Taylor v. Department of Human Services of the State of Michigan

Filing 48

OPINION and ORDER granting in part and denying in part 39 MOTION for Summary Judgment with Brief in Support filed by Department of Human Services of the State of Michigan. Signed by Magistrate Judge R. Steven Whalen. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MACK TAYLOR,

Case No. 09-14639

Plaintiff,
v.

Magistrate Judge R. Steven Whalen

DEPARTMENT OF HUMAN SERVICES
of the STATE of MICHIGAN,
Defendant.
/
OPINION AND ORDER
Before the Court is Defendant’s Motion for Summary Judgment [Docket #39],
filed August 1, 2011. For the reasons set forth below, the motion is GRANTED in part
and DENIED in part.
I. BACKGROUND FACTS
Plaintiff filed suit on November 29, 2009, alleging racial discrimination in the
circumstances surrounding his attempts to be rehired after being laid off by Defendant
Department of Human Services of the State of Michigan (“DHS”). Plaintiff’s Amended
Complaint, filed March 27, 2011, alleges violations of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et. seq. (“Title VII”), the Civil Rights Act of 1991, and 42 U.S.C. §§ 1981
and1983. Amended Complaint, Docket #28.
The amended complaint makes the following factual allegations. On February 4,
2001 Defendant hired Plaintiff as a “Fire and Safety Officer 7" at the Maxey Boys Training
School (“Maxey”). Amended Complaint at ¶7. Plaintiff describes his job duties as
“ensuring that all technical assets were intact and functioning correctly.” Id. at ¶8. On May
4, 2008, he was notified that he was to be laid off due to downsizing. Id. at ¶10. On June 12,
-1-

2008, Plaintiff filled out a “Recall Preference Form” pursuant to a collective bargaining
agreement (“CBA”) between Defendant and UAW/MSEA, at which time he was given the
option of choosing which Michigan counties he wished to be considered for rehire. Id. at
¶11. Plaintiff’s written preference to take any opening for a Fire and Safety Officer job
anywhere in the state, was known as “category 99." Id. at ¶12. On July 1, 2008, he received
a letter confirming that he had been added to the recall list until June 18, 2011. Id. at ¶¶1516.
Plaintiff, an African-American, alleges that in February, 2009, he discovered that an
employee of Defendant, Lynn Eiseler, intentionally removed him from category 99. Id. at
¶17. The Complaint states that the same month, he learned that two white individuals who
had also made a category 99 option to consider state-wide positions had been recalled. Id.
He also learned that both individuals had less seniority than he. Id. at ¶20. He alleges that
Defendant also hired white males who “were not on any recall list and were ineligible to be
hired ahead of [him].” Id. at ¶21. On June 22, 2009, Plaintiff filed a charge of race
discrimination with the Michigan Department of Civil Rights (“MDCR”) and the Equal
Employment Opportunity Commission (“EEOC”). Id. at ¶22. Plaintiff filed suit in this
Court on November 29, 2009. Id. at ¶24. He requests monetary damages and the
reinstatement of his place on the statewide recall list. Id. at pg. 6.

II.

STANDARD OF REVIEW

Summary judgment is appropriate where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R.Civ.P. 56(c). To prevail on a motion for summary judgment, the
-2-

non-moving party must show sufficient evidence to create a genuine issue of material fact.
Klepper v. First American Bank, 916 F.2d 337, 341-42 (6th Cir. 1990). Drawing all
reasonable inferences in favor of the non-moving party, the Court must determine “whether
the evidence presents a 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 v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary
judgment is appropriate “against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celetox Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986). When the “record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party,” there is no genuine issue of material fact, and summary
judgment is appropriate. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000).
III.

DISCUSSION

Defendant argues that Lynn Eiseler, an employee of DHS’s central office human
resources division, removed the “99" designation in July, 2008 at Plaintiff’s verbal request.
Defendant’s Brief at 5-6.

