Kelmendi v. Detroit Board of Education et al

Filing 52

OPINION AND ORDER granting in part and denying in part 43 Motion for Summary Judgment -. Signed by District Judge Laurie J. Michelson. (JJoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN P. KELMENDI,
Plaintiff,
v.

Case No. 12-cv-14949
Honorable Laurie J. Michelson
Magistrate Judge R. Steven Whalen

DETROIT BOARD OF EDUCATION, and
the DETROIT PUBLIC SCHOOLS,
Defendants.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [43]
John Kelmendi, an Albanian man in his late fifties, was a teacher and administrator at
Detroit Public Schools (“DPS”) for twenty years. After a promotion he sought was given to a
younger Hispanic woman, he filed a charge with the Equal Employment Opportunity
Commission for discrimination on the basis of age, national origin, and sex. He began receiving
negative performance evaluations, was laid off, and then terminated—in retaliation, he believes,
for filing a charge of discrimination. He filed this lawsuit against the Detroit Board of Education
and DPS. They now seek summary judgment on all of Kelmendi’s claims. As discussed below,
the record is rife with conflicting testimony and evidence, requiring that several of Kelmendi’s
claims proceed to a trial.
I. FACTUAL BACKGROUND
The evidence is presented in the light most favorable to Kelmendi, as the party opposing
summary judgment. Additional evidence is discussed below in the analysis.
Plaintiff is a native of Albania, born in 1953. (Resp. Ex. 1, Kelmendi Dep. at 7–8.) He
began working for the Detroit Public Schools (“DPS”) in 1993, as a social studies teacher at

Pershing High School. (Id. at 68, 219; Resp. Ex. 12, Kelmendi Resume.) He became a
curriculum leader in the social studies department at Pershing in 2003, then curriculum
coordinator in 2007, and instructional specialist in 2009. (Kelmendi Dep. at 69–73; Kelmendi
Resume.) He continued to teach, but had additional responsibilities that included observing and
evaluating other teachers. (Id.)
In July 2011, DPS posted a Program Supervisor position in the Department of
Multilingual-Multicultural Education. (Mot. Ex. C, Job Posting.) The head of the department, to
whom the Program Supervisor reported, was assistant superintendent Frano Ivezaj. (Resp. Ex. 4,
Ivezaj Dep. at 19, 27–28.) Ivezaj is also a native of Albania, born in 1958. (Ivezaj Dep. at 6–7.)
He chaired the interview committee for the Program Supervisor posting, and selected the other
members. (Ivezaj Dep. at 27–28, 37.) The other members were DPS assistant superintendents
Alvin Wood, Rebeca Luna, and Jack Elsey.1 (Ivezaj Dep. at 28.) On August 18, 2011, the
committee interviewed six people for the Program Supervisor posting and scored them as
follows:
Name

National Origin, Sex,
and Age, if known
Claudia Martinez Hispanic female, 37
Alex Cintron
Puerto Rican male, 43
Jose Vera
Male
Kelmendi
Albanian male, 58
Sara Millette
Hispanic female, 55
Antoaneta Partalis Female

Scores
Ivanez Wood
Luna
80
80
83
68
70
84
75
65
75
73
76
77
75
68
73
65
54
54

Elsey
83
74
77
65
64
58

Average
81.5
74
73
72.75
70
57.75

(Ivezaj Dep. 29–30, 38–40; Mot. Ex. G, Interview Schedule; Mot. Ex. H, Interview Scores;
Resp. Ex.10, Defs.’ Interrogatory Resp. 4.) Although the minimum requirements for the job

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Global language supervisor Viviana Bonafede also participated in the interview process,
but could not score the applicants because her job was at the same level as the position being
filled. (Ivezaj Dep. at 28, 41–42; see Resp. Ex. 22.)
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included at least one year of contractual administrative experience, only two of the candidates—
Kelmendi and Cintron—had that experience, according to Ivezaj. (Resp. Ex. 15; Ivezaj Dep. at
50.) Defendants admit that Martinez did not have one year of contractual administrative
experience, and that her application materials reflected that. (Resp. Ex. 9 at 5.)
Before the interviews, the committee agreed that only candidates with an average score of
80 or more would be recommended for the position. (Kelmendi Dep. at 52; Mot. Ex. I, Score
Recommendation.) Based on the scores, therefore, the only person the committee recommended
for the position was Martinez. (Resp. Ex. 22.) The decision to offer the position to Martinez was
made by DPS superintendent Karen Ridgeway based on this recommendation of the committee.
(Resp. Ex. 5, Ridgeway Dep. at 7, 10, 13.) The position was offered to Martinez on September 8,
2011. (Mot. Ex. K.)
On February 14, 2012, Kelmendi filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging that DPS illegally discriminated
against him by failing to promote him because of his national origin, sex, and age. (See Mot. Ex.
L.) According to Kelmendi, he had the EEOC charge forms on his desk and everyone he worked
with knew he was thinking about filing a charge. (See Kelmendi Dep. at 56–59.) On August 30,
2011, Kelmendi talked to DPS Director of Social Studies Sheryl Jones about filing a
discrimination complaint with the EEOC. (See Resp. Ex. 23, Jones Statement; Jones Dep. at 22–
23.) According to Ivezaj, Jones sent her account of that conversation to Ivezaj and
Superintendent Ridgeway. (Ivezaj Dep. at 210–11, 230, 263. But see Jones Dep. at 28 (stating
she never gave it to Ridgeway); Ridgeway Dep. at 16 (stating she was not aware of Kelmendi’s
EEOC complaints before this lawsuit).) And Kelmendi testified that after he filed the charge, he
“went and [] told” his principal, Donna Thornton, about it; he explained, “You don’t hide

