v. W est Publ’g Corp. , 345 F.3d 390, 404 (6th Cir. 2003). A ref

usal to g ive a reque sted jury instruction is reve rsible err or only if three conditions are satisfied. First, the omitted instruction must be a corr ect statement of the law. Second, the instruction must not be substantially cover ed by other delivere d char g es. Third, the failure to g ive the instruction must impair the reque sting party ’s theory of the c ase. Cox , 75 F.3d a t 234 (citing Carr , 5 F.3d a t 992). The City ’s proposed instruction is larg ely quoted from our decision in Mitchell v. Toledo Hospital , 964 F.2d 577, 583 (6th Cir. 1992). This lang uag e has b ee n u sed in some case s in the summary -judg ment context, as a standard for deter mining whether a plaintiff has satisfied the fourth element of

a prima f acie case or whether the plaintiff has shown pr etext. W e have never held that it is require d as a jury instruction, howeve r. Whether a plaintiff has made out a prima fac ie case or has shown prete x t are aspects of the McD onnell-Douglas fra mework for allocating the burden of production, and we have held that a district court is not require d to instruct the jury as to McD onnellDouglas

. S

ee , e. g. , W

illiams v. Eau Claire Pub. Sch. , 397 F.3d 441, 446 (6th Cir. 2005). Once a d i scrimination case has proce eded to trial, the core issue befor e the jury is “whe ther it fi n d s b y a preponde ranc e of the evidenc e that the employ er intentionally discriminated ag ainst the plaintiff,”
not whether the plaintiff has made a prima fac ie case or has s h o wn p re t ex t

. Brown v. Pack aging Corp. of Am. , 338 F.3d 586, 597 n.3 (6th Cir. 2 0 0 3 ) (citi ng United States Postal Serv. Bd. of Gove rnors v. Aikens , 460 U.S. 711, 715 (1983))

. The City does not contend that, as a whol e, the

17Case Nos. 10-1420/1789

McD ole v. City of Saginaw

district court’s instructions did not proper ly instruct the jury as to “the u l t i m at e i s sue of discrimination vel non.” Aikens , 460 U.S. at 714. I ndeed, the district court was not require d to g ive a “similarly situated” instruction to the jury at all. None of our si ster circuits’ pattern jury instructions fo r T itle VI I case s include ins tructions

on how the jury should deter mine whether other employ ees are simil arly situated. See Third Circuit Model Civil J ury I nstructions §§ 5.0, 5.1.1, 5.1.2 (2011); Fifth Circuit Pattern J ury I nstruct io n s : Civil § 11.5.1 (2009); Seventh Circuit Fe dera l Civil J ury I nstructions § 3.01 (2009); Eig hth Circuit Civil J ury I nstructions § 5.01 (2012); Ninth Circuit Model Civil J ury I nstructions §§ 10.1A-10.1C (2012); Eleventh Circuit Pattern J ury I nstructions: Civil § 1.2.1 (2005); s ee also Michig an Civil J ury I nstructions § 105.01 (2011). Although we do not have pattern civil jury instructions in this circ uit,

we have approve d jury instructions in Title VI I case s that do not co n t ain “similarly situated” instructions. See, e .g. , W illiams , 397 F.3d a

t 444. Even in the summary -judg ment context wher e it normally appea rs, the lang uag e in Mitchell is not an “inflex ible require ment.” Bobo v. United Parcel Serv., Inc. , 665 F.3d 741, 751 (6th Cir. 2012). Contrary to what the City arg ues, for example, there is no mandatory require ment that a plaintiff deal with the same decisionmake r as those deeme d “simi l ar l y s i t u ated.” McM illan , 405 F.3d at 414. The “same conduct without differ ent or mitigating fac tors” lang uag e that the City uses in its proposed instruction is best suited for situations in which the plaintiff and a fellow employ ee eng ag ed in identical conduct but with differ ent conseque nces, see, e.g. , Clayton v. Meijer, Inc. , 281 F.3d 605, 612 & n.4 (6th Cir. 2002), but that is not the only situation in which the conduct of other

