SEAN F. COX, District Judge.
Plaintiff Stephen Perkola is employed by the University of Michigan as a Police Sergeant with the University's Police Department at its Dearborn, Michigan campus. After he applied for and was denied a promotion to Deputy Chief at the Dearborn campus, he filed this action against Defendants, asserting reverse race and sex discrimination claims under both Title VII and Michigan's Elliott Larsen Civil Rights Act ("ELCRA"). The matter is currently before the Court on Defendants' Motion for Summary Judgment, following the close of discovery. The parties have fully briefed the issues and the Court heard oral argument on March 22, 2018. As explained below, the Court shall GRANT THE MOTION IN PART AND DENY IT IN PART. The Court shall GRANT the motion to the extent that it grants summary judgment in Defendants' favor as to Plaintiff's reverse sex discrimination claims under Title VII because Plaintiff has failed to meet his heightened burden of establishing a prima facie case as to a reverse sex discrimination claim under Title VII. The Court will DENY the motion in all other respects. As such, Plaintiff's Title VII reverse race discrimination claim, along with Plaintiff's reverse race and sex discrimination claims under the ELCRA, will proceed to a jury trial.
Plaintiff Stephen Perkola ("Plaintiff") filed this action on July 12, 2016. His First Amended Complaint is the operative complaint and names the following seven Defendants: 1) the University of Michigan Board of Regents; 2) Anna Grbic; 3) Kevin Williams; 4) Renee Mainor; 5) Reetha Raveendran; 6) Dr. Debra Hutton; and 7) Eddie L. Washington, Jr. Plaintiff's First Amended Complaint asserts race and sex discrimination claims under both Title VII and Michigan's ELCRA.
There were three different scheduling orders in this case. The final one provided that discovery closed on September 29, 2017. (D.E. No. 16).
On October 30, 2017, Defendants filed this Motion for Summary Judgment. This Court's practice guidelines are included in the Scheduling Order and provide, consistent with Fed. R. Civ. P. 56 (c) and (e), that:
(D.E. No. 16 at 2-3). The parties complied with the Court's practice guidelines for motions for summary judgment such that Defendants' motion includes a "Statement of Material Facts Not In Dispute" ("Defs.' "Stmt.") and Plaintiff's response brief includes a "Counter-Statement of Disputed Facts" ("Pl.'s Stmt.").
The following material facts are gleaned from the evidence submitted by the parties, viewed in the light most favorable to Plaintiff, the non-moving party.
Plaintiff is a white male. (Defs.' & Pl.'s Stmts. at ¶¶ 14-15). Plaintiff applied for a fulltime Police Sergeant position at the University's Dearborn, Michigan campus and began working for the University's Dearborn Police Department in April of 2011. (Id. at ¶ 2 & 8).
Plaintiff is still working as a Sergeant at the University's Dearborn Police Department today. (Defs.' & Pl.'s Stmts. at ¶ 10). In that position, Plaintiff supervises two police officers, three security officers, and one dispatcher. (Id. at ¶ 12).
When Plaintiff began working at the University, he reported to Lt. Kenneth Paris. (Id. at ¶ 30).
In October of 2013, Chief Gordon retired and Lt. Paris became Interim Chief, still acting as Plaintiff's immediate supervisor. (Defs.' & Pl.'s Stmts. at ¶ 33).
Defendant Renee Mainor is a black female (see Defs.' Stmt. at ¶ 3) who works in the University's Human Resources Department. Plaintiff testified that, shortly after Chief Gordon retired, Mainor asked Plaintiff if he knew of any good candidates for the position of Chief, and after Plaintiff responded affirmatively, Mainor asked Plaintiff if he "knew of any good black candidates." (Defs.' & Pl.'s Stmts. at ¶ 34).
Lt. Paris applied for the Chief of Police position; however, when he was not selected, he retired. (Defs.' & Pl.'s Stmts. at ¶ 37).
Kevin Williams, a black male, became the Chief of Police for the University's Dearborn Police Department in May of 2014. (Id. at ¶ 38). Plaintiff then reported directly to Chief Williams for approximately one month because there was no Lieutenant or Deputy Chief. (Id. at ¶ 39).