She testified that she did not specifically recall the request, but

stated that she would have changed the “99" designation after receiving a request by
telephone. Defendant’s Attachment 1, Exhibit 1. Upon eliminating the “99" designation in
July, 2008, the Plaintiff’s prospective recall locations were limited to the eight counties
Plaintiff had identified as preferential recall locations.1 Id. On July 1, 2008, Eiseler sent
Plaintiff a followup letter confirming his alleged desire to be taken out of consideration for
a statewide recall. See Defendant’s Brief at 11-12, Attachment 1, Exhibit 7. Defendant notes
1

The remaining counties were restricted to a roughly 100-mile radius surrounding
metropolitan Detroit: Oakland (63), Wayne (82), Macomb (50), Genesee (25), Lapeer
(44), Saginaw (73), Tuscola (79), and Shiawassee (76).
-3-

further that while Plaintiff claims that he did not receive the letter, he admits that he spoke
to Eiseler by telephone and discussed the meaning of the a “99" designation. Defendant’s
Brief at 11, Attachment 1, Plaintiff’s dep. at pg. 17-21. Defendant contends that even
assuming that Plaintiff’s designation was not changed at Plaintiff’s request, he cannot show
that Eiseler’s re-designation resulted in an adverse employment action or that her actions
were inspired by racial animus.
Defendant also disputes the contention that Clarence Seigle and Gerald Gross, two
white fire/safety officers with less seniority than Plaintiff, received preferential treatment.
In responding to Plaintiff’s February, 2000 grievance, Defendant asserted that Paul Dean, a
labor relations specialist, discovered that in fact, Gross was recalled to a fire/safety position
with the Department of Community Health (“DCH”) in Westland prior to Plaintiff’s layoff.
Defendant’s Attachment 3, Dean dep. at 23. Dean testified further that Seigle, also hired by
DCH in Westland, was rehired into a different classification (storekeeper) before later
obtaining a position as a fire and safety officer. Id. at 23-26. Finally, Defendant contends,
in effect, that Plaintiff’s “call-back” rights to seniority-based benefits were extinguished
upon his May 4, 2009 resignation. Defendant’s Brief at 8.
A. Applicable Law
Plaintiff has offered no evidence that anyone in a decision-making position expressly
stated a desire to fire him or take any other adverse action based on race. Thus, Plaintiff’s
claim of racial discrimination under Title VII is based on circumstantial evidence.2 In such
case, the burden-shifting approach first set forth in McDonnell Douglas Corp. v. Green, 411

2

“The burden shifting approach developed by the Supreme Court for Title VII cases
in McDonnell Douglas Corp. v. Green, applies to § 1981 claims.” Hines v. City of Brighton,
539 F.Supp.2d 908, 922 (E.D.Mich. 2008).
-4-

U.S. 792, 93 S.Ct. 1817, 37 L.Ed.2d 668 (1973), applies. See Johnson v. Kroger Co., 319
F.3d 858, 865-66 (6th Cir. 2003). Under that framework, the Plaintiff must present a prima
facie case of unlawful discrimination. Once he has done so, the burden shifts to the
Defendant to “articulate some legitimate, nondiscriminatory reason” for taking the
challenged action. Johnson v. University of Cincinnati, 215 F.3d 561, 573 (6th Cir. 2000).3
If the Defendant satisfies that burden, the Plaintiff must then prove, by a preponderance of
the evidence, that the proffered reason for the Defendant’s actions is not the true reason, but
rather a pretext for discrimination.
In order to establish a prima facie showing of racial discrimination in such a case, the
Plaintiff must introduce sufficient evidence that (1) he was a member of the protected class,
(2) he suffered an adverse employment action, (3) he was qualified for the position, and (4)
the adverse action was taken under circumstances giving rise to an inference of unlawful
discrimination. McDonnell Douglas, supra, 411 U.S. at 802. The last factor is generally
shown by evidence that the plaintiff was “treated differently from similarly situated
individuals outside of [the] protected class.” Smith v. City of Salem, Ohio, 378 F.3d 566, 570
(6th Cir. 2004)(citing Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir.2000)); McDonnell
Douglas, supra, 411 U.S. at 802, 1824. However, this factor may take various forms,
depending upon the facts and allegations of a particular case. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 254, n.6, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981); Hazle v. Ford Motor Company, 464 Mich. 456, 463, n.6, 628 N.W.2d 515 (2001)
(“the elements of the McDonnell Douglas prima facie case should be tailored to fit the factual
situation at hand”); Shah v. General Electric Company, 816 F.2d 264, 268-271 (6th Cir. 1987)

3

This is a burden of production. Christian v. Wal-Mart Stores, Inc., 252 F.3d
862, 868 (6th Cir. 2001).
-5-

(“However articulated, the significance of the prima facie case is that it permits an ‘inference
of discrimination...because we presume these acts, if otherwise unexplained, are more likely
than not based on the consideration of impermissible factors.’”) (quoting Furnco
Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)).

