Lewis et al v. Detroit, City of et al

Filing 30

MEMORANDUM AND ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT (Doc. 12) AND DISMISSING THE CASE. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FRANKIE LEWIS, DUANE MCKISSIC,
GARY SROKA, JAMES SUCHOSKI, and
JOHN SERDA
Plaintiffs,
v.

Case No. 14-13091

CITY OF DETROIT, a municipal corporation,

HON. AVERN COHN

Defendant.
_______________________________________/

MEMORANDUM AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (Doc. 12) AND DISMISSING THE CASE

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TABLE OF CONTENTS
I. Introduction……………………………………………………………………………..
II. Background………………………………………………………………………….....
A. Factual Background…………………………………………………………...
1. New DPD Chief and Restructuring……………………………….....
2. DPD Before and After Restructuring………………………………...
3. Selection Process……………………………………………………..
B. Procedural Background……………………………………………………….
III. Standard of Review……………………………………………………………………
IV. Violation of the ADEA……………………………………………………..................
A. Legal Standard: ADEA…………………………………………………….....
B. Chief Craig’s Authority………………………………………………………..
C. Discussion……………………………………………………………………..
1. Stage One: Four McDonnell Elements……………………………..
a. James Suchoski…………………………………………………..
b. Duane McKissic……………………………………………………
c. John Serda…………………………………………………………
d. Frankie Lewis ……………………………………………………..
e. Gary Sroka…………………………………………………………
2. Stage Two: Legitimate, Non-Discriminatory Reasoning for the
City’s Employment Decisions………………………………………..
3. Stage Three: Pretext………………………………………………….
D. Conclusion……………………………………………………………….........
V. Violation of the ELCRA…………………………………………………....................
VI. Conclusion……………………………………………………………………………..

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I. INTRODUCTION
This is an age discrimination case under the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. 621, et seq. with pendant state law claims under Michigan’s
Elliot Larsen Civil Rights Act (ELCRA), MCL § 37.2101, et seq. Plaintiffs Frankie Lewis
(Lewis), Duane McKissic (McKissic), Gary Sroka (Sroka), James Suchoski (Suchoski),
and John Serda (Serda)1 are suing Defendant City of Detroit (the City) asserting that
each personally was subject to age discrimination when he was demoted during a
restructuring of the City’s Police Department (DPD) by Chief James Craig in 2013 under
the authority of Emergency Manager Order No. 11. 2
Before the Court is the City’s motion for summary judgment (Doc. 12). For the
reasons that follow, the motion will be granted. As will be explained, the plaintiffs have
failed to establish a prima facie case of age discrimination under either the ADEA or the
ELCRA. Also, the City had legitimate, non-discriminatory reasons for the decision as to
each plaintiff.
II. BACKGROUND
A. Factual Background
1. New DPD Chief and Restructuring
In 2013, as a consequence of the City of Detroit’s dire financial condition,
Governor Rick Snyder appointed Kevyn Orr as the Emergency Manager for the City. As
Emergency Manager under state law, Orr effectively exercised plenary executive and
legislative power relating to the City’s governance. Orr retained consultant groups to do

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Collectively “Plaintiffs” where appropriate.
Although Plaintiffs refer to similarly situated persons, there is no pending motion for
class certification.

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assessments of the City’s departments, including the DPD, to improve efficiencies of
operations as well as reduce the expenses of services.
In June 2013, James Craig (later to be appointed as Chief Craig) met with Detroit
Police Command Officer Association (DPCOA) President Steven Dolunt to discuss the
restructuring and possible elimination of positions within the department. Within a month
of the meeting, Dolunt alerted the command members of the DPD of the discussions at
the meeting. As such, Plaintiffs had notice of the likely restructuring of the DPD.
On July 1, 2013, under Emergency Manager Order No. 11, Chief Craig was
appointed as Chief of Police for the City. Chief Craig joined the DPD from the Cincinnati
Police Department and had no knowledge of the individuals – notably their ages – who
held positions on the executive team in the DPD. (Pl. Resp. to Def. Motion for
Summary Judgment, Doc. 17, Ex. 7, Craig Dep. Tr. at 12). The executive team was
comprised of appointed positions including the chief, assistant chief, deputy chief,
commanders, and inspector/captain. 3 Customarily, in the past, a new chief had the
authority to appoint and/or revoke the appointment of members on the executive team
of the department. (Doc. 17, Ex. 7, Craig Dep. Tr. at 8). Chief Craig announced early on
his intention to restructure the DPD to, in his words, maximize efficiency and eliminate
redundancy.
2. DPD Before and After Restructuring
Prior to the restructuring, the ranks in the DPD were chief, assistant chief, deputy
chief, commander, inspector, lieutenant, sergeant, and police officer. Following