Plaintiff, at times, served as Interim Police Chief while the Police Chief was gone. (James Dep. at 25-26).
Shortly after Chief Williams arrived at the Dearborn campus, he spoke to Eddie Washington, the University's Executive Director of Public Safety,
Crystal James
James testified that she was told she was being sent to the Dearborn campus because Chief Williams had requested help with the day-to-day operations of the department and that is what her work entailed. (James Dep. at 12-13).
Williams testified that after James came to Dearborn, he mentored James to help develop her to become a deputy police chief. (Williams Dep. at 34-35). Williams testified that he did not, however, believe that James was qualified to become a deputy police chief at that time because she lacked a college degree:
(Williams Dep. at 35-36).
Plaintiff testified that James continued to hold the rank of lieutenant during her temporary assignment at the Dearborn campus, and that her role was essentially the same as the role Lt. Paris performed before retiring:
(Pl.'s Dep. at 86-87).
On May 27, 2014, Williams announced that he was eliminating the Lieutenant position (formerly held by Lt. Paris) and creating a Deputy Chief position. Williams told Plaintiff that he was qualified for the position and urged Plaintiff to apply for it. (Defs.' & Pl.'s Stmts. at ¶ 53-54).
James returned back to the University's Ann Arbor campus in August of 2014. (Pl.'s Dep. at 88).
The University posted the Deputy Chief position for Dearborn on August 22, 2014, with a closing date of September 5, 2014. The job posting listed the "working title," of the position as "Deputy Chief of Police" but the "Job Title" of the position as "Police Lieutenant." (Defs.' Ex. 10).
The job posting detailed the "Essential Qualifications" for the position, which included, among other things:
(Defs.' & Pl.'s Stmts. at ¶ 56). The job posting also listed the duties of the Deputy Chief position as including:
(Id. at 57).
In total, the University received 62 applications for the Deputy Chief position, including Plaintiff and Crystal James. (Defs.' & Pl.'s Stmt. at ¶ 58).
Plaintiff and James each submitted a cover letter and copy of their resume when they applied for the position.
James's cover letter expressed interest in the Dearborn Deputy Chief of Police position and included that "[i]n June 2014, I was asked to assist the Chief of Police at the University of Michigan, Dearborn Police Department (UMD) transition in a temporary Interim Lieutenant position working directly with him. In that capacity, I served as acting Chief of Police during the Chief's absence without issue." (D.E. No. 18-22 at Pg ID 342). Her attached resume indicated that she anticipated receiving a Bachelor of Science Degree from Central Michigan University in June of 2015.
Plaintiff's cover letter expressed interest in the position and stated that he had "over 28 years of progressively responsible experience in Law Enforcement," and stated:
(D.E. No. 18-25 at Pg ID 362). His resume included his various positions and his educational background. Plaintiff had a Bachelor's degree in criminal justice, and had graduated from the Northwestern University Executive School of Staffing Command. (Id.; see also Pl.'s Dep. at 34). At that time, Plaintiff has been employed by the University for approximately three years.
The University set up a Search Committee comprised of four individuals: Renee Mainor (who was employed as a Human Resources Consultant at the University)
As to the student on the Search Committee, Mainor testified that "she didn't participate from the beginning to the end," and that the other members "were more or less schooling her, telling her what we were looking for." (Mainor Dep. at 6-7).
Each member of the Search Committee was given all 62 applications. Prior to meeting with the Committee to discuss the candidates, Mainor identified those candidates who did not meet the minimum qualifications or whose qualifications did not seem competitive with the rest of the pool, to help focus the discussion and asked the Committee members to identify those candidates they thought should be discussed for potential advancement to a phone interview. Altogether, Mainor determined that 22 candidates did not meet the minimum qualifications, and an additional 19 were not sufficiently qualified to be considered further. Plaintiff and Crystal James were both among the 21 candidates who were considered for further discussion. (Defs.' & Pl.'s Stmt. at ¶¶ 57-63).
