Danny McDole v. City of Saginaw

Filing

OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. Karen Nelson Moore, Richard Allen Griffin, Circuit Judges and Gordon J. Quist (Authoring), U.S. Senior District Judge, for the Western District of Michigan, sitting by designation. [10-1420, 10-1789]

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0327n.06
Nos. 10-1420, 10-1789

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Mar 26, 2012

DANNY MCDOLE,
Plaintiff-Appellee-Cross Appellant,
v.
CITY OF SAGINAW,
Defendant-Appellant-Cross Appellee.

BEFORE:

)
)
)
)
)
)
)
)
)

LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
OPINION

MOORE and GRIFFIN, Circuit Judges; and QUIST, Senior District Judge.*

QUIST, District Judge.
This is an appeal from a jury verdict in favor of Plaintiff Danny McDole. Defendant City of
Saginaw terminated McDole following an internal affairs investigation led by Sergeant Anjanette
Tuer, regarding an incident involving McDole and his subsequent conduct. The jury found that by
terminating McDole’s employment the City of Saginaw discriminated against McDole because of
his race, and awarded McDole $1,000,000. For the reasons set forth below, we affirm.
BACKGROUND
On February 10, 2006, Defendant, the City of Saginaw (the “City”), terminated Plaintiff,
Danny McDole (“McDole”), from his position as a police officer. McDole, an African American,

*

The Honorable Gordon J. Quist, United States Senior District Judge for the Western District
of Michigan, sitting by designation.

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 2

Case Nos. 10-1420/1789
McDole v. City of Saginaw
filed suit. The crux of McDole’s discrimination complaint alleges that Sergeant Anjanette Tuer, who
conducted the internal investigation of the event, repeatedly demonstrated a racial bias against him.
The investigation that led to McDole’s firing arose out of an event involving McDole that
occurred on October 14, 2005. According to McDole,1 while driving to work on October 14, 2005,
a sport utility vehicle (“SUV”) pulled up next to his car and someone in the SUV shouted racial
epithets at him and threw two bottles at his vehicle. The SUV kept pace with McDole’s vehicle,
slowing down and speeding up with it. McDole said that one of the passengers was apparently
intoxicated and hanging out of a window. McDole turned on his dome light to reveal his police
uniform to the passengers in the SUV, which only escalated the situation. When the SUV cut him
off, McDole exited his vehicle with his weapon drawn, and he identified himself as a police officer.
The passengers in the SUV expressed concern that McDole was a police officer and shouted requests
that he not shoot them. The SUV then sped off. McDole was able to obtain the SUV’s license plate
number. Shortly thereafter, while continuing to work, McDole said that the SUV returned and
followed his vehicle closely. Subsequently, McDole and other police officers located the driver of
the vehicle and took him to jail. The criminal charges against the driver and a passenger were later
dismissed.
In response to a letter from the criminal defense attorney representing one person in the SUV
and a letter from Saginaw County’s prosecuting attorney, an investigation of the incident
commenced. Sergeant Allan Ogg of the Michigan State Police conducted a criminal investigation,

1

McDole completed a police report after the events occurred.
2

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 3

Case Nos. 10-1420/1789
McDole v. City of Saginaw
and Sergeant Tuer of the City’s police department conducted the internal investigation. According
to Tuer and the City’s police chief, Gerald Cliff, Ogg’s criminal investigation proceeded jointly with
Tuer’s administrative investigation.
According to witnesses and as revealed during the internal investigation,2 Alejandro Ornelas
drove the SUV, Ty Burris was the front passenger, and Michael Canda was a passenger in the rear
of the vehicle. The SUV tapped on its brakes when another vehicle closely followed, and Burris
threw a water bottle out of the window. The driver of the other vehicle, a police officer (McDole),
swore at them and demanded that they pull over as he pointed a gun at them. The officer threatened
to kill them and appeared to get their license plate number. Later in the evening, that officer, along
with other officers, arrived at the same bar Ornelas and Burris were patronizing. McDole handcuffed
Ornelas and walked him to the police car. Burris exited the premises from the rear. More than one
witness reported seeing McDole punch Ornelas in the face and close the door on Ornelas’ legs. No
witness indicated that Ornelas resisted in any way. At the jail, the nurse observed that Ornelas had
a chipped tooth and cut lip. At least one officer observed McDole come to the booking area, review
Ornelas’ booking sheet, and, at a minimum, attempt to get Ornelas’ attention, if not threaten him.
Additionally, Burris subsequently received threatening telephone calls at his personal phone number.
In fact, Burris retained recordings of those messages. In his deposition, McDole acknowledged that

2

McDole disputes some aspects of this description, but this recitation of the events
summarizes the facts as presented in Tuer’s report on the incident.
3

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 4

Case Nos. 10-1420/1789
McDole v. City of Saginaw
he left some of those messages, some of which recorded simply his breathing. The last message on
the tape, which McDole admitted to leaving, stated as follows:
Hey I’m stallin for ya mutha fucker, I’m still here, I’m still here, I’m gonna get you
mutha fucker, I promise I will get your fuckin ass you mutha fucker fuck.
The investigation found that McDole provided several inconsistent statements. Some of
these inconsistencies involved which vehicle caused the other vehicle to stop, who left the scene
first, the proximity of McDole’s gun to Burris, and how many bottles hit McDole’s vehicle. Other
witnesses also contradicted McDole’s assertions that he did not go into the bar to detain Ornelas, that
he had no further contact with Ornelas after placing him in the squad car, and that he did not strike
Ornelas. McDole did admit that he intended to intimidate Ornelas by visiting him at the jail and that
he made four inappropriate phone calls to Burris. Tuer’s report concluded that McDole had violated
several general orders of the police department, including his obligation to be truthful to his
superiors, to treat persons in custody appropriately, and not to use more than reasonable force.
On December 19, 2005, the City’s officer of employee services referred McDole to an
Employee Assistance Program (“EAP”). According to McDole’s deposition, Tuer directed him to
make those arrangement because he was an “angry black male.” When McDole hesitated to make
the arrangements, Tuer contacted the EAP program and mandated that McDole attend the program.
The then-program coordinator of the EAP program found this referral somewhat out of the ordinary
because, in her assessment, McDole’s circumstances were not as dramatic as others who had been
sent for psychological evaluations. During this time, McDole was placed on administrative leave.

