City of Lansing's Motion For A New Trial

Case 1:19-cv-00039-PLM-RSK ECF No. 97, PageID.
2475 Filed 11/07/22 Page 1 of 20
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL LYNN,
Plaintiff, CASE NO.: 1:19-cv-00039
v. HON. PAUL L. MALONEY
CITY OF LANSING,
Defendant.
SCOTT P. BATEY (P54711) RHONDA R. STOWERS (P64083)

RYAN T. FOWLER (P84210) PLUNKETT COONEY
BATEY LAW FIRM, PLLC Attorney for Defendant
Attorney for Plaintiff 111 E. Court Street – Suite 1B
30200 Telegraph Road, Suite 400 Flint, MI 48502
Bingham Farms, MI 48025 (810) 342-7003
(248) 540-6800 (810) 232-3159 – fax
(248) 540-6811 fax rstowers@plunkettcooney.com
sbatey@bateylaw.com
rfowler@bateylaw.com
CITY OF LANSING’S MOTION FOR A NEW TRIAL, OR IN THE ALTERNATIVE,

FOR REMITTITUR
Defendant City of Lansing (the “City” or “Defendant”) moves for a new trial or
remittitur under Federal Rule of Civil Procedure 59.
This motion is based on the brief in support filed with the motion and the legal
authorities and arguments in the brief in support.
Pursuant to LR 7.1(d), on November 7, 2022 counsel for the City of Lansing had a
telephone conference with counsel for Michael Lynn, to discuss the nature of the motion and
the legal basis for the motion in order to ascertain whether the motion will be opposed.
Counsel for Lynn stated in response that the motion will be opposed.
Case 1:19-cv-00039-PLM-RSK ECF No. 97, PageID.2476 Filed 11/07/22 Page 2 of 20
1. A new trial is required because plaintiff’s counsel repeatedly elicited
testimony concerning events outside the statute of limitations, evidence and arguments that
were highly prejudicial. Despite motions in limine and an order to exclude such events,
plaintiff’s counsel repeatedly elicited testimony concerning events and incidents that fell
outside the statute of limitations. This testimony was highly prejudicial, could not be cured
by a cautionary instruction, and was deliberately injected into the trial by Lynn’s lawyer. This
requires a new trial.
2. A new trial is also required because Lynn’s counsel repeatedly elicited
testimony from coworkers at the City about incidents and events and remarks that were
never connected to Lynn so that it could be deemed to have contributed to a hostile work
environment as to Lynn. The testimony was highly prejudicial and confusing to the jury since
it seemed to support Lynn’s claim that the fire department had a racially hostile work
environment although it was never connected to Lynn’s tenure or to him.
3. A new trial is also required because Lynn’s counsel repeatedly elicited hearsay
testimony including hearsay statements by Captain Isra’el although this Court granted the
City’s motion in limine to exclude such testimony and references.
4. A new trial or remittitur is also required because Lynn’s counsel deliberately
and repeatedly injected economic damages for wage loss into the trial although no claim for
economic damages was made. Lynn continued to work for the City during the time-frame at
issue here and consequently did not claim economic damages. Despite this, and over
objections, Lynn’s counsel referred to his potential salary as a firefighter and his loss of the
ability to work as a firefighter in fire suppression activities. These comments were so
prejudicial that they require a remittitur or a new trial.
2
5. The jury’s verdict was against the great weight of the evidence. Lynn offered
only vague complaints, innuendo and speculation, and a complaint about his discipline
(which was shown to be warranted under the rules), non-raced based comments about EMTs
(who were majority white), and the so-called banana incident (which did not stem from race-
based harassment but nonracial pranks by another shift, and which was a sole isolated
incident).
6. This post-verdict motion is brought to provide this Court with the opportunity
to correct these fundamental and outcome determinative errors and to assure that they are
preserved for appeal.
7. The City seeks a new trial based or remittitur based on Rule 59.
Wherefore, Defendant City of Lansing requests this Court to grant it a new trial or
remittitur and any other relief to which it is entitled in law or equity.
Respectfully submitted,
PLUNKETT COONEY
By: /s/Rhonda R. Stowers