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anything from your principal. You always let the principal know what’s going on.” (Kelmendi
Dep. at 60. But see Thornton Dep. at 61–63 (stating she did not know about Kelmendi’s EEOC
charge).)
In the spring of 2012, Kelmendi’s classroom was observed at least four times, by Jones
(on May 21), and by Pershing High School assistant principals Tonya Norwood (on March 9),
Alicia Brown (on April 23), and Dwayne Robinson (on May 24). (See Mot. Exs. P, Q, R, S.)
Each observer used a different evaluation format. Norwood wrote a memo that made a number of
critical comments such as “[d]ifferentiated instruction was not apparent” and “[m]inimal
interaction with students,” and concluded that of five possible ratings, Kelmendi rated the middle
choice, “satisfactory.” (Mot. Ex. P.) Jones checked boxes on a two-page “Formal Observation
Form” that resulted in an overall rating of “unsatisfactory” based on a score of 41 out of a
possible 112 points. (Mot. Ex. R.) Brown completed a “Teacher Observation Rubric” on
Observation 360, the district’s computerized teacher evaluation tool. (Mot. Ex. Q; see Resp. Ex.
36 at Pg ID 1029.) She did not assign an overall rating or score, but she rated him “minimally
effective” on 13 of 15 indicators. (Id.) She rated him “effective” on “knowledge of subject,” and
“ineffective” on “delivery of instruction.” (Id.) Richardson completed an “End of Year Teacher
Evaluation Form” on Observation 360. (See Mot. Ex. S.) He also did not assign an overall rating
or score. (See id.) On four of the five core elements—demonstrated pedagogical skills, student
growth as a predominant factor, classroom management, and relevant special training—he rated
Kelmendi ineffective. (See id.) His ratings for the fifth element, educational responsibilities,
were more mixed and included one “highly effective” rating, in “rapport with colleagues,
parents, and students.” (See id.)

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The chief human resources and labor relations officer for DPS, Gwendolyn DeJongh,
testified that “PD 360” is used by DPS to evaluate teachers. (Resp. Ex. 3, DeJongh Dep. at 36.)
For instructional specialists (like Kelmendi), she said a paper evaluation tool is used. (Id. at 37–
38.) If an instructional specialist teaches in a classroom, DeJongh continued, they “will be
evaluated and they can be subject to evaluations but their scores would not be calculated and sent
to the state because they’re not teachers.” (Id. at 40.) She said instructional specialists’
evaluations are used purely for professional development. (Id. at 46.) According to DeJongh, the
retention of teachers “is dictated by the ratings the teachers receive,” while instructional
specialists are laid off or retained based solely on seniority. (Id. at 41, 46.) She said instructional
specialists would be retained or laid off based on seniority even if they were teaching in a
classroom, so long as their primary job code was instructional specialist. (Id. at 47.)
Superintendent Ridgeway also testified that recall of teachers was based on effectiveness ratings:
first the teachers rated highly effective were recalled, then effective, then minimally effective.
(Resp. Ex. 5, Ridgeway Dep. at 46; see also Resp. Ex. 36 at Pg ID 1018.) She said that teachers
rated ineffective would not be recalled unless there was a critical shortage. (Id. at 48.)
When Pershing High School was transferred to the state of Michigan’s Education
Achievement System, DeJongh said, all the teachers were given layoff notices. (DeJongh Dep. at
48.) Other employees, such as instructional specialists, she said “were laid off in accordance with
their collective bargaining agreement,” so based on their seniority, they “either bumped or
moved to or were assigned to the existing DPS schools in a position for which they were
qualified and for which they had more seniority.” (Id. at 48–49.) She said those employees may
have received layoff notices but some would later have been rescinded. (Id. at 50.)

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Kelmendi was notified on April 10, 2012, that he would be laid off effective August 24,
2012. (See Resp. Ex. 25; Resp. Ex. 1, Kelmendi Dep. at 37.) He was not recalled for the entire
2012–2013 school year, although other instructional specialists with less seniority were recalled.
(See Resp. Ex. 32; Resp. Ex. 39.) A spreadsheet of DPS employees on layoff status as of June 1,
2013, indicated that his primary job code was instructional specialist, and that he had a score of
68 percent. (Resp. Ex. 38 at Pg ID 1098.) On the DPS effectiveness scale, 60 to 69 percent is an
ineffective rating. (Resp. Ex. 36 at Pg ID 1041.) The only other individual on the spreadsheet of
laid-off employees with a job coding of instructional specialist did not have a score indicated.
(See Resp. Ex. 38.)
On June 7, 2012, Kelmendi filed another charge with the EEOC, alleging that he received
poor performance evaluations in retaliation for having filed a charge of discrimination. (See Mot.
Ex. M.) He filed a third charge on March 12, 2013, alleging that between May and August 2012
he applied for various positions at DPS (for the 2012–13 school year) and was not hired because
of his sex, national origin, age, and retaliation for previous charges. (See Mot. Ex. N.)
According to Defendants, Kelmendi was recalled for the 2013–2014 school year, in a
letter dated May 29, 2013. (See Mot. Ex. X; Mot. Ex. W at ¶8.) According to DPS, the letter was
mailed to the home address on file for Kelmendi: 8320 Conant in Detroit. (See id.) Kelmendi
denies receiving the letter, and says he gave DPS a different address, 139 Hayes Road in Shelby
Township, before he was laid off. (Kelmendi Dep. at 41–42.) When Kelmendi did not respond to
the recall letter, he was deemed to have voluntarily resigned as of June 5, 2013. (See Mot. Ex. X
at 10.)
Kelmendi filed this lawsuit in November 2012, with several subsequent amended
complaints.