18Case Nos. 10-1420/1789

McD ole v. City of Saginaw employ ees is compar able. Other cases have required conduct t hat i s of “compara ble s eriousness”

or is “ simil ar in kind and sever ity .” Bobo , 665 F.3d at 751. We ha ve consistently held that “exact

corr elation” is not require d. Id. ; Ercegov ich v. Goodye ar Tire & Rubber Co. , 154 F.3d 344, 352 (6th Cir. 1998). When compar ing em ploy ee conduct, “‘pr ecise equivalenc e in culpability ’ is not require d.” Macy v. Hopkins County Sch. Bd. of Educ. , 484 F.3d 357, 370-371 & n.9 (6th Cir. 2007) (quoting McD onald v. Santa Fe Trail Tr ansp. Co. , 427 U.S. 273, 283 n. 11 (1976)). Finally , we note that the jury instructions that wer e g iven substantially cover ed the omitted instruction. The jury instructions said that “similar” conduct can be compar ed to McDole’ s “to the extent that a differ ence in treatment c an reasonably be attributed to rac e.” This inst ruction cove rs situations wher e employ ees eng ag ed in simil ar conduct, but wi th differ entiating or mitigating circ umstances. By comply ing with the se instructions, a juror would not “ rea sonably ” attribute the differ ence in trea tment to rac e, but would do so beca use of the dif

fe re n t i ating or mitigating circ umstances. Thus, this lang uag e cover s the instructions that the City arg ues that the district court omitted. Moreove r, the instructions simply indicate that “similar” conduct should be compar ed, and jurors ca n decide for themse lves what they believe to be “similar” c onduct to that of McDole ’s. There fore , the district court did not abuse its discretion by omitti ng the jury instructions that the City reque sted. B. Honest B elief Rule The City arg ues that the district cour t erre d when it fa iled to instruct the jury reg arding the “honest be lief” r

ule. This rule is as follows:

19Case Nos. 10-1420/1789

McD ole v. City of Saginaw [A] s long as an employ er has an honest belief in its proff ere d nondis cr i m i n at ory rea son for discharg ing an employ ee, the employ ee cannot establ i s h that the rea son was pre text ual simply

beca use it is ulti mately

shown to be i ncorr ect. An e mploy er has an honest belief in its rea son for discharg ing an em ploy ee wher e the employ er rea sonably relied “on the particula rized fac ts that wer e befor e it at the time the decision wa s made.” Majewski v. Automatic Data P r o ce s s i n g, Inc. , 274 F.3d 1106, 1117 (6th Cir. 2001) (citations omitted). The Ci ty contends that this rule has particula r application to this case wh er e the parties introduced conflicting evidenc e whether M cDole assaulted Orne las. There fore , the City arg ues, whether the City mistakenly believed that the assault occur red should not have been an issue so long as it honestly

believed so. Thus, City

proposed the f

ollowing instruction: I f y ou find that the defe ndant honestly believed that the plaintiff committed the acts for which he was discharg ed, the defe ndant is not liable, even if the defe ndant was mistaken, and y ou must find for the d ef en d ant. The discrimination statutes allow employ ers to disc harg e employ ees f or almost any rea son whatsoeve r (eve n a mistaken but honest belief) as long as the rea son is not illega l discrimination. Thus, when an employ ee is d i s charg ed beca use of an employ er’ s honest mistake, both state and fe dera l antidiscrimination laws offe r the e mploy ee no pr otection. (R

. 6 2 at 1.) The City contends that the lack of a proper instruction “allowe d the J ury to gi v e impermissible weig ht to its finding on the fac tual question of whether Plaintiff assaulted Orne las.” (De f.’s B r. at 48.) The district court’s ref

usal to g ive a jury instruction is revie wed under an abuse of discretion standard. Nolan , 589 F.3d at 264. “Appe llate cour ts do not revie w j ury instructions for technical

err or.” Cox , 75 F.3d at 234. I nstead, we “‘r eview the jury char g e as a whole to deter mine whether it fairly and adequately submits the issues and the law to the jury .’” Id. (quoting Carr , 5 F.3d at 992).