The Committee then met to discuss those candidates that each member thought should be seriously considered.
Mainor came to the meeting with Plaintiff on her short list of candidates to be discussed, because "after reviewing his resume [she] decided he was one of [her] selected that [she] thought should be seriously considered by the search committee." (Mainor Dep. at 6-7). Hutton and Raveendran did not have Plaintiff on their short lists.
The Committee members then discussed their top candidates, and there was quite a bit of overlap. The Committee decided to advance seven candidates to phone interviews to take place on September 22, 2014. Plaintiff was not chosen for advancement to a phone interview; James was one of the seven who moved on in the process. (Defs.' & Pl.'s Stmt. at ¶¶ 64-68).
Mainor testified that one of the things that resulted in James getting an initial phone interview over Plaintiff was "[t]he fact that she was the interim chief of police" at the Dearborn campus. (Mainor Dep. at 17).
James then had an initial telephone interview with the Search Committee Members.
Hutton testified that she was aware that James was black and was aware of her, as James had been "acting as interim police chief." (Hutton Dep. at 15-16). Hutton further testified:
(Hutton Dep. at 32-33).
Search Committee Member Raveendran testified that she thought James's phone interview was "mediocre," that she did not think James was a qualified candidate, but that she "acquiesced" in putting James through to the live interview stage:
(Raveendran Dep. at 19-20). Raveendran further testified:
(Id. at 38-40).
On September 24, 2014, James sent an email to Mainor, regarding the Deputy Chief Position, that stated "[t]hank you for the opportunity to complete a preliminary interview for the position. I have decided to withdraw my name from further consideration." (Defs.' Ex. 25).
On September 29, 2014, Mainor sent Grbic, the University's Director of Human Resources at the time, an email that stated, in pertinent part:
(Pl.'s Ex. 9). Grbic then asked Mainor, "Why did Crystal withdraw?" (Id.) Mainor responded that "[a]fter the telephone interview Crystal called and left me a message saying she was withdrawing and no longer wanted to be considered. I don't know why we were planning on sending her forward to the next round." (Pl.'s Ex. 6).
Hutton testified that the Search Committee did not discuss reaching out to James after she withdrew from consideration. (Hutton Dep. at 31).
But Grbic, who was not on the Search Committee but was the University's Director of Human Resources Department at that time, testified that she contacted James:
(Grbic Dep. at 7-9). James then re-entered the process. (Defs.' & Pl.'s Stmt. at ¶ 87).
On October 13, 2014, Chief Williams forwarded an email from someone at the University, who wanted to recommend one of the other applicants for the position and stated, "I have not responded and am forwarding this to you for whatever action you deem appropriate." (Pl.'s Ex. 30). Grbic then responded to Chief Williams, Mainor, and Jeff Evans, stating, "[b]efore we respond let's discuss the interview feedback. I have a clear front runner and don't like the idea of interviewing candidates for the sake of interviewing them if we don't deem them a serious candidate." (Id.) (emphasis added).
Initially, the Search Committee intended to conduct in-person interviews of all five of the persons who passed the phone interview stage, "prior to getting a list to move forward to Kevin Williams, the chief of police." (Mainor Dep. at 25; Defs.' & Pl.'s Stmt. at ¶ 81). They only did once such interview, with Donald Johnson, and they decided he would not move forward. (Id.).
But then Grbic suggested that the Search Committee not make all of the candidates come to campus twice, so the remaining candidates were all forwarded as finalists. (Defs.' & Pl.'s Stmt. at ¶ 83). That meant that, except for Johnson, all candidates who were selected for an initial telephone interview moved forward as finalists — without having any further interviews by the Search Committee.
Of the finalists that moved forward, James was the only woman and the only minority candidate. (Mainor Dep. at 42). Of the finalists, James was the only one that lacked a college degree. James Saylor had a Bachelor's Degree (D.E. No. 18-18 at Pg ID 321) and Jason Forsberg and Robert Kerr each had both a Bachelor's Degree and a Masters Degree (D.E. No. 18-19 at Pg ID 327 & D.E. No 18-21 at Pg ID 339).
