Roschival v. Hurley Medical Center et al

Filing 26

OPINION and ORDER Granting in Part 22 MOTION for Summary Judgment - Signed by District Judge Laurie J. Michelson. (JJoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NANCY ROSCHIVAL,
Plaintiff,
v.

Case No. 15-10182
Honorable Laurie J. Michelson
Magistrate Judge Elizabeth A. Stafford

MELANY GAVULIC and HURLEY
MEDICAL CENTER,
Defendants.
OPINION AND ORDER GRANTING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [22]
Defendant Hurley Medical Center, through its CEO, Defendant Melany Gavulic,
terminated Plaintiff Nancy Roschival’s employment in July 2014. Defendants say that that they
no longer needed Roschival’s position because, during a reorganization, they closed the office
Roschival worked for and transferred much of her responsibilities to a third-party administrator.
Roschival does not dispute this. But she says that Defendants failed to follow their layoff
procedure and that a less senior employee should have been laid off instead of her. That less
senior employee is black, and Roschival is white. Roschival alleges that Gavulic targeted her to
favor her black colleague, violating the Constitution’s Equal Protection Clause in the process.
She thus filed this action under 42 U.S.C. § 1983, Michigan’s Elliot-Larsen Civil Rights Act, and
the Michigan law of wrongful termination.
Before the Court is Defendants’ motion for summary judgment (Dkt. 22, Defs.’ Mot.
Summ. J.), for which the Court heard oral argument on May 10, 2016. For the reasons discussed,
the Court will dismiss the case. On this record, Roschival has not shown that Gavulic’s
articulated reason for termination was a pretext for racial discrimination in violation of the Equal

Protection Clause, and the Court declines to exercise supplemental jurisdiction over Roschival’s
remaining state-law claims.
I.
A.
Plaintiff Nancy Roschival started working in human resources for Defendant Hurley
Medical Center in 1995. (Pl.’s Resp. Ex. 4, Roschival Dep. at 8.) She is white. (Id. at 20.) So is
the person who would ultimately terminate her, Defendant Melany Gavulic, who became
Hurley’s CEO during the last two years of Roschival’s employment (i.e., in 2012). (Pl.’s Resp.
Ex. 5, Gavulic Dep. at 4.)
Roschival spent most of her time at Hurley in its Employee Health Office (“EHO”) (Pl.’s
Resp. at 5), which, among other things, provided occupational health services (Defs.’ Mot. Ex. 5,
Gavulic Aff. ¶ 4). Roschival’s job title was “Human Resource Service Center Advisor,” and her
primary role was to process worker’s compensation claims. (Roschival Dep. at 10, 13–14.)
During a reorganization from 2013–14, Hurley trimmed and then closed its Employee
Health Office. In mid to late 2013, some employees were laid off. (See Defs.’ Mot. Ex. 8,
Letters; Roschival Dep. at 10.) In September 2013, Roschival met with Colleen Mansour, who
was then the Interim Senior Administrator of Human Resources. According to Roschival’s notes,
it seemed to Roschival that she was about to lose her job, as Mansour confirmed that all but one
Employee Health Office employee would be laid off. (Pl.’s Resp. Ex. 14, Sep. 15, 2013 Notes.)
But Roschival kept her job, at least at first. The next week, Mansour informed Roschival that due
to the reorganization of the Employee Health Office her position would be eliminated the next
month, but Roschival would be moved to the Human Resources Department. (Pl.’s Resp. Ex. 15,

2

Sep. 23, 2013 Letter.) In November 2013, Roschival’s job title changed to “Human Resources
Coordinator I,” but her duties remained the same. (Roschival Dep. at 13.)
Hurley completely closed its Employee Health Office on August 4, 2014,1 resulting in
Roschival’s termination. (See, e.g., Defs.’ Mot. Ex. 7, Aug. 1, 2014 Letter; Gavulic Aff. ¶ 4.)
The EHO’s occupational health services were transferred to a new entity, Hurley Health
Services. (Gavulic Aff. ¶ 4; Aug. 1, 2014 Letter.) Additionally, a third-party administrator
absorbed a larger share of the processing of worker’s compensation claims, which had been
Roschival’s role. (Gavulic Aff. ¶ 6.) On July 31, 2014, Gavulic informed Roschival that she
would be terminated effective August 14, 2014. (Pl.’s Resp. Ex. 16, Jul. 31, 2014 Letter.) A
layoff notice stated that the reason for the termination was that “Employee Health Office is being
closed and these services will reside in an Occupational Medicine Clinic provided to Hurley
Medical Center through Hurley Health Services.” (Pl.’s Resp. Ex. 17, Layoff Notice.) Roschival
acknowledges that the decision to close the office—made by Gavulic—had nothing to do with
race. (Roschival Dep. at 14.)
B.
Roschival’s claims in the case center on whether Hurley followed its own layoff
procedures when it terminated her. Roschival was what Hurley refers to as an “exempt” or “nonbargaining unit” employee. (Gavulic Dep. at 20–21.) As such, Hurley’s Exempt Employee
Handbook set the terms of Roschival’s employment relationship with Hurley—including the
layoff procedures it had to follow. (Pl.’s Resp. Ex. 6, Handbook; Gavulic Dep. at 21.)