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On September 11, 2013, a teletype was issued advising that Chief Craig was
reclassifying the rank of inspector to the rank of captain (Doc. 12 at 3).
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restructuring, the ranks were chief, assistant chief, deputy chief, commander, captain,
lieutenant, sergeant, and police officer.
Prior to Chief Craig’s arrival, there were 18 commander positions. After
restructuring, there were 9 commanders (Def. Motion for Summary Judgment, Doc. 12
at 7). Under the restructuring, the DPD eliminated geographical districts. This eliminated
the position of commander over districts (Def. Stmt. of Material Facts, Doc. 13, ¶ 42).
Prior to Chief Craig’s arrival, there were 20 inspector positions. After restructuring
there were 23 captain positions (Doc. 12 at 7).
3. Selection Process
On July 17, 2013, a teletype was issued for the realignment of command and
appointment opportunities for the rank of inspector (Doc. 13, ¶ 13). As stated in the
teletype, anyone in the rank of sergeant and above interested in the position was to
submit a resume and cover letter (Doc. 13, ¶ 13). As will be described, Chief Craig had
the ultimate decision making power for selection of the executive team. The selection
process was informal; there was no formal schedule or fixed format of interviews and no
formal set of questions or written criteria for the selection process. (Doc. 17, Ex. 7, Craig
Dep. Tr. at 8-9; Doc. 13, Ex. 16, Jones Dep. Tr. at 21).
Between July 9, 2013 and September 30, 2013, a review was conducted of
applicants. The review included the gathering of resumes as well as background checks
(Doc. 13, Ex. 15, White Dep. Tr. at 40-44). No information pertaining to age or birthdate
was collected. Following the background checks, some interviews were conducted
(Doc. 13, Ex. 16, Jones Dep. Tr. at 21). Chief Craig participated in the interviews for the
position of assistant chief (Doc 13, Ex. 18, Craig Dep. Tr. at 20-21). Once two assistant

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chiefs were selected, the assistant chiefs in turn reviewed the applicants for the deputy
chief positions (Doc. 13, Ex. 20, White Dep. Tr. at 34-35). Panels for the interviews
varied.4 Once the deputy chief positions were filled, the selected deputy chiefs attended
interviews for the selection of commanders and inspectors.
Aside from the interview process, the DPD retained the Strategic Police
Partnership, a sub-consulting group of the Bratton Group (Doc. 17, Ex. 7, Craig Dep. Tr.
at 18-19). Robert Wasserman (Wasserman), a consultant with the Bratton Group, was
given the responsibility of assessing the structure and efficiencies of the DPD. Part of
that role was gathering information pertaining to employees’ background and
experience. Wasserman provided Chief Craig a master resume of DPD employees
which contained names and the number of years on the job. The report did not contain
any reference to the age of employees.
As noted above, Chief Craig had the ultimate appointment decision making
authority. Chief Craig believed that “every day is an interview” and any interaction could
be assessed (Doc. 17, Ex. 7, Craig Dep. Tr. at 23). Accordingly, Chief Craig based his
decisions on his personal observations, interactions, assessments from work
environment, meetings, etc.; discussions with rank and file; recommendations from the
assistant chiefs and deputy chiefs; recommendations based on the informal interviews;
and recommendations from Wasserman (Doc. 17, Ex. 7, Craig Dep. Tr. at 8-9, 12, 19).
On or around October 2, 2013, individualized letters were distributed to DPD
members which provided notification of either his/her appointment to the executive team
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For example, for the position of deputy chief, one panel was comprised of Chief Craig,
assistant chief James White, assistant chief Eric Jones, and consultant Chris Gannon
while another panel for the same position was comprised of assistant chief James
White, assistant chief Eric Jones, and Chris Gannon (Doc. 13, ¶ 21).
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or revocation of appointment, effective October 7, 2013. The revocation of an
appointment required a member to revert back to the previous non-appointed position
held prior to his or her appointment. On October 8, 2013, a general teletype to the DPD
was issued advising of Chief Craig’s selections for the executive team as a whole.
Each plaintiff’s interview process will be discussed infra.
B. Procedural Background
The amended complaint (Doc. 5) claims age discrimination for these five
individual plaintiffs in violation of the Age Discrimination in Employment Act (ADEA), 29
U.S.C. 621, et seq. and Michigan’s Elliot Larsen Civil Rights Act (ELCRA), MCL §
37.2101, et seq. After a period of discovery, the City filed a motion for summary
judgment (Doc. 12). Following a hearing on the motion, both parties filed supplemental
briefs (Docs. 27, 28, 29). For the reasons that follow, the motion is GRANTED.
III. STANDARD OF REVIEW
The standard for summary judgment is well known and is not repeated in detail.
“The court shall grant summary judgment 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). Ultimately a district court must determine whether the
record as a whole presents a genuine issue of material fact drawing “all justifiable
inferences in the light most favorable to the non-moving party.” Hager v. Pike Cnty. Bd.
of Ed., 286 F.3d 366, 370 (6th Cir. 2002).

