Mark Laster v. City of Kalamazoo ( 2017 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0602n.06
No. 16-2601
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
MARK LASTER, ) Nov 01, 2017
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE WESTERN
CITY OF KALAMAZOO, )
DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
)
BEFORE: COLE, Chief Judge; ROGERS and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Plaintiff Mark Laster alleged in this Title VII retaliation case that defendant City of
Kalamazoo punished him for complaints he made to the Equal Employment Opportunity
Commission, but the jury returned a verdict in defendant’s favor. Plaintiff now challenges a
number of the district court’s rulings and comments, arguing the district court deprived him of a
fair trial and also abused its discretion when it excluded certain proffered evidence. We affirm.
I.
Laster argues the district court deprived him of a fair trial by appearing partial to
defendant. Because plaintiff failed to object during trial, we review for plain error. United
States v. Hynes, 467 F.3d 951, 957–58 (6th Cir. 2006). Thus, Laster “must show (1) error
(2) that was obvious or clear, (3) that affected [his] substantial rights and (4) that affected the
No. 16-2601, Laster v. City of Kalamazoo
fairness, integrity, or public reputation of the judicial proceedings.” United States v. Wallace,
597 F.3d 794, 802 (6th Cir. 2010).
“A judge must exhibit impartiality in demeanor as well as in actions.” United States v.
Morrow, 977 F.2d 222, 225 (6th Cir. 1992) (en banc) (internal quotation marks omitted). In
other words, a judge must avoid aligning herself with one of the parties or making remarks that
indicate “hostility to one of the parties.” United States v. Blood, 435 F.3d 612, 629 (6th Cir.
2006). When the alleged misconduct occurs outside the jury’s presence, the party claiming bias
“must overcome a high hurdle.” Morrow, 977 F.2d at 225.
Here, Laster contends the district court “demonstrated an appearance of partiality.” But
his argument is perfunctory and underdeveloped. He quotes cases involving judicial bias, but
fails to explain why the district court appeared partial, let alone why any such appearance
deprived him of a fair trial. “A party may not raise an issue on appeal by mentioning it in the
most skeletal way, leaving the court to put flesh on its bones.” United States v. Hendrickson,
822 F.3d 812, 829 n.10 (6th Cir. 2016) (brackets, ellipses, and internal quotation marks omitted).
Thus, we consider plaintiff’s argument abandoned. See Vander Boegh v. EnergySolutions, Inc.,
772 F.3d 1056, 1063 (6th Cir. 2014) (“perfunctory and undeveloped arguments” are abandoned).
Even had Laster presented more than cursory assertions of bias, he received a fair trial.
In two prior opinions, we affirmed the district court’s grant of summary judgment in favor of
defendant on all but plaintiff’s Title VII retaliation claim, and on nine of twelve alleged
retaliatory acts. See Laster v. City of Kalamazoo, No. 15-1313 (6th Cir. Jan. 22, 2016); Laster v.
City of Kalamazoo, 746 F.3d 714, 729–33 (6th Cir. 2014). By trial, all that remained were three
alleged instances of retaliation.
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No. 16-2601, Laster v. City of Kalamazoo
The district court’s evidentiary and non-evidentiary rulings kept plaintiff’s counsel from
revisiting issues on which we previously ruled that defendant was entitled to summary judgment.
In this we find neither error nor an appearance of partiality. See Moore v. Mitchell, 848 F.3d
774, 776 (6th Cir. 2017) (“[F]indings made at one point in the litigation become the law of the
case for subsequent stages of that same litigation.”).
The district court’s comments to plaintiff’s counsel likewise did not deprive Laster of a
fair trial. Most occurred outside the jury’s presence—and plaintiff offers no explanation of how
they created an appearance of partiality when the jury wasn’t there to hear them. The district
court made only two comments with the jury in the room: “[A]re you really going to waste your
time on this?” and, in response to plaintiff’s counsel’s statement that he was almost done
questioning a witness, “I wish.” And the district court made one comment as the jury was
coming into the courtroom: “I’m a little disappointed that you didn’t point that out . . .” (based
on the perception that plaintiff’s counsel had failed to mention he had previously had an exhibit
that defense counsel was attempting to enter into evidence, but that was missing a page).
So, on three occasions, with the jury within earshot, the district court was impolite to
plaintiff’s counsel. But this conduct fell well outside the scope of conduct that deprives a litigant
of a fair trial. See, e.g., Anderson v. Sheppard, 856 F.2d 741, 743–45 (6th Cir. 1988) (district
court berated plaintiff when he asked for time to find a new lawyer and refused to give plaintiff
that time; plaintiff proceeded pro se and lost); United States v. Hickman, 592 F.2d 931, 932, 934
(6th Cir. 1979) (district court interrupted counsel more than two hundred fifty times in one-day
trial, at times with the words “objection sustained” before stating why the particular testimony
was objectionable). Indeed, the conduct was less egregious than conduct that has withstood a
due process challenge in the past. See, e.g., McMillan v. Castro, 405 F.3d 405, 409 (6th Cir.
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No. 16-2601, Laster v. City of Kalamazoo
2005) (district court, in jury’s presence, questioned the strength of the plaintiff’s case). In short,
the district court did not deprive Laster of a fair trial.
II.
Laster also argues the district court abused its discretion by excluding certain proffered
evidence. We review for an abuse of discretion. United States v. Mack, 808 F.3d 1074, 1084
(6th Cir. 2015). Under this standard, the district court receives “[b]road discretion”; “[its]
decisions will not be lightly overturned.” Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 897
(6th Cir. 2004). To reverse, we must be “left with a definite and firm conviction that the trial
court committed a clear error of judgment.” United States v. Mack, 159 F.3d 208, 217 (6th Cir.
1998) (citation and internal quotation marks omitted).
As a preliminary matter, plaintiff has again submitted a perfunctory, underdeveloped
argument. See Vander Boegh, 772 F.3d at 1063. He argues the district court “abused [its]
discretion” by excluding “several material exhibits,” but fails to articulate why the district court
excluded that evidence, and why its rulings were legally incorrect.
Even had Laster developed this argument, we would find no abuse of discretion. Plaintiff
challenges rulings that prevented his counsel from going beyond the scope of the case on
remand. “[F]indings made at one point in the litigation become the law of the case for
subsequent stages of that same litigation.” Moore, 848 F.3d at 776. Thus, the district court was
within its discretion to limit evidence to what was relevant to the remaining issues in the case.
III.
For these reasons, we affirm the district court’s judgment. We dismiss as moot Laster’s
motion to take judicial notice.
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