B.

The Prima Facie Case

Defendant concedes that Plaintiff, as a member of a protected class and a qualified fire
and safety officer, can establish the first and third elements of a prima facie case. Defendant
argues however, that Plaintiff cannot show he suffered an adverse employment action or that
he was treated differently than similarly situated caucasian employees.
1. The Removal of the “99" Designation
Here, Defendant argues that Plaintiff was removed from the “99" category at his own
request. 11-12. Even assuming that Eiseler erred by removing Plaintiff from the designation,
Defendant argues that Plaintiff did not suffer an adverse employment action, contending that
he has “produced no evidence” that his removal from the ‘99" classification “kept him from
being recalled.” Defendant’s Brief at 11.
The argument that Plaintiff’s removal from the “99" list did not amount to an adverse
action is not well taken. Under Title VII, an “adverse action” includes “termination of
employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title,
a material loss of benefits, significantly diminished material responsibilities, or other indices
that might be unique to a particular situation.” Hollins v. Atlantic Co., Inc., 188 F.3d 652,
662 (6th Cir. 1999). Plaintiff does not dispute the propriety of his June, 2008 layoff.
However, his claim that he was deprived of statewide job opportunities (if for nothing else,
an interview) under the terms of the CBA constitutes “a material loss of benefits.”
-6-

Nonetheless, claims pertaining to the removal of the “99" designation will be
dismissed. To begin with, parties disagree as to whether Plaintiff asked to be removed from
the statewide recall list or was removed without his knowledge. Eiseler’s position that
Plaintiff requested the removal is supported by his acknowledgment that he discussed the
meaning of the “99" designation with Eiseler in the same month that he was removed from
the list. Defendant’s Attachment 1, Mack Taylor dep at pg. 21. Defendant has presented a
copy of a followup letter from Eiseler to Plaintiff reflecting his alleged request to be taken
from the “99" designation. Defendant’s Attachment 1, Exhibit 7.
Even assuming that Plaintiff could establish that Eiseler removed him from the
statewide list without his permission or ought to have secured his permission in writing, her
actions do not give rise to an inference of unlawful discrimination. Although Plaintiff claims
that he did not receive Eiseler’s July 1, 2008 written communication, he does not dispute the
authenticity of the letter and in fact, uses the communication to support an unrelated
argument. Plaintiff’s Exhibit 12. It strains credulity to accept that after wrongly removing
Plaintiff from the “99" list, Eiseler would have memorialized her misfeasance and sent him
copy. Further, in pursuing his grievance against DHS, Plaintiff later acknowledged that he
had been taken off the statewide list “per a miscommunication.” Plaintiff’s Exhibit 15.
Finally, even assuming that Eiseler deliberately removed him from the “99"
designation, Plaintiff has provided no factual support for his claim that Eiseler’s actions were
inspired by racial animus, i.e., a practice of removing African-Americans from the “99"
designation or otherwise depriving him or others from job opportunities provided to
Caucasians. “Miscommunication” (Plaintiff’s word) does not imply race-based motivation.
Plaintiff does not allege that either of his “comparable” white individuals, Gross and Seigle,
asked to receive a “99" or obtained jobs as a result of being placed on the statewide list. In
-7-

fact, Both Gross and Seigle’s recall applications indicate that they did not request a “99"
designation.4 Plaintiff’s Exhibits 6-7.
2. Gross and Seigle
As discussed above, I reject Defendant’s position that the deprivation of job
opportunities did not amount to an adverse action. As to the fourth element of a prima facie
claim of discrimination, Defendant contends that the jobs acquired by Gross and Seigle
were either not available or not applied for by Plaintiff at the time of his layoff.

