Charles Ardingo v. Local 951, United Food & Comme , 333 F. App'x 929 ( 2009 )

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 09a0383n.06
No. 08-1078
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
CHARLES ARDINGO, ) May 29, 2009
) LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
) ON APPEAL FROM THE UNITED STATES
v. ) DISTRICT COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
)
LOCAL 951, UNITED FOOD AND )
COMMERCIAL WORKERS UNION, )
)
Defendant-Appellant. )
Before: KENNEDY and BATCHELDER, Circuit Judges; and THAPAR, District
Judge.*
THAPAR, District Judge. Plaintiff Charles Ardingo won a jury verdict of $819,614 in his
wrongful-termination lawsuit against Defendant Local 951, United Food & Commercial Workers
Union. On appeal, the defendant contends that the judgment in favor of Ardingo should be reversed
because Ardingo’s wrongful-termination claim is preempted by the Labor-Management Reporting
and Disclosure Act of 1959 (the “LMRDA”). In the alternative, the defendant asks for a new trial
on the grounds that: (1) the trial court made several prejudicial evidentiary errors; (2) the trial court
erred in refusing to give certain jury instructions proposed by the defendant; (3) the trial court
erroneously permitted the plaintiff’s expert to testify; and (4) the trial court erred in not remitting the
*
The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
amount of damages awarded to Ardingo. Because these arguments are unavailing, we affirm.
I. Background
The defendant is a labor organization representing thousands of grocery store
workers—largely Meijer employees—in Michigan. The defendant hired Ardingo as a business agent
in 1990 under a just-cause employment policy that permitted the defendant to terminate him only
if he “failed to meet employment performance standards,” or if his termination would further the
needs of the union “as construed by the Supreme Court in Finnegan v. Leu and its progeny.” J.A.
at 440, 590-91.1
Ardingo’s employment with the defendant went well for the first decade. During this time,
he gained a seat on the union’s executive board, id. at 598, and was given important assignments,
like negotiating critical contracts with major employers. See id. at 592-93.
In 2001, however, his relationship with the union leaders changed for the worse. See id. at
596. After rumors started circulating that Ardingo was going to run a campaign against Robert
Potter, the union’s president, in the next election cycle, Potter and other union officials accused
Ardingo of being a traitor. See id. at 596-99. Ardingo requested a meeting with Potter to discuss
these issues, and the two met at a union office in Livonia, Michigan. See id. at 600. The meeting
became heated, and Potter insinuated that Ardingo was a “pipeline to the Department of Labor.” Id.
at 602. Shortly thereafter, Ardingo was reassigned to a different position and told to have no contact
with members of Local 951. See id. at 32.
In the spring of 2002, Ardingo cooperated with a Department of Labor investigation
1
Finnegan v. Leu, 456 U.S. 431 (1982) is a Supreme Court case that discusses, in dictum,
the need for unions to be able to terminate employees for political reasons. This case figures
prominently in the defendant’s preemption argument and is discussed at length below.
2
concerning financial irregularities with the defendant. See id. at 608, 619-20. Shortly after
participating in interviews with the Department of Labor, Ardingo testified before a grand jury
concerning the same issues. See id. at 32, 620.
Starting in early 2003, Ardingo was reassigned in rapid succession to jobs in North Carolina,
Indiana, and Washington state. See id. at 32, 603-04. The ostensible purpose of each of these
temporary assignments was to assist in union organizing campaigns in those states. Ardingo,
however, claims that these assignments were a form of retaliation for his cooperation with the
Government.
By the beginning of 2004, Local 951 was experiencing financial hardship due to the loss of
members. It had lost a total of $1,282,709 over the previous two years, and it was on its way to
losing $950,360 during 2004. Id. at 447. This was a significant amount of money for an
organization that had an average annual income around $10,000,000. See id. As a result, the union
leadership decided to pare down the number of its employees. Ardingo—who was making nearly
$100,000 per year at that time and had less seniority than other similarly situated individuals—was
chosen to be one of ten employees who were released in January of 2004. Robert Potter testified that
Ardingo was selected for termination because of economic reasons and because Potter had lost
confidence in Ardingo due to the fact that Ardingo had sought employment with Meijer, the largest
employer of Local 951's members. See id. at 994-95.
Ardingo was told that he was being released for financial reasons, but he believed that excuse
to be a ruse for retaliation since the defendant had recently hired at least one additional employee.
See id. at 623. Therefore, on December 13, 2004, Ardingo filed this lawsuit against Potter and the
union, alleging that they had: (1) violated his rights under the LMRDA, (2) forced him to pay
3
assessments to the union in violation of the LMRDA, (3) terminated him in violation of Michigan
public policy, and (4) wrongfully discharged him in violation of the union’s just-cause policy. See
id. at 23-24. Judge Richard Alan Enslen granted summary judgment in favor of the defendants on
all but the wrongful-discharge claim, see id. at 318-29, and Potter was dismissed as a defendant
shortly before the trial commenced. Thus, the only claim left for trial was the wrongful-discharge
claim against the union. The parties consented to have this claim tried by Magistrate Judge Ellen
S. Carmody.
On July 6, 2007, three days before the trial began, Ardingo supplemented his previous expert
disclosures by submitting to the defendant an updated report from Dr. Marvin DeVries, the expert
who ultimately testified about the financial damages that Ardingo had suffered. The defendant filed
a motion in limine to exclude this supplemental report, and the trial court granted that motion. Id.
at 527-28.
The trial began on July 9, 2007, and lasted for five days. In his opening statement, Ardingo’s
counsel told the jury that the evidence would show that Ardingo was not terminated for just cause.
The defendant’s counsel, on the other hand, told the jury that the evidence would show that Ardingo
was terminated out of economic necessity, which amounted to just cause. See id. at 569. Following
the opening arguments, Ardingo proceeded to present evidence showing that he had been terminated
not out of economic necessity, but out of retaliation for his cooperation with the Government and
his testimony before a grand jury. Conversely, the defendant introduced evidence to support its
theory that Ardingo had been terminated because of economic necessity. See id. at 666-67, 978-92.