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IV. VIOLATION OF THE ADEA
A. Legal Standard: ADEA
The ADEA prohibits an employer from discharging an employee “because of
such individual’s age.” 29 U.S.C. § 623(a)(1). A plaintiff may proceed on a claim of age
discrimination on the basis of direct or circumstantial evidence. Dekarske v. Federal
Express Corp., 294 F.R.D. 68, 79 (E.D. Mich. 2013)(citing Lefevers v. GAF Fiberglass
Corp., 667 F.3d 721, 723 (6th Cir. 2012). The burden of persuasion is on a plaintiff to
demonstrate that “age was the ‘but-for’ cause of the employer’s adverse action.” Id.
(internal citations omitted).
Here, Plaintiffs base their discrimination claims on circumstantial evidence under
the McDonnell Douglas Corp. v. Green, 411 U.S. 793 (1973), burden shifting standard.
Under the McDonnell Douglas standard, proof proceeds in three stages.
First, a plaintiff must establish that (1) he/she was at least 40 years old at the
time of the alleged discrimination; (2) he/she suffered an adverse employment action;
(3) he/she was otherwise qualified for the position; and (4) he/she was replaced by
someone outside the protected class. Geiger v. Tower Automotive, 579 F.3d 614, 622
(6th Cir. 2009). In age discrimination cases, the replacement need not be outside the
protected age group so long as the individual is a “significantly younger person.”
Grosjean v. First Energy Corp., 349 F.3d 332, 335 (6th Cir. 2003). The court in
Grosjean established a bright line rule to determine what constitutes “significantly
younger” for an age discrimination case: “[I]n the absence of direct evidence that the
employer considered age to be significant, an age difference of six years or less
between an employee and a replacement is not significant.” Id. at 340.

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If the termination arises as part of a work force reduction, the Sixth Circuit has
modified the fourth element to require a plaintiff to provide ‘additional direct,
circumstantial, or statistical evidence tending to indicate that the employer singled out
the plaintiff for discharge for impermissible reasons.’” Geiger, 579 F.3d at 623 (internal
citation omitted). The Court in Gordon v. Saginaw Pub. Schs., 2011 WL 595567 (E.D.
Mich. 2011) explained the standard for workforce reduction situations:
A work force reduction situation occurs when business considerations
cause an employer to eliminate one or more positions within the company.
…In a reduction in force case, the plaintiff does not make out a prima
facie case absent additional direct, circumstantial, or statistical
evidence tending to indicate that the employer singled out the
plaintiff for discharge for impermissible reasons. The evidence must
be sufficiently probative to allow a factfinder to believe that the employer
intentionally discriminated against the plaintiff because of age.
Gordon, 2011 WL 595567 at *11-12 (internal citations omitted).
If a plaintiff establishes the four elements under the Sixth Circuit’s standards, the
burden shifts to the employer to provide a legitimate, non-discriminatory reason for the
adverse employment decision. In explaining this reason, the employer need not
persuade the court that it did not discriminate against the applicant. Instead the
employer must point to admissible evidence to raise a genuine issue of fact as to
whether the employer rejected the applicant based on a discriminatory motive. Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981).
Finally, once the employer proffers non-discriminatory reasoning for its decision,
“the presumption of discrimination no longer exists and [a plaintiff] must prove that the
reasons offered by the [employer] were in fact pretextual in order to prevail.” Dekarske,
294 F.R.D. at 84 (internal citations omitted). In order to demonstrate pretext at the
summary judgment stage, a plaintiff “must produce sufficient evidence from which a jury
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could reasonably reject the employer’s explanation for the adverse employment action.”
Id. The employer is entitled to summary judgment if a plaintiff “created only a weak
issue of fact as to whether the employer’s reason was untrue and there was abundant
and uncontroverted independent evidence that no discrimination occurred.” Id. (internal
citations omitted).
B. Chief Craig’s Authority
Chief Craig, as the Chief of police, had the power and authority to appoint/revoke
the appointment of members on the executive team of the DPD for the efficient
operations of the department (Def. Corrected Stmt. of Material Facts, Doc. 14, ¶¶ 5-6;
Doc. 17, Ex. 10, White Dep. Tr. at 21-22). The appointed DPD command positions were
initially at-will positions; however, during contract negotiations in 2010, they became
“just-cause” positions. Once the contract expired on July 18, 2012, the City imposed
City Employment Terms (CET) wherein the positions of inspector and commander were
again considered “at-will.” Thus, the Chief had authority under the CET to appoint a
member or revoke an appointment, without cause (Doc. 13, Ex. 5 at 2, ¶2).
Additionally, under the Emergency Manager Order No. 11, Chief Craig had the
authority to decide who would be placed in the appointed positions (Doc. 13, Ex. 6).5
In sum, Chief Craig had the power and authority to appoint/revoke the
appointment of DPD executive command staff at his will.