Chief Williams instructed Human Resources to send him the finalists. (Defs.' & Pl.'s Stmt. at ¶ 90).
Following an in-person interview, Chief Williams selected James for the position. (Williams Dep. at 41). Williams testified as follows:
(Williams Dep. at 24).
The University ultimately notified the department's officers that James had been selected for Deputy Chief on October 31, 2014, and she began working under that title shortly thereafter. (Defs.' & Pl.'s Stmt. at ¶ 95).
Plaintiff testified that he asked Chief Williams why he was not given the opportunity to interview for the Deputy Chief position and that Williams "said that he had nothing to do with hiring." (Pl.'s Dep. at 25-26).
Plaintiff then filed an internal complaint with the University. A June 18, 2015 Memorandum sent to Chancellor Little at the University, authored by Senior Associate Director Pamela Heatlie, addressed Plaintiff's complaint and her investigation of it. (Defs.' Ex. 29). Among other things, that memorandum stated that Heatlie interviewed Chief Williams on April 28, 2015 and that:
(Id.).
It also stated that Plaintiff "applied for the Deputy Chief position, but fell out of consideration at the point in time when the hiring panel decided which candidates would receive telephone interviews. While each hiring member independently created a short list of candidates whom they wished to receive a phone interview, none of the hiring panel members had placed Complainant on their short list." (Id. at Pg ID 391 & 386) (emphasis added). The memorandum stated "According to the panel members, [Plaintiff] was not discussed during this meeting, because nobody had put him on their short list of potential phone interviewees." (Id.) (emphasis added). Heatlie's ultimate conclusion was that Plaintiff was not eliminated as a candidate for the Deputy Chief position due to race.
Plaintiff attached what appears to be a section of Heatlie's original draft of the above memorandum. (Pl.'s Ex. 12). It appears that the original draft stated that "Mr. Washington ultimately decided to assign Ms. James to the Interim Deputy Chief position," that Chief Williams says that Mr. Washington asked him to mentor "Interim Deputy Chief James while she was on his campus and he said he would." (Id.) (emphasis added).
Another document produced by Plaintiff (Pl.'s Ex. 32) appears to be a May 1, 2015 e-mail from Chief Williams to Heatlie wherein he states "I have reviewed the document and I have attached your document with minor suggested changes primarily related to how we refer to Crystal James," and states that "[w]hen Crystal was on loan to us last summer, she was still a Lieutenant and no Deputy Chief position has been approved. Therefore, she was a Lieutenant, functioning as a Lieutenant in a position that was upgraded to Deputy Chief with a different job description and duties." (Id.). Chief Williams did not, however, ask Heatlie to revise the portion of the memorandum that stated that Williams told her Washington had asked him to mentor James or that Washington had selected James for the interim position.
During his deposition in this case, Washington denied that he asked Williams to mentor James. (Washington Dep. at 25).
Summary judgment will be granted where there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact exists where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. The Court "must view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the non-moving party." Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002).
At the summary judgment stage, a plaintiff must adduce either direct or circumstantial evidence to proceed with a sex or race discrimination claim.
Although Plaintiff's brief includes an assertion that his "claims are supported by circumstantial and direct evidence" (see Pl.'s Br. at 1), his response brief focuses on circumstantial evidence, as shown by his "Statement of Issues Presented." (Id. at vi). And Plaintiff has not directed the Court to any evidence that would constitute actual direct evidence as to his not having received mentoring, the interim position, or the promotion at issue because of his race or sex.
Discrimination claims supported by circumstantial evidence are examined using the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
Once a plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged action. If the defendant articulates such a reason, then the burden shifts to the plaintiff to demonstrate that the defendant's proffered reason represents a mere pretext for unlawful discrimination.
A plaintiff can refute the legitimate, nondiscriminatory reason that a defendant offers to justify an adverse action by showing that the proffered reason: 1) had no basis in fact; 2) did not actually motivate the defendant's challenged conduct; or 3) was insufficient to warrant the challenged conduct. Wexler v. White Fine Furniture, 317 F.3d 564, 576 (6th Cir. 2003).