Id.

Following Defendant’s reasoning, Gross and Seigle are thus, not “similarly situated.”
Defendant has not shown as a matter of law that Gross and Seigle, both white males,
were not similarly situated. Defendant relies solely on Paul Dean’s deposition testimony for
its argument that Gross obtained his new position prior to Plaintiff’s June, 2008 layoff and
that Seigle was hired as a shopkeeper, a job not requested by Plaintiff. However, Paul
Dean’s testimony is sketchy as to the both the time line and individuals. First, he states that
Seigle was hired “I want to say three days before Mr. Taylor was laid off.” Plaintiff’s Exhibit
4, Paul Dean dep. at pg. 22-23 (emphasis added). He goes on to testify erroneously (or at
least contrary to Defendant’s current position) that it was Gross and not Seigle who took the
shopkeeper position. Id. at pg 23. Dean then admitted “[h]onestly I don't remember which
one was which.” Id. Dean also testified erroneously that Seigle was laid off in May, 2008
when in fact, both Seigle and Dean had been laid off by March, 2008. Plaintiff’s Exhibit 6-7.
When asked how Seigle obtained the job of shopkeeper despite the fact that he asked for only
“fire safety” jobs on his recall application, Dean admitted that he did not know (1) whether
the shopkeeper job was the result of a recall or independent job application (2) whether
4

Paragraph 17 of the Amended Complaint refers to two other white individuals
who were not removed from “99" category and received out state jobs. However, these
individuals have not been named or otherwise identified.
-8-

Seigle possessed special qualifications for the shopkeeper position or, (3) whether Seigle was
transferred from the job of shopkeeper to a fire/safety position in 2008 or 2009. Paul Dean
dep. at pg. 23-27.
All that can be gleaned from Defendant’s evidence is that Dean believes, but is not
sure, that one of these two individuals was hired three days before Plaintiff was laid off.
This is not sufficient to conclude as a matter of law that Gross and Seigle, both with less
seniority than Plaintiff, were recalled before Plaintiff was laid off or that they were not
similarly situated.5 Dean’s inconclusive statements are further undermined by the affidavit
of Vanessa Chubb, Plaintiff’s union representative during the grievance process, who states
that in her capacity as Plaintiff’s representative, she “researched Mr. Taylor's complaint and
verified that Gerald Gross and Clarence Seigle had been recalled to positions while [Plaintiff]
was laid-off . . .” Plaintiff’s Exhibit 2 at ¶10 (emphasis added). Although Defendant argues
in reply that “Chubb gives no basis for her assertions” and that Dean’s testimony should be
credited because “he discussed . . . his findings,” the fact remains that Dean’s deposition
testimony was no more convincing than Chubbs’. Reply at 3.
Of at least equal concern is the fact that while Seigle did not apply for recall as a
shopkeeper, he was able to obtain this position fairly soon after his layoff. While it is
possible that Seigle applied for the shopkeeper position independent of the recall process, it
is unclear why he would not have included “shopkeeper” on his recall application, given that
his “recall” status under the CBA would seemingly have given him some advantage over
making a separate application. That fact that Seigle, an individual with less seniority, was

5

At a minimum, the fact that Defendant cannot establish as a matter of law that Gross
and Seigle were hired before Plaintiff was laid off also defeats the argument that he did not
suffer an adverse action.
-9-