Rhonda R. Stowers (P64083)
Attorney for Defendant
111 E. Court St., Ste. 1B
Flint, MI 48502
(810) 342-7003
Dated: November 7, 2022
3
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL LYNN,
Plaintiff, CASE NO.: 1:19-cv-00039
v. HON. PAUL L. MALONEY
CITY OF LANSING,
Defendant.
SCOTT P. BATEY (P54711) RHONDA R. STOWERS (P64083)

RYAN T. FOWLER (P84210) PLUNKETT COONEY
BATEY LAW FIRM, PLLC Attorney for Defendant
Attorney for Plaintiff 111 E. Court Street – Suite 1B
30200 Telegraph Road, Suite 400 Flint, MI 48502
Bingham Farms, MI 48025 (810) 342-7003
(248) 540-6800 (810) 232-3159 – fax
(248) 540-6811 fax rstowers@plunkettcooney.com
sbatey@bateylaw.com
rfowler@bateylaw.com
CITY OF LANSING’S BRIEF IN SUPPORT OF MOTION FOR A NEW TRIAL, OR IN THE

ALTERNATIVE, FOR REMITTITUR
TABLE OF CONTENTS
Page
STATEMENT OF THE QUESTION PRESENTED ......................................................................................... ii

INDEX OF AUTHORITIES................................................................................................................................... iii
INTRODUCTION.................................................................................................................................................... iii
STANDARD FOR A NEW TRIAL ....................................................................................................................... 1
ARGUMENT ............................................................................................................................................................. 2
THE CITY OF LANSING’S MOTION FOR A NEW TRIAL OR
REMITTITUR UNDER FEDERAL RULE OF CIVIL PROCEDURE 59
SHOULD BE GRANTED BECAUSE DISCUSSION OF PRE-STATUTE
OF LIMITATIONS EVENTS WAS REPEATEDLY INJECTED INTO
THE PROCEEDINGS DESPITE A MOTION IN LIMINE TO PRECLUDE
THEM, COWORKERS AT THE CITY OF LANSING REPEATEDLY
TESTIFIED TO RACIAL HOSTILITY WITH NO EFFORT TO
CONNECT IT TO LYNN AND LYNN’S EMPLOYMENT, AND LYNN’S
COUNSEL DELIBERATELY INJECTED DISCUSSION OF ECONOMIC
DAMAGES INTO THE TRIAL ALTHOUGH NO CLAIM WAS MADE
FOR ECONOMIC DAMAGES ......................................................................................... 2
A. Repeated references to events that were barred by the statute of limitations
requires a new trial................................................................................................................................. 3
B. The testimony of multiple employees or former employees of the City of
Lansing recounting their purported experiences and beliefs about racial
harassment was never connected to Lynn and thus was irrelevant and highly
prejudicial................................................................................................................................................... 5
C. The argument and testimony concerning the salary of firefighters and Lynn’s
purported inability to ever return to fire suppression was irrelevant and
highly prejudicial since Lynn had no claim for economic damages ..................................... 9
D. The verdict is against the great weight of the evidence ........................................................ 10
RELIEF .................................................................................................................................................................... 11
i
STATEMENT OF THE QUESTION PRESENTED
Should the City of Lansing’s Motion for a New Trial or Remittitur Under Federal Rule of Civil
Procedure 59 be granted because discussion of pre-statute of limitations events was
repeatedly injected into the proceedings despite a motion in limine to preclude them,
coworkers at the City of Lansing repeatedly testified to racial hostility with no effort to
connect it to Lynn and Lynn’s employment, and Lynn’s counsel deliberately injected
discussion of economic damages into the trial although no claim was made for economic
damages?
Defendant City of Lansing answers, “Yes.”
Plaintiff Michael Lynn answers, “No.”
ii
INDEX OF AUTHORITIES
Page
Cases
Abeita v. TransAmerica Mailings, Inc.,

159 F.3d 246 (6th Cir.1993) ........................................................................................................................ 8
Arban v. West Publishing Corp.,

345 F.3d 390, 400 (6th Cir.2003) ........................................................................................................... 13
Berryman v. SuperValu Holdings, Inc.,

669 F.3d 714 (6th Cir. 2012) ......................................................................................................................... 8
Boyle v. Mannesmann Demag Corp.,

991 F.2d 794 (6th Cir. 1993) ......................................................................................................................... 9
Burnett v. Tyco Corp.