20Case Nos. 10-1420/1789

McD ole v. City of Saginaw

A new trial is only require d when the instructions taken as a wh o l e ar e misleading or g ive an inadequa te under standing of the law

. Arban , 345 F.3d 390 a t 404.

A ref usal to g ive a reque sted jury instruction is reve rsible err or only if three conditions are satisfied. First, the omitted instruction must be a corr ect statement of the law. Second, the instruction must not be substantially cover ed by other delivere d char g es. Third, the failure to g ive the instruction must impair the reque sting party ’s theory of the c ase. Cox , 75 F.3d a t 234 (citing Carr , 5 F.3d a t 992). The district court did not abuse its discretion by omitti ng the h o n es t b elief rule in its jury instructions. For one, the district court thought, in its discretion, that such an instruction could have

cause d confusion. The district court noted that the City ’s justification of termination included more than just the confr ontation betwee n McDole a nd Orne las at the time of Or nelas’ a rre st. Moreove r, the district court’s jury instructions substantially cover ed the honest belief rule beca use the district cour

t clear ly informed the jur

y that rac e discrimination must be intentional: To preva il on his c laims, the plaintiff must prove by a preponde ranc e of the evidenc e that the defe ndant intentionally discriminated ag ainst him beca use of rac e. The discrimination must have been intentional. I t cannot have occurre d by acc ident

. I n t enti onal discrimination means one of the motives or rea sons for the plaintiff’s discha

rg e wa s rac e. (R. 119 at 116.) These instructions substantially cover the h o n est belief rule: it does not matter whether the City mistakenly believed McDole assaulted Orne las; i t o n ly matters if the City intentionally discriminated aga inst McDole based upon his rac e. Furthermor e, the dist rict court’s “mix ed motive” instruction substantially cover s the hon e s t b elief rule. The mix ed motive instruction instructed the jury to not find any damag es for McDole if the City would have terminated McDole 21Case Nos. 10-1420/1789

McD ole v. City of Saginaw

reg ardle ss of his rac e. That is, if the City mistakenly believed M cD o l e h i t Orne las, and based its decision on this incident, t hen the jury should not find any

damag es for

McDole. This instruction substantially cover ed the honest belief rul e, an d avoided the confusion that conce rned the district
court. IV. The district court did not err by fai ling to appl y collater al estoppel to McD ole’s

state -law claim in order to bar re- litigation of factual issues decided in McD ole’s arbitration grievance . Upon being terminated, McDole filed a g rieva nce wh i ch was submitt ed to arbitra tion pursuant to his co l l ec t i v e barg aining ag ree ment. I n the arbitra tion, the police-of fice r union repr esented McDole. The scope of the arbitra tion was limit ed to deter mining whether McDole’ s termination violated the c ollective bar g aining ag ree ment. The district court held that McDole was not barr ed from re- litigating fac tual issues decide d in the arbitra tion of his g rieva nce pursuant to a labor ag ree ment. The district court made this finding with respe ct t o both McDole’ s fede ral and state-law claims. The Ci ty chal l en ges only the di strict court’s f inding with re spect to McDole ’s state-la w claim. “[T] he availability of collater al estoppel is a mix ed question of law and fac t which this court revie ws de novo.” W

olfe v. Perry , 412 F.3d 7 0 7 , 7 1 6 (6t h Cir. 2005) (citation and quotation omitted). Upon revie w, the district cour t’s analy sis of this is sue is corr ect. I n Arslanian v. Oakwood United Hospitals, Inc. , 618 N.W.2d 380 (Mich. Ct. App. 2000), the court conclude d that collater al estoppel does not prec lude litigation of fac tual issues decide d in a labor arbitra tion g overn ed b y a collective barg aining ag ree ment when the plaintiff s ubsequently

