Baker et al v. Macomb, County of et al

Filing 133

OPINION AND ORDER denying 94 Motion in Limine; denying 95 Motion in Limine; denying 96 Motion in Limine; denying 97 Motion in Limine; granting 98 Motion in Limine; granting 99 Motion in Limine; denying 100 Motion in Limine; granting in part and denying in part 101 Motion in Limine; denying 102 Motion in Limine; denying 103 Motion in Limine; denying 104 Motion in Limine; denying 105 Motion in Limine. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JARED A. BAKER, ET AL.,
Plaintiffs,
Case No. 13-13279
v.
SHERIFF ANTHONY WICKERSHAM

Paul D. Borman
United States District Judge

Defendant,
_____________________________/
OPINION AND ORDER
REGARDING DEFENDANT WICKERSHAM’S MOTIONS IN LIMINE
(ECF NOS. 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, & 105)
Now before the Court are Defendant Sheriff Anthony Wickersham’s Motions in Limine
(ECF Nos. 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, and 105). A hearing on all these
motions in limine was held on June 7, 2016.

I. BACKGROUND
On July 31, 2013, Plaintiffs filed a complaint against Macomb County and the current
Macomb County Sheriff, Anthony Wickersham, in his official and individual capacity, alleging
violations of Plaintiffs’ rights of freedom of speech and association under both the Federal and
Michigan Constitutions. (ECF No. 1.) On March 14, 2014, Plaintiffs filed an amended
complaint that named Captain John Roberts as a defendant, and alleged that he also participated
in the alleged retaliation against Plaintiffs. In short, Plaintiffs allege in their amended complaint
that Defendants Sheriff Anthony Wickersham, Captain John Roberts, and the County of Macomb
violated their federal and state constitutional rights by retaliating against them in response to
their political activities and affiliation.

Plaintiffs are currently employed as deputy sheriffs at the Macomb County Sheriff’s
Office. In 2012, Plaintiffs openly supported and campaigned for Greg Stone, a candidate
challenging the Defendant Wickersham in the 2012 Democratic primary election for sheriff of
Macomb County. Following Greg Stone’s loss in the 2012 primary election, Defendant
Wickersham was elected Sheriff of Macomb County in November 2012. Plaintiffs allege that
following his election, Defendant Wickersham placed them in less favorable job positions in
retaliation for their political support of his opponent: Plaintiffs were transferred from substation
assignments into the general pool (a position also referred to as “common field deputy”).
After discovery, Plaintiffs and Defendants filed cross motions for summary judgment.
On September 28, 2015, the Court issued an Opinion and Order that denied Plaintiffs’ partial
motion for summary judgment and granted in part and denied in part Defendants’ Motion for
Summary Judgment. (ECF No. 92.) Pursuant to that Opinion and Order, Defendants Roberts
and the County of Macomb were dismissed as defendants. The Court also granted Defendants’
motion for summary judgment as to the 42 U.S.C. § 1983 claims asserted against Defendant
Wickersham in his official capacity but denied summary judgment on the 42 U.S.C. § 1983
claims asserted against Defendant Wickersham in his individual capacity. Finally, the
September 28, 2015 Opinion and Order denied in part and granted in part Defendants’ motion
for summary judgment as to Plaintiffs’ Michigan constitutional claims such that only Plaintiffs’
claims for injunctive and declaratory relief pursuant to the Michigan Constitution remain against
Defendant Wickersham. (ECF No. 92, at 45.)

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II. STANDARD OF REVIEW
“The Federal Rules of Evidence, the Federal Rules of Criminal and Civil Procedure and
interpretive rulings of the Supreme Court and this court all encourage, and in some cases require,
parties and the court to utilize extensive pretrial procedures – including motions in limine – in
order to narrow the issues remaining for trial and to minimize disruptions at trial.” United States
v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999); Louzon v. Ford Motor Co., 718 F.3d 556, 560
(6th Cir. 2013) (“A motion in limine is any motion, whether made before or during trial, to
exclude anticipated prejudicial evidence before the evidence is actually offered.” (internal
quotation marks omitted)). “Motions in limine typically involve matters which ought to be
excluded from the jury’s consideration due to some possibility of prejudice or as a result of
previous rulings by the Court.” Provident Life & Acc. Ins. Co. v. Adie, 176 F.R.D. 246, 250
(E.D. Mich. Sept. 27, 1997) (Gadola, J.). District courts have broad discretion over matters
involving the admissibility of evidence at trial. United States v. Seago, 930 F.2d 482, 494 (6th
Cir. 1991). “In in limine rulings are not binding on the trial judge, and the judge may always
change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n. 3
(2000) (citing Luce v. United States, 469 U.S. 38, 41-42 (1984)).