4

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 5

Case Nos. 10-1420/1789
McDole v. City of Saginaw
On January 3 and 6, 2006, Dr. Zaroff, a psychologist, evaluated McDole and concluded that
he met the criteria for post-traumatic stress disorder (“PTSD”), mild severity. McDole reported
sleeplessness and nightmares related to the incident. The psychologist gave a good prognosis for
recovery, which made McDole likely to be fit to return to duty after a brief course of therapy.
Without the therapy, though, the psychologist allowed for the possibility that his judgment would
be impaired and that he would continue to experience disturbances in his sleep. According to the
EAP program coordinator, post-traumatic stress can affect decision-making abilities. The EAP
coordinator believed that McDole should not have participated in arresting Ornelas.
Police Chief Cliff, Deputy Chief Martin, Personnel Director Ralph Carter, Sergeant Tuer, and
City Attorneys Tom Fancher and Michelle Allen (collectively the “decisionmakers”) held a
conference after the conclusion of both investigations. Chief Cliff described the decision to end
McDole’s employment as the “result” of that conference. Afterwards, Carter recommended to the
city manager that McDole’s employment be terminated. Tuer described her role as participating in
a discussion and presenting the findings of her report, but not making any recommendation.
According to Deputy Chief Martin, he provided input on the extent of punishment and he suggested
a “severe suspension” of not less than ten days. Chief Cliff maintained that he did not know of
McDole’s diagnosis of PTSD at the time of the decision to end McDole’s employment, but admitted
that the personnel director, Carter, would have had that information. The EAP program coordinator
stated that she discussed the PTSD results with Carter before the City ended McDole’s employment.
Carter did not discuss the EAP evaluation or PTSD results with any of the decisionmakers.

5

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 6

Case Nos. 10-1420/1789
McDole v. City of Saginaw
According to the city manager, he reviews recommendations regarding personnel actions for
procedural compliance. He generally agrees with the recommendation if it complies with the
collective bargaining agreement. With respect to McDole, the city manager did not recall specifics
regarding the situation, although he remembered talking to McDole and he did not recall any
reference to a purported racial bias by Tuer during his conversation with McDole. On February 10,
2006, the City ended McDole’s employment, based on the findings of the internal investigation.
Almost a year later, on February 7, 2007, an arbitrator decided whether McDole’s termination
was proper under the police officer union’s collective bargaining agreement. The arbitrator found
that the City’s decision to end McDole’s employment was proper and that McDole was terminated
with “just cause.” The arbitrator’s decision does not refer to any alleged racial bias by Tuer.
In the instant action, however, McDole alleged that Tuer acted against him based on a racially
discriminatory animus. He described several racial remarks that Tuer allegedly made during his
employment. McDole said that Tuer observed, apparently in the context of working on a prostitution
sting operation, that only African-American men approached her and that no Caucasians did. Also,
McDole said that Tuer allegedly demanded that his “black ass” contribute to a fund for a holiday
party that she had organized but that he did not attend. One time, he said, Tuer told him how a book,
selected by Oprah’s Book Club, about a black slave who appeared white, had resonated with her.
Tuer then allegedly expressed her view that, just as in that book, a white person would always be in
an authority position over a black person and that, despite McDole’s potential, he would never
advance in the police department. Moreover, according to McDole, Tuer stated that an African-

6

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 7

Case Nos. 10-1420/1789
McDole v. City of Saginaw
American could not advance in the police department in light of prior police-department scandals
in the department involving African-American leadership. At another time, McDole alleges that
Tuer reiterated the view that he would not advance because of his race and her belief that members
of his race cannot and will not advance to positions of authority.
McDole also claimed that Tuer told him that she preferred to have television cameras capture
an African-American officer making a particular arrest for publicity reasons, despite the fact that the
arrestee was quickly released without citation. McDole also remembered a situation when Tuer
allegedly told a suspect to “shut [his] black ass up.” Tuer allegedly expressed the view that the only
white women who date black men are overweight and are “trash.” McDole also asserted that Tuer
once said that she would never date a black man.
Once, while off-duty, McDole, Tuer, and two others allegedly attended an event at a sports
arena, at which Tuer purportedly observed that McDole should “watch his back” because no other
African-Americans were in attendance. According to McDole, Tuer, who was allegedly drunk, told
him that he would witness “white power” on Monday morning; the following week, McDole said
that three internal investigations pending against him had been deleted. On another occasion, during
roll call, Tuer allegedly asked McDole why he was not sitting with “his people,” which she clarified
meant black people.
The only other witness to testify to Tuer having made any inappropriate remarks was a former
police officer, Patrick Shaltry. Shaltry testified that Tuer used the word “nigger” and referred to
McDole’s mother as a “moolie” when Tuer and Shaltry saw her in a restaurant. Shaltry was also

7

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 8

Case Nos. 10-1420/1789
McDole v. City of Saginaw
terminated for misconduct and filed his own lawsuit against the City for discrimination based on
race.
McDole said that he complained to his superiors about some of Tuer’s conduct and remarks.
According to McDole, his superiors made clear their disinterest in his complaints and stated in his
evaluations that he complained that others were “out to get him.”
McDole filed suit against the City, alleging employment discrimination against him based
on race, in violation of Title VII and Michigan state law, and also alleging disability discrimination,
in violation of Michigan state law. The district court granted summary judgment on McDole’s
disability discrimination claim. The race discrimination claims proceeded to a jury trial, at the
conclusion of which the jury awarded McDole $950,000 in economic damages and $50,000 in noneconomic damages.
ANALYSIS
The City did not file any pre-judgment or post-judgment motions pursuant to Federal Rule
of Civil Procedure 50. The City did file a motion for a new trial pursuant to Rule 59. A failure to
raise a Rule 50 post-judgment motion bars this Court from directing the district court to enter
judgment contrary 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). In the event we find any reversible error, the City’s relief would
be limited to a new trial.
Moreover, in the event this Court finds any mistakes made by the district court, jury
instructions can cure the defect. “Although prejudice that affects the fairness of a proceeding can

8

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 9

Case Nos. 10-1420/1789
McDole v. City of Saginaw
certainly be grounds for a new trial, when such prejudice is cured by instructions of the 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 internal quotations omitted).
I.

The district court did not err by admitting evidence of McDole’s EAP
evaluation and McDole’s diagnosis of PTSD.

