Carr-Nelson v. Saginaw, City of

Filing 26

OPINION and ORDER Granting 22 MOTION for Summary Judgment and Declining Jurisdiction Over State Law Claims. Motion terminated: 22 . Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
LAURA CARR-NELSON,
Plaintiff,
v.

Case Number 10-14624
Honorable Thomas L. Ludington

CITY OF SAGINAW,
Defendant.
________________________________________/

OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

In 2009, Laura Carr-Nelson, an African American police officer employed by the City of
Saginaw, applied for a job as a traffic technician. Although she had been with the department for
about ten years, she did not receive the job. Instead, the city hired a white male officer with only
two years of experience with the city, but who had scored substantially higher in his interview.
This litigation ensued. Alleging that she was discriminated against because of her race and
gender, Plaintiff brings claims pursuant to 42 U.S.C. § 1983, Title VII, and Michigan’s Elliot
Larsen Civil Rights Act against the City of Saginaw.
Defendant now moves for summary judgment.

As Plaintiff does not establish a

discriminatory policy or custom, Defendant is entitled to summary judgment on Plaintiff’s §
1983 claim. And, in addition, as Plaintiff does not establish that the proffered legitimate nondiscriminatory reason for Plaintiff not receiving the job — the other applicant scored
substantially higher in his interview than Plaintiff — is mere pretext for discrimination,

Defendant is entitled to summary judgment on Plaintiff’s Title VII claim.