III. ANALYSIS
A.

Motion in limine Regarding Evidence Related to Non-Party Employees (ECF No. 101)
Defendant seeks to preclude Plaintiffs from introducing evidence relating to “non-party

employee performance.” (ECF No. 101.) Defendant argues that any evidence regarding a nonparty employee’s performance is not relevant and not admissible under FED. R. EVID. 402. In the

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alternative, Defendant contends that even if the Court were to find evidence of a non-party
employee’s performance relevant the Court should still preclude the evidence under FED. R.
EVID. 403 because the probative value of the evidence is substantially outweighed by the danger
of unfair prejudice to Defendant.
Defendant notes that during discovery Plaintiffs sought information regarding the
performance of several non-party employees: Deputy Adam Donofrio, Anthony Allegrina,
Deputy Jeffrey Keko, Sergeant John Rollo, Deputy Terae Young. Defendant theorizes that
Plaintiffs will likely elicit testimony regarding the poor performance and/or discipline of these
non-party employees for the purposes of evidencing that they were poor employees that were
improperly placed in substation positions. Specifically, Deputy Donofrio’s involvement in the
2013 traffic stop of an armed robbery suspect (Bondy Dep. at 51); Deputy Allegrina’s alleged
discipline in 2013 after an investigation into an ABC Warehouse matter (Wickersham Dep. at
201); Deputy Young’s discipline in 2013 for stashing evidence in a locker (Id.); Deputy Keko’s
write up after failing to seize a car during an arrest (Id. at 170-72); and Sergeant Rollo’s 14-day
suspension in 2012 after a drunk driving accident (Id. at 102-03).
Defendant argues that evidence of these non-party employees’ discipline or poor
performance will not make it more or less probable that Defendant Wickersham retaliated
against Plaintiffs for their political participation. Specifically, Defendant argues that these
examples of poor performance by Donofrio, Allegrina, Keko, and Young all occurred after their
2013 placement into the substation positions, and therefore Defendant Wickersham could not
have known of these (future) incidents at the time of the assignments. Defendant also asserts
that some of the non-party employees did not support Defendant Wickersham in the primary race

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for sheriff of Macomb County. Defendant further argues that Sergeant Rollo’s discipline is not
relevant because he did not receive a substation assignment in 2013: Sergeant Rollo was
assigned to the position of Court Services Command Officer. (Def.’s Reply, Ex. B, 2013
Assignments.)
Rule 401 sets forth that evidence is relevant if “it has any tendency to make a fact more
or less probable than it would be without the evidence” and “the fact is of consequence in
determining the action.” FED. R. EVID. 401. Relevant evidence is generally admissible. FED. R.
EVID. 402. Yet, relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or
by considerations of undue delay, waste of time, or the needless presentation of cumulative
evidence. FED. R. EVID. 403.
The Court finds that Defendant Wickersham’s request is over broad because he seeks to
preclude all evidence of the performance of non-parties with no support for the preclusion of
such a general category of evidence. “Orders in limine which exclude broad categories of
evidence should rarely be employed. A better practice is to deal with questions of admissibility
of evidence as they arise.” Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th
Cir. 1975). Accordingly, the Court construes Defendant’s motion as a request to preclude
evidence of the discipline or poor performance of Officers Donofrio, Keko, Young, and
Allegrina in 2013 and the suspension of Officer Rollo in 2012.
The Court also finds that Defendant’s argument regarding the relevance of Donofrio,
Allegrina, Keko, and Young’s disciplines and/or poor performance is unpersuasive. The
standard for relevance under Rule 401 is “extremely liberal.” Dortch v. Fowler, 588 F.3d 396,