Particularly, the defendant argued that its shrinking membership required it to cut costs by reducing
the number of its employees. The defendant maintained its economic-necessity theory all the way
4
through to the closing arguments. See, e.g., id. at 1194. The jury, however, apparently did not buy
into the defendant’s theory and therefore returned a verdict in favor of Ardingo.
The judgment in favor of Ardingo is now on appeal before this court. In particular, the
defendant argues that the judgment should be reversed because Ardingo’s claim is preempted by the
LMRDA, and in the alternative, the defendant argues that the judgment should be reversed because
the trial court erred by: (1) admitting evidence pertaining to the alleged retaliation against Ardingo;
(2) rejecting the defendant’s proposed jury instructions with respect to the significance of Finnegan
v. Leu, the burden of proof in wrongful-discharge cases, and the possibility of reinstatement in lieu
of front-pay damages; (3) permitting Ardingo’s expert to testify; and (4) refusing to remit the jury
verdict.
II. LMRDA Preemption
A federal law may preempt a state law cause of action either expressly or impliedly. See
State Farm Bank v. Reardon, 539 F.3d 336, 341 (6th Cir. 2008) (citing Fidelity Fed. Sav. & Loan
Ass’n v. de la Cuesta, 458 U.S. 141, 152-53 (1982)). A state law cause of action will be expressly
preempted where a federal statute or regulation contains express language indicating that such
lawsuits are preempted. See id. at 341-42 (citing Fidelity Fed. Sav. & Loan Ass’n, 458 U.S. at 153).
Implied preemption, on the other hand, exists where there is either “field preemption” or “conflict
preemption.” Id. at 342 (citing Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992)).
Field preemption is found “where the scheme of federal regulation is so pervasive as to make
reasonable the inference that Congress left no room for the States to supplement it.” Id. (quoting
Gade, 505 U.S. at 98). Conflict preemption refers to situations “where compliance with both federal
and state regulations is a physical impossibility, or where state law stands as an obstacle to the
5
accomplishment and execution of the full purposes and objectives of Congress.” Id. (quoting Gade,
505 U.S. at 98). None of these types of preemption, however, apply to Ardingo’s wrongful-
discharge claim. This is not surprising considering that the Sixth Circuit has previously stated that
“the preemptive scope of the LMRDA is narrow.” Davis v. UAW, 392 F.3d 834, 839 (6th Cir. 2004),
overruled on other grounds by Blackburn v. Oaktree Cap. Mgmt., LLC, 511 F.3d 633 (6th Cir.
2008).
First, Ardingo’s claim is not expressly preempted because 29 U.S.C. § 483, the express
preemption provision in the LMRDA, does not apply to state-law wrongful-discharge claims.
Instead, it only applies to state-law challenges to union elections. Id. As Ardingo’s claim is clearly
not a state-law challenge to a union election, it does not succumb to express preemption.
Nor does Ardingo’s claim fall prey to field preemption. It is true that LMRDA regulates
relationships between union leaders and their subordinates by preventing rank-and-file union
members from being disciplined for exercising certain rights such as the right to vote in union
elections and the right to speak and assemble. See Finnegan v. Leu, 456 U.S. 431, 436-37 (1982).
However, the LMRDA clearly does not occupy the entire field of regulation with respect to union
employees because it contains a savings clause that provides that “except as explicitly provided to
the contrary, nothing in this chapter shall take away any right or bar any remedy to which members
of a labor organization are entitled under such other Federal law or the law of any State.” 29 U.S.C.
§ 523(a). Thus, the savings clause makes it clear that the LMRDA does not occupy the field of
regulation with respect to the relationships between union leaders and subordinates so thoroughly
that union employees cannot enter into and enforce just-cause employment contracts under state law.
Furthermore, there is no conflict preemption here because it is not physically impossible to
6
comply simultaneously with both the LMRDA and the state law pertaining to wrongful discharge.
The LMRDA restricts union officials from retaliating against union members for exercising political
rights such as their right to free speech. It is not physically impossible to comply with these
restrictions while simultaneously complying with state wrongful-discharge law. Moreover, there is
no conflict preemption because Ardingo’s lawsuit does not pose an obstacle to the LMRDA’s
purposes and objectives. The LMRDA’s “overriding objective was to ensure that unions would be
democratically governed, and responsive to the will of the union membership as expressed in open,
periodic elections.” Finnegan, 456 U.S. at 441 (citing Wirtz v. Hotel Employees, 391 U.S. 492, 497
(1968)). There is no danger that this objective will be interfered with by a lawsuit that seeks to
vindicate an employee’s rights under a just-cause employment contract.
The defendant, however, suggests that conflict preemption does apply in this instance.
According to the defendant, the Supreme Court’s decision in Finnegan construed the LMRDA in
a way that requires a finding of preemption in this case. Essentially, the defendant argues that the
LMRDA, as interpreted in Finnegan, provides union officials with an affirmative right to exercise
unfettered discretion in union employment matters. The defendant’s reliance on Finnegan, however,
suffers from two fatal defects. First, Finnegan is inapposite to the case at hand. Second, the
defendant misinterprets Finnegan. To see why this is so, it will be helpful to review Finnegan.
The petitioners in Finnegan were union members who—just like the plaintiff in this
case—had been employed by their union as business agents. Id. at 433. Unlike the plaintiff in this
case, however, the petitioners in Finnegan were not suing for wrongful discharge in violation of a
just-cause employment contract. Instead, each of the petitioners was claiming that his termination
was a violation of the LMRDA. Id. at 434. The Finnegan petitioners’ claims arose out of an
7
election for the presidency of Local 20 of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. See id. at 433-34. After the election, the newly elected
president fired the petitioners because they had supported his opponent. See id. The petitioners then
sued the new president on the ground that he had violated their rights under the LMRDA. See id.
at 434. The question presented to the Supreme Court was “whether the discharge of a union’s
appointed business agents by the union president, following his election over the candidate supported
by the business agents, violated the Labor-Management Reporting and Disclosure Act of 1959.” Id.
at 432.