1

Roschival contends that the office was closed in 2013, not 2014. (See Pl.’s Resp. at 2,
¶¶ 5–7.) She offers no evidence to support this assertion and mistakenly refers to this as a fact
that is not in dispute: “The following facts are not in dispute: . . . In 2013—after the EHO was
closed . . . .” (Pl.’s Resp. Br. at 5.)
3

In their most basic sense, the handbook’s layoff procedures essentially allow for certain
employees with more tenure to “bump” their junior colleagues, so the junior employee is let go
first. For example, when Hurley first culled the Employee Health Office in the summer of 2013,
Roschival “bumped” Gerry Smith, who shared her title of Human Resources Service Center
Advisor at the time.2 (Roschival Dep. at 10.) He was let go, while she was simply reassigned.
(Roschival Dep. at 10–11.)
As the governing handbook provides, “Layoffs or status reductions within classifications
and department are made in reverse order of seniority within classification and department.”
(Handbook, at 7.)3 However, “Employees who are laid off may not bump other employees in
other classifications and/or departments.” (Id. at 8.) The handbook defines “seniority” as “the
length of service within classification (hospital-wide) without a break in service.” (Id. at 6.) But
the handbook does not define “classification,” and there is some disagreement as to what it
means.
C.
The individuals directly involved in Roschival’s termination interpreted “classification”
to be the equivalent of job title. As will be described in more detail, they thus concluded that
because Roschival was the only employee with her job title (“Human Resources Coordinator I”)
at the time of her termination, she was not eligible to “bump” a less senior employee.

2

The Court understands that the process may have been different in this scenario because
Smith was a union employee (see Roschival Dep. at 10; Sep. 15, 2013 Notes), so the Court cites
this only for background purposes.
3
The handbook provides another bumping mechanism that is not as central to this case:
“Layoffs or status reductions within classification, promotional units and departments are made
in the following order: [1] Temporary or emergency employees [2] Provisional employees [3]
Per-diem employees [4] Seasonal employees [5] Probationary employees [6] Part-time
employees [7] Full-time employees.” (Id.)
4

Around a month before Roschival’s termination, Gavulic enlisted Debra Roriex, a
Human Resources Recruiter, to determine how to handle Roschival’s position in light of the
Employee Health Office’s pending closure. (Gavulic Dep. at 8–10; Pl.’s Resp. Ex. 7 Roriex Dep.
at 6, 25.) As Gavulic testified, “I was not clear on how any of that would be transacted. All I
knew is there would no longer be work in the Employee Health Office for what Nancy was doing
and there would be an impact so I was seeking HR’s role in how that would be handled.”
(Gavulic Dep. at 9.)
Roriex says that she looked to the handbook for the appropriate procedure to follow.
(Roriex Dep. at 27.) To recap, the handbook says that “Layoffs or status reductions within
classifications and department are made in reverse order of seniority within classification and
department.” (Handbook, at 7.) Roriex says she determined that the relevant department was
human resources and that Roschival was the sole person in her classification. (Roriex Dep. at
27–28.) This made Roschival ineligible to bump anyone, Roriex concluded. (Id. at 27–28.)
While Roschival’s title was Human Resources Coordinator I, a less senior employee in
the human resources department, Jamal Dozier, who is black, held a similar title: “Human
Resources Coordinator.” (Pl.’s Resp. Ex. 1, Jackson Aff. ¶¶ 16–17.)
Despite the similarity between Roschival’s and Dozier’s titles, Roriex testified that she
determined that Roschival was alone in her classification because “[t]here was no one else in
Human Resources with her same title.” (Roriex Dep. at 28.) Gavulic deferred to Roriex’s
conclusion. (Gavulic Dep. at 10.) In her testimony, Gavulic explained her concurrence, stating
that Human Resources Coordinator and Human Resources Coordinator I were not in the same

5

classification because “[t]hey are two different jobs and the responsibilities and duties outline
that.” (Gavulic Dep. at 53.)4
Still, because of the similarity between Roschival’s and Dozier’s titles, Roriex and
Gavulic did consider whether Roschival should “bump” Dozier. (Roriex Dep. at 48.) Gavulic
specifically asked Roriex whether Dozier should be laid off instead of Roschival. (Id. at 45.)
According to Roriex, Gavulic “wanted to know how to handle the layoff for Nancy” and “how to
handle Nancy because of her classification. She was the only one in that classification, and not
Jamal.” (Roriex Dep. at 45.) Roriex also testified, “I believe [Gavulic] just wanted to know that it
wasn’t Jamal because of their titles. The titles were different. So I told her, no, it wasn’t Jamal.”
(Roriex Dep. at 48.)
Pursuant to Roriex’s application of the layoff procedure, Dozier was not laid off. Like
Dozier, Roriex is black. (See Roriex Dep. at 41.)
D.
Two former Hurley human resources employees offer a competing theory on what the
layoff procedure is and how it should have applied to Roschival: they suggest that the layoff
procedure instead depends on a job “series” and that Dozier should have been laid off instead of
Roschival.
A job “series” would be, for example, Social Worker I, II, and III or Maintenance
Mechanic I, II, and III. (Roriex Dep. at 16; Pl.’s Resp. Ex. 10, Foster Dep. at 12; Pl.’s Resp. Ex.
9, Jackson Dep. at 41–42.)