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When appointing Chief Craig, Orr said: “PA 436 authorizes the EM, notwithstanding
any charter provision to the contrary to remove, replace, appoint, or confirm the
appointments to any office, board, commission, authority, or other entity which is within
or is a component unit of the local government… [T]he appointment of a new Chief of
Police will enhance the City’s capacity to provide necessary governmental services
essential to public health, safety, and welfare.” Emergency Manager Order No. 11, PA
436 (2012).
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C. Discussion
1. Stage One: Four McDonnell Elements
Neither side contests whether the first three elements of the McDonnell standard
were established; therefore, there are no genuine issues of material fact regarding the
first three elements. The parties concentrate on the fourth McDonnell element, so the
Court will focus on the fourth element, as well. This element requires the review of
whether the City has established there is no genuine issue of material fact as to whether
a plaintiff was replaced by someone significantly younger and, because this is a
workforce reduction scenario, whether any plaintiff has provided additional direct,
circumstantial, or statistical evidence tending to indicate that the City singled out the
plaintiff for discharge for impermissible reasons.
a. James Suchoski
Suchoski (49) was hired by the City as a police officer on May 16, 1988. His
position prior to the restructuring was commander of the western district. Suchoski
applied for a deputy chief position under the restructuring. There is no evidence on the
record that Chief Craig knew Suchoski’s age at any point prior during the restructuring.
On or around October 3, 2013, Suchoski was given notice that his appointment was
revoked and that he reverted back to lieutenant, his last non-appointed position prior to
commander, effective October 7, 2013. Suchoski retired on October 6, 2013.
Subsequent to his last day of work, Suchoski began receiving a pension of
$5,324.97/month.
Under the restructuring, the district structure was eliminated. This resulted in
positions, such as Suchoski’s commander of the western district position, being

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consolidated and eliminated. The new position created in place of the commander of the
western district was commander of patrol west, which was filled by Charles Fitzgerald
(44). The age difference between Suchoski and Fitzgerald is only five years; therefore,
Suchoski was not replaced by someone “significantly younger.” Grosjean, 349 F.3d at
340.
Further, Fitzgerald did not directly replace Suchoski, because Suchoski’s position
was eliminated. Because this was a workforce reduction and not direct replacement, the
fact that Suchoski was replaced by a younger individual does not, on its own, create an
inference of age discrimination. Gordon, 2011 U.S. Dist. LEXIS 13463, *11 (E.D. Mich.
2011).
Thus, the City has established that there is no genuine issue of material fact as
to whether Suchoski met the fourth element under McDonnell. The City is entitled to
summary judgment as a matter of law against Suchoski.
b. Duane McKissic
McKissic (51) was hired by the City as a police officer on October 20, 1986. His
position prior to the restructuring was commander of the northeastern district. McKissic
applied for a deputy chief position under the restructuring. There is no evidence on the
record that Chief Craig knew McKissic’s age at any point prior during the restructuring.
On or around October 3, 2013, McKissic was given notice that his appointment was
revoked and that he reverted back to lieutenant, his last non-appointed position prior to
commander, effective October 7, 2013. McKissic resigned on October 7, 2013.
Subsequent to his last day of work, McKissic began receiving a pension of
$5,826.38/month.