203 F.3d 980 (6th Cir.2000) ........................................................................................................................ 8
Haskell v. Kaman Corp.,

743 F.2d 113 (2d Cir. 1984) ......................................................................................................................... 9
InterRoyal Corp. v. Sponseller,

889 F.2d 108 (6th Cir. 1989) ......................................................................................................................... 8
J Jackson v. Virginia,
443 U.S. 307, 317-319, (1979) ................................................................................................................. 13
Jackson v. Quanex Corp.,

191 F.3d 647 (6th Cir. 1999) ......................................................................................................................... 8
Moorhouse v. Boeing Co.,

501 F.Supp. 390 (E.D.Pa.), aff'd mem., 639 F.2d 774 (3d Cir.1980) .............................................. 9
Park W. Galleries, Inc. v. Hochman,

692 F.3d 539, 549 (6th Cir. 2012) ............................................................................................................. 4
Schrand v. Fed. Pac. Elec. Co.,

851 F.2d 152 (6th Cir. 1988) ....................................................................................................................... 9
United States v. Day,

789 F.2d 1217 (6th Cir. 1986) .................................................................................................................. 10
iii
Walker v Daimler-Chrysler Corp.,

2005 WL 81545351 (E.D. Mich. 2005) ................................................................................................. 10
Wanchik v. Great Lakes Health Plan, Inc.,

6 F. App'x 252 (6th Cir. 2001) ..................................................................................................................... 8
Rules
Fed. R. Civ. P. 59(a)(1) ......................................................................................................................................... 4
Fed. R. Civ. P. 59(d) ............................................................................................................................................... 4
Fed. R. Evid. 801(c)............................................................................................................................................ 10
Fed. R. Evid. 803 ................................................................................................................................................. 10
Fed. R. Evid. 804 ................................................................................................................................................. 10
Fed. R. Evid. 807 ................................................................................................................................................. 10
Fed.R.Civ.P. 50(a) ............................................................................................................................................... 13
iv
INTRODUCTION
Michael Lynn, a former employee of the City of Lansing, sued the City claiming that he
was subjected to a hostile work environment based on his race in violation of Title VII and
Michigan’s Elliott-Larsen Civil Rights Act. He also argued that he had been retaliated against
for his First Amendment protected speech. After trial, a jury returned a verdict rejecting his
First Amendment claim but finding the City liable for a hostile work environment based on
race.
STANDARD FOR A NEW TRIAL
Under Federal Rule of Civil Procedure 59, “[t]he court may, on motion, grant
a new trial on all or some of the issues—and to any party ... (A) after a jury trial, for any
reason for which a new trial has heretofore been granted in an action at law in federal
court....” Fed. R. Civ. P. 59(a)(1). A district court may also order a new trial on its own for “any
reason that would justify granting one on a party's motion.” Fed. R. Civ. P. 59(d). The Sixth
Circuit has explained that the “governing principle” in the district court's consideration of a
motion for a new trial “is whether, in the judgment of the trial judge, such course is required
in order to prevent an injustice; and where an injustice will otherwise result, the trial judge
has the duty as well as the power to order a new trial.” Davis by Davis v. Jellico Cmty. Hosp.
Inc., 912 F.2d 129, 133 (6th Cir. 1990)(internal quotation marks omitted).
The Supreme Court has described “the authority of trial judges to grant new trials”
under Rule 59(a) as “large.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433, 116 S.Ct.
2211, 135 L.Ed.2d 659 (1996). See Park W. Galleries, Inc. v. Hochman, 692 F.3d 539, 549 (6th
Cir. 2012).
1
ARGUMENT
THE CITY OF LANSING’S MOTION FOR A NEW TRIAL OR REMITTITUR