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II. SUMMARY JUDGMENT STANDARD
“Summary judgment is proper only if the moving party shows that the record does not
reveal a ‘genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” Benison v. Ross, 765 F.3d 649, 658 (6th Cir. 2014) (quoting Fed. R. Civ. P.
56(a)). A genuine issue of material fact exists when there are “disputes over facts that might
affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). But “[w]here the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted) (citing
First Nat. Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289 (1968)).
III. ANALYSIS
Kelmendi alleges six counts against Defendants: (I) discrimination on the basis of
national origin and sex in violation of Title VII; (II) violation of the Age Discrimination in
Employment Act (“ADEA”); (III) violation of § 1981 based on national origin discrimination
and retaliation; (IV) violation of Michigan’s Elliott Larsen Civil Rights Act, based on national
origin, sex, and age discrimination and retaliation; (V) tortious interference with contractual or
business expectancy; and (VI) violation of Michigan public policy based on retaliation for
Kelmendi’s exercise of his rights under the Michigan Workers’ Compensation Act. (See Dkt. 25,
Second Am. Compl.) Defendants seek summary judgment on all counts.
In his response brief, Kelmendi “concedes the dismissal of his workers compensation
retaliation claim and tortious interference claim,” Counts V and VI, respectively. (Resp. at 28
n.2.) At the hearing, Kelmendi also conceded Count III, his § 1981 claims, having failed to
respond to Defendants’ argument that they should be dismissed as a matter of law. See

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McCormick v. Miami Univ., 693 F.3d 654, 661 (6th Cir. 2012) (holding there is no private cause
of action under § 1981 against governmental entities or state actors in their official or individual
capacities); Arendale v. City of Memphis, 519 F.3d 587, 598–99 (6th Cir. 2008) (same).
Defendants’ motion for summary judgment on Counts III, V, and VI is granted.
Turning to Kelmendi’s discrimination claims under Title VII, the ADEA, and ELCRA
(Counts I, II, and IV), the Court first addresses, under each statute, whether Kelmendi can
establish that he was denied a promotion on the basis of illegal discrimination, and finds that he
has presented sufficient evidence to proceed to trial on national origin discrimination, but not on
sex or age discrimination. The Court then addresses whether Kelmendi can establish that
Defendants retaliated against him for exercising his rights under all three statutes by filing a
claim of discrimination with the EEOC, and finds that there is sufficient evidence to submit the
retaliation claims to a jury.
A. National Origin Discrimination
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to “discharge
any individual, or otherwise 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). The statute further provides
that “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.” Id. at § 200e-2(m). National
origin “refers to the country where a person was born, or, more broadly, the country from which
his or her ancestors came.” Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973). Kelmendi
alleges that he was denied the Program Supervisor position because he is Albanian.

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The analysis under Title VII differs depending on whether the plaintiff’s evidence of
discrimination is direct or circumstantial. When the evidence is circumstantial, the Court applies
the tripartite burden-shifting framework first announced by the Supreme Court in McDonnell
Douglas Corporation v. Green, 411 U.S. 792, 793 (1973), and subsequently modified in Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 101 (1981). Alternatively, a plaintiff
may set forth a prima facie case of employment discrimination under Title VII by presenting
direct evidence of the defendant’s discriminatory intent—i.e., “that evidence which, if believed,
requires the conclusion that unlawful discrimination was at least a motivating factor in the
employer’s actions.” DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004). “It shows that the
person who made the challenged decision, or was otherwise meaningfully involved in that
decision, had a bias or that bias affected the challenged decision.” Hussain v. Highgate Hotels,
Inc., 126 F. App’x 256, 262 (6th Cir. 2005). If the plaintiff presents direct evidence, he “does not
bear the burden of disproving other possible nonretaliatory reasons for the adverse action,” as
required in the McDonnell Douglas framework for circumstantial evidence. Instead, “the burden
shifts to the employer to prove by a preponderance of the evidence that it would have made the
same decision absent the impermissible motive.” Id.
Kelmendi argues that the deposition testimony of Ivezaj—the chair of the interview
committee and supervisor for the job position—is direct evidence of discrimination. He points to
Ivezaj’s testimony about why the committee recommended Martinez:
Q. Looking at these scores, it appears that the committee had reached a
consensus that Claudia Martinez was the best candidate for the job, correct?
A. According to the scores, yes.
Q. Why did the committee select or score Claudia Martinez the way they did?
A. You want my opinion?

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Q. Based on whatever the—yeah, I want your opinion. You’re the chair of this
committee. What is your opinion as to why she came out as the successful
candidate?
A. First of all, I was surprised that she met the requirements. Second, I believe
and it’s my opinion because of her age, she was young, vibrant, she was
eloquent and also Hispanic.
Q. What does her having to be Hispanic have to do with it?
A. Well, because even Luna mentioned, and although on the posting it says it’s
not a requirement, “Frano, you know we need to have a Hispanic program
supervisor because for too many years we had an Arab, we need a Hispanic,”
and so again her comments influenced.
Q. So—
A. So of the Hispanic speaking ones, Claudia fared the best.
...
Q. Now, let me go back to your—you just made an allegation or a statement that
Rebeca Luna said, “We need a Hispanic for this program supervisor position.”
When did she say that?
A. I believe it was in her office before the interviews began, couple days before.
That’s when she brought the issue of Alex Cintron and talked about Amal
David and about the bilingual department.
Q. Talked about who?
A. Amal David. She was the one that held the position before, and she held it for,
I don’t know, 20 years, 25 years. And [Luna] said, you know, “It’s time that
we get a Hispanic. The Arabs had their chance, now it’s our turn,” and she
mentioned Alex.
Q. Was anyone else in this meeting?
A. No, just me and her.
Q. And what was your response to these comments you attribute to her?
A. She was pulling for her own.
(Id. at 61–62; see also id. at 151–52.) When asked what the committee discussed after Martinez’s
interview, Ivezaj said it included “that she is Hispanic and has worked in some schools in
southwest Detroit.” (Id. at 68.) And he said his comment to the committee about Martinez was
“[t]hat of all the Hispanic candidates, that she was most impressive to me.” (Id.)