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Similarly to Suchoski, the restructuring eliminated McKissic’s position as
commander of the northeastern district. The new position created to replace
commander of the northeastern district was commander of patrol east, which was filled
by Darryl Brown (52). Brown is one year older than Suchoski. Therefore, Suchoski was
not replaced by someone “significantly younger” and the fourth element of the
McDonnell standard is not satisfied.
Further, Brown did not directly replace McKissic, because McKissic’s position
was completely eliminated. Because this was a workforce reduction and not direct
replacement, the fact that Brown was replaced by a younger individual does not, on its
own, create an inference of age discrimination. Gordon, 2011 U.S. Dist. LEXIS 13463,
*11 (E.D. Mich. 2011).
Thus, the City has established that there is no genuine issue of material fact as
to whether McKissic met the fourth element under McDonnell. The City is entitled to
summary judgment as a matter of law against McKissic.
c. John Serda
Serda (59) was hired by the City of Detroit as a police officer on September 20,
1993. His position prior to the restructuring was commander of the southwestern district.
Serda applied for a deputy chief position under the restructuring. There is no evidence
on the record that Chief Craig knew Serda’s age at any point prior during the
restructuring. On or around October 4, 2013, Serda was given notice that his
appointment was revoked and that he reverted back to lieutenant, his last nonappointed position prior to commander, effective October 7, 2013. However, that same

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day, Serda was notified that he would be appointed as captain, effective October 7,
2013. At that time, his salary was raised from $89,820.00 to $90,000.00.
Similarly to Suchoski and McKissic, Serda’s position of commander over a district
was eliminated under the restructuring. The new position created in place of the
commander of the southwestern district was commander of patrol west, which was filled
by Charles Fitzgerald (44). Because this is an example of workforce reduction, the fact
that Serda was replaced by a younger individual does not, on its own, create an
inference of age discrimination. Gordon, 2011 U.S. Dist. LEXIS 13463, *11 (E.D. Mich.
2011). Therefore, while Serda may argue that he was replaced by Fitzgerald (44), a
“significantly younger” replacement, Fitzgerald’s position was a newly created position
under Chief Craig’s authority.
Thus, the City established that there is no genuine issue of material fact as to
whether Serda met the fourth element under McDonnell and the City is entitled to
summary judgment as a matter of law against Serda.
d. Frankie Lewis
Lewis (50) was hired by the City as a police officer on April 10, 1989. His position
prior to the restructuring was commander of major crimes. Lewis applied for a deputy
chief position under the restructuring. There is no evidence on the record that Chief
Craig knew Lewis’ age at any point prior during the restructuring. On or around October
3, 2013, Lewis was given notice that his appointment was revoked and that he reverted
back to lieutenant, his last non-appointed position prior to commander, effective October
7, 2013. Lewis retired on April 10, 2014 and received an estimated pension check of

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$5,579.11/month. On February 25, 2015, Lewis returned to work for the DPD as a parttime police assistant with compensation of $21.00/hour with no other fringe benefits.
Following the restructuring, Lewis was replaced by Nicholas Giaquinto (45). The
age difference between Lewis and Giaquinto is five years. Therefore, Lewis was not
replaced by someone “significantly younger” and the fourth element of the McDonnell
standard is not satisfied.
Thus, the City established that there is no genuine issue of material fact as to
whether Lewis met the fourth element under McDonnell and the City is entitled to
summary judgment as a matter of law against Lewis.
e. Gary Sroka
Sroka (60) was hired by the City of Detroit as a police officer on May 19, 1977.
His last position with the DPD was as an inspector. Sroka applied to continue in his
rank as captain under the restructuring. There is no evidence on the record that Chief
Craig knew Sroka’s age at any point prior during the restructuring. On or around
October 3, 2013 Sroka was given notice that his appointment was revoked and that he
reverted back to lieutenant, his last non-appointed position prior to inspector, effective
October 7, 2013. Sroka held the position of inspector until October 7, 2013, when he
was effectively reverted to lieutenant. At that time, his salary was reduced from
$90,300.00 to $68,598.00.
Following the restructuring, Sroka was replaced by Donna Jarvis (52). While
there is an eight year age difference between Sroka and Jarvis, Sroka failed to establish
that age discrimination was the “but-for” cause of the City’s adverse action. Chief
Craig’s decision regarding the revocation of Sroka’s appointed title was based on