UNDER FEDERAL RULE OF CIVIL PROCEDURE 59 SHOULD BE GRANTED
BECAUSE DISCUSSION OF PRE-STATUTE OF LIMITATIONS EVENTS WAS
REPEATEDLY INJECTED INTO THE PROCEEDINGS DESPITE A MOTION IN
LIMINE TO PRECLUDE THEM, COWORKERS AT THE CITY OF LANSING
REPEATEDLY TESTIFIED TO RACIAL HOSTILITY WITH NO EFFORT TO
CONNECT IT TO LYNN AND LYNN’S EMPLOYMENT, AND LYNN’S COUNSEL
DELIBERATELY INJECTED DISCUSSION OF ECONOMIC DAMAGES INTO
THE TRIAL ALTHOUGH NO CLAIM WAS MADE FOR ECONOMIC DAMAGES
A new trial or remittitur is required because Lynn’s counsel repeatedly introduced
into evidence discussion of events that fell outside the statute of limitations despite an in
limine order precluding it. In addition, Lynn’s counsel offered lengthy and highly prejudicial
testimony from City of Lansing employees or former employees about their own perceptions
of and beliefs about racial hostility within the fire department while never connecting it to
Lynn or his experience. The City’s lawyers repeatedly objected and this Court regularly
sustained those objections. Lynn’s counsel also repeatedly elicited hearsay testimony over
the City’s objections and despite this Court’s grant of the City’s motion in limine to exclude
references and testimony based on hearsay. The cumulative effect of that testimony
prejudicially affected Lynn’s case and requires reversal.
In addition, Lynn’s lawyer injected economic damages into the trial although no claim
for economic damages was made. A new trial is also required because Lynn’s lawyer
compounded his earlier references to economic damages by giving an improper closing
argument referencing economic damages although no economic damages claim was before
the Court. And the figure used to support economic damages was contrary to the record
evidence. The City submitted Lynn’s W-2 into evidence and it was much lower than the
number that Lynn’s lawyer used in his closing argument.
2
Because of this prejudicial testimony and argument, a new trial is needed. In the
alternative, remittitur is needed because the jury’s verdict was improperly inflated by the
references to Lynn’s supposed loss of a firefighter’s salary because he is purportedly no
longer able to work in fire suppression.
A. Repeated references to events that were barred by the statute of limitations