Accordingly,

Defendant’s motion will be granted.
I
Plaintiff began working for the City of Saginaw Police Department in 1999. In January
2005, Plaintiff was suspended because of three violations of the department’s policies. Def.’s
Mot. Summ. J. Ex. 7, at 1 (“Def.’s Mot.”). The first incident occurred on October 14, 2004,
when Plaintiff did not report for mandatory gun range training. Id. at 2. The second incident
occurred the following day: Plaintiff was called to the scene of a fatal hit and run accident, but
did not secure the scene and left without notifying her supervisor. Id. The third incident
occurred the following week. Plaintiff was called to the scene of an accident involving a drunk
driver. Due to her procedural errors, the case was dismissed. Id. Each incident resulted in an
internal affairs investigation and, based on the three incidents, Plaintiff received a five-day
suspension. Id.
In September 2006, Plaintiff was placed on light duty status because of an injury. Def.’s
Mot. Ex. 12, at 1. While working a desk detail, Plaintiff spoke with an African American citizen
regarding an incident involving the police. Id. When the citizen requested a copy of the police
report, Plaintiff directed the citizen to the shift commander, Lieutenant Paul Crane. Id. Crane,
after speaking with the citizen, told Plaintiff that the citizen said “hi.” Id. A Caucasian coworker asked: “How come I didn’t get a hi?” Crane responded: “It’s a black/white thing.” Id.
About three weeks later, Plaintiff filed a complaint regarding Crane’s remark. Discussing
why she waited the three weeks to file the grievance, Plaintiff related: “I didn’t want to do it. I
didn’t want to whine. But it should not have taken place.” Def.’s Mot. Ex. 12, at 1. Asked how
she would like the situation addressed, Plaintiff responded: “I want to sit down and have a heart
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to heart talk with Lt. Crane. He is not a racist. I will treat him and othr [sic] officers as I would
want to be treated. I will back them up. Every call and every IA [internal affairs investigation]
has made me a better Police Officer. I love my Department no matter what.” Id. In Plaintiff’s
deposition, she reiterated that Crane’s comment was “[d]efinitely out of character for him.” Pl.’s
Dep. 74:17, May 26, 2011, attached as Def.’s Mot. Ex. 3. Plaintiff further acknowledged that
aside from this incident, Crane has made no other “discriminatory comments.” Pl.’s Dep. 74:20–
25.
An investigation conducted by the city’s human resource manager, Beth Church,
concluded “that this was a one-time incident with Lt. Crane. No previous complaints have ever
been made against Lt. Crane nor has [Plaintiff] ever overheard him make any similar types of
statements.” Def.’s Mot. Ex. 13, at 1. Church recommended that Crane apologize to Plaintiff.
On January 5, Crane and Plaintiff met and Crane apologized “for anything that he may have said
that offended her. He explained that he did not mean for it to be taken in that way in which it
was. [Plaintiff] was very receptive and she accepted the apology.” Def.’s Mot. Ex. 14, at 1. In
Plaintiff’s deposition, she recalls that she did accept the apology, but elaborates: “I accepted that
apology because I’m human and I know individuals make mistakes, but that’s not something you
make mistakes about . . . . [I]f I were a black individual making a comment to my white
coworkers . . . I should of gotten fired.” Pl.’s Dep. 76:12–14, 78:3–9.
More than two years passed without incident. In the fall of 2009, Plaintiff was again
injured. See Def.’s Mot. Ex. 15, at 1. Again, she was placed on light duty. Around this time, the
department’s traffic investigator and reconstructionist, Manual Trevino, gave notice of his intent
to retire in June 2010 to the chief of police, Gerald Cliff. Def.’s Mot. Ex. 19 ¶ 2. In October
2009, the department posted a notice of vacancy for the position of “traffic services officer.”
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Def.’s Mot. Ex. 16, at 1. Although the position did not offer a pay raise, it did offer more
traditional working hours (with shifts from seven a.m. to five p.m., rather than seven a.m. to
seven p.m., and weekends off). Three people applied for the job. Def.’s Mot. Ex. 19 ¶ 4.
Plaintiff was one. The department scheduled the three interviews for December 4, 2009. Id.
Pursuant to the police department’s policy, “when specialized positions are open, such as
. . . Traffic Crash Reconstructionist/Traffic Investigator, the [department] would utilize a
procedure whereby the interview panel would consist of two persons that were employed by
outside agencies and one [department] employee.” Def.’s Mot. Ex. 18 ¶ 3. A three-interviewer
panel of experienced traffic accident investigation and reconstruction officers was therefore
convened, made up of Trevino, Sergeant Tim Robbins of the Michigan State Police, and
Lieutenant Tim Jones of the Flint Township Police Department. Def.’s Mot. Ex. 19 ¶¶ 4–5.