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Ivezaj also testified that although he thought Kelmendi was the most qualified and was
therefore his first choice candidate, Ivezaj did not lobby for Kelmendi “because of the fact that
he was Albanian and I was Albanian American, I didn’t want it to seem biased. I wanted the
committee to see the qualifications that John had and not to be perceived as though I’m rooting
for him because he’s Albanian American.” (Id. at 35–36.) And Ivezaj said he purposely
lowballed Kelmendi’s score, and told the other committee members he was doing so because
Kelmendi was Albanian:
I made it clear to the members of the interview committee that the next candidate
is John Kelmendi. I know him, that he has been active in Detroit Public Schools
and worked for bilingual and served in the City Wide Bilingual Multicultural
Education Advisory Council under Felix Valbuena, and he has a doctorate, that he
did it on Detroit Public Schools bilingual education, But I want you guys to
know—and I told them that he’s Albanian, and I’m going to take like a back seat
on this, even in the rating.
(Id. at 53–54.)
Ivezaj also testified about comments made by Superintendent Ridgeway, who made the
ultimate decision to hire Martinez based on the committee’s ratings and recommendation. In
August 2011, after Kelmendi did not get the position, he complained about the selection process
to (Director of Social Studies) Sheryl Jones, who informed Ivezaj and Ridgeway about his
complaint; Ridgeway then brought it up with Ivezaj and, according to Ivezaj, “she said, you
Albanians have big mouths, you’re troublemakers.” (Id. at 230; see also id. at 211–12.) Ivezaj
also testified that in the fall of 2011, he and Ridgeway “were talking about her twin nephews,
David and Daniel, that were attending CMA High School back when I was assistant principal,
and she chuckled and she said, ‘I don’t know about you Albanians.’” (Ivezaj Dep. at 162.)
The Court finds that Kelmendi has sufficiently established a prima facie case based on
direct evidence of discrimination. The Court does not make credibility determinations on

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motions for summary judgment, and must view the evidence in the non-movant’s favor. If
Ivezaj’s testimony is assumed true, it requires the conclusion that unlawful discrimination was at
least a motivating factor in the decision not to give Kelmendi the job he sought. Ivezaj was the
chair of the interview committee and supervisor for the job position, and he testified that be
believed Martinez was selected because she was Hispanic, based on the committee’s discussions
during the interview process and the stated intention of another committee member to ensure a
Hispanic got the job. He also said that he intentionally gave Kelmendi a lower score because he
was Albanian, and that he told the committee that he was doing so. This is direct evidence of
unlawful discrimination, if it is found credible. See DiCarlo, 358 F.3d at 417 (“the fact that the
comments were made by [the plaintiff’s] immediate supervisor and a decision-maker, that they
specifically negatively and derogatorily referenced DiCarlo’s Italian-American heritage, and that
the hate-speech occurred three weeks prior to DiCarlo’s termination, all culminate in the
conclusion that DiCarlo has presented sufficient [direct] evidence of causation to withstand
summary judgment”). Defendants argue that Ivezaj’s testimony is just unsupported speculation,
but Ivezaj has personal knowledge of the committee’s deliberation process and his testimony
includes specific facts. There is “more than a mere basis for speculation or conjecture.” Lewis v.
Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004).
Defendants also argue that because Luna was only one member of the four-person
committee, Kelmendi has not sufficiently established a causal connection between Luna’s stated
intention to select a Hispanic person and the committee’s decision not to recommend Kelmendi.
(See Mot. at 20–21; Reply at 7–8.) The Sixth Circuit has held that “although direct evidence
generally cannot be based on isolated and ambiguous remarks, when made by an individual with
decision-making authority, such remarks become relevant in determining whether there is

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enough evidence to establish discrimination.” DiCarlo, 358 F.3d at 416 (citation omitted); see
also Griffin v. Finkbeiner, 689 F.3d 584, 595 (6th Cir. 2012) (“Generally, discriminatory
comments can qualify as evidence that a particular decision was discriminatory if the speaker
was ‘in a position to influence the alleged decision.’”). It is not disputed that the ultimate
decisionmaker was Ridgeway, but she testified that she accepted the recommendation of the
committee, which selected only one candidate: Martinez. (Ridgeway Dep. at 7, 10, 13.) Thus,
Luna was clearly an individual with decisionmaking authority. See Hussain, 126 F. App’x at 263
(holding plaintiff’s supervisor had decisionmaking authority where he “recommended to those
with authority that the employee be terminated and awaited their approval”). And so was
Ivezaj—who testified that he purposely gave Kelmendi a low score because he was Albanian,
and because Luna did not want him to get the job (Ivezaj Dep. at 53–58). Although Ivezaj and
Luna were just two of the four members of the committee, Ivezaj testified that Luna made
negative comments about Kelmendi to the other committee members during the interview
process: “basically, ‘John wants our job,’ and she laughed like, ‘Oh, no, we’re not going to have
him come to central office.” (Ivezaj Dep. at 59.) The jury could reasonably believe that the other
two members of the committee—Elsey and Wood—followed Luna’s lead, especially since
Defendants have not presented any testimony from them.
Finally, Defendants’ argument that the scoring of the candidates contradicts Ivezaj’s
testimony about how the decision was made ignores Plaintiff’s position that the scores were just
a smokescreen. A reasonable jury could find that the interview process was a pretext for illegal
discrimination (although Kelmendi does not actually have to establish pretext, since he proffered
direct evidence) based on the evidence presented, including, most significantly, the undisputed
fact that Martinez did not meet the minimum job requirements. Defendants protest that Kelmendi