requires a new trial
The timeline during which Lynn was entitled to claim that he suffered racial
harassment in his workplace is limited. This Court ruled that Lynn could not seek recovery
for events that occurred before June 6, 2017 for his Title VII claim and January 18, 2016 for
his Elliott-Larsen Civil Rights Act claim. Lynn acknowledged that he did not experience
harassment from when he was transferred from one station to another until the banana
incident of March 2017. Lynn was on leave from March of 2017 until mid-March of 2018. He
went on leave from September 12, 2018 until January 7, 2019 when he returned to light duty.
Since he conceded that he experienced no racial issues after his return, the only period
during which he could even conceivably experienced workplace racial harassment was
between mid-March through mid-September of 2018.
This Court granted the City’s in limine motion to exclude references to events that
occurred before the various limitations periods. (Opinion and Order Granting In Part
Motions In Limine, RE 72, PageID.922-923). This Court said that “the probative value of this
evidence is outweighed by the danger of unfair prejudice and juror confusion.” (Id. at
PageID.923). This Court recognized that introducing evidence outside the relevant
timeframe would be unfairly prejudicial because of the “risk that jurors would be confused
by the evidence, a confusion that would not be cured by an instruction.” Id. (emphasis
added).
3
Despite this, Lynn’s lawyer repeatedly elicited testimony that was outside the
timeframe during which Lynn was at work. Even during his opening statement, he
referenced comments about the hiring of EMTs and the change in the City’s hiring policy,
which occurred in 2014 and 2015. (Batey, Tr, RE 90, PageID.597-1598). The City’s lawyer
objected to this and raised it with this Court after the jury had been dismissed after the
opening. Id. And Lynn’s lawyer promised to abide by this Court’s order. But he did not do so.
 During testimony of the very first witness, David Odom, Lynn’s counsel asked
about when he met Lynn (obviously before the timeframe that was relevant) and
Odom responded with testimony about purported racial harassment from that
time period. Odom said that at Station 1 when the battalion chief comes back, the
firefighters are supposed to go to the chief’s car to see if he needed them to do
anything and recounted that Lynn had told him “the black firefighters had to get
up and run, but the white firefighters, they didn’t say anything to them. They just
got to sit there.” (Odom, Tr, RE 91, PageID.1615). The City’s lawyer objected and
this Court sustained the objection. But the question and initial response was heard
by the jury. This Court again cautioned Lynn’s lawyer saying “Stay within the time
frame based on the prior court order.” (Id. at PageID.1616). Shortly after, David
Odom again discussed conversations with Lynn from when Lynn was in training,
which was outside the relevant time frame. (Id. at PageID.1617).
 Lynn’s counsel elicited lengthy testimony from Jwan Randall about his complaints
to the City’s human relations department and his being questioned about
firefighting equipment at his residence, which was outside the relevant time
frame. (RE 91, PageID.1697-1700). When the City’s counsel objected, Lynn’s
lawyer asserted that he had read this Court’s order to only refer to Mr. Lynn and
his case “not any of the witnesses.” (Batey, RE 91, PageID.1700). He contended
that Randall’s testimony showed “racism was systemic in the department….” Id.
But the testimony was not relevant because it was outside the time frame, was not
connected to Lynn’s experience, and violated this Court’s order.
 During Bruce Odom’s testimony, the City’s lawyer again was forced to request that
Lynn’s lawyer limit the evidence to occurrences after 2016. (Stowers, RE 91,
PageID.1714). And when the City’s lawyer did so, Odom conceded that he “would
not say specifically” that he heard these comments during the relevant time frame.
Id. In fact, Bruce Odom could not recall any complaint from Lynn after January of
2016 except for the banana incident. (Id. at PageID.1715). Yet his testimony about
prior events was heard by the jury and was highly prejudicial, as Lynn’s lawyer
undoubtedly knew and as this Court recognized in its order granting in part the
City’s motions in limine.
4
B. The testimony of multiple employees or former employees of the City of