Trevino is Hispanic, the other two men are Caucasian. Def.’s Mot. Ex. 18 ¶ 5. Jones provided a
template of thirty-two questions that had previously been used by his department, and others, for
interviewing traffic investigator and reconstructionist applicants. Trevino Dep. 34:16–25, July
18, 2011, attached as Def.’s Mot. Ex. 20; see also Def.’s Mot. Exs. 21–22 (providing interview
forms). Each response to a question would be scored on a scale of zero to five. Def.’s Mot. Exs.
21–22.
The day of the interview, December 4, one of the applicants withdrew his application,
leaving Plaintiff and a Caucasian male, Roger Pate, as the only applicants for the position.
Def.’s Mot. Ex. 19 ¶ 7. Pate’s interview was scheduled first; it lasted about twenty minutes.
Pape Dep. 23:2–4, June 2, 2011, attached as Def.’s Ex. 25. Pate scored 348 (out of a possible
480). Def.’s Mot. Ex. 22. Plaintiff’s interview was held later the same day; it lasted a similar
amount of time. She scored 303, forty-five points lower than Pate. Def.’s Mot. Ex. 21.
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Following the interviews, the scores were forwarded to Chief Cliff. Def.’s Mot. Ex. 18 ¶
8. “The panel did not provide me,” Cliff testified, “with any information regarding whether any
of the candidates could not perform the duties of the Traffic Crash Reconstructionist/Traffic
Investigator based upon their race or if they had children.” Id. ¶ 9. “I based my decision on who
to hire,” Cliff continued, “strictly upon the scores provided to me by the interview panel. . . .
Based upon those results, I hired [Pate] for the Traffic Crash Reconstructionist/Traffic
Investigator position and not [Plaintiff].” Id. ¶ 10.
Plaintiff disagrees, testifying that she believes that Chief Cliff decided not to hire Plaintiff
to fill the traffic investigator position because she is an African American woman. In her
deposition, she explained:
A: I believe that he is the one that makes the decision in reference to the hiring
process in terms of the technician’s position.
Q: All right. And do you know how it was that your race or gender played a role
in the chief’s selection of Officer Pate over yourself for the position?
A: Officer Pate is a white male and I’m a black female.
Q: All right. Is there any other additional information that you can rely upon in
support of your race claim against him in that context?
A: Explain that.
Q: Do you understand my question?
A: No, sir.
Q: Okay. Besides the fact that you are a black female and Officer Pate is a white
male —
A: Um-huh.
Q: — is there any other information that you rely upon that the chief was
discriminating against you on the basis of your gender and/or race?
A: I can’t — I can’t answer that question.
Q: Why?
A: I have to have a reason why I can’t answer that question?
Q: Well, do you not understand my question or you just can’t answer it?
A: You asked me why do I think it was discrimination because I’m black and
he’s a white individual?
Q: Um-huh.
A: That was my answer. And your other —
Q: Okay. Is there anything — is there anything else that you can look to that
supports your assertion that your race played a role in the selection of the
traffic technician position? . . .
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A: It’s my opinion.
Pl.’s Dep. 167:15–168:22, 169:16. Elsewhere in her deposition, Plaintiff elaborated:
I feel I earned that position not only as a ten-year officer but as an officer that has
— did traffic accidents, serious accidents, traffic scenes, I’ve done diagrams. And
I — I earned that position. And I feel that it was given to that individual because
of who he was: He was a white male. And myself being a black female I was not
given that opportunity purely because I’m a black female. And I’ve looked it up,
never heard of in the United States there being a female, black traffic
reconstructionist anywhere. And I feel that that was one of the main reasons I
should be given this. I feel that took away, and it has taken away, from my future
and my family . . . .
Pl.’s Dep. 82:23–83:11.
In November 2010, Plaintiff filed suit in this Court. ECF No. 1. In her amended
complaint, Plaintiff brings claims pursuant to 42 U.S.C. § 1983, Title VII of the Civil Rights Act,
and Michigan’s Elliot Larsen Civil Rights Act (ELCRA). ECF No. 7. Defendant now moves for
summary judgment on each of Plaintiff’s claims. ECF No. 22.
II
A motion for summary judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of informing the Court of
the basis for its motion, and identifying where to look in the record for relevant facts “which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party who must “set out
specific facts showing a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986) (citation omitted). In viewing the evidence, the Court must draw all reasonable
inferences in favor of the non-moving party and determine “whether the evidence presents a