Prior to trial, the City filed a motion in limine seeking to exclude evidence of McDole’s EAP
evaluation and the PTSD diagnosis by arguing: a) it was not relevant; and b) it was highly
prejudicial. The district court ruled as follows:
At this point, Plaintiff has not shown that either the evaluation or diagnosis
of PTSD is relevant beyond the allegation that Defendant required Plaintiff to
undergo the evaluation because he was an “angry black man.” Accordingly, to the
extent that Plaintiff does not show that either piece of evidence is probative of race
discrimination at trial, the evidence will be excluded under Federal Rule of Evidence
402.
(R. 33 at 7.)
At trial, the district court allowed the evidence, stating:
The court is satisfied that based on the connection between the initial
references . . . to race at the inception of the direction to the EAP, and the fact that
results of the EAP were shared with the decision makers is enough to get it within the
realm of basic relevance.
(R. 174 at 5.)
The City first argues that the EAP evaluation and diagnosis of PTSD are not relevant because
the City never established that the City normally, if ever, considered such information in making
employment decisions. Therefore, the City argues, knowledge of the PTSD diagnosis is not

9

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 10

Case Nos. 10-1420/1789
McDole v. City of Saginaw
probative since it can only be used as evidence of race discrimination if the City considered such
information with other similarly situated employees, which he did not show.
The City also argues that the evidence should have been excluded under Federal Rule of
Evidence 403. In sum, the City says that the jury was introduced to the argument that McDole’s
punishment was too severe because: a) the City was partially responsible for the incident by sending
McDole to assist in the arrest of Ornelas; and b) the City should have considered the PTSD when
determining the severity of McDole’s punishment. These emotional considerations, the City argues,
have nothing to do with McDole’s race discrimination claim since the severity of McDole’s
punishment was not at issue. The City also argues that the jury instructions did not cure prejudice
resulting from the jury hearing inadmissible evidence. See United States v. Blakeney, 942 F.2d 1001,
1030-31 (6th Cir. 1991) (While “properly prepared curative instructions are often sufficient to cure
any prejudice resulting from the jury hearing inadmissible evidence, . . . curative instructions do not
cure all prejudicial problems”).
Evidentiary rulings are reviewed for an abuse of discretion, and a district court’s
determination will be reversed only if the abuse of discretion caused more than harmless error.
Maday v. Pub. Libraries of Saginaw, 480 F.3d 815, 819 (6th Cir. 2007) (citation omitted). “Abuse
of discretion is defined as a definite and firm conviction that the trial court committed a clear error
of judgment.” Tobin v. Astra Pharm. Prods., 993 F.2d 528, 542 (6th Cir. 1993) (citation omitted).
More than harmless error means that the evidence would have caused a different outcome at trial.
Morales v. Am. Honda Motor Co., 151 F.3d 500, 514 (6th Cir. 1998); see also Fed. R. Civ. P. 61.

10

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 11

Case Nos. 10-1420/1789
McDole v. City of Saginaw
“Relevant” means the evidence has any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than it would be without the
evidence. Fed. R. Evid. 401. “The standard for relevancy is ‘extremely liberal’ under the Federal
Rules of Evidence.” Dortch v. Fowler, 588 F.3d 396, 400 (6th Cir. 2009) (citing United States v.
Whittington, 455 F.3d 736, 738 (6th Cir. 2006)).
Even relevant evidence should be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice. Fed. R. Evid. 403. “‘Unfair prejudice’ means an undue tendency
to suggest [a] decision on an improper basis, commonly, though not necessarily, an emotional one.”
Whittington, 455 F.3d at 739 (citation and quotation omitted). “In reviewing the trial court’s
decision for an abuse of discretion, the appellate court must view the evidence in the light most
favorable to its proponent, giving the evidence its maximum reasonable probative force and its
minimum reasonable prejudicial value.” Id. (citation and quotation omitted).
A. The district court did not abuse its discretion.
The district court did not abuse its discretion by admitting the evidence of the EAP evaluation
and the PTSD diagnosis. As the district court noted, it is not difficult to see how this evidence meets
the minimum threshold of relevance. That the EAP evaluation occurred makes it more likely that
Tuer made the “angry black man” comment to McDole regarding the need for an EAP evaluation.
Moreover, testimony showed that Carter and Tuer knew of the EAP evaluation and the PTSD
diagnosis, but withheld it from the decisionmakers. Thus, it allowed McDole to argue that the City

11

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 12

Case Nos. 10-1420/1789
McDole v. City of Saginaw
did not consider the EAP evaluation or PTSD diagnosis, unlike other employees similarly situated,
where the decisionmakers considered all of the relevant circumstances.
Contrary to the City’s argument, Chief Cliff testified that EAP evaluations were utilized
“quite often” to ensure that the disciplinary members did not overlook anything. Furthermore, Carter
did not dispute receiving the PTSD diagnosis and he also testified that he did not share the reports
when he met with the decisionmakers several weeks later to terminate McDole’s employment. On
top of that, Chief Cliff testified that the EAP evaluation and diagnosis of PTSD could have had an
impact on the managers’ decision to terminate McDole’s employment. All of this testimony makes
the evaluation and diagnosis highly probative because it suggests that the City normally considered
this type of information when disciplining employees, but did not in McDole’s case, and ultimately
terminated McDole on some other basis. Whatever prejudicial and emotional effect the diagnosis
of PTSD had on the jury cannot be said to be unfair prejudice that outweighs its probative value.
Therefore, the district court did not commit “clear error” by finding the evidence relevant,
nor did the district court, viewing the probative value of the evidence in the light most favorable to
McDole, abuse its discretion by not excluding the evidence under Rule 403.
B. No prejudice
Second, had the district court committed any error, the jury instructions cured any defect.
The district court provided the following instruction to the jury:
An employer may terminate an employee for misconduct, even if the conduct
is a manifestation of an employee’s medical condition. However, if you find that it
was the ordinary procedure of the defendant to consider such information when
making employment decisions, evidence the plaintiff was treated differently may
12

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 13

Case Nos. 10-1420/1789
McDole v. City of Saginaw
support an inference of discrimination to the extent the difference in treatment can
reasonably be attributed to race.
(R. 119 at 117-18.)
This instruction informed the jury that even if McDole’s actions were the result of his PTSD,
the jury should not base their decision on their empathy for McDole. Second, the instructions
informed the jury to consider the PTSD in deciding whether the City discriminated against McDole
only if the jury first found that the City normally considered that type of information. The jury was
therefore charged to first find the PTSD evidence relevant before considering it, and then it was told
for what purposes it should consider the evidence. Thus, the district court’s limiting instruction
effectively addressed the City’s concerns that this evidence led to a decision based upon “irrelevant”
evidence or an impermissible “emotional” basis.
II.

The district court did not err by admitting evidence of allegedly disparate
treatment.

