Ardingo v. Local 951, United Food & Commercial Workers Union

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

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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