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sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
III
Section 1983 provides in pertinent part: “Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an action at law.” 42 U.S.C. §
1983. First promulgated by Congress as part of the Civil Rights Act of 1871, now codified at 42
U.S.C. § 1983, “person” is not defined in the statute. Initially, the Supreme Court concluded that
“Congress did not undertake to bring municipal corporations within the ambit of [§ 1983].”
Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled by Monell v. Dep’t of Soc. Servs., 436 U.S.
658 (1978). Reexamining the history of the Civil Rights Act of 1871 in Monell, however, the
Court concluded that “Congress did intend municipalities and other local government units to be
included among those persons to whom § 1983 applies.” 436 U.S. at 690.
“While a municipality may be held liable under 42 U.S.C. § 1983 for a constitutional
violation directly attributable to it, § 1983 does not impose vicarious liability on a municipality
for the constitutional torts of its employees.” Stemler v. City of Florence, 126 F.3d 856, 865 (6th
Cir. 1997); see also Monell, 436 U.S. at 691 (“[A] municipality cannot be held liable solely
because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under
§ 1983 on a respondeat superior theory.”). Instead, the municipality may only be held liable
when the constitutional violation at issue implements or executes “a government’s policy or
custom.”

Monell, 436 U.S. at 694.

A “policy,” the Court elaborates, includes “a policy

statement, ordinance, regulation, or decision officially adopted and promulgated.” Id. at 690. A
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“custom,” in contrast, “has not received formal approval through . . . official decisionmaking
channels.” Id. at 690–91. “Custom,” however, is construed narrowly. As the Sixth Circuit
observes: “A ‘custom’ for purposes of Monell liability must be so permanent and well settled as
to constitute a custom or usage with the force of law.” Porter v. City of Columbus Div. of Police,
395 Fed. App’x 197, 202 (6th Cir. 2010) (internal quotation marks omitted) (quoting Monell, 436
U.S. at 694). That is, “[A] custom is a legal institution not memorialized by written law.”
Porter, 395 Fed. App’x at 202 (internal quotation marks omitted) (quoting Feliciano v. City of
Cleveland, 988 F.2d 649, 655 (6th Cir. 1993)).
In this case, Plaintiff identifies three purported violations of § 1983. See Compl. ¶¶ 31–
44.

First, Plaintiff alleges, “Defendant exercised an official custom and/or policy of non-

response to complaints of discrimination.” Id. ¶ 33. Second, “Defendant or its agents, servants
or employees made harassing and discriminating comments on numerous occasions during the
course of Plaintiff’s employment.” Id. ¶ 38. And third, “Defendant or its agents, servants or
employees failed to choose the most qualified candidate for the position of Traffic Technician, a
black female, and instead chose Roger Pate on the basis of Plaintiff’s gender and/or race.” Id. ¶
38.
Defendant moves for summary judgment on Plaintiff’s § 1983 claims, contending that
she has identified neither discriminatory policies nor customs of Defendant. Plaintiff does not
respond to Defendant’s contentions. The Sixth Circuit cautions that it is “utterly inappropriate
for the court to abandon its position of neutrality in favor of a role equivalent to champion for the
non-moving party: seeking out facts, developing legal theories, and finding ways to defeat the
motion.” Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 406 (6th Cir. 1992). Accordingly,
Defendant is entitled to judgment on Plaintiff’s § 1983 claims.
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Moreover, an independent review of the record demonstrates that Defendant is in fact
entitled to summary judgment on Plaintiff’s § 1983 claims.

First, the only “complaint of

discrimination” brought by Plaintiff (prior to this litigation) regarded Crane’s 2006 “black/white
thing” statement. When brought to Defendant’s attention, Defendant promptly investigated.
Moreover, it asked Plaintiff how she would like the situation addressed. Plaintiff responded: “I
want to sit down and have a heart to heart talk with Lt. Crane. He is not a racist.” Def.’s Mot.
Ex. 12, at 1. Her request was respected. The parties met and Crane apologized to Plaintiff “for
anything that he may have said that offended her. He explained that he did not mean for it to be
taken in that way in which it was. [Plaintiff] was very receptive and she accepted the apology.”
Def.’s Mot. Ex. 14, at 1. In Plaintiff’s deposition, she was asked about Crane’s remark and
reiterated that it was “[d]efinitely out of character for him.” Pl.’s Dep. 74:17, May 26, 2011. The
investigation revealed “that this was a one-time incident with Lt. Crane. No previous complaints
have ever been made against Lt. Crane nor has [Plaintiff] ever overheard him make any similar
types of statements.” Def.’s Mot. Ex. 13, at 1. Plaintiff likewise acknowledged that aside from
this incident, Crane has made no other “discriminatory comments.” Pl.’s Dep. 74:20–25. This
series of events does not demonstrate that Defendant has a policy or practice of ignoring a
complaint of discrimination — rather, it reveals the opposite. Defendant is entitled to summary
judgment on this § 1983 claim.
Likewise, Plaintiff’s second § 1983 argument, that “Defendant or its agents, servants or
employees made harassing and discriminating comments on numerous occasions,” does not
identify a discriminatory policy or custom of Defendant. Unlike Title VII, “a municipality
cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691.
Simply alleging that Defendant’s agents, servants, or employees made discriminatory comments
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does not establish a § 1983 claim because this statute “does not impose vicarious liability on a
municipality for the constitutional torts of its employees.” Stemler, 126 F.3d at 865. Defendant
is entitled to summary judgment on this § 1983 claim.
Plaintiff’s final § 1983 argument, that Defendant did not offer Plaintiff the traffic
technician position because of her race, raises the same argument Plaintiff brings in her Title VII
claim.