Before trial, the City moved in limine to exclude evidence regarding assault allegations made
against Officers Bickel and Bell in a lawsuit filed against them. The City argued that the assault
allegations were not sufficiently similar to the misconduct for which the City terminated McDole to
be relevant. The district court did not immediately rule on the motion and said that the admissibility
of the evidence remained open. The district court allowed testimony from McDole and Chief Cliff
regarding the incident to determine whether the facts surrounding the incident were similar to that
of McDole’s termination.

13

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 14

Case Nos. 10-1420/1789
McDole v. City of Saginaw
The City argues that the assault allegations were admitted through improper questioning and
hearsay. Additionally, the City says that Bickel and Bell are not comparable in all relevant aspects,
and therefore cannot be considered “similarly situated” to McDole. Specifically, the City says that
Smith v. Leggett Wire Co., 220 F.3d 752 (6th Cir. 2000), and McMillan v. Castro, 405 F.3d 405 (6th
Cir. 2005), establish that employees are not similarly situated for purposes of establishing disparate
treatment where they are disciplined by different decisionmakers. Here, neither Tuer, nor Chief
Cliff, had any involvement in any decision regarding Bickel and Bell. Furthermore, the City alleges
that the circumstances surrounding the Bickel and Bell incident are markedly different from
McDole’s situation, and thus cannot be compared.
First, contrary to the City’s argument, this circuit does not have an inflexible requirement that
employees must have had the same decisionmaker to be “similarly situated.” McMillan, 405 F.3d
at 414. Additionally, beyond having similar decisionmakers, whether Bickel and Bell were similarly
situated to McDole was a question that the jury could decide after hearing the testimony. In fact, the
district court provided instructions to the jury regarding this matter. (See Part III, infra.)
Second, the district court did not abuse its discretion by allowing evidence, via testimony
from Chief Cliff (R. 116 at 79-81) and McDole (R. 115 at 17-19), regarding the Bickel and Bell
incident. When the City objected to the improper form of questions, McDole’s counsel laid the
foundation and altered the form of his question. Then, when McDole finished questioning each of
the witnesses regarding this matter, the City never moved to strike the evidence on the basis that
Bickel and Bell did not have similar circumstances, thus not preserving the issue.

14

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 15

Case Nos. 10-1420/1789
McDole v. City of Saginaw
Finally, the district court cured any prejudice that occurred through improper questioning
with the jury instructions. The court instructed the jury as follows:
The evidence in this case includes only what the witnesses said while they
were testifying under oath, the exhibits that have been permitted into evidence and
the stipulations that the lawyers have agreed to. Nothing else is evidence.
The lawyers’ statements and arguments are not evidence. Their questions and
objections are not evidence. My rulings are not evidence. And my comments and
questions are not evidence.
(R. 119 at 106.)
This instruction cured the defect, if any, due to improper questioning by McDole.
The district court did not abuse its discretion and a new trial is not warranted due to the
introduction of assault allegations regarding Bickel and Bell.
III.

The jury instructions do not warrant a new trial.
A. “Similarly situated” Instruction

The City argues that the district court committed reversible error in instructing the jury
regarding whether other employees were to be deemed “similarly situated” to McDole. The district
court instructed the jury as follows:
The plaintiff does not have to produce direct evidence of intentional
discrimination. Intentional discrimination may be inferred from the existence of
other facts. For example, evidence that other employees engaged in conduct that was
similar to the plaintiff’s conduct and were disciplined by similar decision makers as
the plaintiff may support an inference of discrimination to the extent that the
difference in treatment can reasonably be related to race.
(R. 119 at 117.)

15

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 16

Case Nos. 10-1420/1789
McDole v. City of Saginaw
The City argues that the district court erred because “[b]y requiring only similar conduct and
similar decisionmakers, the instruction established a broader group of potential comparable
employees than is supported by the relevant case law.” (Def.’s Br. at 40-41.) The City asked for the
following instruction:
The plaintiff does not have to produce direct evidence of intentional
discrimination. Intentional discrimination may be inferred from the existence of
other facts. For example, evidence that similarly situated employees were treated
more favorably than the plaintiff for the same or similar conduct may support an
inference of discrimination to the extent that the difference in treatment can
reasonably be attributed to race.
To be “similarly situated,” the plaintiff and the employees to whom he
compares himself do not have to be exactly the same, but they must be similar in all
relevant aspects. What aspects are relevant depends on the facts and circumstances
of this case. Generally speaking, relevant aspects include whether the plaintiff and
the other employees dealt with the same decisionmakers, were subject to the same
standards, and engaged in the same conduct without different or mitigating factors
that would distinguish their conduct or the employer’s treatment of them for it.
(R. 62 at 2.) On appeal, the City argues that the district court erred by not instructing the jury that
the same decisionmakers must be involved and by not instructing the jury that comparable employees
must have been engaged in the “same conduct” without such differentiating or mitigating
circumstances that would distinguish their conduct or the City’s treatment of them for it.
The district court’s refusal to give a jury instruction is reviewed under an abuse-of- discretion
standard. Nolan v. Memphis City Schs., 589 F.3d 257, 264 (6th Cir. 2009). “Appellate courts do not
review jury instructions for technical error.” Cox v. Treadway, 75 F.3d 230, 234 (6th Cir. 1996).
Instead, we “‘review the jury charge as a whole to determine whether it fairly and adequately submits
the issues and the law to the jury.’” Id. (quoting United States v. Carr, 5 F.3d 986, 992 (6th Cir.
16

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 17

Case Nos. 10-1420/1789
McDole v. City of Saginaw
1993)). A new trial is required only when “the instructions, taken as a whole, are misleading or give
an inadequate understanding of the law.” Arban v. West Publ’g Corp., 345 F.3d 390, 404 (6th Cir.
2003).
A refusal to give a requested jury instruction is reversible error only if three
conditions are satisfied. First, the omitted instruction must be a correct statement of
the law. Second, the instruction must not be substantially covered by other delivered
charges. Third, the failure to give the instruction must impair the requesting party’s
theory of the case.
Cox, 75 F.3d at 234 (citing Carr, 5 F.3d at 992).
The City’s proposed instruction is largely quoted from our decision in Mitchell v. Toledo
Hospital, 964 F.2d 577, 583 (6th Cir. 1992). This language has been used in some cases in the
summary-judgment context, as a standard for determining whether a plaintiff has satisfied the fourth
element of a prima facie case or whether the plaintiff has shown pretext. We have never held that
it is required as a jury instruction, however. Whether a plaintiff has made out a prima facie case or
has shown pretext are aspects of the McDonnell-Douglas framework for allocating the burden of
production, and we have held that a district court is not required to instruct the jury as to McDonnellDouglas. See, e.g., Williams v. Eau Claire Pub. Sch., 397 F.3d 441, 446 (6th Cir. 2005). Once a
discrimination case has proceeded to trial, the core issue before the jury is “whether it finds by a
preponderance of the evidence that the employer intentionally discriminated against the plaintiff,”
not whether the plaintiff has made a prima facie case or has shown pretext. Brown v. Packaging
Corp. of Am., 338 F.3d 586, 597 n.3 (6th Cir. 2003) (citing United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 715 (1983)). The City does not contend that, as a whole, the

