Fernanders v. Michigan Department of Military and Veterans Affairs et al

Filing 46

OPINION AND ORDER Granting 33 Motion for Summary Judgment and Directing Defendants to Submit Supplemental Briefing. Defendants to File Supplemental Brief by 9/10/13; Responses due by 9/24/13. Signed by District Judge Robert H. Cleland. (Monda, H)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANDERSON LEE FERNANDERS,
Plaintiff,
v.

Case No. 12-11752

MICHIGAN DEPARTMENT OF MILITARY
AND VETERANS AFFAIRS and MICHIGAN
YOUTH CHALLENGE ACADEMY,
Defendants.
/
OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND
DIRECTING DEFENDANTS TO SUBMIT SUPPLEMENTAL BRIEFING
On April 19, 2012, pro se Plaintiff Anderson Fernanders sued Defendants, the
Michigan Department of Military and Veterans Affairs and the Michigan Youth Challenge
Academy, on various claims relating to his employment discharge from the Michigan
Youth Challenge Academy. On December 6, 2012, the court granted Defendants’
motion to dismiss on all counts but one: Plaintiff’s Title VII claim for wrongful discharge
and termination. Defendants moved for summary judgment. The matter is fully briefed,
and no hearing is needed. See E.D. Mich. LR 7.1(f)(2).
Filings by pro se litigants are “to be liberally construed.” Estelle v. Gamble, 429
U.S. 97, 106 (1976). Pro se pleadings must also be held to “less stringent standards
than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
When construed liberally, Plaintiff’s complaint seeks Title VII relief under both a “single
motive” theory, see 49 U.S.C. § 2000e-2(a)(1), as well as under a “mixed motive”
theory, see 49 U.S.C. § 2000e-2(m). Defendants’ motion for summary judgment will be

granted with respect to Plaintiff’s single motive Title VII claim. Because Defendants did
not address a mixed motive theory in their motion, the court will direct Defendants to file
supplemental briefing addressing that theory.
I. BACKGROUND
The Department of Military and Veterans Affairs (the“Department”) hired Plaintiff
on September 8, 2010 for a limited-term appointment. (Dkt. # 9 at Pg ID 115.) Plaintiff
worked as a Youth Cadre Aide, essentially a youth counselor, for the Department’s
Michigan Youth Challenge Academy (the “Academy”). (Id.) The Academy is a
residential program for high school dropouts that seeks to improve their lives and make
them productive citizens. The Academy cultivates a quasi-military environment and
requires Youth Cadre Aides to wear military-style uniforms and comply with military-like
procedures. When he was hired, Defendants knew that Plaintiff lacked military
experience. (Dkt. # 33 at Pg ID 555 ¶ 5-7.) At the time he was hired, Plaintiff was the
only Youth Cadre who lacked military experience. (Id. at Pg ID 567 ¶ 3-6.)
Plaintiff struggled in the Academy environment. His supervising officer noted that
Plaintiff “had difficulty understanding military protocols,” (Dkt. # 33 at Pg ID 555 ¶ 9),
“would take actions without obtaining the proper authority,” (id. at ¶ 10), “had difficulty
establishing a command presence with the youth,” (id. at ¶ 11), and, unlike his fellow
cadres, “used a style that was more casual or ‘laid back’” when commanding students,
(Id. at ¶ 14). Overall, Plaintiff’s supervising officer concluded that he “appeared to have
difficulty controlling the youth under his command.” (Id. at Pg ID 556 ¶ 17.)
Plaintiff was involved in two incidents which negatively reflected on his job
performance. Although Plaintiff was allowed to form a basketball team at the Academy,
2

(id. at ¶ 19), he did not receive permission to take the team off site for games, (id. at
¶ 22), but did so anyway, (id. at ¶ 23). Plaintiff asserts that he believed he had
permission to take the team off site at the time. (Dkt # 36 at Pg ID 647.) After the
incident, Plaintiff was instructed to disband the team. (Id. at Pg ID 638.) In the second
incident, Plaintiff was charged with supervising a movie night, and allowed a movie with
“inappropriate scenes of sexual content” to be shown. (Dkt # 33 at Pg ID 557 ¶ 32.)
Plaintiff’s employment with the Department was temporary—it was scheduled to
expire “on 12/31/2010 or sooner with notice.” (Dkt. # 9-2 at Pg ID 137.) Defendants
terminated Plaintiff on December 10, 2010, two weeks before his limited-term
appointment was set to expire.1 Plaintiff’s superiors concluded that he “lacked the
military skills needed to function effectively in the position.” (Dkt. # 9 at Pg ID 138.)
After Plaintiff’s termination, Defendants hired white employees. (Dkt. # 31 at Pg ID
511.) Plaintiff filed a complaint with the Michigan Department of Civil Rights and the
Equal Employment Opportunity Commission (“EEOC”) alleging that he was terminated
because he is black. (Dkt. # 9 at Pg ID 116.) The Department of Civil Rights dismissed
the complaint for insufficient evidence. (Id.) The EEOC adopted that same finding and
provided Plaintiff a Right-to-Sue letter. (Id.)
II. STANDARD
Summary judgment is proper when there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
1