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400 (6th Cir. 2009). Thus, evidence is considered “relevant” if it has “any tendency to make the
existence of any fact that is of consequence to the determination of an action more probable or
less probable than it would be without the evidence.” Id. (quoting FED. R. EVID. 401). Plaintiffs
carry the burden to establish a causal link between their protected activity and the adverse action
or actions that they suffered. In the instant case, there is evidence that Defendant selected these
“non-parties,” who were not recommended by their supervisors, for substation positions over
Plaintiffs, who were recommended by their supervisors. Plaintiffs also aver that Defendant
refused to remove those officers from the substations after becoming aware of their performance
issues, rather reassign Plaintiffs to those positions. The Court concludes that this evidence of
poor performance could support Plaintiffs’ argument that Defendant’s motivation in the making
the assignments was retaliation rather than a legitimate reason. See Philbrick v. Holder, 583 F.
App’x 478, 487 (6th Cir. 2014) (noting in the context of a gender discrimination claim that
“evidence of irregularities in the application and selection process and inconsistencies in the
reasons given by [the employer] for not hiring [plaintiff], along with evidence of her allegedly
superior qualifications, which, if believed by the trier of fact, could lead to the conclusion that
plaintiff was discriminated against, is sufficient to raise a genuine issue of material fact
concerning pretext.” (citation and internal quotation marks omitted)).
While Defendant argues that his reason for placing these above-listed officers in
substation positions was to give inexperienced officers a chance to gain experience, and thus
performance was not the controlling factor in the decision-making process, that argument goes to
the weight of the evidence and not its admissibility. A district court is not “permitted to consider
the weight or sufficiency of the evidence in determining relevancy and ‘[e]ven if a district court

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believes the evidence is insufficient to prove the ultimate point for which it is offered, it may not
exclude the evidence if it has even the slightest probative worth.’” Robinson v. Runyon, 149
F.3d 507, 512 (6th Cir. 1998) (quoting Douglass v. Eaton Corp., 956 F.2d 1339, 1344 (6th Cir.
1992)). Accordingly, Defendant’s argument is one for the jury and cannot be used to bar
Plaintiffs from supporting their own theory during trial.
Defendant is correct that later specific instances of poor performance by Donofrio, Keko,
Young and Allegrina in 2013 is not relevant as to Defendant’s knowledge in 2012 regarding
their performance. Thus, any testimony evidencing that Donofrio, Keko, Young and Allegrina
were generally known as poor performers prior to 2013 could be relevant. The specific incidents
of discipline or of poor performance of the above-listed individuals in 2013 is not relevant to
Plaintiffs’ claims that they were denied placement in substation positions.
Defendant also argues that this evidence is not relevant because non-party Young
donated to the Stone campaign. In other words, Defendant contends that the fact that Young was
a Stone supporter undermines Plaintiffs’ argument that his transfer is relevant. However,
Plaintiffs all openly and actively supported the Stone campaign in a visible manner and it is
unknown whether Young participated in a similar way or whether Defendant was even aware of
his political activities. Again this argument is one that goes towards the weight of the evidence
rather than its relevance or admissibility.
The Court also rejects Defendant’s alternative argument that evidence of Donofrio, Keko,
Young, and Allegrina’s poor performance should be precluded as more prejudicial than
probative under Rule 403. Rather than demonstrating that the probative value of this evidence is
substantially outweighed by the danger of unfair prejudice, Defendant merely seeks to exclude