able to obtain an interview (and later, a job in fire/safety position by way of the “stepping
stone” job) while Plaintiff was not, lends credence to the claim that the recall process favored
similarly situated white individuals.6 The inference of improper motive is underscored by
that the fact that while Plaintiff listed Wayne County as a preferred recall location, Seigle did
not - yet was able to secure a job position in that county. See fn. 1, above; Plaintiff’s Exhibit
6.
3. Entitlement to Open Positions
Finally, the Court addresses Plaintiff’s contention that his seniority entitled him to a
position, rather than merely an interview, for a position he interviewed for in Caro, Michigan.
Defendant cites Dean’s testimony that a laid off employee applying for a position outside of
his department would not be entitled to more than an interview. Defendant’s Attachment 3,
Paul Dean dep. at pg. 9.
In its Reply, Defendant also produced Art. 12, Sec. F of the MSEA Labor and
Trades and Safety and Regulatory Units CBA which states as follows:
If no employee is on such Departmental Recall List, the Employer shall recall
one of the three (3) most senior employees from Statewide Interdepartmental
Recall List for the class and level who have designated the county in which the
vacancy exists as one to which he/she will accept recall. In the event there are
less than three (3) names the Employer shall recall from the remaining
available name(s) on the list.
Reply, Exhibit 1. Thus, Defendant’s contention that Plaintiff would have been entitled to
recall for a position only within the county or agency/facility of his previous employment
(Livingston/DHS/Maxey) and was not entitled to more than an interview for the Caro,

6

Defendant suggests that Plaintiff was not “qualified” for the shopkeeper position, and
therefore Seigle is not comparable or similarly situated. However, the record is devoid of any
evidence that Seigle was any more qualified than the Plaintiff.
-10-

Michigan opening (Tuscola/DCH/Caro site) reflects a sound interpretation of the CBA. Id.
As such, claims regarding Plaintiff’s purported entitlement to jobs, rather than just
interviews, outside of the former county or agency of his employment are subject to
dismissal.
C. Qualified Immunity
Defendant notes that neither Eiseler nor Dean have been named but argues
nonetheless that because they did not violate any of Plaintiff’s constitutional rights, claims
against them brought under 42 U.S.C. § 1983 would be barred by qualified immunity.
Defendant’s Brief at 16-18. I agree that under no set of facts could Eiseler’s actions amount
to a constitutional violation. Because she did not violate Plaintiff’s constitutional rights, she
would also entitled to qualified immunity, assuming she were a named Defendant. Saucier
v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
In contrast, Dean testified that he was labor relations expert for Michigan’s Civil
Service Commission and was responsible for investigating Plaintiff’s grievance regarding
similarly situated white individuals with less job seniority. Plaintiff’s Exhibit 4, Paul Dean
dep. at pgs. 5, 12. Dean’s role in handling the grievance goes to the heart of allegations that
Plaintiff was not given the opportunities presented to similarly situated white individuals.
Moreover, the deprivation of job opportunities regarding allegations pertaining to the
positions obtained by Gross and Seigle on the basis of race constitutes a “clearly established”
constitutional right at the time of the events in question. See Amini v. Oberlin College, 440
F.3d 350, 358 (6th Cir. 2006)(citing Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 867-68
(6th Cir.2001)(42 U.S.C. § 1981 “prohibits intentional race discrimination in the making and
enforcing of contracts involving both public and private actors.”).
The problem is that although Plaintiff has named “John Doe” Defendants in his
-11-

complaint, he has neither named Dean nor served him with process. Nor has he moved to
amend the complaint to name Dean or anyone else. Therefore, the “John Doe” Defendants
will be dismissed without prejudice. However, Plaintiff may, within 30 days, file a motion
for leave to file an amended complaint.
IV.

CONCLUSION

For these reasons Defendant’s Motion for Summary Judgment [Docket #39] is
GRANTED IN PART AND DENIED IN PART as follows:
1. The motion is GRANTED as to claims pertaining to the removal of Plaintiff’s “99"
designation.
2. The motion is DENIED as to claims involving the Gross and Seigle rehire.
3. The motion is GRANTED as to claims regarding as to Plaintiff’s claim that he is
entitled to a job outside the county or agency of his former employment, as opposed to an
interview.
4. The “John Doe” Defendants are DISMISSED WITHOUT PREJUDICE. Plaintiff
may file a motion for leave to file an amended complaint (which will include a copy of the
proposed amended complaint) within 30 days of the date of this Opinion and Order.
IT IS SO ORDERED.
s/ R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Date: March 30, 2012

-12-

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record via the Court's
ECF System to their respective email addresses or First Class U.S. mail disclosed on the Notice of
Electronic Filing on March 30, 2012.

s/Johnetta M. Curry-Williams
Case Manager

-13-