Where, as here, a case is at the summary judgment stage, a plaintiff seeking to prove discrimination via indirect evidence must submit sufficient evidence from which a reasonable jury could conclude that the defendant's legitimate, nondiscriminatory reasons for its actions are a pretext for unlawful discrimination. Vincent v. Brewer, 514 F.3d 489, 494 (6th Cir. 2007).
In their Motion for Summary Judgment, Defendants challenge Plaintiff's claim that he was improperly denied a promotion to the position of Deputy Chief of the Dearborn Campus
Under the McDonnell Douglas framework, the "plaintiff must first establish a prima facie case of discrimination, the elements of which vary slightly depending on the theory asserted." Philbrick v. Holder, 583 F. App'x 478, 482 (6th Cir. 2014).
"In a failure to promote employment discrimination case, the Sixth Circuit has modified the elements of the test to fit the specific context," and it requires that the plaintiff show: 1) he is a member of a protected class; 2) he applied for and was qualified for a promotion; 3) he was considered for and denied the promotion(s); and 4) an individual of similar qualifications who was not a member of the protected class received the promotion(s) at the time the plaintiff's request for the promotion was denied. White v. Columbus Metro. Housing Auth., 429 F.3d 232, 240 (6th Cir. 2005).
Here, Plaintiff is a member of classes (male sex and white race) that are protected under both Title VII and the ELCRA. It is undisputed that Plaintiff applied for the position of Deputy Chief. Defendants acknowledge that Plaintiff was at least minimally qualified for the position at issue. (See Defs.' Br. at 5, "Defendants agree that Plaintiff was qualified for the position of Deputy Chief and was not given that position."). Plaintiff was considered and ultimately was not selected for the position, thus satisfying the third element.
The final prong, "whether an individual of similar qualifications who was not a member of the protected class received the promotion" is what is in dispute as to Plaintiff's ability to establish a prima facie case. (See Defs.' Br. at 11-12). James, a black female, is outside of Plaintiff's protected classes and received the promotion. The issue is whether Plaintiff can show that he and James had "similar qualifications."
The Sixth Circuit has held that "it is incumbent upon the plaintiff to establish that [ ]he and the non-protected person who ultimately was hired for the desired position had similar qualifications." White, 429 F.3d at 242. That is, some comparison between Plaintiff and James "is therefore necessary in considering the forth prong of the prima facie case." Id. at 243. As Defendants note, other Sixth Circuit decisions explain that a plaintiff does not meet this fourth prong by simply showing that he is minimally qualified for the position or was a "viable candidate;" that is covered in prong two. See, e.g., Crane v. Mary Free Bed Rehab. Hosp., 634 F. App'x 518, 525 (6th Cir. 2015). Rather, prong four requires that the plaintiff show that he or she was "similar in all of the relevant respects" to the person selected and the Court "must `conduct an independent review of the relative qualifications of the plaintiff and the person selected for the position based on the evidence presented in order to determine whether the plaintiff has satisfied the fourth prong.'" Id. (citing White, supra). "Candidates do not have similar qualifications when one candidate has objectively `superior experience in material and relevant respects' of attributes associated with the position sought." Crane, supra (citing White, supra).
Defendants' motion asserts that Plaintiff cannot establish this prong because he cannot meet his burden of showing that he was similarly-situated in all relevant respects to James, the applicant who was selected. (Defs.' Br. at 13-15). Defendants note that while Plaintiff had been a Sergeant with the University's police force for approximately three and half years when the Deputy Chief position was filled, James held a higher rank and had more experience at a university setting.
In response, Plaintiff stresses that while he had less time at the University, he had more total years of law enforcement experience, including having worked for the City of Troy as a Lieutenant, where he had experience serving as Commander in Charge of all divisions of that 165-officer police department and including having served as a Deputy Police Chief for the Springport Township Police Department for two years. (See Defs.' Ex. 24). Plaintiff argues that his prior experience includes what amounts to at least equivalent experience with James. In addition, unlike James, Plaintiff had a college degree at the time the job was being filled.