22Case Nos. 10-1420/1789

McD ole v. City of Saginaw bring s a lawsuit alleg ing violations of state civil rig hts statutes. Id. at 385. This conclusion is 3 deter minative on the issue bef ore us. As the distri ct co u rt noted, the two case s that the City relies on, Porter v. Royal Oak , 542 N.W.2d 905 (Mich. Ct. App. 1995), and Cole v. W est Side Auto Employe es Fede ral Credit Union , 583 N.W.2d 226 (Mich. Ct. App. 1998), have meaning ful distinctions. Her e, unlike those case s, the plaintiff was repr esente d by a union in the prior arbitra tion, the prior ar bitration was limited to the collective barg aining ag ree ment, and the plaintiff subsequently alleg ed civil rig hts claims. I ndeed,

as Arslanian noted , “the differ ence betwee n arbitra tion ag ree ments arising in the context of a collective barg aining ag ree ment a n d th o s e a r is in g o u t o f in d iv id

u a l e mp lo y

ment contra cts” is critica l. Arslanian , 618 N.W.2d at 382. V. The district court did not abus e its discretion wh en it adm itted cer tain hearsay state m ents. The City arg

ues that the district court abused its discretion when it admitte d s ev era l
statements made by McDole while he testified. McD o l e t es tified that other office rs told him: Or n el as and his family wer e li ke a “drug family ” with a “huge entoura g e” and a “cr ime sy nd i ca t e reputa tion” (R. 115 at 100); as a drug family , “[t] hey have influence with people that want to make

a name and they use these people to do their dirty work” ( id. at 101); and, Orne las was a “hug e crime

This Court also follows this approa ch with respe ct to fede ral claims. See Nance v. 3 Goodye ar Tire & Rubber Co. , 527 F.3d 539, 547 (6th Cir. 2008); Alexande r v. Gardner-D enve r Co. , 415 U.S. 36, 94 S. Ct. 1011 (1974) (Title VI I claims); Gomez- Mesquita v. City of Detroit , No.06- 12844, 2007 WL 2225859 (E.D. Mich. Aug . 2, 2007) (f inding collatera l estoppel di d not apply to either plaintiff’s fede ral or state st atutory civil rig hts claims when the pr ior arbitra tion proce eding was broug ht on behalf of

the plaintiff by

the union). 23Case Nos. 10-1420/1789

McD ole v. City of Saginaw fig ure” ( id. ). The City contends that the district c ourt’s failure to strike this testimony “re sulted in the J ury hear ing prejudicia l information about a ce n t ral witness in the case throug h inadmissible hear say .” (D ef.’ s Br . at 56.) I nitially , the City

does not put forth any

arg ument why the admission of this hearsa y led to more than ha

rmless err or. The he arsa

y reg arding Orne las is very tang ential to the ca se; rea lly , the entire event involving Orne las is tang ential to the question whether McDole was terminated based

o n h i s race. Second, as the district court noted, the statements wer e not being used to prove t h at Orne las was in fac t a hug e crime fig ure in the community ; it was being used to show McDole’ s state of mind reg arding these people. There fore , since they wer e not used to prove the truth of the matter

asser ted, the stateme nts w ere not he arsa y , and thus a dmissibl e. Third, even if the statements we re hear say , the district court c o r r e c tl y a ll owed the statements under Fe dera l Rule of Evidence 801(d)( 2), as the off icer s are ag ents of the c ity

. The City also arg ues that the district c ourt improperly allowed McDole to te stify reg arding
statements made by Christine Br ennan, the EAP prog ram coordina tor. McDole testified that Br ennan told him that the EAP ref err al was “fishy ,” and that Tuer called Br ennan and said that she wanted a “neg ative” repor t and that McDole is “not g oing to come off as a nice g uy , he’s a neg ative g uy .” (R. 174 at 115- 16.) Ag ain, the City does not opine how striking this testimony would have aff ecte d the outcome of the trial. Even if these particula r statements wer e ex cl u d ed , McDole testified to a plethora of other stateme nts that Tuer a lleg edly made r eg arding McDole’ s rac e.