4

Gavulic also testified that she was unaware whether the handbook defined
classification. (Gavulic Dep. at 41.) She thought Mansour would know how it was defined. (Id.)
Mansour, however, testified—apparently mistakenly—that the term “classification” would not
apply to non-bargaining unit employees. (Pl.’s Resp. Ex. 11, Mansour Dep. at 12–14.)
6

Rebecca Jackson, who served as Assistant Human Resources Director of Operations for
Hurley from 2001 until October 2010 (and was someone whom Roriex used to use as a resource
for layoff decisions (Roriex Dep. at 10–11)), and Lisa Foster, who served as Assistant Director
of Human Resources for Employment Compensation in Hurley Medical Center’s Human
Resource Department from 1995 until July 2010, each stated in their individual affidavits that the
layoff procedure at Hurley hinged on job series:
If there were a job series within a particular promotional unit for a particular
classification, then the lowest number within the job series with the least senior
employees would be laid off first.
In other words, if a promotional unit had employees who, for example, were
Social Worker I, Social Worker II, Social Worker III, in a reduction of force or
layoff, the least senior member of Social Worker I would be laid off first, then the
least senior employee of Social Worker II classification would be laid off next,
and then finally, it would reach Social Worker III.
(Pl.’s Resp. Ex. 1, Jackson Aff. ¶¶ 8–10; Ex. 2, Foster Aff. ¶¶ 8–10.)
Jackson and Foster each also stated in their affidavits that “layoffs and recalls for exempt
employees were governed by the Exempt Employee Handbook, specifically Section 9 – Layoffs
or Recall – on pages 7 and 8 of the Exempt Employee Handbook.” (Jackson Aff. ¶ 7; Foster Aff.
¶ 7.)
Jackson and Foster each opined that Hurley “did not follow polices found in the Hurley
Medical Center Exempt Employee Handbook on pages 7 and 8” when it terminated Roschival.
(Jackson Aff. ¶ 15; Foster Aff. ¶ 15.) They each reasoned that “[a]ccording to the Hurley
Medical Center Exempt Employee Handbook, as well as past practice,” Dozier should have been
laid off because “he was in the lower Human Resource Coordinator position within the job series
and he had the least amount of seniority.” (Jackson Aff. ¶ 17; Foster Aff. ¶ 17.)

7

In her affidavit, Jackson offered this opinion for why Roschival was terminated instead of
Dozier:
The one explanation . . . is because there was a past practice within the Human
Resource Department, and also within the hospital as a whole, that when
reorganization/layoffs did occur, special preference was given to AfricanAmerican employees in their retention. In other words, Hurley Medical Center
made great strides to retain African-American employees during reorganizations
and layoffs. Caucasian employees were not given the same consideration as
African-American employees with respect to reorganizations/layoffs within the
hospital.
(Jackson Aff. ¶ 20.) Jackson also testified that at unspecified times in the past, after proposing
someone for a layoff, “The union would sometimes say, ‘That person is African American. We
don’t want that person laid off.’” (Jackson Dep. at 71–73.)
E.
Roschival filed her complaint in this Court on January 16, 2015 and an amended
complaint a week later. (Dkt. 1, Compl.; Dkt. 4, Am. Compl.) Her amended complaint includes
four counts. Count I asserts a 42 U.S.C. § 1983 racial discrimination claim against Gavulic. (Am.
Compl. ¶¶ 23–27.) Counts II and III assert wrongful discharge claims under Michigan law
against Hurley on the basis that Hurley lacked good cause to terminate Roschival and breached
representations concerning job security and layoffs. (Id. ¶¶ 28–36.) Count IV asserts a racial
discrimination claim against both defendants under Michigan’s Elliott-Larsen Civil Rights Act.
(Id. ¶¶ 37–39.)
Defendants filed their motion for summary judgment on October 30, 2015. (Dkt. 22,
Defs.’ Mot. Summ. J.) They did not file a reply to Roschival’s response (Dkt. 23, Pl.’s Resp.).
II.
“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.
8