In addressing that question, the Supreme Court first engaged in a discussion of the
background and purposes of the LMRDA. The Court observed that the statute “was the product of
congressional concern with widespread abuses of power by union leadership,” id. at 435, and the
Court further noted that the statute was intended to ensure “that unions would be democratically
governed and responsive to the will of their memberships.” Id. at 436. To this end, the LMRDA
granted rights to union members “paralleling certain rights guaranteed by the Federal Constitution.”
Id. Specifically, the LMRDA sought to ensure that union members would be able to exercise their
rights “to freedom of expression without fear of sanctions by the union, which in many instances
could mean loss of union membership and in turn loss of livelihood.” Id. at 435-36. Against this
backdrop, the Supreme Court concluded that the LMRDA was intended to protect “rank-and-file
union members—not union officers or employees.” Id. at 437. Thus, it was clear that the LMRDA
would have protected the petitioners if they had been punished in their capacity as union members.
However, they were not punished in that capacity. Instead, the union president only exacted
retribution against them in their capacity as union employees.
8
After discussing the background of the LMRDA, the Court turned its attention to the question
of whether the LMRDA protected the petitioners from political retribution in their capacities as
union employees as well as in their capacities as union members. First, the Court rejected the
petitioners’ claims that the union president’s actions violated § 609 of the LMRDA (codified at 29
U.S.C. § 529), which makes it unlawful for a union officer to “fine, suspend, expel or otherwise
discipline any of its members for exercising any right to which he is entitled under the provisions
of [the LMRDA].” According to the petitioners, their termination as business agents was an act of
discipline that violated § 609. The Supreme Court, however, concluded that § 609 did not provide
the petitioners with a cause of action because § 609 only applies to “punitive actions diminishing
membership rights, and not to termination of a member’s status as an appointed union employee.”
Finnegan, 456 U.S. at 438. Next, the Court rejected the petitioners’ attempts to establish a cause
of action under § 102 of the LMRDA (codified at 29 U.S.C. § 412), which allows a person to sue
in a district court of the United States if that person’s rights under the LMRDA have been infringed.
The Court held that the petitioners could not sue under § 102 because their rights under the LMRDA
had not been infringed. See Finnegan, 456 U.S. at 440-42. In particular, the Court stated that:
[The LMRDA] does not restrict the freedom of an elected union leader to choose a
staff whose views are compatible with his own. Indeed, neither the language nor the
legislative history of the Act suggests that it was intended even to address the issue
of union patronage. To the contrary, the Act’s overriding objective was to ensure that
unions would be democratically governed, and responsive to the will of the union
membership as expressed in open, periodic elections. Far from being inconsistent
with this purpose, the ability of an elected union president to select his own
administrators is an integral part of ensuring a union administration’s responsiveness
to the mandate of the union election.
Id. at 441 (citation and footnotes omitted). Therefore, the Supreme Court affirmed the summary
judgment that had been entered in favor of the union. See id. at 442. Considering that the Court had
9
already found that the statute was intended to protect union members instead of union employees,
it is not surprising that the Court held that the LMRDA provided no protection for the petitioners.
The most glaringly obvious defect in the defendant’s reliance on Finnegan is that Finnegan
is inapposite to the case at hand. Finnegan simply held that the petitioners in that case did not have
a cause of action under the LMRDA because the protections of the LMRDA do not apply to union
employees who have been terminated for political reasons. This holding has nothing to do with the
instant case because Ardingo is not asserting a cause of action under the LMRDA. Instead, he is
suing to enforce his state-law contract rights under his just-cause employment contract, and these
contract rights simply are not impacted by Finnegan. It would be a non-sequitur to say that Ardingo
is precluded from bringing a lawsuit to enforce his contract rights simply because the LMRDA does
not provide him with a cause of action against the defendant. Indeed, there are many federal laws
that do not provide Ardingo with a cause of action, but that does not mean that each one of them
preempts his wrongful-discharge lawsuit. In short, when a union chooses to offer a just-cause
employment contract to an employee, there is nothing in Finnegan or the LMRDA that would
prevent that contract from being enforced.
The defendant erroneously believes that Finnegan is relevant to this case because the
defendant misinterprets Finnegan as standing for the proposition that the LMRDA gives union
officials unfettered discretion in employment matters. The holding of Finnegan, however, clearly
does not support this interpretation. The fact that the LMRDA does not provide a cause of action
to union employees who have been fired for political reasons does not mean that state law could
never restrict a union leader’s discretion to terminate a union employee. See Bloom v. Gen. Truck
Drivers, Office, Food & Warehouse Union, Local 952, 783 F.2d 1356, 1360-62 (9th Cir. 1986)
10
(holding that a wrongful-discharge lawsuit was not preempted by the LMRDA where a business
agent claimed to have been terminated for refusing to violate state law). Such a question was not
even before the Finnegan Court. Therefore, it would be wrong to say that Finnegan stands for the
proposition that the LMRDA gives union officials unlimited discretion in employment matters.
Finally, it is true that the defendant’s just-cause policy allows employees to be terminated for
political reasons along the lines discussed in Finnegan, but this is not a basis for finding preemption.
Instead, this fact is only relevant to the issue of whether Ardingo’s termination was a violation of the
just-cause policy. The question of whether Ardingo was fired for just cause was a matter for the jury
to decide, and the sufficiency of the evidence has not been challenged on appeal.
III. Evidentiary Objections
At trial, Ardingo presented evidence that he had cooperated with a Department of Labor
investigation and had testified before a grand jury, and he also presented evidence indicating that he
was terminated in retaliation for these acts rather than for any just cause. The defendant objects to
the admissibility of this evidence on the ground that it was irrelevant and prejudicial. This argument,
however, lacks merit. All relevant evidence is admissible, Fed. R. Evid. 402, and relevant evidence
is defined as “evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without the
evidence,” Fed. R. Evid. 401. In this case, the issue before the jury was whether Ardingo was
terminated in violation of the defendant’s just-cause policy. Thus, the reason for Ardingo’s
termination was a fact that was of consequence to the determination of the action. As result, any
evidence bearing on the reason for Ardingo’s termination would have been relevant and therefore
generally admissible. Because the evidence of retaliation undeniably had some bearing on the reason
11
for Ardingo’s termination, it was relevant and admissible.