24Case Nos. 10-1420/1789

McD ole v. City of Saginaw Second, the district court did not abuse its discretion by finding that the statements fell within Fe dera l Rule of Evidence 801(d)( 2). I n its discretion, afte r hear ing arg uments from both parties, the district court d eter

mined that Ms. Br ennan was a “re prese ntative” of the City , and there fore her
statements fell within Rule 801(d)( 2). (R. 174 at 8-15); see Fe d. R. Evid. 801(d)( 2)(D) (a statement is not hear say if it is offe red ag ainst a party and is made by the party ’s ag ent); Bec k v. Haik , 377 F.3d 624, 639-40 (6th Cir. 2004) (finding that courts have held contra ctors and advisors to fall within the “ag ency ” re lationship contemplated by Rule 801(d)(2) (D)) (re verse d on other g rounds). VI. The district court did not a b u s e i ts discretion wh en it allow ed an unl isted wi tness to te stify. At trial, McDole called witness Ruben Vasque z, a former fellow police office r of McDole’ s. The City objected to McDole calling Va s q u ez b ec ause McDole had failed to list Vasque z on any witness list, including the J oint Final Pretrial Orde r. Vasque z testified reg arding two matters. First, Vasque z’s testimony provided a link in a chain of evidenc e reg arding whether Tuer had knowledg e, prior to McDole’ s termination, that Orne las had used rac ial slurs when ref err ing to McDole afte r the “incident” occur

red. Vasque z linked the testimony of Denise Dutoi to Tuer. Denise Dutoi testified that she saw Orne las in a bar afte r t he incident and Ornelas said, ref err ing to McDole, “Fuc k that, fuck that nigg er.” (R. 117 at 57.) Moreove r, Dutoi testified she rela y ed this information to Vasque z. ( Id. at 72.) Howeve r, Dutoi’s testimony was only rele vant if Tuer had knowledg e of these fac ts prior
to McDole’ s termination. Vasque z testified that he informed Tuer of Orne las’ rac ial slurs reg arding McDole befor e McDole’ s termination. ( Id. at 102-104.) Second, Vasque z testified that he provided Tuer w ith information reg arding McDole’ s PTSD. (R. 118 at 7.)

25Case Nos. 10-1420/1789

McD ole v. City of Saginaw

Under Fe dera l Rule of Civil Procedur e 26(a) (3), a party must provide to the other parties and file the names of witnesses it may prese nt at trial, and must separ ately identify tho s e wi t nesses it expects to prese nt and those it may call if the need arises

. I f a party fails to identify a witness as require d by Rules 26(a) and (e) , the party is not allowed to use that witness at trial unless the failure was subst antially justified or i s harmless

. Fe d

. R

. C iv. P. 37(c) (1). A di strict court’s decision on Rule 37 sanctions is revie wed for abuse of discretion. Sommer v. Davis , 317 F.3d 686, 692 (6th Cir. 2003). The district court did not abuse its discretion by finding that the failure to list Vasque z as a witness was s u b s t an t i al ly justified. Wit h reg ard to the first portion of Vasque z’s testimony , the district c ourt hear d McDole’ s counsel state tha t, immediately befor e calling Vasque z, counse l ha d just lear ned “five m inutes” earlier of Vasque z’s releva nt testimony . (R. 117 at 75.) Fur thermore , McDole’ s counsel stat ed t h at he did not know of Vasque z ear lier beca use neither Tuer nor Cliff mentioned rec eiving this information from Vasque z in their depositions. ( Id

. ) Thus, the district
court did not think that Vasque z’s testimony could have been rea son ab ly anticipated. Moreove r, befor e allowing Vasquez to testify , the C ity ’s counse l informed the district court of the s ubject of his testimony , and the court found it rele vant to the case . ( Id. at 76.) The court considere d all of this information, and in its discretion, d ecide d that McDole’ s failure to list Vasque z as a witness was substantially

justified. The district c ourt’s g ather ing of information to make an inf ormed de cision does not amount to an abuse of discre tion.