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also did not meet the job requirements (which Kelmendi disputes, with corroboration from
Ivezaj), but they do not explain why so many unqualified candidates were interviewed for the
job, in itself a troubling fact. Also suggestive of pretext is the evidence that Luna may have gone
“off-script” and asked Kelmendi questions that were not asked of other candidates, contrary to
standard DPS procedures. (See Ivezaj Dep. at 144–47; Jones Statement at Pg ID 967; see
DeJongth Dep. at 27–28.) And Ivezaj testified that the DPS interview process was generally
“rigged” and he had conversations with Elsey and Wood “[t]hat we were all aware of the fact
that the person someone wants is the person who’s going to get the job, and the job descriptions
are designed to meet exclusively the requirements of the applicant that they wanted to hire.”
(Ivezaj Dep. at 203–06; see also Ivezaj Dep. at 151, 231–32, 275–76). Although in this case the
job description was obviously not designed with Martinez in mind, a jury could accept the basic
point that “the person someone wants is the person who’s going to get the job”—and that here,
Luna manipulated the process in order to steer the committee to a Hispanic candidate. Indeed, at
least three and probably four of the six candidates interviewed were Hispanic, and neither party
has been able to explain how and why those candidates were chosen for interviews.
Defendants do raise many legitimate concerns about the credibility of Kelmendi’s claims
and Ivezaj’s testimony. But the Court cannot say at the summary judgment stage, with its
deference to the non-movant’s version of the facts, that Defendants have proven by a
preponderance of the evidence that they would have made the same decision absent the
impermissible motive of national origin discrimination. Anderson, 477 U.S. at 249 (“[T]he
judge’s function is not himself to weigh the evidence and determine the truth of the matter, but to
determine whether there is a genuine issue for trial.”). Kelmendi has met his burden to show
there are genuine issues of material fact that national origin was a motivating factor in

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Defendants’ failure to promote him. Summary judgment is therefore denied on the Title VII
national origin discrimination claim in Count I.
B. Title VII Sex Discrimination
Kelmendi also alleges that he was discriminated against on the basis of his sex in
violation of Title VII. As with national origin discrimination, Kelmendi must show that sex
discrimination was a motivating factor in the failure to promote him. White, 533 F.3d at 400. But
Kelmendi’s burden is greater here because he is not a member of the protected class: “A reversediscrimination claim carries a different and more difficult prima facie burden,” that includes
“showing that ‘background circumstances support the suspicion that the defendant is that unusual
employer who discriminates against the majority.’” Briggs v. Potter, 463 F.3d 507, 517 (6th Cir.
2006) (affirming summary judgment on sex discrimination claim where plaintiff had “not
produced a shred of evidence that the Postal Service is the unusual employer who discriminates
against men”) (quoting Yeager v. Gen. Motors Corp., 265 F.3d 389, 397 (6th Cir. 2001)).
Kelmendi has not pointed to any evidence that Defendants discriminated against men, beyond
the bare fact that the person who was given the Program Supervisor position, despite not meeting
the minimum qualifications, was a woman. In fact, the sex discrimination claim is not
specifically addressed in Kelmendi’s response brief. The Court sees no basis on which a jury
could reasonably conclude that sex discrimination was a motivating factor in the decision to deny
Kelmendi the Program Supervisor position. See Carey v. Foley & Lardner LLP, 577 F. App’x
573, 581 (6th Cir. 2014) (granting summary judgment where plaintiff had “not identified any
evidence, apart from his ‘own poor treatment,’ . . . that [Defendant] discriminated against the
majority white and male partners”). Summary judgment is therefore granted on the Title VII sex
discrimination claim in Count I.

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C. Age Discrimination under the ADEA
Kelmendi’s burden to establish unlawful discrimination is greater under the ADEA than
under Title VII. Under the ADEA it is unlawful for an employer “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s age.”
29 U.S.C. § 623(a)(1). To prevail on age discrimination “it is not sufficient for the plaintiff to
show that age was a motivating factor in the adverse action; rather, the ADEA’s ‘because of’
language requires that a plaintiff ‘prove by a preponderance of the evidence (which may be
direct or circumstantial) that age was the “but-for” cause of the challenged employer decision.’”
Scheick v. Tecumseh Pub. Schs., 766 F.3d 523, 529 (6th Cir. 2014) (quoting Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 177–78 (2009)).
Kelmendi argues that he has proffered direct evidence of discrimination sufficient to
submit his ADEA claim to a jury. (Resp. at 30.) “Direct evidence is evidence that proves the
existence of a fact without requiring any inferences.” Scheick, 766 F.3d at 530 (quoting Rowan v.
Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004)). Thus direct evidence of
age discrimination is evidence that “if believed, requires the conclusion that age was the ‘but for’
cause of the employment decision.” Id. For direct evidence, Kelmendi points solely to Ivezaj’s
testimony about why Ivezaj believed his committee recommended Martinez: “I believe and it’s
my opinion because of her age, she was young, vibrant, she was eloquent and also Hispanic.”
(Ivezaj Dep. at 61.) Ivezaj also testified that after Martinez’s interview there was discussion
among the committee members “that she is young.” (Id. at 67.) But this testimony, even if
accepted as credible and accurate, only goes to Martinez’s selection, not the failure to select
Kelmendi. There were other candidates who could have been selected. Thus, to conclude that