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the evidence because it is prejudicial to his theory of the case. To wit: Defendant summarizes
his position as: “to bring in evidence of performance issues regarding Donofrio, Allegrina, Keko,
and Yong, then characterize them as ‘poor performers’ relative to Plaintiffs, would only serve to
confuse the jury and be highly damaging to Defendant because the jury would make the
inference that Defendant improperly ignored supervisor recommendations and selected inferior
deputies for substation assignments as a form of retaliation against Plaintiffs.” (Def.’s Reply at
6.) This is, in fact, Plaintiffs’ theory of the case. Defendant continues his argument by asserting:
“[i]n reality, Defendant was the sole decision-maker, believed that all deputies should be rotated
through the substations to give everyone experience, and any assertion that certain deputies were
inferior is based on speculation.” (Id.) This is Defendant’s theory of the case. “Unfair prejudice
does not mean the damage to a defendant’s case that results from the legitimate probative force
of the evidence.” United States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993) (internal quotes and
citations omitted). Defendant appears to object to the evidence because it might persuade the
jury that Defendant did in fact retaliate against Plaintiffs. Defendant has failed to show that such
an inference would be improper and his argument fails.
To the extent that Defendant seeks to preclude evidence regarding Sergeant Rollo’s
suspension, the Court finds that this evidence does not have any relevance to whether Plaintiffs
were replaced with unqualified, poor performers who were not recommended by superiors
because Sergeant Rollo was not assigned to a substation in 2013. Plaintiffs also failed to
specifically address the relevance of Sergeant Rollo’s performance in their briefing or at the
hearing. Given these facts, the Court concludes that any evidence regarding Sergeant Rollo’s
suspension is not relevant to any issue in this case and that it must be precluded under 401 and

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402 as not relevant.
In summary, the Court will deny in part and grant in part Defendant’s Motion in limine
regarding non-party witnesses.
B.

Motion in limine to Exclude Greg Stone as a Witness (ECF No. 103)
Defendant seeks to exclude Greg Stone as a Plaintiff witness in this case. As noted

supra, Greg Stone unsuccessfully ran against Defendant in the 2012 primary election for Sheriff
of Macomb County. Defendant argues that Stone has no knowledge of any possible retaliation
because he did not work at the Sheriff’s Office at that pertinent time. Defendant concludes that
because Stone has no knowledge of any alleged retaliation and because there is no dispute that
Plaintiffs supported Stone in the primary; Stone’s testimony would not make it any more or less
probable that Plaintiffs suffered retaliation and all of his testimony should be barred as irrelevant
and thus inadmissible under FED. R. EVID. 401 and 402. Defendant also argues that any
probative value of Stone’s favorable personal opinion of Plaintiffs would be substantially
outweighed by the danger of unfair prejudice to Defendant because the jury might believe
Stone’s “personal opinion of Plaintiffs is evidence of the type of deputies they are and assume
that Sheriff Wickersham must have been retaliating against them by removing them from
substations.” (ECF No. 103, at 4.)
The Court finds that it would not be unfairly prejudicial, confusing, or cumulative to have
Stone testify regarding his knowledge of Plaintiffs’ actions in support of his campaign – what
they did, but not what they said or what was said in flyers or signs that they passed out or put on
their private vehicles or homes. Indeed, Stone’s testimony on the subject of Plaintiffs’ political
actions is relevant as those political activities are an element of Plaintiffs’ prima facie case.

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Indeed, Defendant admitted the relevance of this testimony at the hearing.
Further, the Court finds that the probative value of Stone’s testimony on the issue of
Plaintiffs’ political actions (not what they said other than “Elect Stone”) is not substantially
outweighed by the danger of jury confusion or the possibility of presenting needlessly
cumulative evidence. FED. R. EVID. 403.
For all these reasons, Defendant’s Motion in Limine to Exclude Greg Stone as a Witness
is denied. (ECF No. 103.)
C.

Motion in Limine Regarding the “No Fly List” (ECF No. 99)
Defendant argues that Plaintiffs should be precluded from introducing evidence regarding