Civ. P. 56(a). The moving party may discharge its initial summary judgment burden by “pointing
out to the district court . . . that there is an absence of evidence to support the nonmoving party’s
case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party does so, the party
opposing the motion “must come forward with specific facts showing that there is a genuine
issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Court must determine whether the evidence presents a sufficient factual disagreement to
require submission of the challenged claims to a jury, or whether the evidence is so one-sided
that the moving party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251–52 (1986) (“The mere existence of a scintilla of evidence in support of the plaintiff's
position will be insufficient; there must be evidence on which the jury could reasonably find for
the plaintiff.”).
On summary judgment, the Court views the evidence, and any reasonable inferences
drawn from the evidence, in the light most favorable to the non-moving party, here Roschival.
See Matsushita, 475 U.S. at 587.
III.
The Court begins with Roschival’s Section 1983 claim that Gavulic violated her rights
under the Constitution’s Equal Protection Clause by terminating her on the basis of her race.5
Roschival asserts her sole federal count specifically against Gavulic, not Hurley. (Am. Compl. ¶¶
23–27.)
As in the Title VII context, a plaintiff can prove a Section 1983 discrimination claim with
direct or circumstantial evidence. See Weberg v. Franks, 229 F.3d 514, 522–23 (6th Cir. 2000).
As Roschival relies on circumstantial evidence, the Court will apply the burden-shifting
5

The parties do not dispute that Hurley is a public hospital (see Am. Compl. ¶ 3) and that
a Section 1983 claim is therefore appropriate.
9

framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008) (“In weighing an employment
discrimination claim asserting disparate treatment under § 1983, this Court applies the familiar
McDonnell Douglas framework applicable in similar cases brought under Title VII.”).
Accordingly, Roschival has an initial burden to establish a prima facie case of racial
discrimination. McDonnell Douglas, 411 U.S at 802. The burden then shifts to Gavulic to
articulate a legitimate, nondiscriminatory reason for terminating her. See id. If Gavulic meets her
burden, then Roschival “must identify evidence from which a reasonable jury could conclude
that the proffered reason is actually a pretext for unlawful discrimination.” Jackson v. VHS
Detroit Receiving Hosp., Inc., 814 F.3d 769, 779 (6th Cir. 2016).
In a typical racial discrimination case, a plaintiff establishes a prima facie case by
showing she was “(1) a member of a protected class; (2) discharged; (3) qualified for the
position; and (4) that a similarly situated non-protected person was treated better.” Rachells v.
Cingular Wireless Employee Servs., LLC, 732 F.3d 652, 661 (6th Cir. 2013) (internal quotation
marks and citations omitted).
But this is not a typical case, and Roschival’s initial burden is greater. Because
Roschival’s claim is one of reverse discrimination, she “must demonstrate ‘background
circumstances [to] support the suspicion that the defendant is that unusual employer who
discriminates against the majority,’” as part of the first element of her prima facie case. See
Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 255 (6th Cir. 2002) (quoting Murray v.
Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985)).6 Roschival’s burden under the
fourth element is different as well: when “a discrimination claim is based on termination arising
6

Neither party’s briefing acknowledges that the “background circumstances” element
applies in this case.
10

out of a work force reduction, [the Sixth Circuit] has modified the fourth element to require the
plaintiff to provide additional direct, circumstantial, or statistical evidence tending to indicate
that the employer singled out the plaintiff for discharge for impermissible reasons.” Rachells,
732 F.3d at 661 (internal quotation marks and citation omitted).
A.
On this record, the Court is doubtful that Roschival has set forth enough evidence to
establish a prima facie case of discrimination. For one, Gavulic is the sole defendant for
Roschival’s Section 1983 claim. Yet Roschival has identified no “background circumstances [to]
support the suspicion that the defendant[, Gavulic,] is that unusual employer who discriminates
against the majority.” See Zambetti, 314 F.3d at 255 (6th Cir. 2002).
Even if Roschival could establish a prima facie case of racial discrimination, as will be
discussed, Gavulic has offered a legitimate reason for terminating her, and Roschival has not
rebutted that with evidence sufficient for a reasonable jury to find that the reason was a pretext
for unlawful racial discrimination. So the Court will assume, without deciding, that Roschival
has established a prima facie case and will proceed to the pretext stage. See Frizzell v. Sw. Motor
Freight, 154 F.3d 641, 646 (6th Cir. 1998) (affirming summary judgment for plaintiff’s failure to
establish pretext in state-law gender discrimination claim, noting, “We, like the District Court,
assume that plaintiff established a prima facie case”). However, for purposes of the pretext
analysis, the Court will, of course, still consider Roschival’s evidence for making out a prima
facie case. See Jackson, 814 F.3d at 779 (“[O]n summary judgment, [i]n evaluating pretext and
the plaintiff’s ultimate burden, the court should consider all [probative] evidence in the light
most favorable to the plaintiff, including the evidence presented in the prima facie stage.”
(internal quotation marks and citations omitted, second alteration in original)).