16

Kelmendi would have been selected but for his age requires additional inferences beyond the
evidence that Martinez was selected because she was young. Therefore, Kelmendi has not
provided direct evidence that but for age discrimination, he would have gotten the job. See
Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009) (finding a discriminatory statement
was not direct evidence of age discrimination because additional inferences were required to
connect it to an adverse employment action).
Because Kelmendi must rely on circumstantial evidence of discrimination, the
McDonnell Douglas burden-shifting framework applies. Kelmendi must first make out a prima
facie case of age discrimination: he must show that (1) he is a member of the protected class (i.e.,
is over age 40); (2) he applied for and was qualified for the promotion; (3) he was considered for
and was denied the promotion; and (4) other employees of similar qualifications who were
significantly younger than him received promotions at the time his request was denied. See
Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 812–13 (6th Cir. 2011); Grosjean v. First
Energy Corp., 349 F.3d 332, 335 (6th Cir. 2003). Once the plaintiff meets this prima facie
burden, the burden of production shifts to the employer to articulate a legitimate
nondiscriminatory reason for failing to promote the plaintiff to the position sought. Provenzano,
663 F.3d at 814. If this burden is met, “the presumption of discrimination is gone and the
plaintiff must demonstrate that the employer’s proffered nondiscriminatory reason was not the
true reason for the employment decision, but rather a pretext for discrimination.” Id. at 815
(citing Burdine, 450 U.S. at 256). “A plaintiff can refute the legitimate, nondiscriminatory reason
that an employer offers to justify an adverse employment action ‘by showing that the proffered
reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct,

17

or (3) was insufficient to warrant the challenged conduct.’” Id. (quoting Dews v. A.B. Dick Co.,
231 F.3d 1016, 1021 (6th Cir. 2000)).
Defendants do not appear to dispute that Kelmendi can establish a prima facie case: he
applied for and was qualified for the Program Supervisor position, and it was denied him and
given to a significantly younger person. At the hearing, counsel for Defendants said the
legitimate nondiscriminatory reason Kelmendi was not selected was that Martinez interviewed
the best. Turning then to pretext, the Court has already found, in assessing the Title VII national
origin claim, that there is sufficient evidence on which a reasonable jury could find that the
interview process was a pretext for illegal discrimination.
But, as mentioned, the burden to show discrimination under the ADEA is greater than the
burden under Title VII. The Supreme Court and the Sixth Circuit have emphasized that
throughout the McDonnell Douglas burden-shifting analysis for an ADEA claim, the burden of
persuasion remains on the plaintiff at all times to demonstrate that age was a “but-for” cause of
the employer’s adverse action. Geiger, 579 F.3d at 620 (quoting Gross, 557 U.S. at 177). As
discussed above, and as conceded by Plaintiff’s counsel at oral argument, the focus of Ivezaj’s
testimony is that the committee was intent on selecting a Hispanic candidate. Although her age
may have given her the nod among the other Hispanic candidates, there is nothing in the record
that suggests that, if Martinez had not been Hispanic, she would have been selected because of
her age. The sole evidence of age discrimination is Ivezaj’s testimony that, in addition to
referencing Martinez’s vibrance and national origin, the committee also commented favorably on
her youth. But Ivezaj’s testimony (if believed) makes clear that had Martinez been Arabic, for
example, she would not have been selected, regardless of her age. Even Plaintiff’s counsel
acknowledged, at the hearing, that this is “predominantly a national origin claim.” A reasonable

18

jury could not conclude based on Ivezaj’s testimony that but for Martinez’s age or Kelmendi’s
age, a different promotion decision would have been made. While the Court recognizes that there
can be more than one but-for cause, see Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th
Cir. 2012), this record does not create a genuine issue of material fact that but for age
discrimination, Kelmendi would have gotten the job. Thus, the Court finds that Kelmendi has not
met his burden to demonstrate that age was a “but-for” cause of the failure to promote him.
Summary judgment is granted on the age discrimination claim in Count II.
D. ELCRA
Michigan’s ELCRA prohibits “discriminat[ing] against an individual with respect to
employment, compensation, or a term, condition, or privilege of employment, because of . . .
age . . . .” Mich. Comp. Laws § 37.2202(1)(a). “[U]nder the ELCRA a plaintiff must ultimately
prove that the defendant’s discriminatory animus was a ‘substantial’ or ‘motivating’ factor in the
decision.” Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 818 (6th Cir. 2011) (citing Sniecinski
v. Blue Cross & Blue Shield of Mich., 666 N.W.2d 186, 192–93 (Mich. 2003)). Because
Kelmendi’s burden of persuasion for his ELCRA claims is the same as that required for Title VII
the same outcome results: a reasonable jury could infer that discrimination on the basis of
national origin, but not sex, was a substantial or motivating factor in the failure to promote
Kelmendi.
As for age discrimination, Kelmendi’s burden under ELCRA is lower than that required
for the ADEA. Under the ELCRA’s lesser “motivating factor” test, the Court finds that
Kelmendi’s evidence of age discrimination, although scant, is sufficient to create a genuine issue
of material fact that age was a motivating factor in the failure to promote him. The Court simply
cannot say that no reasonable jury could find that Martinez’s youth, or Kelmendi’s relative lack