“As 42 U.S.C. § 1983 and Title VII are largely parallel remedies in employment

discrimination suits,” the Sixth Circuit instructs, “an examination of the standards under Title
VII for a prima facie case . . . is useful in ascertaining whether [a plaintiff’s] claim is actionable
under 42 U.S.C. § 1983.” Boutros v. Canton Reg’l Transit Auth., 997 F.2d 198, 202 (6th Cir.
1993) (collecting cases).

As discussed in the following section, Defendant is entitled to

summary judgment on both the § 1983 claim and the Title VII claim.
IV
“As enacted in 1964, Title VII’s principal nondiscrimination provision held employers
liable only for disparate treatment.” Ricci v. DeStephano, 129 S. Ct. 2658, 2672 (2009). In
pertinent part, 42 U.S.C. § 2000e-2 provides that it is unlawful for an employer “to fail or refuse
to hire or to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).1 “A
disparate-treatment plaintiff must establish,” the Supreme Court emphasizes, “that the defendant
had a discriminatory intent or motive for taking a job-related action.” Ricci, 129 S. Ct. at 2672

1

The ELCRA contains a similar prohibition against disparate treatment. Mich. Comp. Laws §
37.2202(1)(a). For analytical purposes, the ELCRA resembles federal law and the same general evidentiary burdens
prevail as in Title VII cases. See In re Rodriquez, 487 F.3d 1001, 1008 n.2 (6th Cir. 2007); Humenny v. Genex
Corp., 390 F.3d 901, 906 (6th Cir. 2004); Lytle v. Malady, 458 Mich. 153, 172–73 (1998).
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(internal quotation marks omitted) (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977,
985–86 (1988)).
A plaintiff may establish disparate treatment through either direct or circumstantial
evidence of discrimination.

“Direct evidence is evidence that, if believed, requires the

conclusion that unlawful discrimination was at least a motivating factor in the employer’s
actions.”

Thompson v. City of Lansing, 410 F. App’x 922, 929 (6th Cir. 2011) (internal

quotation marks omitted) (quoting Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th
Cir. 2003)). “Consistent with this definition, direct evidence of discrimination does not require a
factfinder to draw any inferences in order to conclude that the challenged employment action
was motivated at least in part by prejudice against members of the protected group.” Johnson v.
Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003).
If a plaintiff does not have direct evidence of discrimination, she may nevertheless
establish her claim “through circumstantial evidence, applying the familiar burden-shifting
analysis set forth in McDonnell Douglas.” Thompson, 410 F. App’x at 932 (citations omitted)
(citing McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973)). Under McDonnell
Douglas, a plaintiff may establish a rebuttable presumption of discrimination by introducing
evidence that she was (1) a member of a protected class; (2) subject to an adverse employment
action; (3) qualified for the position; and (4) was replaced by a person outside the protected class
or treated differently than similarly situated non-protected employees.