the “no fly list” because it is irrelevant under FED. R. EVID. 401 and 402, and even if it is
relevant evidence, the risk of prejudice, undue delay and confusion to the jury substantially
outweighs the probative value of the term and it should be precluded under FED. R. EVID. 403.
This Court previously summarized the Defendant’s actions prior to the 2012 assignment
meeting in its Opinion and Order resolving the Motions for Summary Judgment. That
background is incorporated and repeated here:
Defendant Wickersham testified that after being elected he wanted to reorganize
the Sheriff’s Department, specifically he “wanted to give people with less
seniority an opportunity to work” and also believed that all deputies should work
the road regardless of their preference. (Wickersham Dep. at 127-28). Defendant
Wickersham did not discuss his new reorganization plan with anyone prior to the
assignment meeting in November 2012. (Id. at 132).
To effect his reorganization, Defendant Wickersham made a handwritten list of
deputy names that reflected the deputies that he wanted moved out of the
substations to make room for less experienced officers. (Id. at 124-29). There is
no dispute that all four of Plaintiffs’ names were on the handwritten list. (Ex. M,
Roberts Dep. at 84-85). Defendant Wickersham handed his list to Defendant
Roberts before the assignment meeting took place. (Id. at 125; Roberts Dep. at
30-31). Defendant Roberts had been part of the assignment meetings since 2001
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but this was the first time he was given such a list. (Roberts Dep. at 12, 31, 40).
Defendant Wickersham did not tell Defendant Roberts why he had created the list
or discuss it with him, rather, Defendant Wickersham only told Defendant
Roberts “[t]hese are the individuals that I want moved out of substations.”
(Wickersham Dep. at 125:7-8; Roberts Dep. at 30-31, 34). Defendant
Wickersham did not advise Defendant Roberts that deputies with less experience
should fill the substations openings. (Wickersham Dep. at 128).
A copy of the list that Defendant Wickersham created no longer exists. However,
during the assignment meeting, Defendant Roberts kept notes on an assignment
sheet. (Ex. J; Roberts Dep. at 79). These notes include hash marks next to certain
deputies’ names. (Id.). Defendant Roberts testified that most of these hash marks
corresponded to the names on Defendant Wickersham’s list. (Id. at 79-80).
Thereafter, Defendant Roberts clarified that the marks next to Deputies
Quartuccio and Yunker did not refer to the Sheriff’s list. (Id.). Defendant
Wickersham confirmed during his deposition that the deputies’ names that were
hash marked, except Deputies Quartuccio or Yunker, may have been on his list
and were all Stone supporters.[] (Wickersham Dep. at 134-35).
...
Captain Baker similarly testified that during the [assignment] meeting she
discovered that the Plaintiffs could not be assigned to a substation per Defendant
Roberts. (B. Baker Dep. at 101). She was never given a reason why these
particular deputies were not allowed a substation. (Id. at 102). At the conclusion
of the meeting, Plaintiffs had all been assigned to the general pool.
Sergeant Willis testified that he was surprised when the assignment list became
public because while it was common for one or two recommendations to be
ignored, ignoring four recommendations was unusual, stating: “there’s always one
or two ... but never our top guys.” (Willis Dep. at 32).
(ECF No. 92, Opinion and Order, at *7-8 (footnote omitted).)
After the assignment list was released in late December 2012 or early January 2013,
Sergeant David Willis testified that he became aware “who was going where” and spoke with
other command officers and “that’s where it started from. I had called it a ‘no fly list.’” (Def.’s
Br., Ex. E, Willis Dep. at 15.) Sergeant Willis testified that:
well, between that first job assignment and when the second suggestion for job
assignments went in for other substations – that was the second email, the one
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that I had produced – between there, we were told – or Lieutenant Kozlowski told
me there were three deputies on our shift that were not going to be getting
substation assignments, and that was per the corner. And then I don’t know what
was going on. I just coined it they’re no fliers. They don’t get to have a
substation.
(Id. at 15-16.) Willis also clarified that:
A.

[Lieutenant Kozlowski] was told by Brenda Baker that these guys have
nothing coming.

Q.

Okay.

A.

And from that, it was me – I don’t know why I coined it or why I said it.
It was me that said, “Well, then they’re on the ‘no fly list,’” then.

Q.

Okay. It emanated from Brenda Baker. Kozlowski passed along, and then
you coined the “no fly list” concept?

A.

Correct.

(Id. at 60.) Willis further testified that after the 2013 assignment list came out, Plaintiffs asked
him why they were not assigned to substation positions and Willis told them that it was because
“you guys supported Stone. That’s what I am hearing.” (Id. at 32.) Willis also testified that his
personal experience over 25 years with the station led him to the conclusion that Plaintiffs were
denied a substation assignment because of they supported Greg Stone in the primary election.
(Id. at 18-19.)
Captain Brenda Baker confirmed that after the 2012 assignment meeting during late 2012
or early 2013, she informed Lieutenant Kozlowski that the Plaintiffs were not allowed to have
permanent substation assignments. (Def.’s Reply, Ex. F, B. Baker Dep. at 73.) Captain Baker
explained that Captain Roberts had advised her this fact but she was never told the reason why
Plaintiffs could not have those positions. (Id. at 74.)