19

thereof, did not at least slightly tip the scales in favor of Martinez and against Kelmendi. See
Patterson v. Roscommon Cnty. Rd. Comm’n, No. 253662, 2005 WL 1522144, at *1 (Mich. Ct.
App. June 28, 2005) (reversing summary disposition for employer where the plaintiff’s union
representative testified that he asked defendant’s chief financial officer why plaintiff and another
applicant were not offered the position, and he was told that “their age was one thing”); Allen v.
DaimlerChrysler Corp., No. 265427, 2006 WL 626239, at *2 (Mich. Ct. App. Mar. 14, 2006)
(finding that a supervisor’s comments about having too many old people and needing young
employees was circumstantial evidence that a trier of fact could interpret as proof of bias).
Summary judgment on Count IV is therefore denied as to national origin and age
discrimination and granted as to sex discrimination.
E. Retaliation
Title VII, the ADEA, and ELCRA prohibit an employer from retaliating against an
employee because he has filed a charge of discrimination. See 42 U.S.C. § 2000e–3(a); 29 U.S.C.
§ 623(d); Mich. Comp. Laws Ann. § 37.2701(a). To establish a prima facie case of retaliation
under any of these statutes, Kelmendi must demonstrate that (1) he engaged in protected activity;
(2) Defendants knew of his protected activity; (3) thereafter, Defendants took adverse action
against him; and (4) a causal connection existed between the protected activity and the materially
adverse action. E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1066 (6th Cir. 2015) (Title
VII); Blizzard v. Marion Tech. Coll., 698 F.3d 275, 288 (6th Cir. 2012) (ADEA); Garg v.
Macomb Cnty. Cmty. Mental Health Servs., 696 N.W.2d 646, 653 (Mich. 2005) (ELCRA). If
Kelmendi can establish a prima facie case, the burden of production shifts to Defendants to
proffer some legitimate, nonretaliatory reasons for its actions. Id. If Defendants do so, the burden
of persuasion shifts back to Kelmendi to show that the proffered reasons were not the true

20

reasons for the employment decision, i.e., that the reasons were a pretext for retaliation. Id. But
ultimately, at least for the federal retaliation claims, Kelmendi must establish but-for causation:
“that the unlawful retaliation would not have occurred in the absence of the alleged wrongful
action or actions of the employer.” New Breed Logistics, 783 F.3d at 1066 (citing Univ. of Tex.
Sw. Med. Ctr. v. Nassar, — U.S. —, 133 S. Ct. 2517, 2533 (2013)).
Defendants first argue that Kelmendi’s negative performance evaluations did not
constitute materially adverse employment actions, as required for a prima facie case of
retaliation, because they did not significantly affect his salary or professional advancement. (Mot
at 28.) Kelmendi does not expressly respond to this argument, focusing instead on his layoff and
failure to be recalled as adverse actions. (See Resp. at 38.) Defendants return that the retaliation
claim must be dismissed because all instructional specialists were laid off following the 2011–
2012 school year, and because Defendants based recall of instructional specialists—including
Kelmendi—on seniority and subject area certification. (Reply at 9–11.) Defendants say that “of
the 10 former instructional specialists recalled in August 2012, with less seniority than Plaintiff,
only 4 were recalled as instructional specialists and none of those 4 instructional specialists were
recalled for positions in Plaintiff’s subject area/certification.” (Id.at 10–11.)
First, Defendants do not adequately support the latter statement. One of the four less
senior instructional specialists who was recalled before Kelmendi, Natalie Briggs, is certified in
math and social studies for sixth through eighth grades (thus overlapping with Kelmendi’s
certification in social studies and bilingual for sixth through twelfth grades), and there is no
evidence that she was recalled as a math specialist and not a social studies specialist. (See Resp.

21

Ex.

39

at

Pg

ID

1113;

Mich.

Dep’t

of

Educ.,

Educator

Certification

Status,

https://mdoe.state.mi.us/MOECS/PublicCredentialSearch.aspx.)2
Second, this argument raises the question why Kelmendi was not recalled as a teacher, as
other instructional specialists were. Indeed, it appears that Kelmendi’s counsel asked Defendants
this very question and did not receive any response. (See Resp. Ex. 40 at Pg ID 1126–27.) At the
hearing, counsel for Defendants said he thought Kelmendi would have to apply, interview, and
be hired to obtain a teacher position. Kelmendi says he did apply for positions at DPS in the
spring and fall of 2012, and was not hired. (See Kelmendi Dep. at 262–72.) Defendants
acknowledge that when a teacher applies for a position, the administrator doing the hiring can get
access to the teacher’s final evaluation scores. (See Mot. at 9 ¶ 36; Thornton Dep. at 33–34.) A
reasonable jury could conclude that Kelmendi’s negative performance evaluations prevented him
from obtaining the teaching jobs he applied for, and therefore were materially adverse
employment actions, contrary to Defendants’ argument. See Halfacre v. Home Depot, U.S.A.,
Inc., 221 F. App’x 424, 433 (6th Cir. 2007) (“If the Supreme Court views excluding an employee
from a weekly training lunch that contributes significantly to the employee’s professional
advancement as materially adverse conduct, see Burlington, 126 S.Ct. at 2415–16, then markedly
lower performance-evaluation scores that significantly impact an employee’s wages or
professional advancement are also materially adverse.”). The Court therefore finds that there are
disputed issues of fact regarding the failure to recall Kelmendi for the 2012–2013 school year
that are material to the retaliation claims.