17

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 18

Case Nos. 10-1420/1789
McDole v. City of Saginaw
district court’s instructions did not properly instruct the jury as to “the ultimate issue of
discrimination vel non.” Aikens, 460 U.S. at 714.
Indeed, the district court was not required to give a “similarly situated” instruction to the jury
at all. None of our sister circuits’ pattern jury instructions for Title VII cases include instructions
on how the jury should determine whether other employees are similarly situated. See Third Circuit
Model Civil Jury Instructions §§ 5.0, 5.1.1, 5.1.2 (2011); Fifth Circuit Pattern Jury Instructions: Civil
§ 11.5.1 (2009); Seventh Circuit Federal Civil Jury Instructions § 3.01 (2009); Eighth Circuit Civil
Jury Instructions § 5.01 (2012); Ninth Circuit Model Civil Jury Instructions §§ 10.1A-10.1C (2012);
Eleventh Circuit Pattern Jury Instructions: Civil § 1.2.1 (2005); see also Michigan Civil Jury
Instructions § 105.01 (2011). Although we do not have pattern civil jury instructions in this circuit,
we have approved jury instructions in Title VII cases that do not contain “similarly situated”
instructions. See, e.g., Williams, 397 F.3d at 444.
Even in the summary-judgment context where it normally appears, the language in Mitchell
is not an “inflexible requirement.” Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 751 (6th Cir.
2012). Contrary to what the City argues, for example, there is no mandatory requirement that a
plaintiff deal with the same decisionmaker as those deemed “similarly situated.” McMillan, 405
F.3d at 414. The “same conduct without different or mitigating factors” language that the City uses
in its proposed instruction is best suited for situations in which the plaintiff and a fellow employee
engaged in identical conduct but with different consequences, 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

18

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 19

Case Nos. 10-1420/1789
McDole v. City of Saginaw
employees is comparable. Other cases have required conduct that is of “comparable seriousness”
or is “similar in kind and severity.” Bobo, 665 F.3d at 751. We have consistently held that “exact
correlation” is not required. Id.; Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th
Cir. 1998). When comparing employee conduct, “‘precise equivalence in culpability’ is not
required.” Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357, 370-371 & n.9 (6th Cir. 2007)
(quoting McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n. 11 (1976)).
Finally, we note that the jury instructions that were given substantially covered the omitted
instruction. The jury instructions said that “similar” conduct can be compared to McDole’s “to the
extent that a difference in treatment can reasonably be attributed to race.” This instruction covers
situations where employees engaged in similar conduct, but with differentiating or mitigating
circumstances. By complying with these instructions, a juror would not “reasonably” attribute the
difference in treatment to race, but would do so because of the differentiating or mitigating
circumstances. Thus, this language covers the instructions that the City argues that the district court
omitted. Moreover, the instructions simply indicate that “similar” conduct should be compared, and
jurors can decide for themselves what they believe to be “similar” conduct to that of McDole’s.
Therefore, the district court did not abuse its discretion by omitting the jury instructions that
the City requested.
B.

Honest Belief Rule

The City argues that the district court erred when it failed to instruct the jury regarding the
“honest belief” rule. This rule is as follows:

19

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 20

Case Nos. 10-1420/1789
McDole v. City of Saginaw
[A]s long as an employer has an honest belief in its proffered nondiscriminatory
reason for discharging an employee, the employee cannot establish that the reason
was pretextual simply because it is ultimately shown to be incorrect. An employer
has an honest belief in its reason for discharging an employee where the employer
reasonably relied “on the particularized facts that were before it at the time the
decision was made.”
Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) (citations
omitted). The City contends that this rule has particular application to this case where the parties
introduced conflicting evidence whether McDole assaulted Ornelas. Therefore, the City argues,
whether the City mistakenly believed that the assault occurred should not have been an issue so long
as it honestly believed so. Thus, City proposed the following instruction:
If you find that the defendant honestly believed that the plaintiff committed
the acts for which he was discharged, the defendant is not liable, even if the
defendant was mistaken, and you must find for the defendant. The discrimination
statutes allow employers to discharge employees for almost any reason whatsoever
(even a mistaken but honest belief) as long as the reason is not illegal discrimination.
Thus, when an employee is discharged because of an employer’s honest mistake,
both state and federal antidiscrimination laws offer the employee no protection.
(R. 62 at 1.) The City contends that the lack of a proper instruction “allowed the Jury to give
impermissible weight to its finding on the factual question of whether Plaintiff assaulted Ornelas.”
(Def.’s Br. at 48.)
The district court’s refusal to give a jury instruction is reviewed under an abuse of discretion
standard. Nolan, 589 F.3d at 264. “Appellate courts do not review jury instructions for technical
error.” Cox, 75 F.3d at 234. Instead, we “‘review the jury charge as a whole to determine whether
it fairly and adequately submits the issues and the law to the jury.’” Id. (quoting Carr, 5 F.3d at 992).