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Other individuals offered limited testimony in their depositions regarding the term “no
fly list.” Plaintiff Burbeula testified that Sergeant Willis created the term “no fly list” and that it
meant that “we were not going to get a spot at all.” (ECF No. 99, Def.’s Br., Ex. C, Burbeula
Dep. at 46.) Plaintiff Tabor testified that he did not know who coined the phrase, nor when he
first heard the phrase but he believed it to mean “a list of people that can’t get preferred
assignments from substations because they supported Greg Stone in the Democratic primary,
2012.” (Def.’s Br., Ex D, Tabor Dep. at 82-83.) Plaintiff Likens testified that he was told by
Kozlowski that another deputy (Raymond Langley) was on the same “no fly list” because he had
filed a racial discrimination case against the county.1 Sergeant Stacy O’Brien testified that he
overheard the term “no fly list” being used at the station and it was “a term that somebody
coined, referring to the belief that there’s individuals that are on a list that are not to be assigned
substations.” (Def.’s Br., Ex. F, at 52-53.) Sergeant O’Brien could not remember who was
using the term and paid little attention to the overheard conversation because “it was again more
rumor-based conversation.” (Id. at 53.) Captain Roberts testified that he was unfamiliar with the
meaning of the term. (Def.’s Br., Ex. G, Roberts Dep. at 51-52.)
There are three different “lists” that are referred to throughout both parties’ briefs on this
matter. The first list, was the list that Defendant actually authored and handed to Captain
Roberts that contained the names of Plaintiffs and other deputies whom he wanted remove from
substation assignments. This list no longer physically exists. The second list, was a list created
by Captain Roberts during the 2012 assignment meeting. This second list was created by

1

Raymond Langley filed a separate discrimination action against Defendant and the
County of Macomb which is the subject of a separate motion in limine, ECF No. 96.
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Captain Roberts by annotating a printed form with hash marks next to certain deputies names.
The vast majority of these marks corresponded to the names that had been on Defendant’s
aforementioned list (and indisputably included Plaintiffs’ names). The third “list,” the “no fly
list,” was never a physical list, but was a catchphrase created by Sergeant Willis to describe to
Plaintiffs his belief that they had been denied substation assignments due to their political
involvement.
As noted previously, Rule 401 provides that evidence is relevant if “it has any tendency
to make a fact more or less probable than it would be without the evidence” and “the fact is of
consequence in determining the action.” FED. R. EVID. 401. Relevant evidence is generally
admissible. FED. R. EVID. 402.
Here, the “no fly list” term was coined by Sergeant Willis who had no first-hand personal
knowledge regarding either the 2012 assignment meeting or Defendant’s creation of the
assignment list. Rather, Sergeant Willis created the term “no fly list” as a short-hand way to
describe his beliefs regarding Plaintiffs’ non-assignments but admitted that he did not know why
he came up with the term. Given these facts, especially the fact that Sergeant Willis was not the
decisionmaker or even privy to the assignment meeting, the Court concludes that the phrase “no
fly list” is not relevant to establishing that any adverse action occurred, or relevant to
establishing a connection between Plaintiffs’ protected conduct and the adverse action. While
Sergeant Willis’ beliefs and his perceptions may be relevant and pertinent to these issues, his
phrase “no fly list” or “no fliers” are merely descriptive phrases created by a non-decisionmaker,
and have no relevance to the issue of Defendant’s action of reassigning Plaintiffs from substation
positions.

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D.