2

Defendants did not provide subject area certification information for the recalled
instructional specialists, instead indicating generally that the information was available on its
web site. (See Reply at 11 n.7.)
22

Defendants next argue that Kelmendi cannot show that his negative performance
evaluations and layoff were causally connected to his EEOC charges. (Mot. at 29.) But close
temporal proximity can be circumstantial evidence of causation. See Montell v. Diversified
Clinical Servs., Inc., 757 F.3d 497, 505 (6th Cir. 2014). Here, the chronology is sufficiently
close: the first negative evaluation took place on March 9, 2012, less than a month after
Kelmendi’s first EEOC charge, on February 12, 2012, and the layoff letter was dated April 10,
2012, less than two months after the first charge. See Singfield v. Akron Metro. Hous. Auth., 389
F.3d 555, 563 (6th Cir. 2004) (finding plaintiff’s termination three months after he filed a
discrimination charge was sufficiently close in time to satisfy plaintiff’s prima facie burden to
establish causal connection).
Kelmendi has also offered evidence of retaliatory intent by DPS administrators. Ivezaj
testified that after Kelmendi complained to Sheryl Jones and Jones sent her written account of
the conversation (including the statement that Kelmendi said he had filed an EEOC charge) to
Superintendent Ridgeway, Ridgeway “was very upset and angry at John,” and said, “We need to
handle this John Kelmendi,” and “Did you read what Sheryl wrote.” (Ivezaj Dep. at 78.) And
Kelmendi testified at his deposition about conversations he had with his principal:
Q. What did Donna Thornton say in response, if anything, about the EEOC charge
or your intent to file one?
A. Then she said before I filed, she said, “I would think very deeply and closely
before you file,” and I said, “I know they going to come at me like bolting, light
of bolting, I know.” She said, “It may happen worse than that,” and I said, “Well,
I haven’t made up my mind yet.” And when I did [file the charge], I told her and
she said, “I’m sorry, I can’t help you from here on. I think you made the mistake
of your life.” I said, “Well, I’m going to let a jury decide that.”
...
Q. Was that the only conversation or were there subsequent conversations?
A. After that time we had conversations over there.
Q. You and Donna Thornton?
23

A. Yes.
Q. Tell me about those conversations. What was discussed?
A. She said, “You opened the Pandora’s box, Kelmendi.”
...
Q. Any other conversations you had with Donna Thornton regarding your charges
or claims or lawsuit?
A. Yes. I asked her to please stop if she could all the retaliation that I was
receiving from her staff members, from her subordinates.
Q. And what was her response?
A. She said, “I’m not aware of any of that stuff,” so then I started putting stuff in
writing.
(Kelmendi Dep. at 61–63.) Ridgeway and Thornton denied any knowledge of Kelmendi’s EEOC
charge before this lawsuit, but it is for a jury to decide whether to believe them or Ivezaj and
Kelmendi. Kelmendi has offered sufficient evidence of causal connection to convince a
reasonable jury, and thus has met his burden to establish a prima facie case of retaliation.
Defendants proffer as their legitimate, nonretaliatory explanation that all instructional
specialists were laid off after the 2011–2012 school year, and Kelmendi was recalled two years
later when a vacant instructional specialist position in his subject area was available. (Reply at
11–12.) Kelmendi has raised enough disputed fact issues with this explanation that a reasonable
jury could find it is pretextual. As noted, it has not been clearly established that the instructional
specialist vacancies in Kelmendi’s subject area were not filled by someone with less seniority
than Kelmendi (i.e., Briggs). And then there are Kelmendi’s negative performance reviews,
which may have played a role in his failure to obtain a job as a teacher: there is evidence of
irregularities in the evaluation process that Defendants have not completely explained, such as
the evaluators’ use of four different formats, including the “PD 360” system that DPS Chief HR
officer DeJongh said was for evaluating teachers (not instructional specialists), that Kelmendi’s
ineffective rating was calculated and recorded although DeJongh testified that instructional

24

specialists’ evaluations were used purely for professional development, and that Brown’s
evaluation may have been conducted after report cards were issued and during homeroom time
rather than an instructional period (see Resp. Ex. 41 at Pg ID 1134).
Furthermore, the evidence regarding Kelmendi’s termination is very unclear: Defendants
say they terminated Kelmendi because he failed to respond to the recall notice, and that he never
properly updated his address, while Kelmendi says he did provide an updated address but never
received the recall notice. (See Kelmendi Dep. at 22–54; Resp. Ex. 42; Mot. Exs. D, E, F, U, V,
X.) It appears that Kelmendi was homeless and moving around for a time, so it is understandable
that the letter would not have reached him, but it also appears that Defendants may have
continued to use an outdated address for Kelmendi even after he submitted updates. If so, a jury
could infer that Defendants did not truly intend to recall Kelmendi.
In short, there are material, disputed issues of fact that preclude summary judgment on
Kelmendi’s retaliation claims. Summary judgment is denied on Counts I, II, and IV with respect
to retaliation.
IV. CONCLUSION
Summary judgment is granted on Counts II (ADEA), III (§ 1981), V (tortious
interference), and VI (public policy), granted in part on Count I (Title VII) with respect to sex
discrimination, and granted in part on Count IV (ELCRA) with respect to sex discrimination.
Summary judgment is denied in part on Count I (Title VII) with respect to national origin and
retaliation discrimination, and denied in part on Count IV (ELCRA), with respect to national
origin, age, and retaliation discrimination. The Court will set a status conference to schedule the

25

trial and related deadlines.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE

Dated: July 16, 2015

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the attorneys
and/or parties of record by electronic means or U.S. Mail on July 16, 2015.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson

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