26Case Nos. 10-1420/1789

McD ole v. City of Saginaw

Nor did t h e district court abuse its discretion by allowing Vasque z’s testimony that he informed Tuer of McDole’ s PTSD diag nosis. McDole’ s counsel said that h e co u l d n ot have anticipated this testimony prior to trial. (R. 118 at 2.) More over, he informed the district c ourt of the testi m ony prior to Vasque z testify ing about it. ( Id. at 3.) The district court found it rele vant beca use the testimony sug g ests that Tuer knew of the P T S D d i agnosi s, but hid it from the decisionmake rs who primarily relied on Tuer’ s report for McDole’ s termination. ( Id. at 5.) The
court considere d arg

ument from both sides, including McDole’ s counsel’s rea son for not comply ing with Rule 26, and, in its discretion, found McDole’ s rea son for not listi ng the witness substantially justified. There fore , the district court did not abuse its discre tion in allowing Va squez to testify

. VII. The di strict

court did not err when it di d not reduce the jury’s fu ture dam age award to p rese nt value. The City objected to the district court’s judgme nt beca use it did not reduc e the jury ’s awa rd

o f fu t u re d am age s to prese nt value. (R. 71.) The City arg ues that the jury awa rd of $950,000 in economic damag es should be reduc ed to $798,192, to ref lect the prese nt value of future damag es. 4 Notably , the verdict form does not distinguish b et we en fu t ure damag es and past damag es and the jury instructions did n o t i n fo rm t h e jury to reduc e future damage s to prese nt value. Additionally , befor e the ver d i ct , t he City never raised an objection reg arding the verdic t form or the jury instructions on the issue of reduc ing future damag es to pr esent value. The district court over ruled the objection and e ntere d judgme nt without reducing any portion of the aw ard to pre sent value.

The parties do not dispute that, if the Court wer e to discount the fu t u re d amage s to its 4 prese nt value, $798,192 would be the corr ect a mount. 27Case Nos. 10-1420/1789

McD ole v. City of Saginaw

Future damag es, whether under Michig an or fede ral law, must be reduc ed to prese nt value. See M I C H . C O M P . L A W S . § 600.6306; Suggs v. Servic eMaster Educ. Food Mgmt. , 72 F.3d 1228, 1235 (6th Cir. 1996); Skalka v. Fernald Envtl. Restoration Mgmt. Corp. , 178 F.3d 414, 426 (6th Cir. 1999) (explaining that the Six th Circuit has been “vig ilant in corr ecting juries’ failure s to discount damag es to present va lue”)

. I n Rodgers v. Fisher Body Division , 739 F.2d 1102, 1106 (6t h C i r. 1 9 8 4 ), this Court sua sponte held that the district c ourt committed pla in e rror by failing to instruc t the jury to discount a future damag e awa

rd to prese nt value. I n Rodgers , neither party proposed a jury instruction that an

awa rd of future damag es must be reduc ed to prese nt value and neither party objected to the trial court’s instructions on compensa tory damag es. Id. Fur thermore , the court rema

nded by raising the issue sua sponte beca

use of the “plain err or” that was obvious due to the “shocking ly larg e” verdic t and said that the awa

rd aff ecte d the fairne ss and integ rity of the judicial proce ss. Id. But see Kokesh

v. Am. Steamship Co. , 747 F.2d 1092, 1095-96 (6th Cir. 1984) (the appellate court need not corr ect such an e rror sua sponte ). Kokesh clar ified t hat whether t he failure to g ive such a n instruction amounts to plain err or depends on the s pecif

ic circumstances of

eac h case

. Kokesh , 747 F.2d at 1096; Hawthorne Educ. Servs., Inc. v. Friedman , No. 98-2235, 2000 WL 799339, at *5 (6th Cir. J une 8, 2000) (unpublished opinion); Pulliam v. Shelby Cty. , 902 F.Supp 797, 804 (W.D. Tenn. 1995). I n Kokesh , decide d four months afte r Rodgers , neither party objected t o the jury instructions omitti ng an instruction to discount a future damag e awa rd and, as a result, the jury awa rd was not discounted to prese nt value.