White v. Baxter

Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008) (citing McDonnell Douglas, 411 U.S. at
802). In analyzing claims under the McDonnell Douglas framework, the Sixth Circuit recently
cautioned, courts must be conscious to avoid “the tendency to push all of the evidence into the
prima facie stage and ignore the purpose for and application of the three stages.” Provenzano v.
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LCI Holdings, Inc., --- F.3d ----, 2011 WL 6224548, at *4 (6th Cir. Dec. 15, 2011). For
example, some review of the respective qualifications of the applicants “is necessary at the prima
facie stage; however, this light review must be distinguished from the more rigorous comparison
conducted at the later stages of the McDonnell Douglas analysis.” Id. (citing Tex. Dept. of
Comm. Affairs v. Burdine, 450 U.S. 248, 255 (1981)). Thus, in a failure to promote case, as in
this case, the plaintiff need not establish that she had “the exact same qualifications” to state a
prima facie case, establishing that she possessed “similar qualifications” is sufficient.
Provenzano, 2011 WL 6224548, at *5.
“Once the plaintiff establishes this prima facie case, the burden shifts to the defendant to
offer evidence of a legitimate, non-discriminatory reason for the adverse employment action.”
White, 533 F.3d at 391 (citing Burdine, 450 U.S. at 253). “[I]f the defendant succeeds in this
task, the burden shifts back to the plaintiff to show that the defendant’s proffered reason was not
its true reason, but merely a pretext for discrimination.” White, 533 F.3d at 391–92. A plaintiff
may demonstrate pretext “by showing that the employer’s stated reason for the adverse
employment action either (1) has no basis in fact, (2) was not the actual reason, or (3) is
insufficient to explain the employer’s action.” Id. at 393 (citing Imwalle v. Reliance Med.
Prods., Inc., 515 F.3d 531, 545 (6th Cir. 2008). Additionally, a plaintiff may establish pretext
“by offering evidence which challenges the reasonableness of the employer’s decision to the
extent that such an inquiry sheds light on whether the employer’s proffered reason for the
employment action was its actual motivation.” White, 533 F.3d at 393 (internal quotation marks
omitted) (quoting Wexler, 317 F.3d at 578).
Title VII also prohibits “disparate impact” discrimination. That is, although the Civil
Rights Act of 1964 did not include an express prohibition on policies or practices that produce a
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disparate impact, in Griggs v. Duke Power Co., 401 U.S. 424 (1971), “the Court interpreted the
Act to prohibit, in some cases, employers’ facially neutral practices that, in fact, are
‘discriminatory in operation.’ ” Ricci, 129 S. Ct. at 2672–73 (quoting Griggs, 401 U.S. at 431).
With the passage of the Civil Rights Act of 1991, Congress codified the Griggs prohibition on
disparate impact discrimination, amending Title VII to make plain that it is unlawful for an
employer to “use[] a particular employment practice that causes a disparate impact on the basis
of race, color, religion, sex, or national origin,” absent the employer “demonstrat[ing] that the
challenged practice is job related for the position in question and consistent with business
necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i).
In Ricci, these two types of discrimination claims — disparate treatment and disparate
impact — collided after the city of New Haven, Connecticut, administered an examination for
promotions within its fire department. 129 S. Ct. at 2664. The Supreme Court recounts what
happened next:
When the examination results showed that white candidates had outperformed
minority candidates, the mayor and other local politicians opened a public debate
that turned rancorous. Some firefighters argued the tests should be discarded
because the results showed the tests to be discriminatory. They threatened a
discrimination lawsuit if the City made promotions based on the tests. Other
firefighters said the exams were neutral and fair. And they, in turn, threatened a
discrimination lawsuit if the City, relying on the statistical racial disparity,
ignored the test results and denied promotions to the candidates who had
performed well. In the end the City took the side of those who protested the test
results. It threw out the examinations.
Id. The firefighters who would have been promoted, but for the test results being thrown out,
made good on their threat of litigation. Id. at 2671. The district court granted summary
judgment to the city, concluding that the city’s decision “to avoid making promotions based on a
test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory
intent.” 554 F. Supp. 2d 142 (D. Conn. 2006), rev’d, 129 S. Ct. 2658 (2009) (footnote omitted).
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In a one-paragraph per curiam opinion, a Second Circuit panel affirmed. 530 F.3d 87 (2d Cir.
2008). The Supreme Court reversed in a five-to-four decision,2 holding:
Employment tests can be an important part of a neutral selection system that
safeguards against the very racial animosities Title VII was intended to prevent.
Here, however, the firefighters saw their efforts invalidated by the City in sole
reliance upon race-based statistics. . . . All the evidence demonstrates that the City
chose not to certify the examination results because of the statistical disparity
based on race — i.e., how minority candidates had performed when compared to
white candidates. . . . Without some other justification, this express, race-based
decisionmaking violates Title VII’s command that employers cannot take adverse
employment actions because of an individual’s race.
129 S. Ct. at 2673, 2676. Consequently, the Court decided to “adopt the strong-basis-inevidence standard as a matter of statutory construction to resolve any conflict between the
disparate-treatment and disparate-impact provisions of Title VII.” Id. at 2676. Under this
standard, “government actions to remedy past racial discrimination — actions that are
themselves based on race — are constitutional only where there is a ‘strong basis in evidence’
that the remedial actions were necessary.” Id. at 2675 (quoting Richmond v. J.A. Croson Co.,
488 U.S. 469, 500 (1989)). Applying this standard, the Court determined that “there is no
evidence — let alone the required strong basis in evidence” — that the test results should be
disregarded. Id. at 2681. “Fear of litigation alone,” the Court emphasized, “cannot justify an
employer’s reliance on race to the detriment of individuals who passed the examinations and
qualified for promotions. The City’s discarding the test results was impermissible under Title
VII.” Id.
In this case, Plaintiff has carried her burden of establishing a prima facie case of disparate
treatment. As an African American woman, she is a member of a protected class. She was
subject to an adverse employment action — she applied for, but did not receive, the traffic
2