The Sixth Circuit has stressed that the burden at the prima facie case is not intended to be onerous. And the cases that Defendants cite in support of their motion are not persuasive as to their argument that Plaintiff has not created a genuine issue of fact for trial as to this issue.
For example, in Wierengo v. Akal Sec., Inc., 580 F. App'x 364 (6th Cir. 2014), the Sixth Circuit affirmed the trial court's ruling that the plaintiff had not created an issue of fact on this prong. In doing so, however, the Sixth Circuit noted that the plaintiff's "brief in the district court and on appeal simply state[d] that she had qualifications similar to those selected" and did "not provide any evidence discussing" the successful candidate's qualifications. The court went on to discuss the evidence presented by Defendants on the issue, and affirmed the ruling, but its discussion appears to reflect the failure to present evidence was the real basis for affirming the ruling:
Id. at 371 (emphasis added).
Defendants also cites Judge Robert Cleland's decision in Ray v. Oakland Cnty., 2008 WL 4104324 (E.D. Mich. 2008), as supporting their position that Plaintiff has failed to create an issue of fact for trial on this fourth prong. While Judge Cleland agreed that the plaintiff had not met her burden of establishing that she had sufficiently similar qualifications as the person chosen for the position, and described how the person chosen had superior qualifications, he also expressly noted that the Plaintiff, "perhaps in recognition of the unquestionable nature of this point, neither attempts to argue the matter in her brief nor even mentions the phrase `similarly situated.'" Id. at *3.
Moreover, while the Sixth Circuit affirmed Judge Cleland's summary judgment ruling in that case, in doing so it assumed without deciding that the plaintiff could meet the fourth element of a prima facie case, and affirmed based on failure to meet her burden as to pretext. Ray v. Oakland Cnty. Circuit Court, 355 F. App'x 873, (6th Cir. 2009). ("Even if we were to conclude that the district court erred in finding that plaintiff failed to make out a prima facie case, we are convinced she can not satisfy the requirement of establishing pretext.").
"In assessing whether Plaintiff has satisfied the fourth element," this Court conducts an independent review of the relative qualifications of Plaintiff and James based on the evidence presented. Weeks v. Michigan, Dept. of Commty. Health, 587 F. App'x 850, 856 (6th Cir. 2014). But that comparison is "not the sort of close comparison that might include consideration of the employer's evaluation of subjective traits or other details about why the non-protected person was in fact selected over the plaintiff." Id. Viewing the facts in the light most favorable to Plaintiff, the Court concludes that Plaintiff has created an issue of fact as to whether he and James are similarly situated.
"While their relative qualifications were unquestionably different," this Court does not believe it can "say with certainty that one candidate was objectively superior" for the Deputy Chief position. Weeks, at 856. That is, this Court concludes that "a reasonable jury could find that Plaintiff was at least as well-qualified as" James
Because the Court finds that there is an issue of fact for trial as to that fourth prong, then Plaintiff is deemed to have established a prima facie case of failure-to-promote under Michigan's ELCRA, without any additional showing. That is because, as Defendants acknowledge, no additional showing is required at the prima facie stage under the ELCRA when a reverse race or sex discrimination claim is asserted. (Defs.' Br. at 5).
Unlike the ELCRA, for purposes of Title VII, Plaintiff has to do more to establish his prima facie case of failure-to-promote. That is because this case involves both a "reverse" race discrimination claim and a "reverse" sex discrimination claim under Title VII and, therefore, Plaintiff "faces a higher burden" in establishing his prima facie case. Philbrick v. Holder, 583 F. App'x 478,483 (6th Cir. 2014).