28Case Nos. 10-1420/1789

McD ole v. City of Saginaw

The court noted t hat a trial st ra t egy i s t o have a s imple verdic t form without requiring the j ury to calc u l at e prese nt value, or another strateg y is to fore g o putting an expert on the stand to testify reg arding damag es. Kokesh , 747 F.2d a t 1095-96. The court went on to say , “[w]e see no rea son to question the jury instruction s s o l ely beca use they did not include a char g e on reduc ing future damag es to prese nt worth, an instruction which neither party reque sted or evidently desired.” Id. at 1096. Ultimately , the court said that, while the damag es awa rd was “g ener ous, it was supported by sufficie nt proof in the case, and was not shocking ly larg e,” a nd thus “no err or, pl ain or otherwise, produce d it.” Id

. No par ty objected to the jury instructions or verdict form prior to the ve rdict and, thus, the plain err or standard applies. The d i s t ri ct court did not commit plain err or. First, like Kokesh , no

err or produce d th e aw ar d beca use the jury verdic t was supported by the evidenc e that McDole’ s expert put forth. The awa rd of $950,000 for economic damag es corr esponds to the amount of

ear nings McDole’ s expert projec ted McDole would have ear ned had he continued working for the City throug h the ag e of forty -eig ht, the ag e McDole testified that he wanted to retire

. Second, unlike Rodgers , the awa

rd wa s not “shocking ly

larg e.” There fore , we hold that the district court did not commit plain err or by ref using to discount the jury awa rd to its present value

.

29Case Nos. 10-1420/1789

McD ole v. City of Saginaw

VIII. The di strict

court did not err by not awardin g attor ney fees to Mc Dole. 5 Two authorities a

re important to resolve t his issue. First, “the court, in its discretion, may allow the preva iling p ar t y , o t h er than the United States, a rea sonable attorney ’s fee as part of the
costs

. . . .” 42 U.S.C. § 1988(b). Second, United States District Court for t he Eastern Dist rict of Michig an L ocal Rule 54.1.2(b) provides: A m oti o n fo r aw ard of attorney fee s shall be supported by a memorandum brief as to the authority of the court to make such an awa rd,

. . . an aff

idavit of counsel setting out in detail the number of hours spent on each as pect of the case , the rate customarily char g ed by counsel for such work, the preva iling rat e ch an g ed in the community for simil ar service s, and any other fac tors which the court should consider in making the awa rd. E.D. Mich. L R 54.1.2(b). I n essenc e, the L ocal Ru l e al lows the district court to calc ulate the lodestar amount. Wit h these aut h o ri t i es in mind, the following events occur red reg arding McDole’ s postverdic t motion for attorney fee s. First Motion for Attorne y Fe es

! Marc h 3, 2009, the jury returne d a verdic t in favor of McDol e aw ar d i n g him $1,000,000.

! Marc h 13, 2009, McDole fi l ed a motion for attorney fee s. (R. 68.) He soug ht $335,108.91, the amount his counsel would have been paid pursuant to their

This is the sole issue on McDole’s c ross appe al–appe al number 10- 1789. 5 30Case Nos. 10-1420/1789

McD ole v. City of Saginaw

conting enc y ag ree ment. He provided no supporting information to calc ulate the lodestar amount, or law to support his re quest for the conting ency amount.

! Marc h 30, 2009, the district court gra n t ed McDole’ s stipulated reque st for an extension of time, and direc ted McDole to comply with L ocal Rule 54.1.2(b) and to provide leg al support for his c ontinge ncy amount reque st.

! McDole replied but still did not pr ovide the requisite information require d in L ocal Rule 54.1.2(b).

! The district court denied McDole’ s motion for attorney fee s beca use McDole did not provide sufficie nt information reg arding fac tors rele vant under either fede ral or state law for the ca lculation of an a

war d of attorne y

fee s. (R. 81.) Renewe d Motion to R econside r

! De ce m b er 15, 2009, McDole filed a rene wed motion for attorney fee s. (R. 99.) McDole soug ht a rate of $750/hour, which “is consistent with a one third conting ency fee .” ( Id. at 13.) He still did not comply with L ocal Rule 54.1.2(b)

. ! J anuar

y 7, 2 0 1 0 , McDole filed a reply to the C ity ’s response, and included, for the first time, a

n aff idavit f rom an outside attorney stating the “fe es and costs soug ht is

rea sonable” based upon his profe ssional knowledg e o f co unsel’s capa biliti es. (R. 102.)