The evidence was also relevant and admissible because it rebutted the union’s defense that
Ardingo was terminated out of economic necessity. Under Michigan law, economic necessity can
constitute just cause for discharging an employee, see Ewers v. Stroh Brewery Co., 443 N.W.2d 504
(Mich. Ct. App. 1989), but economic necessity cannot be used as a pretext “for discharges which
would otherwise be subject to just-cause attack by the employee.” Id. at 507. Therefore, Ardingo
was entitled to present evidence showing that the purported economic necessity was just a pretext
for termination without cause.
The defendant, however, contends that the evidence pertaining to retaliatory discharge was
irrelevant and inadmissible because it had no bearing on the issue before the jury. According to the
defendant, the only issue properly before the jury was the question of whether the defendant was in
such dire financial straights that it terminated Ardingo out of economic necessity. Therefore, the
defendant contends that the only evidence that was admissible at trial was evidence pertaining to the
its financial circumstances. The defendant bases this argument on Judge Enslen’s opinion denying
the defendant’s motion for summary judgment on the wrongful-discharge claim. From the
defendant’s viewpoint, Judge Enslen’s opinion had the effect of definitively establishing that the
only issue to be decided by the jury was the question of whether the defendant actually had an
economic need to terminate Ardingo. Thus, according to the defendant, Ardingo was limited to
presenting evidence on only that issue. This argument, however, is plainly wrong because it relies
on a gross misreading of Judge Enslen’s opinion. In denying the defendant’s motion for summary
judgment, Judge Enslen clearly did not limit the issues to be decided by the jury. See J.A. at 327-28.
Instead, he simply found that the claim must be decided by a jury because the defendant’s two
12
defenses to this claim did not demonstrate that the defendant was entitled to judgment as a matter
of law. See id. Rather than intending to limit the issues, Judge Enlsen was simply responding to the
two specific arguments raised by the defendant: (1) Ardingo was not terminated, but was merely laid
off; and (2) Ardingo’s layoff/termination was due to economic necessity. Judge Enslen found that
there were genuine issues of material fact with respect to these defenses, but he did not hold that
these were the only issues on which there were genuine issues of material fact. See J.A. at 327-28.
A contrary holding would not only be factually wrong, but it would produce the absurd result of
allowing a defendant to limit a plaintiff’s evidence according to the issues that the defendant chose
to raise in its motion for summary judgment.
The defendant also argues that the trial court should have excluded the retaliatory discharge
evidence under Fed. R. Evid. 403 because that evidence was unfairly prejudicial. Rule 403 allows
relevant evidence to 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 needless presentation of cumulative evidence.” “Within the context of Rule 403,
‘[u]nfair prejudice does not mean the damage to a defendant’s case that results from the legitimate
probative force of the evidence; rather, it refers to evidence which tends to suggest [a] decision on
an improper basis.’” United States v. Lawson, 535 F.3d 434, 442 (6th Cir. 2008) (quoting United
States v. Newsom, 452 F.3d 593, 603 (6th Cir. 2006)). The evidence at issue here does not suggest
a decision on an improper basis. Indeed, the trial court took appropriate measures to ensure that
would not happen by preventing Ardingo and his witnesses from testifying about the substance of
either the Government’s investigation or the grand jury proceedings. See, e.g., J.A. at 35-36, 725-26.
Ardingo was permitted to reveal nothing other than the fact that there had been a Government
13
investigation with which he cooperated, that there had been a grand jury proceeding before which
he testified, and that union officials reacted to these actions with hostility. See id. at 35-36. As this
evidence was necessary for the presentation of Ardingo’s theory of the case, and did not suggest a
decision on an improper basis, it cannot be said that the trial court abused its discretion in admitting
the evidence. See United States v. Goosby, 523 F.3d 632, 638 (6th Cir. 2008) (stating that
evidentiary rulings are reviewed for abuse of discretion).
Finally, the defendant also asserts that the evidence of Ardingo’s cooperation with the
Government and testimony before a grand jury was not admissible because those acts were too
temporally remote from his discharge to prove that the discharge was in retaliation for those acts.
This argument, however, is misdirected. The lack of temporal proximity between Ardingo’s
termination and his cooperation with the Government and testimony before a grand jury might be
valid basis for finding that the defendant was entitled to judgment as a matter of law, see Aho v.
Dep’t of Corr., 688 N.W.2d 104, 110 (Mich. Ct. App. 2004), but it is not a valid basis for finding
that the evidence of retaliation should have been excluded at trial. All that Rule 401 requires is that
the evidence make Ardingo’s case somewhat more or less likely, and there can be no doubt that the
evidence at issue here had the effect of making his case somewhat more likely. The fact that the
evidence may not have been enough to make Ardingo’s claim more likely than not does not mean
that it was irrelevant. In other words, the fact that a plaintiff’s evidence fails to make the plaintiff’s
case likely enough for the plaintiff to win does not mean that the evidence fails to make the
plaintiff’s case more likely than it would have been without the evidence.
IV. Jury Instructions
A trial court’s refusal to give a requested jury instruction is reviewed for abuse of discretion,
14
and it constitutes reversible error if “(1) the omitted instruction is a correct statement of law, (2) the
instruction is not substantially covered by other delivered charges, and (3) the failure to give the
instruction impairs the requesting party’s theory of the case.” Tompkin v. Philip Morris USA, Inc.,
362 F.3d 882, 901 (6th Cir. 2004) (quoting Hisrich v. Volvo Cars of N. Am., Inc., 226 F.3d 445, 449
(6th Cir. 2000)). “A judgment may be reversed only if the instructions, viewed as a whole, were
confusing, misleading, or prejudicial.” Id. (quoting Hisrich, 226 F.3d at 449). The defendant
contends that the trial court committed reversible error by refusing to give the defendant’s requested
instructions with respect to: (1) the union president’s right to terminate union employees for political
reasons pursuant to Finnegan; (2) the burden of proof for a wrongful-discharge claim; and (3) the
possibility that Ardingo could be reinstated rather than awarded front pay. However, because the
district court’s refusal to give these instructions was not an abuse of discretion, this court will not
disturb the jury’s verdict.