Motion in Limine Regarding “Retribution Wednesday” (ECF No. 98)
Defendant similarly requests that the Court preclude Plaintiffs from introducing any

evidence regarding the phrase “Retribution Wednesday” during the trial because it is irrelevant
and inadmissible under Rules 401 and 402, or even if relevant, its probative value is substantially
outweighed by the danger of unfair prejudice to Defendant pursuant to Rule 403. Additionally,
Defendant contends that any witness who would testify regarding the term would lack the
personal knowledge to testify as to its applicability to the present action as required by Rule 602.
Sergeant Willis, who testified regarding the term “no fly list,” also referenced the term
“Retribution Wednesday,” stating:
Q.

Okay. And what thought crossed your mind at the that time as to the
reason for [the denial of substation positions]?

A.

It was because they supported Greg Stone in the election.

Q.

And did that come to mind right away for you?

A.

Absolutely.

Q.

Why?

A.

Because it was of a common practice at the sheriff’s office. They call it
“Retribution Wednesday” for a reason.

Q.

Okay. And when did you first hear the term “Retribution Wednesday”?

A.

Two years prior, when I was going to run for sheriff, and the chief warrant
officer at the county building told me, “Let me remind you, Dave, about
Retribution Wednesday. It’s coming for you.”

Q.

Wednesday being the day after the Tuesday election?

A.

That is correct. And that was by Dean Alan at the prosecutor’s office.
That’s where I had first heard that.

Q.

Okay. And so when you were told that, you – obviously the message
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sounds like, came through to you, there will be ramifications of a negative
nature if I challenge by running.
A.

There always is.

Q.

Okay. And when you say “there always is,” what are you referring to?

A.

Previous people who have backed the wrong candidates, previous people
who have tried running for sheriff.

....
Q.

But you were being told there will be – at least on the Retribution
Wednesday comment – there would be retribution?

A.

Yes.

Q.

And then you had observed that yourself over time?

A.

Over 25 years at the sheriff’s office, I have.

(Willis Dep. at 17-19 (emphasis added).)
Several other individuals were also interviewed regarding their knowledge of the term
“Retribution Wednesday.” Sergeant Bondy testified that he heard the term from “somebody in
the prosecutor’s office discussing unrelated to our office, but it’s typically when whoever wins
comes in and cleans house, or at least exacts whatever revenge they’re going to have on the
disloyal.” (ECF No. 98, Def.’s Br., Ex. B, Bondy Dep. at 22.) Similarly, Lieutenant David
Kennedy testified that he had also heard the term used years prior by a prosecuting attorney in
the warrant division. (ECF No. 98, Def.’s Br., Ex. C, Kennedy Dep. at 73-74.) Both Defendant
and Captain Roberts testified they were unfamiliar with the term. Dean Alan, the prosecutor
cited by Sergeant Willis, as to where Willis had heard the phrase, provided through declaration
that he had used the term “Retribution Wednesday” for over 30 years, but had never used it in
reference to the Macomb County Sheriff’s Office and was unaware of any political retaliation in

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the Sheriff’s Office. (ECF No. 98, Def.’s Br., Ex. D, Alan Decl. ¶ 13.)
In its initial brief, Defendant primarily argues that any evidence regarding “Retribution
Wednesday” is not relevant and thus inadmissable because the term is only associated with the
Macomb County Prosecutor’s Office and there is no evidence that “Retribution Wednesday”
ever occurred at the Sheriff’s Office. (ECF No. 98, Def.’s Br., at 4-5, “In other words, there is
no evidence that anyone in the Prosecutor’s Office, let alone the Sheriff’s Office, suffered any
consequences for being ‘disloyal.’”). Defendant’s relevance argument ignores Sergeant Willis’
testimony regarding the term. To wit, Sergeant Willis testified that he concluded that the act of
denying Plaintiffs the substation assignments was a result of political retaliation based on his
personal experience with such retaliation over his 25 years working in the Sheriff’s Office.
Sergeant Willis testified that such an event was called “‘Retribution Wednesday’ for a reason.”
(Willis Dep. at 17.)
Evidence is relevant if “it has any tendency to make a fact more or less probable than it
would be without the evidence” and relevant evidence is generally admissible. FED. R. EVID.
401, 402. In the instant action, Plaintiffs’ superior, Sergeant Willis, concluded based on his
experience with the Sheriff’s Office, that the denial of substation assignments was retribution
due to Plaintiffs’ political activities. While Willis’ factual testimony regarding retaliation is
relevant to this First Amendment retaliation case, testimony using his descriptive phrase
“Retribution Wednesday,” is not.
The Court further finds that the term’s probative value is outweighed by the risk of unfair
prejudice to Defendant. “Unfair prejudice” means “the undue tendency to suggest a decision
based on improper considerations; it ‘does not mean the damage to a defendant’s case that