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recommendations and discussions with Sroka’s co-workers during which it was reported
that Sroka did not interact well with others. This was problematic to Chief Craig (Doc.
17, Ex. 7, Craig Dep. Tr. at 50-51). Consultant Wasserman noted that Sroka was an
“older cantankerous guy/loafed in room.” (Doc. 17, Ex. 15, Wasserman Notes at 15).
Chief Craig has the impression that Sroka struggled with interaction with people. (Doc.
17, Ex. 7, Craig Dep. Tr. at 50). Assistant Chief White gave input that Sroka was viewed
by subordinates as “brash” and “at points inappropriate.” (Doc. 17, Ex. 10, White Dep.
Tr. at 53).
Thus, the City established that there is no genuine issue of material fact as to
whether Sroka met the fourth element under McDonnell and the City is entitled to
summary judgment as a matter of law against Sroka.
2. Stage Two: Legitimate, Non-Discriminatory Reasoning for
the City’s Employment Decisions
Assuming Plaintiffs have established a prima facie case of discrimination under
McDonnell, the burden of production shifts to the City to “rebut the presumption of
discrimination by producing evidence that [each plaintiff] was rejected, or someone else
was preferred, for a legitimate, nondiscriminatory reason.” Burdine, 450 U.S. at 254. As
noted above, Plaintiffs failed to establish a prima facie case for McKissic (replaced by
Brown who is one year older than McKissic), Lewis (replaced by Giaquinto who is five
years younger in age), and Suchoski (replaced by Fitzgerald who is five years younger
in age). However, the parties contest whether Plaintiffs established a prima facie case
of discrimination for Sroka and Serda.
Plaintiffs’ argument that the City has failed to provide legitimate, nondiscriminatory reasoning for its employment decisions because it did not clearly set forth
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the reasons for each plaintiff’s demotion is without merit. Burdine, 450 U.S. at 255. The
City offered specific reasons for its employment decisions regarding each Plaintiff.
First, as noted above, Chief Craig had authority under the CET. The executive
team held at-will positions, meaning they could be removed from the position at any
point, without cause.
Second, as noted above, Chief Crag had authority under the Emergency
Manager Order No. 11 to restructure the department, which included various personnel
changes. Accordingly, under the Emergency Manager Order No. 11, Chief Craig had
the discretion to select his executives.
Third, and most importantly, Chief Craig based his employment decisions on
particularized and admissible evidence. For example, Chief Craig was informed that
Major Crimes had an absence of leadership and management; therefore, the revocation
of Lewis’ appointed position, Commander of Major Crimes, was appropriate (Doc. 17,
Ex. 7, Craig Dep. Tr. at 36). Craig noted that in his conversations with McKissic, he
gained the impression that McKissic was suggesting that others within the DPD were
more talented and deserving of command positions rather than himself (Doc. 17, Ex. 7,
Craig Dep. Tr. at 47). Further, as noted above, Chief Craig’s decision regarding the
revocation of Sroka’s appointment was based on recommendations and discussions
with Sroka’s co-workers who reported that Sroka did not interact well with others. (Doc.
17, Ex. 7, Craig Dep. Tr. at 50-51). On a similar note, Wasserman noted that Sroka
was an “older cantankerous guy/loafed in room.” Chief Craig had the impression that
Sroka struggled with interaction with people. Assistant Chief White gave input that
Sroka was viewed by subordinates as “brash” and “at points inappropriate.” (Doc. 17,