A. The Defendant’s Proposed Finnegan Instruction
The defendant requested that the trial court instruct the jury that because the just-cause policy
incorporated Finnegan, it allowed employees to be terminated for political reasons. See J.A. at 342.
The trial court provided such an instruction during trial, but declined to so instruct the jury at the
close of evidence because the defendant had built its case around the theory that Ardingo was
terminated for economic reasons, not political reasons. See id. at 39. Therefore, the trial court
concluded that giving this instruction would only serve to confuse the jury. See id. While the trial
court could have reminded the jury of its previous instruction at the close of evidence—and that may
have even been preferable—the trial court did not abuse its discretion in refusing to give the
instruction a second time, especially where it did not impair the defendant’s theory of the case in any
15
way. See Tompkin, 362 F.3d at 901 (quoting Hisrich, 226 F.3d at 449).
The defendant’s sole defense from the beginning to the end of this case was that Ardingo was
terminated for economic reasons. The defendant’s counsel clearly established this as the defendant’s
theory of the case when he announced in his opening statement that “We claim [Ardingo] was laid
off due to economic and financial circumstances,” J.A. at 569. The defendant’s counsel continued
to advance this theme throughout the trial and, to a large extent, focused its cross examinations and
the testimony of its own witnesses on the issue of its economic circumstances. See, e.g., id. at 666-
67, 978-92. Thus, it is clear that the defendant’s theory of the case was that Ardingo was terminated
because of economic necessity. As a result, the trial court did not impair the defendant’s theory of
the case by refusing to instruct the jury a second time that a union employee could be fired for
political reasons. Accordingly, the refusal to give the defendant’s requested Finnegan instruction
did not impair the defendant’s theory of the case and therefore cannot constitute reversible error.
See Tompkin, 362 F.3d at 901 (quoting Hisrich, 226 F.3d at 449).
Moreover, the refusal to give the requested Finnegan instruction at the close of evidence did
not render the jury instructions confusing or misleading with respect to the contours of the
defendant’s just-cause policy. To say otherwise would ignore the fact that the entire just-cause
policy was admitted into evidence, J.A. 436-41, as well as the fact that the jury actually was
instructed on the meaning of Finnegan and Finnegan’s significance within the just-cause policy, id.
at 1006. The trial court’s instruction on the meaning and significance of Finnegan occurred during
Robert Potter’s testimony on behalf of the defendant. Potter had been asked by the defendant’s
counsel to explain the defendant’s just-cause policy to the jury, id. at 997-98, but when he started
to explain the meaning of Finnegan, the judge immediately stopped him, id., which was appropriate
16
in light of the fact that witnesses are not allowed to explain the applicable law to the jury, see United
States v. Safa, 484 F.3d 818, 821 (6th Cir. 2007). In lieu of allowing Mr. Potter to testify on that
issue, the trial court instructed the jurors on the meaning of Finnegan and further instructed them
that the just-cause policy allowed employees to be fired for political reasons because it incorporated
Finnegan. See J.A. at 1006. The jurors presumably remembered this instruction when it came time
for their deliberations, and the defendant has not presented any evidence that they failed to
understand the instruction when given. See Girtman v. Lockhart, 942 F.2d 468, 474 (8th Cir. 1991)
(holding that defense attorney’s failure to object to prosecutor’s misstatement of the burden of proof
during closing argument was not ineffective assistance of counsel since the jury was presumably
capable of remembering the judge’s instructions regardless of when those instructions were given).
Given this presumption, and the fact that the jurors had the just-cause policy available to them as an
exhibit, this court can only conclude that the final jury instructions did not confuse or mislead the
jurors about what did and did not constitute just cause under the defendant’s policy. As a result, it
cannot be said that the trial court’s refusal to give the requested Finnegan instruction prejudiced the
defendant since it neither impaired the defendant’s theory of the case nor confused or misled the
jurors. Moreover, the defendant has not presented any evidence that the jury was in fact confused
or the trial court’s decision not to reiterate this instruction at closing left the jury with a
misunderstanding of the law.
Having failed to present any such evidence of jury confusion, the defendant argues that the
trial court’s refusal to give the requested Finnegan instruction prevented it from fully developing its
theory of the case. The defendant readily admits that it did not set forth the theory that Ardingo was
fired for political reasons, but it claims that this fact should not have stopped the trial court from
17
delivering the proposed instruction because it was the trial court’s fault that the defendant did not
argue that Ardingo was terminated for political reasons. According to the defendant, it was not able
to make the argument because the trial court prevented Robert Potter from testifying about the
meaning of Finnegan. This argument is not compelling for two reasons. First, the defendant staked
out its theory of the case in its opening statement, long before Potter ever took the stand. Second,
the trial court’s refusal to permit Potter from testifying about the meaning of Finnegan was proper
as discussed above and did not in any way prevent the defendant from arguing or presenting evidence
that Ardingo was fired for political reasons. To the contrary, the defendant’s failure to offer such
proof was simply the result of its own strategic decision to focus on the economic, rather than
political, reasons for terminating Ardingo.