Plaintiff’s commanding officer explained in an affidavit that “Mr. Fernanders’
limited term appointment was shortened because there was concern that once he knew
he was not staying on, he might not be willing to keep discipline among the youth.” (Dkt.
# 33 at Pg ID 558 ¶ 40.)
3

“Where the moving party has carried its burden of showing that the pleadings,
depositions, answers to interrogatories, admissions and affidavits in the record
construed favorably to the non-moving party, do not raise a genuine issue of material
fact for trial, entry of summary judgment is appropriate.” Gutierrez v. Lynch, 826 F.2d
1534, 1536 (6th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
Summary judgment is not appropriate when “the evidence presents a sufficient
disagreement to require submission to a jury.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52, (1986). The existence of some factual dispute, however, does not
defeat a properly supported motion for summary judgment; the disputed factual issue
must be material. See id. at 252, (“The judge’s inquiry, therefore, unavoidably asks
whether reasonable jurors could find by a preponderance of the evidence that the
plaintiff is entitled to a verdict . . . .”). A fact is “material” for purposes of summary
judgment when proof of that fact would have the effect of establishing or refuting an
essential element of a claim or defense advanced by either party. Kendall v. Hoover
Co., 751 F.2d 171, 174 (6th Cir. 1984).
In considering a motion for summary judgment, the court must view the facts and
draw all reasonable inferences from the admissible evidence presented in a manner
most favorable to the nonmoving party. Dunigan v. Noble, 390 F.3d 486, 492 (6th Cir.
2004) (“We must determine not whether there is literally no evidence, but whether there
is any upon which a jury could properly proceed to find a verdict for the party producing
it upon whom the onus of proof is imposed.”) (internal citations and quotation marks
omitted). The court does not weigh the evidence to determine the truth of the matter,

4

but must determine if the evidence produced creates a genuine issue for trial. Sagan v.
United States, 342 F.3d 493, 497 (6th Cir. 2003).
III. DISCUSSION
Discrimination claims brought pursuant to Title VII are traditionally categorized as
either single motive claims, i.e., where an illegitimate reason motivated an employment
decision, or mixed motive claims, i.e., where both legitimate and illegitimate reasons
motivated the employer’s decision. Wright v. Murray Guard, 455 F.3d 702, 711 (6th Cir.
2006).
A. Single Motive Discrimination Claim
Under Title VII, it is unlawful to “discharge any individual . . . because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C.§ 2000e-2(a)(1).
Absent direct evidence of race discrimination, the court applies the burden-shifting
framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03
(1973), as modified by Texas Department of Community Affairs v. Burdine, 450 U.S.
248, 252-54 (1981). White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir.
2008). Under the McDonnell Douglas framework, to survive summary judgment:
First, the plaintiff has the burden of proving by the preponderance of the
evidence a prima facie case of discrimination. Second, if the plaintiff
succeeds in proving the prima facie case, the burden shifts to the defendant
“to articulate some legitimate, nondiscriminatory reason for the employee’s
rejection.” Third, should the defendant carry this burden, the plaintiff must
then have an opportunity to prove by a preponderance of the evidence that
the legitimate reasons offered by the defendant were not its true reasons, but
were a pretext for discrimination.

5

Burdine, 450 U.S. at 252-53 (citations omitted). “The ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated against the plaintiff remains at
all times with the plaintiff.” Id. at 253.
To establish a prima facie case of single motive discrimination, an employee must
prove that he: 1) is a member of a protected class, 2) is qualified for the job, 3) suffered
an adverse employment action, and 4) was replaced by a person outside the protected
class or treated differently than similarly situated non-protected employees. Newman v.
Federal Exp. Corp. 266 F.3d 401, 406 (6th Cir. 2001). Under step four, “[a] plaintiff must
show that the defendant treated differently employees who were similarly situated but
were not members of the protected class.” Sutherland v. Michigan Dep’t of Treasury, 344
F.3d 603, 614 (6th Cir. 2003). In order to be comparable for purposes of Plaintiff’s prima
facie case, employees must be “similarly situated in all relevant respects.” Tysinger v.
Police Dep’t of City of Zanesville, 463 F.3d 569, 573 (6th Cir. 2006) (quoting Ercegovich
v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998)). Accordingly, “the
plaintiff must prove that all of the relevant aspects of his employment situation are ‘nearly
identical’ to those of the . . . employees who he alleges were treated more favorably.”
Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994). Therefore, the
court looks to “those factors relevant to the factual context.” Jackson v. FedEx
Corporate Servs., Inc., 518 F.3d 388, 394 (6th Cir. 2008) (citing Pierce, 40 F.3d at 802).
Plaintiff points to two incidents to argue that similarly situated non-minority
employees were treated differently; that an employee lacking military experience was
hired to be the Departmental Manager, and that Plaintiff’s basketball team was required
to disband during his tenure at the Academy. In both instances, Plaintiff compares
6