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Ex. 10, White Dep. Tr. at 53). In regards to Serda, consultant reports stated that Serda’s
section was in “total disarray” and that community stakeholders did not have confidence
in him (Doc. 17, Ex. 7, Craig Dep. Tr. at 53-54). Assistant Chief White’s deposition also
noted that he and Assistant Chief Eric Jones doubted Serda’s effectiveness as a leader
and that he and Jones discussed Serda’s lack of leadership skills in the context of
deciding whether to recommend Serda for promotion. (Doc. 17, Ex. 10, White Dep. Tr.
at 57).
Separately, Plaintiffs say that the City provided no evidence as to why Plaintiffs
were denied interviews, and the City, therefore, did not provide sufficient reasoning to
meet the Burdine standard. This argument is without merit. Denial of a formal interview
does not automatically translate to meaning that Plaintiffs were entirely disregarded for
command positions. As noted above, the interview process was informal and Chief
Craig made his decisions based on various elements including day-to-day
conversations with employees and recommendations from consultants and other
command personnel.
Finally, the non-discriminatory nature of the City’s decisions was bolstered in the
deposition of Chief Craig during which he stated that he was not aware of any of the
candidates’ ages until the filing of this lawsuit (Doc. 13, Ex. 30, Craig Dep. Tr. at 70).
While Chief Craig was the sole decision maker, he did not act arbitrarily. He made his
decisions following discussions with consultants on how the department should
operate6; recommendations of assistant and deputy chiefs; conversations with rank and
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While Plaintiffs say that the employment decisions should be ruled as discriminatory
because Chief Craig did not personally interview the Plaintiffs for their desired positions,
the record shows that Wasserman made notations about each Plaintiff and conveyed
his recommendations to Chief Craig. (Doc. 17, Ex. 15, Wasserman Notes).
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file; and observations in the workplace. Craig was satisfied that there was a consensus
that the DPD was top heavy, in need of restructuring, and comprised of a stagnant
command staff who were resistant to change. In the final analysis, Chief Craig made his
decisions based on what in his opinion was the best fit for the department.
Accordingly, the City provided legitimate, non-discriminatory reasoning for its
employment decisions and established that age was not the but-for reason for the
structural changes.
3. Stage Three: Pretext
Assuming the City has articulated legitimate, non-discriminatory reasons for its
employment decisions, to survive summary judgment, Plaintiffs had to establish that the
proffered reasons were pretextual. A plaintiff can refute the legitimate, nondiscriminatory
reasons 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, or (3) was insufficient to warrant the challenged
conduct.” Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 815 (6th Cir. 2011). Plaintiffs
have failed to meet this burden.
The City had a legitimate non-discriminatory reason for its actions – that being
the department was restructured to redeploy its authority citywide. Plaintiffs rest solely
on the fact that they were replaced by younger individuals and speculation that age was
the reason for their replacement. “In attacking an employer's explanation for the
discharge, [Plaintiffs] may not rely upon ‘mere personal beliefs, conjecture and
speculation.’” Chappell v. GTE Products Corp., 803 F.2d 261, 268 (6th Cir. 1986).
“Courts have repeatedly held that the plaintiff’s denial of the defendant’s articulated

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legitimate reason without producing substantiation for the denial is insufficient for a [ ]
discrimination claim to withstand a motion for summary judgment.” Mitchell v. Toledo
Hosp., 964 F.2d 577, 585 (6th Cir. 1992).
The record establishes that age was not a consideration. In fact, Chief Craig
promoted and retained several DPD employees over the age of 40, including James
White (45) in the assistant chief position; Brian Stair (46) in the commander position;
and Daniel Allen (50), Conway Petty (55), and Russell Solano (57) in the
inspector/captain position. Further, while Plaintiffs chose to file an age discrimination
suit, six other individuals who either retired prior to de-appointment or accepted their
lower ranking positions on the executive team chose not to file a complaint against the
City.7 The fact that the five plaintiffs here are the only former City employees to claim
age discrimination speaks for itself.
Plaintiffs point to Chief Craig’s reference as some being retired in place to
establish that age was a consideration and the fact that he asked McKissic if he “picked
up his package” (ie: retirement package) and frowned after learning that he had not.
This argument lacks merit. In the DPD, “retired in place” jargon is understood to mean
complacent, non-effective, and not doing one’s work (Doc. 17, Ex. 9 at 64-65).
Plaintiffs point to statistical data showing that the average age of the executive
team was significantly reduced to prove that age was a factor in the decision making
process. However, the statistics Plaintiffs have provided do not take into account

7

Robert Ennis (62) retired prior to de-appointment; Steven Dolunt (57) was deappointed from commander to captain; Eric Ewing (50) was de-appointed from deputy
chief to captain; Dwane Blackmon (54) retired prior to de-appointment; Nick Kyriacou
(52) was de-appointed from inspector to lieutenant; and Leslie Montgomery (53) was
de-appointed from inspector to lieutenant.
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individuals retiring prior to the selection process8 and are taken from too small a
sample.9 A sample size that is too small can undercut the probative value of the
statistics. Simpson v. Midland-Ross Corp., 823 F.2d 937, 943 (6th Cir. 1987).10 As
noted in International Broth. of Teamsters v. U.S., 431 U.S. 324 (1977), “statistics are
not irrefutable; they come in infinite variety and, like any other kind of evidence, they
may be rebutted. In short, their usefulness depends on all of the surrounding facts and
circumstances.” Id. at 340.
Accordingly, Plaintiffs’ conclusory allegations of discrimination are, without more,
insufficient to withstand a motion for summary judgment.
D. Conclusion
Plaintiffs failed to establish the fourth McDonnell element for Plaintiffs Lewis,
Suchoski and McKissic. In regards to Serda and Sroka, Plaintiffs have not produced
sufficient evidence on which a reasonable jury could reject the City’s explanation for the
adverse employment action. The record conclusively revealed a non-discriminatory
reason for the City’s restructuring decisions and Plaintiffs created at best only a weak
issue of fact as to whether the employer’s reason was untrue. Chen v. Dow Chemical
8