11

B.
It is undisputed that Gavulic has offered a non-discriminatory explanation for terminating
Roschival. As she stated in her affidavit, during Hurley’s reorganization, the hospital “shifted a
larger majority of the workers’ compensation responsibilities” to a third-party administrator.
(Gavulic Aff. ¶ 6.) Accordingly, said Gavulic, “With the [third-party administrator] handling
most of the workers’ compensation functions, there was no need for a full-time employee to do
workers’ compensation and, therefore, [Hurley] eliminated the classification ‘Human Resources
Coordinator I.’ . . . Because Nancy Roschival was the only employee in the ‘Human Resources
Coordinator I’ classification, she was laid off effective August 14, 2014.” (Id. ¶¶ 7–8.)
C.
The question now becomes whether Gavulic’s reason was a pretext for racial
discrimination. In general, “[a] plaintiff may show pretext by demonstrating: ‘(1) that the
proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the
adverse employment action, or (3) that they were insufficient to motivate the adverse
employment action.’” Davis v. Cintas Corp., 717 F.3d 476, 491 (6th Cir. 2013) (alterations in
original) (quoting Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 460 (6th Cir.2004)); see
also Alexander v. Ohio State Univ. Coll. of Soc. Work, 429 F. App’x 481, 487 (6th Cir. 2011)
(applying the same test to a Section 1983 discrimination claim). A “plaintiff may also
demonstrate pretext by offering evidence which challenges the reasonableness of the employer’s
decision to the extent that such an inquiry sheds light on whether the employer’s proffered
reason for the employment action was its actual motivation.” Risch v. Royal Oak Police Dep’t,
581 F.3d 383, 391 (6th Cir. 2009). Roschival does not specify which theory of pretext she
pursues.

12

1.
Roschival’s main argument is that Hurley’s failure to follow its layoff procedures—the
basis of her state-law wrongful termination claim—establishes pretext. Roschival cites Pippin v.
Burlington Res. Oil And Gas Co., 440 F.3d 1186, 1193 (10th Cir. 2006), where the Tenth Circuit
noted that a plaintiff can show pretext in a reduction in force case with evidence that “[her] own
termination does not accord with the RIF criteria.” See also Skalka v. Fernald Envtl. Restoration
Mgmt. Corp., 178 F.3d 414, 422 (6th Cir. 1999) (“Having concluded that FERMCO’s reason for
laying off Skalka was not worthy of belief and having heard evidence that FERMCO ‘lost’ the
peer group’s ranking forms, deviated from its normal procedures, and fired the oldest and most
qualified RSO, the jury was entitled to find that discrimination had occurred.”). But Roschival’s
“ultimate burden” is to “persuade[] the court that she was the victim of intentional
discrimination.” See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). And
“[s]tanding alone, deviation from a company policy does not demonstrate discriminatory
animus.” Mitchell v. USBI Co., 186 F.3d 1352, 1355—56 (11th Cir. 1999) (per curiam) (“Even
assuming that USBI did deviate from its [layoff] policy, this deviation does not raise an inference
of discrimination.” (citing cases)); see also Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1168
(10th Cir. 1998) (observing that “minor inconsistencies in the application of RIF criteria may be
too insubstantial to allow a reasonable jury to infer that the RIF was pretextual”).
To support her claim that Gavulic misapplied the layoff procedures, Roschival cites
affidavits and testimony from Rebecca Jackson and Lisa Foster—two experienced human
resources professionals who left Hurley several years before Roschival’s termination. They each
opined that Hurley “did not follow polices found in the Hurley Medical Center Exempt
Employee Handbook on pages 7 and 8” when it terminated Roschival. (Jackson Aff. ¶ 15; Foster

13

Aff. ¶ 15.) According to Jackson and Foster, the layoff procedure provided, “If there were a job
series within a particular promotional unit for a particular classification, then the lowest number
within the job series with the least senior employees would be laid off first.” (Jackson Aff. ¶ 9;
Foster Aff. ¶ 9.) Accordingly, they each concluded that “Dozier should have been laid off
because “he was in the lower Human Resource Coordinator position within the job series and he
had the least amount of seniority.” (Jackson Aff. ¶ 17; Foster Aff. ¶ 17.)
At first glance, this explanation appears to have little support in Hurley’s procedures.
Granted, a general “Employment Policy” dating to the 1970s, which Roschival cites, provided
that layoffs were to be determined by series: “Layoff of employees shall be made in the inverse
order of their employment” and “[w]hen layoffs are to be made which might involve the
employees of two or more classes of a series, those employees of the lowest class shall be laid
off first on the basis of their seniority.” (Pl.’s Ex. 8, Older Policy at 15.) But Roschival describes
this general policy as an “older” policy, (Pl.’s Resp. at 6), and she does not contend that it was
still in effect at the time she was terminated.
In contrast to the older policy, the employee handbook in effect at the time of Roschival’s
termination makes no express mention of series. It instead hinges layoffs on classification, and it
provides, “Employees who are laid off may not bump other employees in other classifications
and/or departments.”7 (Handbook at 8.) As Roschival describes in her brief, Gavulic, “had no
idea how a layoff was conducted” and “directed Roriex to determine who was to be laid off.”
7