The defendant also argues that the failure to provide the requested Finnegan instruction at
the close of evidence prevented the jury from properly evaluating whether Ardingo had proven that
he was terminated without just cause. This argument, however, reverses the applicable burden of
proof. Under Michigan law, a wrongful-discharge plaintiff does not have to disprove every potential
basis for just cause. Instead, a wrongful-discharge plaintiff must prove nothing more than that: (1)
he was terminated by the defendant; (2) he was performing the duties of his employment until the
time of his termination; and (3) he suffered economic damages as a result of the termination. See
Rasch v. City of E. Jordan, 367 N.W.2d 856, 858 (Mich. Ct. App. 1985). When these prima facie
elements are satisfied, the burden shifts to the defendant to prove a basis for just cause. See id. If
the defendant demonstrates that it had just cause to terminate the plaintiff, then the burden shifts
back to the plaintiff to show that the reason set forth by the defendant was merely a pretext for
terminating the plaintiff for a reason that did not constitute just cause. See Toussaint v. Blue Cross
18
& Blue Shield of Mich., 292 N.W.2d 880, 896 (Mich. 1980); Ewers v. Stroh Brewery Co., 443
N.W.2d 504, 507 (Mich. Ct. App. 1989). Thus, in light of this burden shifting analysis, it is clear
that the only grounds for just cause that matter—at least as far as the jury is concerned—are those
set forth by the defendant as the purported reasons for the termination. Here, the defendant clearly
attempted to satisfy its burden of proving just cause by showing that Ardingo was terminated solely
for economic reasons. Since the defendant never set forth the theory that Ardingo was terminated
in whole or in part for political reasons, a second Finnegan instruction was not necessary.
B. The Defendant’s Proposed Wrongful-Discharge Burden-of-Proof Instruction
The defendant proposed a wrongful-discharge burden-of-proof instruction that was
substantially similar to the one the trial court provided. They both set forth the burden shifting
analysis that is required for wrongful-termination claims under Michigan law, and they each
instructed the jurors that they were not to substitute their own business judgment for that the of the
defendant. The primary difference between the two instructions was that the defendant’s proposed
instruction provided additional direction on the issue of pretext. With respect to pretext, the
instruction given to the jury simply said that the jurors should find for Ardingo if they concluded that
the defendant’s purported basis for just cause—i.e., economic necessity—was not the real reason that
Ardingo was fired. The instruction requested by the defendant, however, added that the jurors could
not find economic necessity to be a pretextual reason for Ardingo’s termination if the defendant held
an honest—albeit incorrect—belief that there was an economic need to terminate him.
The defendant’s requested instruction is compelling at first glance, but upon deeper analysis,
it becomes clear that it is an incorrect statement of law because it is logically inconsistent with the
rest of the wrongful-discharge instructions. Under Michigan law, the question of pretext does not
19
arise until the defendant has demonstrated that there was just cause for the termination at issue. See
Toussaint, 292 N.W.2d at 896; Ewers, 443 N.W.2d at 507. Since the purported basis for just cause
was economic necessity in this case, that means that the jury could not have considered the issue of
pretext unless it had first determined that the defendant had an economic need to terminate Ardingo.
Herein lies the problem with the defendant’s requested instruction; if the jury has already determined
that an economic necessity exists, then it makes no sense to ask whether the defendant had an honest
but incorrect belief in the existence of an economic necessity. A finding of economic necessity
necessarily precludes a finding that the defendant had an honest but incorrect belief in the existence
of an economic necessity because the two findings are manifestly inconsistent. In other words, if
an economic necessity existed, then the defendant could not have had an incorrect belief that an
economic necessity existed. Nevertheless, this is what the defendant’s requested instruction invited
the jury to find. In light of the logical inconsistency presented by that instruction, it is clear that the
instruction was not an accurate statement of the law. Therefore, the trial court was correct to reject
the instruction. See Tompkin, 362 F.3d at 901 (quoting Hisrich, 226 F.3d at 449).
C. The Defendant’s Proposed Instruction on Front Pay and Reinstatement
The defendant requested that the jury be instructed that it should not award “front pay”
damages if it determined that reinstatement of Ardingo to his previous job was possible. The trial
court rejected this instruction because it concluded that reinstatement was not a feasible remedy. In
evaluating the propriety of this refusal, one must keep in mind that the court—not the jury—orders
reinstatement. It is the jury’s job to determine the damages suffered by the plaintiff, and then the
trial court has the discretion to order reinstatement in lieu of front pay if it finds reinstatement to be
a more appropriate remedy. See, e.g., Davis v. Combustion Eng’g, 742 F.2d 916, 922 n.5 (6th Cir.
20
1984); see also Stafford v. Elec. Data Sys. Corp., 741 F. Supp. 664, 665 (E.D. Mich. 1990) (holding
that the availability or propriety of reinstatement is a matter for the court to decide because
reinstatement is an equitable remedy). Therefore, it is not the jury’s place to decide that the
availability of reinstatement precludes the award of front pay damages. Here, the trial court
appropriately determined that reinstatement was not a viable remedy since Ardingo had found
another job and relocated to Washington state. See Roush v. KFC Nat’l Mgmt. Co., 10 F.3d 392, 398
(6th Cir. 1993) (stating that reinstatement is not appropriate “where the plaintiff has found other
work” (citing Henry v. Lennox Indus., 768 F.2d 746, 753 (6th Cir. 1985))). Accordingly, the trial
court did not abuse its discretion in refusing to instruct the jury on the possibility of reinstatement.
V. The Plaintiff’s Expert Witness
The defendant argues that the trial court erred by permitting the plaintiff’s expert witness,
Dr. Marvin DeVries, to testify. According to the defendant, Dr. DeVries should not have been
allowed to testify because his final expert report was not disclosed in a timely fashion. The problem
with this argument, however, is that the defendant did not object to Dr. DeVries’ testimony at the
time of trial. It is true that the defendant filed a motion in limine to exclude the final expert report,
but that motion did not request that Dr. DeVries be prohibited from testifying. However, when the
trial court heard oral argument on this motion, the defendant’s counsel did suggest that the court
should exclude Dr. DeVries’ testimony as well as his report. The trial court agreed to exclude the
report, but it explicitly deferred ruling on the admissibility of the testimony. With respect to the
admissibility of Dr. DeVries’ testimony, the trial court stated, “I am going to take up your motion
in the context of objections to Mr. [sic] DeVries’ testimony at the time he testifies,” J.A. at 527, and
“So that’s my ruling, and I will take up any specific objections you have to his testimony at the time
21
of his testimony,” id. at 528. Since those statements did not amount to an explicit and definitive
ruling as to the admissibility of Dr. DeVries’ testimony, the defendant was required to
contemporaneously object to the testimony at trial in order to preserve the issue of its admissibility
for appeal. See Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 791-92 (6th Cir. 2002)
(citing United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999)). When Dr. DeVries took the
stand to testify at the trial, however, the defendant failed to make any objections. Indeed, not only
did the defendant’s counsel fail to object, but he affirmatively consented to Dr. DeVries’ expert
testimony; when the plaintiff’s counsel moved the court to accept Dr. DeVries as an expert witness
in this case, the defendant’s counsel responded, “No objection, your Honor.” In light of the
defendant’s failure to make a contemporaneous objection to the testimony, the defendant cannot now
claim that the admission of Dr. DeVries testimony was error. See id.; see also Fed. R. Evid.