Lansing recounting their purported experiences and beliefs about racial
harassment was never connected to Lynn and thus was irrelevant and highly
prejudicial
Lynn’s counsel buttressed his extremely weak claims of racial harassment as to Lynn
by calling other employees of the City to describe their own experiences. But this testimony
was never connected to Lynn. Although the Sixth Circuit has permitted evidence of
harassment directed toward other individuals when establishing the totality of
circumstances, Jackson v. Quanex Corp., 191 F.3d 647, 660-661 (6th Cir. 1999), this does not
give blanket approval to introduce any evidence of harassment directed toward other
plaintiffs. In Wanchik v. Great Lakes Health Plan, Inc., 6 F. App'x 252, 262 (6th Cir. 2001), this
Court held only allegations of harassment that were directed to and with knowledge of the
plaintiff should be considered when evaluating whether a workplace was hostile. In doing
so, this Court relied on Burnett v. Tyco Corp. 203 F.3d 980, 981 (6th Cir.2000).
A plaintiff must show that he was individually aware of any incidents of harassment
experienced by other plaintiffs for them to be relevant. InterRoyal Corp. v. Sponseller, 889
F.2d 108, 111 (6th Cir. 1989); Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 718 (6th Cir.
2012). See also, Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 249 n.4 (6th Cir.1993)
(dismissing as irrelevant testimony on harassment about which that plaintiff knew nothing
during her employment).
Lynn’s current claims are limited to the disciplines that he received and the banana
incident (Plaintiff’s Second Amended Complaint, ¶66(b), RE 15, PageID.100). When asked
for details of his claim, he did not describe or even mention the allegations in the other
lawsuit. Lynn has not alleged and failed to show that he was aware of the allegations of other
5
plaintiffs about purported acts of harassment or creating a hostile work environment during
the six-month time at issue in this lawsuit.
This Court granted the City’s motion to exclude hearsay statements, and that ruling
included much of the testimony of the other City employees who testified at trial. The Sixth
Circuit discussed the Second Circuit’s reasoning in Haskell v. Kaman Corp., 743 F.2d 113, 120
(2d Cir. 1984) with approval in Schrand v. Fed. Pac. Elec. Co., 851 F.2d 152, 156 (6th Cir.
1988). The Haskell court held that testimony of former employees of the defendant about
the circumstances surrounding their terminations and those of other employees was not
relevant to the question of whether the plaintiff was terminated for age-related reasons and,
in addition, should have been excluded under Rule 403. The court further found that the
“strongest jury instructions could not have dulled the impact of a parade of witnesses, each
recounting his contention that defendant had laid him off because of his age.” 743 F.2d at
122 (quoting Moorhouse v. Boeing Co., 501 F.Supp. 390, 393 n. 4 (E.D.Pa.), aff'd mem., 639
F.2d 774 (3d Cir.1980)). Thus, the Court concluded that the error could not be considered
harmless. Id. Those same concerns exist here where Lynn’s lawyer presented a parade of
allegations as to other plaintiffs on other occasions to the jury and then failed to connect that
testimony to Lynn’s experience.
This Court held that the evidence should have been excluded under Rule 403 because
it tended to focus the jury’s attention on unrelated events and would then assume a
connection that was never proven. Schrand, supra at 156. This Court has been clear that
testimony concerning statements about the protected group when they are abstract,
irrelevant, and prejudicial may not be used to potentially prejudice a jury against the
defendant. Boyle v. Mannesmann Demag Corp., 991 F.2d 794 at *2-3 (6th Cir. 1993). Such
6
irrelevant or marginally relevant statements confuse the jury about the issue in the case. Id.
This is particularly true when the purported statements or incidents were remote in time
and circumstances from the plaintiff’s adverse action. Id.; See also Walker v. Daimler-Chrysler
Corp., 2005 WL 81545351 (E.D. Mich. 2005). In most cases, “me too” evidence is more
prejudicial than probative. Id. And that was certainly the case here.
Hearsay is any statement that (i) a declarant “does not make while testifying at the
current trial” and (ii) is offered into evidence “to prove the truth of the matter asserted in
the statement.” Fed. R. Evid. 801(c). If a statement meets the definition of hearsay, it is
inadmissible, see Fed. R. Evid. 802, unless it satisfies one or more of the hearsay exceptions,
see Fed. R. Evid. 803, 804, 807. “The proponent of a hearsay statement bears the burden of
proving each element of a given hearsay exception or exclusion.” United States v. Day, 789
F.2d 1217, 1221 (6th Cir. 1986).
Lynn’s attorney offered prejudicial irrelevant and largely hearsay testimony from
multiple other individuals (several of whom have their own lawsuits pending against the
City). This evidence was never connected by testimony from Lynn that he was aware of the