As noted in supra n. 3, the handbook also provides that full-time employees bump other
types of workers, such as temporary and part-time employees. (Handbook, at 7.) Mansour
acknowledged that in September 2013, the human resources department had some temporary
employees and contract workers. (Mansour Dep. at 24.) Roschival summarily claims in her brief
that “they should have been laid off before” her. (Pl.’s Resp. at 14.) This does not appear to
relate to her racial discrimination claim, and she cites no evidence of the temporary employees’
and contract workers’ race. Even if she had, she cites no evidence that these individuals were still
employed at the time of her actual termination, in July 2014.
14

(Pl.’s Resp. at 9, 11.) Consistent with the handbook, because Roriex concluded that Roschival
was the only employee in her classification (Roriex Dep. at 27–28; Gavulic Dep. at 53), she told
Gavulic that Roschival should be terminated, not Dozier, (Roriex Dep. at 38–39; Gavulic Dep. at
10). And Gavulic deferred to Roriex’s conclusion. (Gavulic Dep. at 10.)
This is not to say that Gavulic played an entirely passive role in the decision. Roriex
testified that during the process, Gavulic asked to confirm that Roschival, not Dozier, should be
laid off. (Roriex Dep. at 45.) Roriex’s testimony also included the following exchange:
Q.

All right. So there was some discussion between you and Melany
[Gavulic], whether it be email or otherwise, as to who was to be laid off;
Jamal [Dozier] or Nancy?

A.

She asked me how to handle the layoff for Nancy. Because EHO, they
were getting rid of EHO, and we didn’t have a place to put Nancy. So it
resulted in a layoff.

Q.

So how did Jamal’s name come up?

A.

I believe she just wanted to know that it wasn’t Jamal because of their
titles. The titles were different. So I told her, no, it wasn’t Jamal.

Q.

So she expressed to you that she did not want to see Jamal lose his job?

A.

Yeah, she did say don’t want—she didn’t want anybody to lose their job.

Q.

She expressed to you that she didn’t want to see Jamal lose his job?

A.

I believe she did say that.

(Roriex Dep. at 48.)
Roschival concludes that this means that “Roriex specifically testified that Defendant
Gavulic did not want Dozier to be laid off. In other words, both Roriex and Defendant Gavulic
singled out Plaintiff for this layoff.” (Pl.’s Resp. at 22.) Even construing the evidence in the light
most favorable to Plaintiff, this is not a fair reading of Roriex’s testimony. Roschival ignores that
Roriex testified that Gavulic “didn’t want anybody to lose their job.” (Roriex Dep. at 48
15

(emphasis added).) True, Roriex was asked, and answered, a specific follow-up question about
Dozier, stating that Gavulic did not want Dozier to lose his job. Id. But that answer does not
negate, and indeed is entirely consistent with, Roriex’s immediately prior testimony that Gavulic
did not want anyone to lose their job—testimony that also necessarily implies that Gavulic did
not want Roschival to lose her job either. Thus, this testimony does not support a reasonable
inference that Gavulic specifically targeted Roschival for termination.
And it was not unreasonable for Gavulic to defer to Roriex’s conclusion that Roschival
and Dozier were in different classifications, as evidence supports that conclusion. In particular,
job descriptions confirm that their two positions—Human Resources Coordinator and Human
Resources Coordinator I—were different not only in name. (See Pl.’s Resp. Ex. 12–13.) As
Roschival confirmed in her testimony, she still retained her worker’s compensation role once her
title became Human Resources Coordinator I. (Roschival Dep. at 17.) Yet Dozier had no
involvement with worker’s compensation, and Roschival did not do any of what he did.
(Roschival Dep. at 17.) Moreover, Dozier has no apparent connection to the Employee Health
Office, the elimination of which was the source of the layoff at issue.
Nonetheless, Defendants’ counsel conceded at oral argument that the meaning of
classification is ambiguous because the handbook does not define the term. He also
acknowledged that—consistent with Foster’s and Jackson’s statements—Hurley still conducts
layoffs by taking series into consideration. Even so, Defendants’ counsel urged that Roschival
should not have bumped Dozier because they are not in the same series, as their job descriptions
differ. But this conclusion is inconsistent with Jackson’s testimony that positions fall into a series
when the “minimum entrance requirements” found in the job descriptions build on each other—
in other words, a more senior position in a series includes the skills of the junior position, and