17

results from the legitimate probative force of the evidence.’” Claiborne Cnty., 103 F.3d at 515
(emphasis in original) (quoting Bonds, 12 F.3d at 567). Significantly, the term “Retribution
Wednesday” was created by an Assistant Prosecutor describing conduct at the Macomb County
prosecutor’s office to Sergeant Willis. Sergeant Willis picked it up and “ran with it” to describe
his view of the Sheriff’s office. Sergeant Willis’ descriptive phrase is not relevant evidence.
Further, it would be improper to suggest to a jury that there is a tradition of retaliation in
Macomb County and Defendant retaliated against Plaintiffs because of this tradition. Thus, the
phrase must be precluded from trial.
The Court notes, however, this holding applies only to the phrase “Retribution
Wednesday” and not to Sergeant Willis’ testimony or conclusions generally, to the extent that a
proper foundation is laid. The phrase “Retribution Wednesday” is precluded from introduction
at trial.
E.

Defendant’s Motions in Limine (ECF Nos. 94, 95, 96, 97, 100, 102, 104 & 105)
Plaintiffs filed a single response addressing the remaining eight motions in limine filed

by Defendant. These motions address the Al-Shara case (ECF No. 94), the General Holiefield
case (ECF No. 95), any evidence relating the Barnes and Langley lawsuits (ECF No. 96), any
matters regarding race within the Macomb County Sheriff’s Office (ECF No. 97), evidence
regarding “Special Counsel” (ECF No. 100); evidence regarding Defendant’s interaction with
Harvest Homes LLC (ECF No. 102); Lieutenant Daniels’ discipline (ECF No. 104), and the
2008 Promotional Exam (ECF No. 105).
Plaintiffs represent that they offered to stipulate not to refer to the evidence at issue in
their opening statement or by eliciting it in their case and “reserve the right to raise the issues

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with prior notice to all, if they believe a door is opened relative to the matters in contention, and
of course assuming the proper foundation must be laid at that time.” (ECF No. 113, Pls.’ Resp.
at 1.) Defendant argues that Plaintiffs’ offer is a subterfuge because Plaintiffs are reserving the
right to unilaterally declare the “door is opened” and “it will be too late for the jury to unhear
their theories.” (ECF No. 122, Def.’s Reply at 3.) Despite Defendant’s arguments, Plaintiffs
have made it clear in their briefing and before the Court during the hearing that Plaintiffs would
first seek permission from the Court prior to bringing out any of these topics. (ECF No. 122,
Def.’s Reply, Ex. A, 12/4/2015 Email re: Motions in limine, “...we do not intend to raise those
issues, wouldn’t for example use in opening, do not expect to use them at all unless the door is
opened somehow and then we would let you know in advance.”) The Court acknowledges
Plaintiffs’ counsel’s statement and respects that commitment to the Court.
The Court instructs Plaintiffs to give, no less than, two business days advance warning to
the Court before bringing up any of the issues in the aforementioned motions in limine.
Accordingly, at this time, the Court will deny Defendant’s remaining eight motions in limine.

IV. CONCLUSION
For all these reasons, the Court will DENY Defendant’s Motions in Limine ECF Nos. 94,
95, 96, 97, 100, 102, 103, 104 & 105. The Court will also DENY IN PART AND GRANT IN
PART Defendant’s Motion in Limine regarding Non-Party Witnesses such that only evidence
regarding Officer Rollo’s discipline is precluded as irrelevant (ECF No. 101). Finally, the Court

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will GRANT Defendant’s Motions in Limine regarding the descriptive terms “no fly list” and
“Retribution Wednesday” (ECF Nos. 98, 99).
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 29, 2016
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or
party of record herein by electronic means or first class U.S. mail on September 29, 2016.

s/Deborah Tofil
Case Manager

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