various incidents that these individuals described.
 During David Odom’s testimony, Lynn’s lawyer asked whether Odom “ever
experienced harassment by other firefighters.” (RE 91, PageID.1616). Odom said
vaguely “[t]here were times where they would say that we only got hired because
they needed to get some black people in the Fire Department or they needed some
minorities.” Id.
 Jwan Randall testified to his complaints to the human relations department based
on questions about whether he had firefighting equipment at his home. He told
the jury that he was accused of stealing, and while he disagreed with that
characterization, he conceded that he had equipment at his house. (Randall, Tr,
RE 91, PageID.1691-1693). Randall explained that he had not stolen equipment
and that, after his son has been involved in a rollover accident and needed surgery,
others on the force were cutting his grass and maintaining his property while he
was gone for three months. Id. Lynn’s lawyer asked Randall other African-
7
American firefighters who he said Chief Purchase had accused of stealing. (Id. at
PageID.1693). Randall was also permitted to testify to hearsay statements
purportedly from Chief Purchase concerning Lynn being untrustworthy because
he secretly recorded conversations and concerning theft of software and
concerning the firefighting equipment at Randall’s house. (Id. at PageID.1695-
1698).
 Bruce Odom testified that he left the department because “I actually felt like I was
being marginalized, being actually someone, a victim of implicit bias, implicit
racism, covert racism.” (Odom, Tr, RE 91, PageID.1708). This Court sustained the
City’s objection to this line of questioning but it was nevertheless before the jury.
Bruce Odom recounted that he received complaints from the black firefighters
that they would hear “kind of implied or micro aggressions within the station. “
(RE 91, PageID.1710). Some of the comments were about EMTs. Id. Bruce Odom
was permitted to testify that when people were being harassed because of race,
comments would say they were “unqualified.” (Id. at PageID.1712). But Odom
acknowledged that the majority of those taking advantage of the changed hiring
policy were not African-Americans. (Id. at PageID.1714)
 Former Fire Chief Talifaro vaguely testified that he believed that “things I saw was
racism were pervasive and they were persistent and really relentless.” (Talifaro,
Tr, RE 91, PageID.1787). He said that the former mayor received complaints from
the union about minority staff members, and never about the three white assistant
chiefs that Talifaro had promoted. Id. The City’s lawyer objected that the
testimony was “hearsay and innuendo. This is not personal knowledge, this is a
rumor mill being offered as testimony.” (RE 91, PageID.1787). This Court
instructed Lynn’s lawyer to “get to the heart of the matter.” (Id. at PageID.1788).
Talifaro acknowledged that the new hiring program was not just for African-
Americans and that about 50% or more of those who were hired as part of it were
white. (Id. at PageID.1792). But in his view, the complaints were “coded language”
about “people that were unqualified and didn’t deserve to be there.” Id.
This testimony was irrelevant since Lynn’s lawyer never demonstrated that Lynn was aware
of the incidents or experiences of these other City employees. Much of it also violated this
Court’s order about offering hearsay. And Lynn’s lawyer offered it into evidence but then
failed to connect it to Lynn’s experience. The evidence took up a huge percentage of the trial
– and undoubtedly prejudiced and confused the jury. The City’s lawyer objected multiple
times. But although this Court sustained the objections, Lynn’s lawyer continued to divert
the jury from the real issues. As a result of this prejudicial and irrelevant testimony, a new
trial is required.
8
C. The argument and testimony concerning the salary of firefighters and Lynn’s
purported inability to ever return to fire suppression was irrelevant and highly
prejudicial since Lynn had no claim for economic damages
Lynn did not bring a claim for constructive discharge or wrongful termination and
was still working for the City when he filed this lawsuit. Lynn was terminated by the City on
February 17, 2021 nine months after the close of discovery and eight months after
dispositive motions were filed. Lynn never moved to amend his complaint to add any claim
arising from his discharge. The City moved in limine for an order precluding any reference
to damages from alleged events after January 7, 2019 including his termination. This Court
granted the motion.
Despite this, Lynn’s attorney repeatedly referenced Lynn’s desire to work in fire
suppression for his entire lifetime, the salary supposedly paid to full time firefighters
engaged in fire suppression activities, and his earnings if he had continued in that work.
During closing, Lynn’s attorney specifically discussed this during his request for damages:
And we are going to ask – plaintiff’s – or defendant’s made this about Mr.