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then some. (See Jackson Dep. at 43.) Indeed, while Roschival’s and Dozier’s job descriptions
were different, Roschival’s position did include Dozier’s position’s minimum entrance
requirements, and then some, which could suggest their positions fell within the same series.
(See Pls. Ex. 12–13.) To add to the uncertainty, in contrast to Defendants’ counsel’s assertion
about layoffs still occurring by series, his own witness, Roriex, testified, “I don’t recall a layoff
happening by series.” (Roriex Dep. at 42.)
This all suggests that some confusion surrounded how Hurley’s layoff procedures should
have applied to Roschival. To be sure, both sides present reasonable interpretations of those
procedures. But an issue of fact concerning Roriex’s application of the layoff procedures does
not necessarily create a genuine issue of material fact as to whether Gavulic—the sole defendant
for this claim—discriminated against Roschival for being white when she decided to defer to
Roriex’s application of those procedures.
2.
This leads to the problem with Roschival’s claim: even if Gavulic did not want Dozier
specifically to lose his job, and even if she deferred to an incorrect application of the layoff
procedures to obtain that result, nothing ties this to Roschival’s race.
Roschival hints that racial animus was at play by pointing out that Roriex, like Dozier, is
black. (Pl.’s Resp. at 2, 12.) But in her testimony, Roschival denied that Gavulic or anyone else
involved in the decision-making process had discriminatory animus toward her:
Q.

. . . Is there anything that Melany [Gavulic] has done or said that suggests
to you that she discriminates against white people?

A.

No.

Q.

Is there anything that anybody else has told you, other than your lawyer,
anything that anybody else has ever said to you that suggests to you that
Melany discriminates against white people?
17

A.

No.

Q.

Is there anybody who was in the HR department at the time we’re talking
about, August, July of 2014, that you think discriminates against white
people and could have been involved in the decision to not let you bump?

A.

No, not that I’m aware of.

(Roschival Dep. at 23.)
Roschival’s only other evidence concerning racial discrimination has nothing to do with
Gavulic. In particular, Roschival claims that a “discriminatory atmosphere surrounding layoff
decisions” at Hurley demonstrates that she was “singled out for layoff for an impermissible
reason.” (Pl.’s Resp. at 22.)
As the Sixth Circuit has held, “Circumstantial evidence establishing the existence of a
discriminatory atmosphere at the defendant’s workplace in turn may serve as circumstantial
evidence of individualized discrimination directed at the plaintiff,” because “such evidence does
tend to add ‘color’ to the employer’s decisionmaking processes and to the influences behind the
actions taken with respect to the individual plaintiff.” Risch, 581 F.3d at 392 (quoting
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356 (6th Cir. 1998)). Several factors
guide the Court in determining whether evidence of a discriminatory atmosphere is probative of
discrimination: “the [actor]’s position in the [employer’s] hierarchy, the purpose and content of
the [conduct], and the temporal connection between the [conduct] and the challenged
employment action, as well as whether the [conduct] buttresses other evidence of pretext.”
Rachells, 732 F.3d at 665 (alterations in original).
Roschival asserts that the evidence here “is very similar to the evidence presented by the
plaintiff” in Rachells. (Pl.’s Resp. at 23.) That is a stretch. In Rachells, the plaintiff’s evidence of
a discriminatory atmosphere was specific and temporally proximate to his termination. In

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particular, affidavits from two former employees showed that leading up to the plaintiff’s
termination, (1) a senior manager promoted a white person to a management position “over more
qualified minority candidates”; (2) the newly promoted white manager “gave undeservedly poor
evaluations to minority employees, as well as preferential treatment in promotions and
disciplinary actions to white employees”; and (3) the senior manager was “nonresponsive to
minority employees’ complaints about discriminatory performance reviews.” Rachells, 732 F.3d
at 669. The Court held that this evidence, along with the plaintiff’s “superior qualifications”—
including numerous accolades suggesting that he was given “an undeservedly poor review to
create pretext for his discharge”—were sufficient for him to raise genuine issues of material fact
on both the issue of pretext and the “additional evidence” required for a prima facie case in the
reduction in force context. Id. at 668–69.
In stark contrast to the evidence in Rachells, Roschival offers what amounts to little more
than a conclusory, unsupported assertion that a discriminatory atmosphere existed at Hurley at
some unspecified time, but clearly before Gavulic became CEO. As Jackson wrote in her
affidavit:
[T]here was a past practice within the Human Resource Department, and also
within the hospital as a whole, that when reorganization/layoffs did occur, special
preference was given to African-American employees in their retention. In other
words, Hurley Medical Center made great strides to retain African-American
employees during reorganizations and layoffs. Caucasian employees were not
given the same consideration as African-American employees with respect to
reorganizations/layoffs within the hospital.
(Jackson Aff. ¶ 20.)8 Jackson also testified that at unspecified times in the past, after proposing
someone to layoff, “The union would sometimes say, ‘That person is African American. We