31Case Nos. 10-1420/1789

McD ole v. City of Saginaw

! Fe bruar

y 8, 2010, the district court struck the aff idavit, primarily b ec au se it was prese nted for the first t i m e in a reply brief, which did not furnish the City an opportunity

to respond.

! Marc h 5, 2010, the district court denied McDole’ s rene wed motion, explaining that McDole once ag ain did not provide the information that the court neede d to make a

rea sonable c alculation of a ttorney fee s. (R. 108.) Motion for Evidentiary

Hea ring on Renewe d Motion

! M ar ch 5, 2010, the district court denied the motion beca use McDole still had no t submitt ed the required information of “the rate customarily char g ed by

counsel for such work” and “the preva iling rate char g ed in the community for simil ar service s.” Another Motion for A ttorney Fe es

! Marc h 10, 2010, McDole f iled a motion for attorne y fee s pursuant to Mich. Comp. L aw s § 37.2802, which gra nts a court the di scre tion to awa rd “reasona

ble attor n ey fee s” whe n appropr iate.

! The City responde d by arg uing McDole did not seek leave of court to file this third motion fo r a

ttor ney fee s and did not establish g ood cause for previous noncompliance with L ocal Rule 54.1.2(b)

. ! The district court denied the motion (R. 110), and declined to consider McDole’ s arg uments beca

use McDole did “not advanc e[] any rationale to suppor

t the belated

32Case Nos. 10-1420/1789

McD ole v. City of Saginaw

submissi on of new materia ls and advanc ement of new arg uments.” The district court stated: Plaintiff made a decision to seek the full amount of his conting ency fee as an attorney fee awa

rd while ref

using to provide the detailed information that would allow t he C o u rt to calc ulate a lodestar awar d. Notably , Plaintiff not only pursued this strateg y in his initial motion for attorney fee s, he continued to pursue it afte r the Court specific ally reque sted the detailed information to be provided in a sur-re ply brief and ag ain in his rene wed motion for attorney fee s. Having made a decision to seek an amount equal to his conting ency fee and to ref use to comply with the local rule, Plaintiff is not entitled to y et a third “bite at the a

pple.” (R. 124 at 7.) A district court’s ruling with reg ard to a motion fo r at torney fee s is revie wed for abuse of discretion. Chernin v. W elchans , 844 F.2d 322, 330 (6th Cir

. 1 9 88). As McDole points out, a preva iling party in a civil rig hts action should ordinarily , absent specia l circ umstances, be awa rded attorney fee s. See I

ndep. Fe d’n of Flight Attendants v. Zipes , 491 U.S. 754, 759, 109 S. C t. 2732, 2735 (1989); Morscott v. City of Cleveland , 936 F.2d 271, 273 ( 6th Cir. 1991). Her e, specia l circ umstances exis ted. First, McDole ref used on multipl e occa sions to provide

a single motion with all of the appropria te information to ca lculate a rea sonable lodestar amount. Second, McDole put forth no arg ument that the district court err ed in declining to consider his final motion for attorney fee s due to a lack of “g ood cause ” for not comply ing with the pertinent rules in prior motions. Thus, this Court, like the district court, does not have the requisite information befor e it to calc ulate a rea sonable amount if it wished to do so. Third, providing the requisite information
to the di strict court in order to comply with L ocal R u l e 54.1.2 is a basic task for an attorney

. I t is

33Case Nos. 10-1420/1789

McD ole v. City of Saginaw specia l and rar e for a preva iling party to g o to such lengt h s t o ref use to comply with a court rule–e specia lly in the face of almost assure d l y being g rante d some awa rd after such compliance

. L ast, contra

ry to McDole’ s numerous mot ions to the di strict court, the exis tence of a co n t i ng ency ag ree ment betwee n the plaintiff and his attorney does not w a r r ant abandoning the lodestar approa ch. See Fuhr v. Sch. Dist. of the City of Hazel Park , 364 F.3d 753, 762 (6th Cir. 2004). There fore , the district court did not abuse its discre tion in deny ing Mc Dole’s motion for a ttorney fee s. C O N C L U S I O N On all issues, the district court is AF F IRMED.

34