103(a)(1) (“Error may not be predicated upon a ruling which admits . . . evidence unless a substantial
right of the party is affected, and . . . a timely objection or motion to strike appears of record . . . .”).
VI. Remittitur
This court reviews a refusal to remit a verdict for abuse of discretion. See Denhof v. City of
Grand Rapids, 494 F.3d 534, 548 (6th Cir. 2007). A trial court should not remit a verdict “unless
it is (1) beyond the range supportable by proof; or (2) so excessive as to shock the conscience; or (3)
the result of a mistake.” Gregory v. Shelby County, Tenn., 220 F.3d 433, 443 (6th Cir. 2000) (citing
Bickel v. Korean Air Lines Co., Ltd., 96 F.3d 151, 156 (6th Cir. 1996)). None of these situations
exist in the case at hand. First, given that Ardingo’s economic expert testified that Ardingo had
suffered a total economic loss of $943,479, J.A. at 818-19, the jury verdict of $819,614 is well within
the range supportable by proof. Second, the jury’s award may be somewhat excessive, but it is not
22
so high as to shock the conscience. The trial court reached this same conclusion, and the trial court’s
decision in this regard is entitled to substantial deference because “the excessiveness of the verdict
is primarily a ‘matter . . . for the trial court which has the benefit of hearing the testimony and of
observing the demeanor of the witnesses.” Slayton v. Ohio Dep’t of Youth Servs., 206 F.3d 669, 679
(6th Cir. 2000) (quoting Wilmington v. J.I. Case Co., 793 F.2d 909, 922 (8th Cir. 1986)); see also
Champion v. Outlook Nashville, Inc., 380 F.3d 893, 905 (6th Cir. 2004) (“We undertake a highly
deferential review of the district court, which itself is sharply limited in its ability to remit a jury
verdict.”). The defendant’s arguments in favor of remittitur do little more than emphasize the
uncertain and speculative nature of Ardingo’s damages, a fact that is almost certainly present to some
degree in any case where front pay damages are available. Those arguments simply do not overcome
the high degree of deference that is owed to the trial court’s ruling, and therefore, this court will not
second guess the trial court’s conclusion that the jury award is not shocking to the conscience.
Finally, there is no indication that the verdict was the result of mistake. To the contrary, the jury was
given a clear picture of the extent of Ardingo’s economic loss by the testimony of his expert witness
and the defendant’s effective cross examination of that witness. Thus, the jury’s award must be
upheld because it is not beyond the range supportable by proof, is not so excessive as to shock the
conscience, and is not the result of a mistake. See Gregory, 220 F.3d at 443.
VII. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
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Kennedy, Circuit Judge, dissenting.
Jury instructions exist to submit the case’s issues to the jury so that it can decide the case in
accordance with the applicable law. See Morgan v. N.Y. Life Ins. Co., 559 F.3d 425, 434 (6th Cir.
2009). The Union employment policy here stated that it could terminate an employee for “fail[ure]
to meet employment performance standards” or if “[t]he Union’s needs will be furthered by said
termination, particularly as construed by the Supreme Court in Finnegan v. Leu and its progeny.”
Ample evidence existed in the record for the jury to draw the conclusion that the Union terminated
Ardingo in accordance with Finnegan. I conclude that the district court should have instructed the |
jury on the employment policy’s Finnegan clause, as the Union requested, and for that reason, I
respectfully dissent.
I.
In Finnegan, the Supreme Court held that former union employees employed by the union
lacked a cause of action against their union under the LMRDA for terminations based on political
opposition. 456 U.S. at 441-42 (reasoning, in part, that the LMRDA assures “the ability of an
elected union president to select his own administrators [as] an integral part of ensuring a union
administration’s responsiveness to the mandate of the union election”). In view of the above,
Finnegan occupies a central role in this appeal. Its scope is a question of federal statutory
interpretation with regard to the LMRDA and the preemption question, and a question of state law
as to the contractual provision’s effect. I question the majority’s determination that the LMRDA
does not preempt this action based in state law. Preemption protects the “uniform national labor
relations policy” enacted in the LMRDA. See Vandeventer v. Local Union No. 513 of the Int’l Union
of Operating Eng’rs, 579 F.2d 1373, 1377-78 (8th Cir. 1978). However, I need not decide the
24
question, because even if I accept the majority’s preemption argument and its concomitant
interpretation of Finnegan, the Union nevertheless deserved a jury instruction on it under its
employment policy.
II.
I agree with the majority’s characterization of the applicable law as to Ardingo’s underlying
claim. See Maj. Op. at 18. The plaintiff has the burden of proving that he was living up to the
contract and the terms of employment up to his termination. The burden then shifts to the defendant
to show that the termination was legal. If the defendant makes this showing, the burden shifts back
to the plaintiff to show that the proffered reason was mere pretext. Over the course of trial, the
Union argued that it did not terminate Ardingo–it laid him off, and should the jury conclude that it
did terminate Ardingo, economic necessity motivated the termination. Ardingo offered evidence that
the Union terminated him; also, Ardingo presented two alternative, individually sufficient theories
in response to Ardingo’s purported termination for economic necessity: (1) the Union did not face
financial circumstances necessitating a reduction in workforce; and (2) the Union fired him in
retaliation for his participation in the Department of Labor investigation, as part of suspicion that he
planned to run against Potter, and for political opposition generally. Ardingo’s own testimony
provided much of the evidence for the Union’s requested jury instruction.