Justice Kennedy delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Scalia,
Thomas, and Alito. Justice Ginsburg dissented, joined by Justices Stevens, Souter, and Breyer.
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technician job. She possessed “similar qualifications” as the person who received the job, Roger
Pate, under the prima facie case’s “light review” standard. Provenzano, 2011 WL 6224548, at
*4. And Pate, a Caucasian man, is outside the protected class.
Defendant likewise carries its burden of establishing a legitimate, nondiscriminatory
reason for hiring Pate. He scored higher on the interview examination. The interview was
conducted by three experienced traffic accident investigation and reconstruction officers, who
scored the applicants on thirty-two questions developed specifically for interviewing traffic
technician applicants. See Def.’s Mot. Exs. 21–22 (providing interview forms). Plaintiff does
not dispute, and an independent review reveals, that these questions were facially neutral and is
job-related to the position in question. The scores were sent to Chief Cliff. Def.’s Mot. Ex. 18 ¶
8. “I based my decision on who to hire,” Cliff testified, “strictly upon the scores provided to me
by the interview panel. . . . Based upon those results, I hired the [Pate] for the Traffic Crash
Reconstructionist/Traffic Investigator position and not the claimant.” Id. ¶ 10.
Plaintiff contends that the interview scores served as a mere pretext for intentional
discrimination for several reasons.

Her arguments, however, do not establish pretext.

Significantly, Plaintiff does not assert that the three individuals who scored her harbor any
discriminatory intent.

“A disparate-treatment plaintiff must establish,” the Supreme Court

emphasizes, “that the defendant had a discriminatory intent or motive for taking a job-related
action.” Ricci 129 S. Ct. at 2672 (internal quotation marks omitted) (quoting Watson, 487 U.S.
at 985–86). Rather than alleging that the interviewers were biased against her, Plaintiff contends
in her deposition that Chief Cliff possessed the requisite discriminatory intent regarding the
adverse employment action at issue. As noted above, she testified:
A: I believe that he is the one that makes the decision in reference to the hiring
process in terms of the technician’s position.
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Q: All right. And do you know how it was that your race or gender played a role
in the chief’s selection of Officer Pate over yourself for the position?
A: Officer Pate is a white male and I’m a black female.
Q: All right. Is there any other additional information that you can rely upon in
support of your race claim against him in that context?
A: Explain that.
Q: Do you understand my question?
A: No, sir.
Q: Okay. Besides the fact that you are a black female and Officer Pate is a white
male —
A: Um-huh.
Q: — is there any other information that you rely upon that the chief was
discriminating against you on the basis of your gender and/or race?
A: I can’t — I can’t answer that question.
Q: Why?
A: I have to have a reason why I can’t answer that question?
Q: Well, do you not understand my question or you just can’t answer it?
A: You asked me why do I think it was discrimination because I’m black and
he’s a white individual?
Q: Um-huh.
A: That was my answer. And your other —
Q: Okay. Is there anything — is there anything else that you can look to that
supports your assertion that your race played a role in the selection of the
traffic technician position? . . .
A: It’s my opinion.
Pl.’s Dep. 167:15–168:22, 169:16. Plaintiff’s opinion — unsubstantiated by evidence to rebut
Defendant’s proffered reason for its decision — is insufficient to establish that the proffered
reason is pretextual.
In her brief, Plaintiff argues that she was not asked eleven of the thirty-two questions
contained in the interview examination scoring sheet. Pl.’s Resp. Def.’s Mot. Summ. J. 16
(“Pl.’s Resp.”). Her affidavit asserts that she was not asked ten of the questions. Id. Ex. 1 ¶ 1.
And in her deposition, Plaintiff testifies that she did not recall if the questions were asked or not.
See, e.g., Pl.’s Dep. 112:16–114:25. As noted, however, Plaintiff does not assert that the
interviewers possessed any discriminatory intent — a necessary predicate for alleging that their