Lynn’s job. He no longer works in suppression, he would have made $75,000
a year. He would have worked another 30 years, and that adds up to $2.25
million, and we believe that’s what is fair.
(Batey, Tr, RE 94, PageID.2368). This number is wrong – Lynn’s W-2 shows a much lower
number of $48000 in 2020. Lynn’s lawyer urged that jury to award damages based on
emotional “and the fact that he will no longer be able to work in fire suppression ever again.”
Id. He then argued that the jury should allocate 10 percent of damages to the Elliott-Larsen
claim and 90% to the Title VII claim because the banana incident could only be considered
under the Title VII claim. And then he urged the jury to apportion 10 percent of that to the
First Amendment claim, which the jury rejected. Lynn’s lawyer returned a third time to his
wage-loss argument during closing:
9
And again, defendant made it all about his job. He had to pick speech or his job.
And again, he would have made $2.25 million in the rest of his career, so we
believe that’s a fair number.
(Batey, Tr, RE 94, PageID.2371). This repeated tethering the damages to Lynn’s supposedly
lost income was highly prejudicial. Lynn’s counsel’s references to what Lynn would have
made, to a salary (and an inflated salary at that) was not inadvertent. He raised it again and
again. And the jury’s verdict was related to that amount.
Because the inflated number was derived from this impermissible argument, a
remittitur is in order or a new trial is required.
D. The verdict is against the great weight of the evidence
Judgment as a matter of law is appropriate where, after a party has been fully heard
on an issue, there is no legally sufficient evidentiary basis for a reasonable jury to find for
that party on that issue. Fed.R.Civ.P. 50(a); Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224,
236 (6th Cir. 2003). When reviewing a motion for judgment as a matter of law based on
insufficiency of the evidence, the court should not “weigh the evidence, evaluate the
credibility of witnesses, or substitute its judgment for that of the jury.” Arban v. West
Publishing Corp., 345 F.3d 390, 400 (6th Cir.2003). This standard of review recognizes the
trier of fact's responsibility to reasonably resolve conflicts in testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts. J Jackson
v. Virginia, 443 U.S. 307, 317-319, (1979).
The jury verdict here fails this test. The jury failed to reasonably resolve conflicts in
testimony, weigh the evidence, and draw reasonable conclusions from basic facts to ultimate
facts. Instead, the jury jumped from irrelevant testimony regarding events outside the
statute of limitations and events that were never connected to Lynn by showing he knew of
10
them so that they had an impact on his workplace environment and highly prejudicial
arguments and misstatements by Lynn’s lawyer as to his loss of his ability to engage in fire
suppression. The verdict was against the great weight of the evidence because the few events
that occurred to Lynn within the statute of limitations amounted to micro-aggression or
implicit bias (by Lynn’s own testimony) and not to severe and pervasive hostile conduct
based on race. The verdict was also against the great weight of the evidence because its
amount was far in excess of an appropriate amount. It should be overturned or remitted
since Lynn was working at the time his complaint was filed and his salary was still being
paid. Moreover, since economic damages were not at issue, Lynn’s lawyers repeated and
deliberate reference to a salary that was well higher than what Lynn actually made (as the
record shows) when he was still working resulted in a verdict against the great weight of the
evidence.
RELIEF
Wherefore, Defendant the City of Lansing respectfully requests this Court grant it a
new trial or remittitur and any other relief to which it is entitled in law or equity.
Respectfully submitted,
PLUNKETT COONEY
By: /s/Rhonda R. Stowers

Rhonda R. Stowers (P64083)
Attorney for Defendant
111 E. Court St., Ste. 1B
Flint, MI 48502
(810) 342-7003
rstowers@plunkettcooney.com
Dated: November 7, 2022
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CERTIFICATE OF SERVICE
Rhonda R. Stowers hereby certifies that on the 7th day of November, 2022, she caused
to be served a copy of Defendant’s MOTION FOR A NEW TRIAL, OR IN THE ALTERNATIVE,
FOR REMITTITUR via CM/ECF electronic filing with the United States District Court for the
Western District of Michigan, Southern Division, which will provide electronic notice of this
filing to counsel of record.
/s/ Rhonda R. Stowers

RHONDA R. STOWERS
Open.18566.90382.29954848-1
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City of Lansing's Motion For A New Trial

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Case 1:19-cv-00039-PLM-RSK ECF No. 97, PageID.

2475 Filed 11/07/22 Page 1 of 20

UNITED STATES DISTRICT COURT

Plaintiff, CASE NO.: 1:19-cv-00039

v. HON. PAUL L. MALONEY

SCOTT P. BATEY (P54711) RHONDA R. STOWERS (P64083)