20

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 21

Case Nos. 10-1420/1789
McDole v. City of Saginaw
A new trial is only required when the instructions taken as a whole are misleading or give an
inadequate understanding of the law. Arban, 345 F.3d 390 at 404.
A refusal to give a requested jury instruction is reversible error only if three
conditions are satisfied. First, the omitted instruction must be a correct statement of
the law. Second, the instruction must not be substantially covered by other delivered
charges. Third, the failure to give the instruction must impair the requesting party’s
theory of the case.
Cox, 75 F.3d at 234 (citing Carr, 5 F.3d at 992).
The district court did not abuse its discretion by omitting the honest belief rule in its jury
instructions. For one, the district court thought, in its discretion, that such an instruction could have
caused confusion. The district court noted that the City’s justification of termination included more
than just the confrontation between McDole and Ornelas at the time of Ornelas’ arrest.
Moreover, the district court’s jury instructions substantially covered the honest belief rule
because the district court clearly informed the jury that race discrimination must be intentional:
To prevail on his claims, the plaintiff must prove by a preponderance of the
evidence that the defendant intentionally discriminated against him because of race.
The discrimination must have been intentional. It cannot have occurred by
accident. Intentional discrimination means one of the motives or reasons for the
plaintiff’s discharge was race.
(R. 119 at 116.) These instructions substantially cover the honest belief rule: it does not matter
whether the City mistakenly believed McDole assaulted Ornelas; it only matters if the City
intentionally discriminated against McDole based upon his race. Furthermore, the district court’s
“mixed motive” instruction substantially covers the honest belief rule. The mixed motive instruction
instructed the jury to not find any damages for McDole if the City would have terminated McDole
21

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 22

Case Nos. 10-1420/1789
McDole v. City of Saginaw
regardless of his race. That is, if the City mistakenly believed McDole hit Ornelas, and based its
decision on this incident, then the jury should not find any damages for McDole. This instruction
substantially covered the honest belief rule, and avoided the confusion that concerned the district
court.
IV.

The district court did not err by failing to apply collateral estoppel to McDole’s
state-law claim in order to bar re-litigation of factual issues decided in McDole’s
arbitration grievance.

Upon being terminated, McDole filed a grievance which was submitted to arbitration
pursuant to his collective bargaining agreement. In the arbitration, the police-officer union
represented McDole. The scope of the arbitration was limited to determining whether McDole’s
termination violated the collective bargaining agreement.
The district court held that McDole was not barred from re-litigating factual issues decided
in the arbitration of his grievance pursuant to a labor agreement. The district court made this finding
with respect to both McDole’s federal and state-law claims. The City challenges only the district
court’s finding with respect to McDole’s state-law claim.
“[T]he availability of collateral estoppel is a mixed question of law and fact which this court
reviews de novo.” Wolfe v. Perry, 412 F.3d 707, 716 (6th Cir. 2005) (citation and quotation
omitted). Upon review, the district court’s analysis of this issue is correct.
In Arslanian v. Oakwood United Hospitals, Inc., 618 N.W.2d 380 (Mich. Ct. App. 2000),
the court concluded that collateral estoppel does not preclude litigation of factual issues decided in
a labor arbitration governed by a collective bargaining agreement when the plaintiff subsequently

22

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 23

Case Nos. 10-1420/1789
McDole v. City of Saginaw
brings a lawsuit alleging violations of state civil rights statutes. Id. at 385.3 This conclusion is
determinative on the issue before us.
As the district court noted, the two cases that the City relies on, Porter v. Royal Oak, 542
N.W.2d 905 (Mich. Ct. App. 1995), and Cole v. West Side Auto Employees Federal Credit Union,
583 N.W.2d 226 (Mich. Ct. App. 1998), have meaningful distinctions. Here, unlike those cases, the
plaintiff was represented by a union in the prior arbitration, the prior arbitration was limited to the
collective bargaining agreement, and the plaintiff subsequently alleged civil rights claims. Indeed,
as Arslanian noted, “the difference between arbitration agreements arising in the context of a
collective bargaining agreement and those arising out of individual employment contracts” is critical.
Arslanian, 618 N.W.2d at 382.
V.

The district court did not abuse its discretion when it admitted certain hearsay
statements.

The City argues that the district court abused its discretion when it admitted several
statements made by McDole while he testified. McDole testified that other officers told him:
Ornelas and his family were like a “drug family” with a “huge entourage” and a “crime syndicate
reputation” (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, Ornelas was a “huge crime

3

This Court also follows this approach with respect to federal claims. See Nance v.
Goodyear Tire & Rubber Co., 527 F.3d 539, 547 (6th Cir. 2008); Alexander v. Gardner-Denver Co.,
415 U.S. 36, 94 S. Ct. 1011 (1974) (Title VII claims); Gomez-Mesquita v. City of Detroit, No.0612844, 2007 WL 2225859 (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).
23

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 24

Case Nos. 10-1420/1789
McDole v. City of Saginaw
figure” (id.). The City contends that the district court’s failure to strike this testimony “resulted in
the Jury hearing prejudicial information about a central witness in the case through inadmissible
hearsay.” (Def.’s Br. at 56.)
Initially, the City does not put forth any argument why the admission of this hearsay led to
more than harmless error. The hearsay regarding Ornelas is very tangential to the case; really, the
entire event involving Ornelas is tangential to the question whether McDole was terminated based
on his race. Second, as the district court noted, the statements were not being used to prove that
Ornelas was in fact a huge crime figure in the community; it was being used to show McDole’s state
of mind regarding these people. Therefore, since they were not used to prove the truth of the matter
asserted, the statements were not hearsay, and thus admissible. Third, even if the statements were
hearsay, the district court correctly allowed the statements under Federal Rule of Evidence 801(d)(2),
as the officers are agents of the city.
The City also argues that the district court improperly allowed McDole to testify regarding
statements made by Christine Brennan, the EAP program coordinator. McDole testified that
Brennan told him that the EAP referral was “fishy,” and that Tuer called Brennan and said that she
wanted a “negative” report and that McDole is “not going to come off as a nice guy, he’s a negative
guy.” (R. 174 at 115-16.)
Again, the City does not opine how striking this testimony would have affected the outcome
of the trial. Even if these particular statements were excluded, McDole testified to a plethora of
other statements that Tuer allegedly made regarding McDole’s race.

24

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 25

Case Nos. 10-1420/1789
McDole v. City of Saginaw
Second, the district court did not abuse its discretion by finding that the statements fell within
Federal Rule of Evidence 801(d)(2). In its discretion, after hearing arguments from both parties, the
district court determined that Ms. Brennan was a “representative” of the City, and therefore her
statements fell within Rule 801(d)(2). (R. 174 at 8-15); see Fed. R. Evid. 801(d)(2)(D) (a statement
is not hearsay if it is offered against a party and is made by the party’s agent); Beck v. Haik, 377 F.3d
624, 639-40 (6th Cir. 2004) (finding that courts have held contractors and advisors to fall within the
“agency” relationship contemplated by Rule 801(d)(2)(D)) (reversed on other grounds).
VI.

The district court did not abuse its discretion when it allowed an unlisted
witness to testify.