For example: assistant chief Paul Wells (54); deputy chief Morris Wells (61); deputy
chief James Tolbert (53); commander Robert Ennis (62).
9
See Kirkpatrick v. General Elec., 963 F.Supp. 628 (1997) aff’d by 172 F.3d 873 (6th
Cir. 1999). In Kirkpatrick, the plaintiff’s statistical evidence consisting of the fact that 6 of
13 employees holding a particular position were terminated over a three-year period
and 5 of those 6 were replaced with younger employees was found insufficient to prove
discrimination.
10
In Simpson, the plaintiff relied on the departure of 17 individuals as a basis for a
statistical argument. The court found the small sample size suspect. Moreover, the
statistical evidence failed because it did not account for individuals who might have
retired early or voluntarily. Thus, the data was rejected because the “methodology and
the explanatory power of the statistical analysis” was not sufficient to permit an
inference of discrimination.” Id. at 944. Like in Simpson, the sample size Plaintiffs used
was too small and is an insufficient basis for an inference of discrimination.
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Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009). The burden of persuasion remained on
Plaintiffs to demonstrate that age was the but-for cause of their employer’s adverse
action. Geiger, 579 F.3d at 620. Plaintiffs failed to do so. There was no systematic
removal of older employees and age was not a factor in the equation.
V. VIOLATION OF THE ELCRA
Age discrimination claims under the ELCRA are assessed using the same
analytical framework as those made under the ADEA. Unlike the ADEA with an
established age limit of over 40 years of age, the ELCRA does not have such a limit.
Under the ELCRA, a prima facie case can be made by proving intentional discrimination
and/or disparate treatment. Meagher v. Wayne State University, 222 Mich. App. 700
(1997). If there is no direct evidence of discrimination, Plaintiffs must rely McDonnell
principles to establish their prima facie case of discrimination. Hazle v. Ford Motor Co.,
464 Mich. 456, 462-63 (2001).
Plaintiffs say that the City was predisposed to discriminate based on age and
acted in accordance with that predisposition (Amended Compl.,Doc. 5, ¶ 45). To prove
intentional discrimination, Plaintiffs must show that (1) they were members of a
protected class; (2) they suffered an adverse employment action; (3) they were qualified
for the position; and (4) they were replaced by a younger person. Matras v. Amoco Oil
Co., 424 Mich. 675 (1986). Plaintiffs must also show that age was a determining factor
in the employment decision. Lylte v. Malady (on Rehearing), 458 Mich. 153, 178 (1998).
Plaintiffs cannot show intentional discrimination when the record is absent of
evidence to show animosity toward any specific age group. As noted above, the age
range of persons receiving new appointment ranged from 37 years old to 59 years old

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and the range of personnel whose appointment was revoked ranged from 41 years old
to 60 years old. There is no indication that age was a determining factor in any of the
employment decisions described above.
Plaintiffs each further argue that the City illegally discriminated against them by
treating them in a disparate manner from younger colleagues with respect to the terms
and conditions of employment, promotional opportunities, and compensation (Doc. 5, ¶
47). To prove disparate treatment under the ELCRA, a plaintiff must establish that he
was a member of a protected class and he was treated differently than persons of a
different class for the same or similar conduct. Barnell v. Taubman Co., 203 Mich. App.
110, 120-21 (1993). Each plaintiff’s basis for this argument is a replacement by a
younger individual. “[Plaintiffs’] replacement by [] younger employee[s], without more, is
insufficient to support a claim of age discrimination.” Id. Plaintiffs’ speculations as to
Chief Craig’s motivations and intentions are insufficient to avoid summary judgment.
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
VI.

CONCLUSION

For the reasons stated above, Defendants’ motion for summary judgment is
GRANTED. This case is DISMISSED.
SO ORDERED.
s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: January 6, 2016
Detroit, Michigan

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