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ostensibly legitimate, non-discriminatory scores were mere pretext for discrimination. Absent
this predicate, Plaintiff cannot establish the conclusion that their actions were mere pretext.
Similarly unpersuasive is Plaintiff’s next argument: “By having Plaintiff’s interview
happen second in time, the interviewers were put into a position wherein they could compare her
alleged responses to the purported responses provided by Pate.” Pl.’s Resp. 18. “In other
words,” Plaintiff elaborates, “the manner in which Pate answered questions allowed the panel to
set the bar to be utilized when assigned scores to Plaintiff’s purported response to the questions.
This also constitutes evidence of pretext.” Id. Plaintiff concedes that the interview order was a
byproduct of “administrative scheduling.” Id. (quoting Trevino Dep. 47:17, July 18, 2011,
attached as Def.’s Mot. Ex. 20).
Plaintiff, however, references no authority for her argument that an employer must
interview minority and women candidates before other candidates. And such a rule would be
contrary to Ricci, in which the Court cautioned that such “express, race-based decisionmaking
violates Title VII.” 129 S. Ct. at 2673. “Fear of litigation alone,” the Court instructed, “cannot
justify an employer’s reliance on race to the detriment of individuals who passed the
examinations and qualified for promotions.” Id. at 2681. Plaintiff’s proposal — to disregard the
interview examination scores because Defendant did not deliberately schedule the minority
female candidate first — would flout the Court’s instruction. Indeed, Plaintiff’s proposal would
expose Defendant to liability for discrimination under Title VII, not shield Defendant from it.
Finally, Plaintiff argues, pretext is demonstrated by Crane’s 2006 “black/white thing”
comment. Plaintiff does not contend that Crane was involved in the hiring decision at issue.
This single remark, made more than three years before the interview took place, does not support
an inference of pretext. “An isolated discriminatory remark made by one with no managerial
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authority over the challenged personnel decisions is not considered indicative of . . .
discrimination.” Ercegovitch v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir. 1998)
(citing McDonald v. Union Camp Corp., 898 F.2d 1155, 1161 (6th Cir. 1990)). Because Plaintiff
does not establish that Defendant’s proffered reason for its decision is mere pretext for
discrimination, Defendant is entitled to summary judgment on Plaintiff’s Title VII claim.
V
Having dismissed all of Plaintiff’s federal law claims, the Court declines to exercise
supplemental jurisdiction over Plaintiff’s sole remaining state law claims under the ELCRA. 28
U.S.C. § 1367(a) provides: “The district courts may decline to exercise supplemental jurisdiction
over a claim . . . if . . . the district court has dismissed all claims over which it has original
jurisdiction.” Moreover, “a federal court that has dismissed a plaintiff’s federal-law claims
should not ordinarily reach the plaintiff’s state-law claims.” Moon v. Harrison Piping Supply,
465 F.3d 719 (6th Cir. 2006) (citation omitted); see also United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial . . . the state
claims should be dismissed as well.”); Perry v. Se. Boll Weevil Eradication Found., 154 F.
App’x 467, 478 (6th Cir. 2005) (noting that dismissal is the “clear rule of this circuit”). As the
Supreme Court has emphasized, “Needless decisions of state law should be avoided both as a
matter of comity and to promote justice between the parties, by procuring for them a surer-footed
reading of applicable law.” Gibbs, 383 U.S. at 726.
IV.
Accordingly, it is ORDERED that Defendant’s motion for summary judgment (ECF No.
22) is GRANTED.

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It is further ORDERED that Plaintiff’s § 1983 and Title VII claims are dismissed with
prejudice.
It is further ORDERED that the exercise of supplemental jurisdiction over Plaintiff’s
remaining state law claim is DECLINED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: January 18, 2012

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 18, 2012.
s/Tracy A. Jacobs
TRACY A. JACOBS

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