At trial, McDole called witness Ruben Vasquez, a former fellow police officer of McDole’s.
The City objected to McDole calling Vasquez because McDole had failed to list Vasquez on any
witness list, including the Joint Final Pretrial Order. Vasquez testified regarding two matters. First,
Vasquez’s testimony provided a link in a chain of evidence regarding whether Tuer had knowledge,
prior to McDole’s termination, that Ornelas had used racial slurs when referring to McDole after the
“incident” occurred. Vasquez linked the testimony of Denise Dutoi to Tuer. Denise Dutoi testified
that she saw Ornelas in a bar after the incident and Ornelas said, referring to McDole, “Fuck that,
fuck that nigger.” (R. 117 at 57.) Moreover, Dutoi testified she relayed this information to Vasquez.
(Id. at 72.) However, Dutoi’s testimony was only relevant if Tuer had knowledge of these facts prior
to McDole’s termination. Vasquez testified that he informed Tuer of Ornelas’ racial slurs regarding
McDole before McDole’s termination. (Id. at 102-104.) Second, Vasquez testified that he provided
Tuer with information regarding McDole’s PTSD. (R. 118 at 7.)
25

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 26

Case Nos. 10-1420/1789
McDole v. City of Saginaw
Under Federal Rule of Civil Procedure 26(a)(3), a party must provide to the other parties and
file the names of witnesses it may present at trial, and must separately identify those witnesses it
expects to present and those it may call if the need arises. If a party fails to identify a witness as
required by Rules 26(a) and (e), the party is not allowed to use that witness at trial unless the failure
was substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1). A district court’s decision on
Rule 37 sanctions is reviewed 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 Vasquez as a
witness was substantially justified. With regard to the first portion of Vasquez’s testimony, the
district court heard McDole’s counsel state that, immediately before calling Vasquez, counsel had
just learned “five minutes” earlier of Vasquez’s relevant testimony. (R. 117 at 75.) Furthermore,
McDole’s counsel stated that he did not know of Vasquez earlier because neither Tuer nor Cliff
mentioned receiving this information from Vasquez in their depositions. (Id.) Thus, the district
court did not think that Vasquez’s testimony could have been reasonably anticipated. Moreover,
before allowing Vasquez to testify, the City’s counsel informed the district court of the subject of
his testimony, and the court found it relevant to the case. (Id. at 76.) The court considered all of this
information, and in its discretion, decided that McDole’s failure to list Vasquez as a witness was
substantially justified. The district court’s gathering of information to make an informed decision
does not amount to an abuse of discretion.

26

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 27

Case Nos. 10-1420/1789
McDole v. City of Saginaw
Nor did the district court abuse its discretion by allowing Vasquez’s testimony that he
informed Tuer of McDole’s PTSD diagnosis. McDole’s counsel said that he could not have
anticipated this testimony prior to trial. (R. 118 at 2.) Moreover, he informed the district court of
the testimony prior to Vasquez testifying about it. (Id. at 3.) The district court found it relevant
because the testimony suggests that Tuer knew of the PTSD diagnosis, but hid it from the
decisionmakers who primarily relied on Tuer’s report for McDole’s termination. (Id. at 5.) The
court considered argument from both sides, including McDole’s counsel’s reason for not complying
with Rule 26, and, in its discretion, found McDole’s reason for not listing the witness substantially
justified. Therefore, the district court did not abuse its discretion in allowing Vasquez to testify.
VII.

The district court did not err when it did not reduce the jury’s future damage
award to present value.

The City objected to the district court’s judgment because it did not reduce the jury’s award
of future damages to present value. (R. 71.) The City argues that the jury award of $950,000 in
economic damages should be reduced to $798,192, to reflect the present value of future damages.4
Notably, the verdict form does not distinguish between future damages and past damages and the
jury instructions did not inform the jury to reduce future damages to present value. Additionally,
before the verdict, the City never raised an objection regarding the verdict form or the jury
instructions on the issue of reducing future damages to present value. The district court overruled
the objection and entered judgment without reducing any portion of the award to present value.

4

The parties do not dispute that, if the Court were to discount the future damages to its
present value, $798,192 would be the correct amount.
27

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 28

Case Nos. 10-1420/1789
McDole v. City of Saginaw
Future damages, whether under Michigan or federal law, must be reduced to present value.
See MICH . COMP . LAWS. § 600.6306; Suggs v. ServiceMaster 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 Sixth Circuit has been “vigilant in correcting juries’ failures to discount damages
to present value”).
In Rodgers v. Fisher Body Division, 739 F.2d 1102, 1106 (6th Cir. 1984), this Court sua
sponte held that the district court committed plain error by failing to instruct the jury to discount a
future damage award to present value. In Rodgers, neither party proposed a jury instruction that an
award of future damages must be reduced to present value and neither party objected to the trial
court’s instructions on compensatory damages. Id. Furthermore, the court remanded by raising the
issue sua sponte because of the “plain error” that was obvious due to the “shockingly large” verdict
and said that the award affected the fairness and integrity of the judicial process. Id. But see Kokesh
v. Am. Steamship Co., 747 F.2d 1092, 1095-96 (6th Cir. 1984) (the appellate court need not correct
such an error sua sponte).
Kokesh clarified that whether the failure to give such an instruction amounts to plain error
depends on the specific circumstances of each case. Kokesh, 747 F.2d at 1096; Hawthorne Educ.
Servs., Inc. v. Friedman, No. 98-2235, 2000 WL 799339, at *5 (6th Cir. June 8, 2000) (unpublished
opinion); Pulliam v. Shelby Cty., 902 F.Supp 797, 804 (W.D. Tenn. 1995). In Kokesh, decided four
months after Rodgers, neither party objected to the jury instructions omitting an instruction to
discount a future damage award and, as a result, the jury award was not discounted to present value.

28

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 29

Case Nos. 10-1420/1789
McDole v. City of Saginaw
The court noted that a trial strategy is to have a simple verdict form without requiring the jury to
calculate present value, or another strategy is to forego putting an expert on the stand to testify
regarding damages. Kokesh, 747 F.2d at 1095-96. The court went on to say, “[w]e see no reason
to question the jury instructions solely because they did not include a charge on reducing future
damages to present worth, an instruction which neither party requested or evidently desired.” Id. at
1096. Ultimately, the court said that, while the damages award was “generous, it was supported by
sufficient proof in the case, and was not shockingly large,” and thus “no error, plain or otherwise,
produced it.” Id.
No party objected to the jury instructions or verdict form prior to the verdict and, thus, the
plain error standard applies. The district court did not commit plain error. First, like Kokesh, no
error produced the award because the jury verdict was supported by the evidence that McDole’s
expert put forth. The award of $950,000 for economic damages corresponds to the amount of
earnings McDole’s expert projected McDole would have earned had he continued working for the
City through the age of forty-eight, the age McDole testified that he wanted to retire. Second, unlike
Rodgers, the award was not “shockingly large.”
Therefore, we hold that the district court did not commit plain error by refusing to discount
the jury award to its present value.