In Harvey v. Hollenback, 113 F.3d 639 (6th Cir. 1997), we explained that, “[i]n Finnegan,
a newly elected union leader was able to fire appointed union officials who had campaigned against
him because ultimately, he was expressing the will of the majority by selecting a staff that shared
his views and could be trusted to faithfully execute and implement his policies.” Id. at 643. A jury
could have narrowly construed Ardingo’s retaliation theory as termination for lack of political accord
25
with the Union administration. Rumors had swirled around the Union in early- to mid-2001 that
Ardingo intended to run against Potter for President in the upcoming election, which built up
animosity against Ardingo within Potter’s administration. Later, Potter and his administration
perceived that Potter volunteered information to the Department of Labor to undermine them
politically. The jury might have concluded that the Union terminated Potter because he could not
be trusted to faithfully execute Potter’s policies to further the Union’s needs.
Without a jury instruction on the meaning of Finnegan, the district court did not make the
jury aware of the legality of this articulated ground for Ardingo’s termination. Put differently, the
district court did not adequately describe the case’s applicable law to the jury such that it could come
to an accurate verdict after applying its findings of fact to said applicable law.
III.
The majority is correct in pointing out that the Union largely relied upon economic necessity
as the legal ground for Ardingo’s termination. Maj. Op. at 16. I do not dispute that as a strategic
matter, the Union appeared to have determined that presenting an extensive case on characterizing
Ardingo’s termination as political would weaken its primary defense that economic necessity
motivated the firing. Nevertheless, the majority does not deny that the Union sought testimony from
Potter on the meaning of the employment policy’s Finnegan clause so as to get that issue before the
jury. Id. at 16-17. It even does not deny that this represented an attempt by the Union to argue that
the employment policy made legal a certain type of termination for political opposition. To the
contrary, Ardingo himself presented ample evidence that the Union terminated him for political
opposition upon which the jury could have concluded in the Union’s favor on this ground.
In actual practice, a party’s theory of the case is not monolithic. This case was complex and
26
took nearly a week to try. As a matter of strategy, the Union intoned loudly its economic necessity
argument while whispering its political opposition theory. That fact alone does not eviscerate the
Union’s right under the policy to terminate Ardingo in accordance with Finnegan, nor its
concomitant right to have the jury decide the case in accordance with the applicable law. See Taylor
v. Teco Barge Line, Inc., 517 F.3d 372, 387 (6th Cir. 2008) (“A party needs only a slim amount of
evidence to support giving a jury instruction . . . .”)
IV.
By denying the Union’s request for an instruction on the policy’s Finnegan clause, the district
court, in essence, ruled that the Union’s argument that it legally terminated Ardingo in accordance
with said clause failed as a matter of law only for failure to produce sufficient evidence to support
that conclusion, because plenty of evidence in the record, produced by Ardingo, suggested that the
Union terminated him for his political opposition. The question then becomes: does Ardingo
deserve summary disposition on this issue or should the district court have submitted it to the jury,
simply because he, not the Union, produced the relevant evidence?
The theory of Ardingo’s termination as political opposition could either fit into the legal
framework given above as one of the Union’s legal reasons for termination, or as one of Ardingo’s
showings of pretext. Either Ardingo refuted the Union’s economic necessity rationale by arguing
both lack of economic necessity and political-opposition termination, or the Union put forth
economic necessity and political opposition as legal reasons for termination and Ardingo refuted
both. No doubt the majority states correctly that the Union failed to produce evidence of political
opposition, so that it did not put forth political opposition as a lawful ground for termination
alongside its economic necessity argument. Ardingo, not the Union, injected political opposition
27
into the case to show pretext; the law burdens him with production on his theories of pretext. In
short, a proffered “theory of the case” encompasses more than the evidence a party produces,
particularly when the law tasks the opposing party with the burden of production.
The district court allowed the jury to decide whether economic necessity was a pretextual
reason for Ardingo’s termination because the Union actually terminated Ardingo in accordance with
some other unlawful reason. To decide that issue is to decide that the Union had not terminated
Ardingo in accordance with the Finnegan clause, a lawful grounds for termination. Ardingo put
forth the larger issue of pretext that included the narrower issue of political opposition to support his
position. Ardingo’s entitlement to have his political opposition theory get before the jury to respond
to the Union’s economic necessity argument then implies the same for the Union’s Finnegan-clause
argument. Summary disposition of the Finnegan-clause issue in Ardingo’s favor does not follow
when ample evidence in the record existed, produced by Ardingo and gestured at by the Union, to
conclude in the Union’s favor.
V.
Abundant evidence of political opposition existed. The Union attempted to argue the theory
that even if economic necessity was a pretextual reason for Ardingo’s termination because the Union
actually terminated him for political opposition, such a termination would be legal as well. The jury
instructions were prejudicial.2 For the foregoing reasons, the Union deserved a jury instruction on
2
The majority argues that no prejudice existed because the district court admitted the just-
cause policy into evidence and read the Supreme Court’s holding in Finnegan to the jury during
Potter’s direct testimony. Maj. Op. at 16. This ignores that the district court gave the following
jury instructions:
In order for you to decide whether there was a good or just cause for the
termination of plaintiff’s employment under defendant’s policy you must
28
Finnegan, and so, I would reverse the judgment of the district court and remand for a new trial.
determine whether defendant was actually in financial circumstances necessitating
a reduction in its work force, and whether that circumstance was the actual reason
for termination of plaintiff’s employment.
If defendant was not in circumstances requiring a reduction in its work
force or if that was not the actual reason for plaintiff’s termination then there was
not good or just cause for termination.
These instructions render the policy’s Finnegan clause inoperative as far as the jury is concerned.
29