In a reverse race discrimination case, there are additional burdens as to the first and the fourth prongs of the test. Zambetti v. Cuyahoga Community College, 314 F.3d 249, 255 (6th Cir. 2002); Morris v. Family Dollar Stores of Ohio, Inc., 320 F. App'x 330, 339 (6th Cir. 2009). To satisfy the first prong of the test, the plaintiff must demonstrate "background circumstances" to support the suspicion that the defendant is the "unusual employer who discriminates against the majority." Morris, supra. To satisfy the fourth prong, the plaintiff must show that Defendant treated minority employees who were similarly situated to Plaintiff more favorably than he was treated. Id. This same heightened-prima-facie burden also applies to reverse sex discrimination claims (claims brought by a male) under Title VII. See, e.g., Simpson v. Vanderbilt Univ., 359 F. App'x 562, 568-69 (6th Cir. 2009).
Based upon the record evidence before this Court, Plaintiff meets his heightened burden as to his reverse race discrimination claim.
As to the first prong, the Sixth Circuit has held that the mere fact that an adverse employment decision was made by a member of a racial minority is sufficient to establish the heightened burden. Morris, supra, at 340. Here, the requisite background circumstances exist because Chief Williams is black and he made the decision to hire James, who is also black.
As to the fourth prong, Plaintiff has to show that Defendants treated similarly situated minority employees more favorably. Construing the evidence in Plaintiff's favor, James was provided "mentoring" by Chief Williams and/or the opportunity to assist with the Dearborn Department's day-to-day operations in a temporary position that was not posted or open to others. In addition, unlike any other applicant who applied for the Deputy Chief position, the University's Human Resources Director, who was not on the search committee, personally contacted James and discussed the position with her.
This Court therefore concludes that Plaintiff has made a sufficient showing regarding his heightened burden as to his reverse race discrimination claim under Title VII.
Plaintiff has not, however, met his heightened burden as to his reverse sex discrimination claim. The decision to hire James was made by a man and Plaintiff has not explained how he believes he could meet his showing as to his reverse sex discrimination claim under Title VII. As such, the Court shall grant summary judgment in favor of Defendants as to that claim.
Once a plaintiff establishes such a prima facie case, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged action. If the defendant articulates such a reason, then burden shifts to the plaintiff to demonstrate that the defendant's proffered reason represents a mere pretext for unlawful discrimination.
Here, the challenged action addressed in Defendants' motion is Defendant not having selected Plaintiff for the Deputy Chief position. As their legitimate reason for not promoting Plaintiff to that position, Defendants assert that "Plaintiff did not have the high level experience of the candidates who were advanced to the phone interviews or the lieutenant-level and campus experience of the two other internal candidates who were advanced." (Defs.' Br. at 16). Thus, Defendants claim that James was selected for the position because she was better qualified than Plaintiff.
A plaintiff can refute the legitimate, nondiscriminatory reason that a defendant offers to justify an adverse action by showing that the proffered reason: 1) had no basis in fact; 2) did not actually motivate the defendant's challenged conduct; or 3) was insufficient to warrant the challenged conduct. Wexler v. White Fine Furniture, 317 F.3d 564, 576 (6th Cir. 2003). The first type of showing consists of evidence that the proffered bases for the termination never happened (i.e., that they are factually false). With respect to the second kind of showing, "the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it `more likely than not' that the employer's explanation is a pretext, or coverup." Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994). The third showing consists of evidence that other employees, particularly those not in the protected class, were not fired even though they engaged in similar conduct. Id.
As the Sixth Circuit has explained, "[p]retext is a commonsense inquiry: did the employer make the decision at issue for the stated reason or not? This requires a court to ask whether the plaintiff has produced evidence that casts doubt on the employer's explanation, and, if so, how strong it is." Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009).
The Court concludes that Plaintiff has submitted evidence that, viewed in the light most favorable to Plaintiff, is sufficient to create an issue of fact as to pretext. That evidence includes:
Construing the above evidence in the light most favorable to Plaintiff, especially when that evidence is considered collectively, the Court concludes that Plaintiff has met his burden of establishing an issue of fact for trial as to pretext.
For the reasons set forth above, IT IS ORDERED that Defendants' Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED to the extent that the Court grants summary judgment in Defendants' favor as to Plaintiff's reverse sex discrimination claims under Title VII. The motion is DENIED in all other respects.
IT IS SO ORDERED.