29

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 30

Case Nos. 10-1420/1789
McDole v. City of Saginaw
VIII. The district court did not err by not awarding attorney fees to McDole.5
Two authorities are important to resolve this issue. First, “the court, in its discretion, may
allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the
costs . . . .” 42 U.S.C. § 1988(b). Second, United States District Court for the Eastern District of
Michigan Local Rule 54.1.2(b) provides:
A motion for award of attorney fees shall be supported by a memorandum brief as
to the authority of the court to make such an award, . . . an affidavit of counsel setting
out in detail the number of hours spent on each aspect of the case, the rate
customarily charged by counsel for such work, the prevailing rate changed in the
community for similar services, and any other factors which the court should
consider in making the award.
E.D. Mich. LR 54.1.2(b). In essence, the Local Rule allows the district court to calculate the
lodestar amount.
With these authorities in mind, the following events occurred regarding McDole’s postverdict motion for attorney fees.
First Motion for Attorney Fees
!

March 3, 2009, the jury returned a verdict in favor of McDole awarding him
$1,000,000.

!

March 13, 2009, McDole filed a motion for attorney fees. (R. 68.) He sought
$335,108.91, the amount his counsel would have been paid pursuant to their

5

This is the sole issue on McDole’s cross appeal–appeal number 10-1789.
30

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 31

Case Nos. 10-1420/1789
McDole v. City of Saginaw
contingency agreement. He provided no supporting information to calculate the
lodestar amount, or law to support his request for the contingency amount.
!

March 30, 2009, the district court granted McDole’s stipulated request for an
extension of time, and directed McDole to comply with Local Rule 54.1.2(b) and to
provide legal support for his contingency amount request.

!

McDole replied but still did not provide the requisite information required in Local
Rule 54.1.2(b).

!

The district court denied McDole’s motion for attorney fees because McDole did not
provide sufficient information regarding factors relevant under either federal or state
law for the calculation of an award of attorney fees. (R. 81.)

Renewed Motion to Reconsider
!

December 15, 2009, McDole filed a renewed motion for attorney fees. (R. 99.)
McDole sought a rate of $750/hour, which “is consistent with a one third contingency
fee.” (Id. at 13.) He still did not comply with Local Rule 54.1.2(b).

!

January 7, 2010, McDole filed a reply to the City’s response, and included, for the
first time, an affidavit from an outside attorney stating the “fees and costs sought is
reasonable” based upon his professional knowledge of counsel’s capabilities. (R.
102.)

31

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 32

Case Nos. 10-1420/1789
McDole v. City of Saginaw
!

February 8, 2010, the district court struck the affidavit, primarily because it was
presented for the first time in a reply brief, which did not furnish the City an
opportunity to respond.

!

March 5, 2010, the district court denied McDole’s renewed motion, explaining that
McDole once again did not provide the information that the court needed to make a
reasonable calculation of attorney fees. (R. 108.)

Motion for Evidentiary Hearing on Renewed Motion
!

March 5, 2010, the district court denied the motion because McDole still had not
submitted the required information of “the rate customarily charged by counsel for
such work” and “the prevailing rate charged in the community for similar services.”

Another Motion for Attorney Fees
!

March 10, 2010, McDole filed a motion for attorney fees pursuant to Mich. Comp.
Laws § 37.2802, which grants a court the discretion to award “reasonable attorney
fees” when appropriate.

!

The City responded by arguing McDole did not seek leave of court to file this third
motion for attorney fees and did not establish good cause for previous noncompliance
with Local Rule 54.1.2(b).

!

The district court denied the motion (R. 110), and declined to consider McDole’s
arguments because McDole did “not advance[] any rationale to support the belated

32

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 33

Case Nos. 10-1420/1789
McDole v. City of Saginaw
submission of new materials and advancement of new arguments.” The district court
stated:
Plaintiff made a decision to seek the full amount of his contingency fee as an
attorney fee award while refusing to provide the detailed information that
would allow the Court to calculate a lodestar award. Notably, Plaintiff not
only pursued this strategy in his initial motion for attorney fees, he continued
to pursue it after the Court specifically requested the detailed information to
be provided in a sur-reply brief and again in his renewed motion for attorney
fees. Having made a decision to seek an amount equal to his contingency fee
and to refuse to comply with the local rule, Plaintiff is not entitled to yet a
third “bite at the apple.”
(R. 124 at 7.)
A district court’s ruling with regard to a motion for attorney fees is reviewed for abuse of
discretion. Chernin v. Welchans, 844 F.2d 322, 330 (6th Cir. 1988). As McDole points out, a
prevailing party in a civil rights action should ordinarily, absent special circumstances, be awarded
attorney fees. See Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 759, 109 S. Ct. 2732,
2735 (1989); Morscott v. City of Cleveland, 936 F.2d 271, 273 (6th Cir. 1991).
Here, special circumstances existed. First, McDole refused on multiple occasions to provide
a single motion with all of the appropriate information to calculate a reasonable lodestar amount.
Second, McDole put forth no argument that the district court erred in declining to consider his final
motion for attorney fees due to a lack of “good cause” for not complying with the pertinent rules in
prior motions. Thus, this Court, like the district court, does not have the requisite information before
it to calculate a reasonable amount if it wished to do so. Third, providing the requisite information
to the district court in order to comply with Local Rule 54.1.2 is a basic task for an attorney. It is

33

Case: 10-1420

Document: 006111253519

Filed: 03/26/2012

Page: 34

Case Nos. 10-1420/1789
McDole v. City of Saginaw
special and rare for a prevailing party to go to such lengths to refuse to comply with a court
rule–especially in the face of almost assuredly being granted some award after such compliance.
Last, contrary to McDole’s numerous motions to the district court, the existence of a contingency
agreement between the plaintiff and his attorney does not warrant abandoning the lodestar approach.
See Fuhr v. Sch. Dist. of the City of Hazel Park, 364 F.3d 753, 762 (6th Cir. 2004). Therefore, the
district court did not abuse its discretion in denying McDole’s motion for attorney fees.
CONCLUSION
On all issues, the district court is AFFIRMED.

34