himself to those with whom he is not similarly situated. As a result, Plaintiff’s
comparisons are not indicative of discrimination.
1. The First Incident
Plaintiff notes that a white person lacking military experience, Mr. Ben Wallace,
was hired as the Departmental Manager at the Academy. (Dkt. # 36 at Pg ID 639.)
However, Ben Wallace was hired to work in a different position than Plaintiff: the
Department Manager position “did not require military experience.” (Id.) Plaintiff’s
position was one where military experience was considered strongly desirable. In fact,
subsequent to Plaintiff’s discharge, the Department changed the job specification for the
Youth Cadre position to make military experience a perquisite. (Dkt # 33 at Pg ID 560.)
As the Departmental Manager position is different than the Youth Cadre Aide position,
Mr. Wallace was not similarly situated to Plaintiff, and a comparison of their employment
situations is not legally significant.
2. The Second Incident
Plaintiff also alleges that white employees at the Academy received more
favorable treatment than black employees. In addition to Plaintiff, two other Youth
Cadres, both white, coached sports teams; Mr. Czerniak coached a cross-country and
weightlifting team, while Mr. Hoaglin coached a volleyball team. (Dkt. # 36 at Pg ID 638.)
Plaintiff asserts that “two white employees continued coaching their respective sports
teams after Plaintiff was ordered to disband the basketball team.” (Id. at Pg ID 639.)
However, Plaintiff fails to demonstrate that Czerniak and Hoaglin were similarly situated
to himself. Plaintiff admits taking the basketball team off site without approval of the
Master Sergent, (id. at Pg ID 646), and that the team was disbanded only after this
7

incident, (id. at Pg ID 638). In order to be similarly situated, one of the white coaches
would have to have made mistakes comparable to those of Plaintiff. Plaintiff fails to
demonstrate any infractions committed by Czerniak or Hoaglin. A reasonable trier of fact
could not conclude, based on the available record, that the basketball team was
disbanded because of Plaintiff’s race.2 As a result, Plaintiff cannot establish that the
forced disbanding of the basketball team was racially motivated, or that he was treated
less favorably than Czerniak or Hoaglin.
Plaintiff cannot demonstrate that he was treated less favorably than similarly
situated non-minority employees, and he therefore fails to establish a prima facie case
for his single motive discrimination claim. Accordingly, Defendants’ motion for summary
judgment will be granted.
B. Mixed Motive Discrimination Claim
Under Title VII, “an unlawful employment practice is established when the
complaining party demonstrates that race, color, religion, sex, or national origin was a
motivating factor for any employment practice, even though other factors also motivated
the practice.” 42 U.S.C. § 2000e-2(m). When analyzing a mixed-motive claim, the
McDonnell Douglas framework does not apply. White, 533 F.3d at 400. Instead, “a Title
VII plaintiff asserting a mixed-motive claim need only produce evidence sufficient to
convince a jury that: [1)] the defendant took an adverse employment action against the

2

Had Plaintiff been able to demonstrate that Czerniak or Hoaglin violated
equivalently serious Academy rules and had still not had their teams disbanded, Plaintiff
would likely have been able to demonstrate disparate treatment of two similarly situated
employees, with the minority employee being treated less favorably.
8

plaintiff; and [2)] race, color, religion, sex, or national origin was a motivating factor for
the defendant's adverse employment action.” Id. (internal quotation marks omitted).
Plaintiff has not expressly indicated that he is pursuing a theory of mixed-motive
discrimination. However, such “treatment can be triggered . . . impliedly through the use
of the motivating factor test in the complaint and responsive pleadings.” Ondricko v.
MGM Grand Detroit, 689 F.3d 642, 649 (6th Cir. 2012). Plaintiff has articulated the
general framework of a mixed motive claim in his amended complaint, (Dkt # 8 at Pg ID
22), as well as in his response to this motion, (Dkt # 36 at Pg ID 635). Plaintiff has
therefore triggered a mixed motive analysis.
Defendants move for summary judgment only in regards to a claim of single
motive discrimination. Accordingly, Defendants must file supplemental briefs for the
court to consider whether granting summary judgment, with respect to the mixed motive
claim, is warranted in this case.
IV. CONCLUSION
Accordingly, IT IS ORDERED that Defendants motion for summary judgment [Dkt.
# 33] is GRANTED. By September 10, 2013, Defendants are DIRECTED to file a
supplementary brief to demonstrate why summary judgment should be granted in their
favor for Plaintiff’s discrimination claims arising under 42 U.S.C. § 2000e-2(m). Plaintiff
shall file any response by September 24, 2013.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: August 28, 2013
9

I hereby certify that a copy of the foregoing document was mailed to counsel of record on
this date, August 28, 2013, by electronic and/or ordinary mail.
s/Holly Monda for Lisa Wagner
Case Manager and Deputy Clerk
[phone]

V:\Cleland\JUDGE'S DESK\C1 ORDERS\12-11752 FERNANDERS.Grant.Summ.Judg.Direct.Supp.Briefing 2.wpd

10