8

The Court notes that Foster’s affidavit, the substance of which was otherwise mostly
verbatim with Jackson’s affidavit, did not contain this amorphous paragraph. At oral argument,
counsel for Roschival stated that Foster’s human resources role was different from Jackson’s
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don’t want that person laid off.’” (Jackson Dep. at 71–73.) The Court finds that this does not help
Roschival meet her burden to show that Gavulic’s reasons for terminating her were a pretext for
racial discrimination. None of the factors discussed in Rachells and other cases suggest this
evidence is probative of the alleged discrimination in this case.
To start, Jackson’s testimony identifies no actors who carried out this alleged practice—
other than her generalized mention of the “union”—let alone such actors’ “position in the
hierarchy.” See Rachells, 732 F.3d at 665. Because Roschival and Dozier were both nonbargaining unit employees, the union’s past practice appears to have little relevance here. More
important, nothing ties the union’s past practice to Gavulic—the sole Defendant for Roschival’s
Section 1983 claim—who became CEO of Hurley only during the last two years of Roschival’s
employment.
Jackson’s testimony also sheds little light on the “purpose and content” of the alleged
favoritism of black employees during layoffs, as the details are sparse. Rachells, 732 F.3d at 665.
The Court notes, however, while Roschival does not discuss this, Hurley did at one time have an
express affirmative action policy, which was contained in the older employment policy—dating
to the 1970s—that Roschival attached to her response: “It shall be the responsibility of Hurley
Medical Center to take affirmative action, as required by law, to assure that all levels of job
categories are reasonably representative of the minority and sex composition of the Medical
Center’s service area.” (Pl.’s Resp. Ex. 8, Older Policy at 3.) As a panel of the Sixth Circuit once
observed, while “we have found no circuit precedent on point, our sister circuits recognize the
existence of an affirmative action plan to be irrelevant to proving discrimination unless the
employer acted discriminatorily pursuant to the plan.” Hagan v. Warner/Elektra/Atl. Corp., 92 F.

human resources role, so Foster was not exposed to the practice of favoring African Americans
during layoffs. There is nothing in the record that suggests Gavulic was so exposed.
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App’x 264, 266–67 (6th Cir. 2004) (citing cases). Here, nothing suggests that this express policy,
or the union’s practice described by Jackson, in any way influenced Gavulic’s decision to
terminate Roschival. Indeed, when Jackson was asked whether she had any knowledge as to
whether race was a factor in the decision to terminate Roschival, she testified, “I have no—I
have no understanding that that would have been the situation. I know what has happened in the
past.” (Jackson Dep. at 70.) And the express affirmative action policy from the older
employment policy does not appear in the current employee handbook that everyone agrees
applied to Roschival’s termination.
Nor does Jackson’s testimony establish a temporal connection between the alleged
minority favoritism and Roschival’s termination. See Rachells, 732 F.3d at 665. Jackson left
Hurley in 2010, several years before Roschival’s 2014 termination and before Gavulic assumed
her role as CEO. (Jackson Aff. ¶ 2.) Nothing even suggests that a practice favoring minorities
during reorganizations even existed when Jackson left in 2010. She expressly described it as a
“past practice” and mentioned no specific timeframe. (Id. ¶ 20.) True, “evidence of a . . .
discriminatory atmosphere is not rendered irrelevant by its failure to coincide precisely with the
particular actors or timeframe involved in the specific events that generated a claim of
discriminatory treatment.” Rachells, 732 F.3d at 665. But Jackson’s statement provides no
timeframe, context, or specific examples like the voluminous evidence of a discriminatory
atmosphere discussed in Rachells—or other cases for that matter. See, e.g., Risch v. Royal Oak
Police Dep’t, 581 F.3d 383, 392–94 (6th Cir. 2009) (holding that evidence showed a
discriminatory atmosphere because “male officers frequently made degrading comments
regarding the capabilities of female officers, expressed the view that female officers would never
be promoted to command positions, and made generally degrading remarks about women” and

21

that a male officer “who occupied a senior position in the command staff, discriminated against
female officers in distributing work”).
Thus, Jackson’s testimony is nothing more than a conclusory assertion that a
discriminatory atmosphere may have existed at Hurley at an unknown time in the past. The Court
doubts the propriety of forcing Gavulic to inherit responsibility for a practice at Hurley by
allowing the inference that she too acted with racial animus simply because the union may have
at some time in the past. Without more support or details, the Court finds that, even when
combined with Roschival’s other evidence, this evidence is not probative as to whether a
discriminatory atmosphere existed at Hurley at the time of Roschival’s termination. It thus
creates no genuine issue of material fact surrounding pretext.
* * *
In sum, on one hand, Defendants have undisputed evidence that they closed the
Employee Health Office for legitimate reasons. In the process, they terminated Roschival instead
of a black employee—one who had no connection to that office or Roschival’s duties—in a way
they interpreted as consistent with Hurley’s current layoff procedures. Roschival acknowledges
that no one involved in that decision had any discriminatory animus toward her. On the other
hand, two former employees say that the layoff procedures should have been applied differently.
But nothing suggests that any deviation from the policies had anything to do with race—other
than vague testimony that at an unspecified time in the past, Hurley tended to favor black
employees when conducting layoffs. The Court finds that this is not enough for a reasonable jury
to conclude that Gavulic’s reasons for terminating Roschival were a pretext for racial
discrimination. Accordingly, the Court will grant summary judgment and dismiss Roschival’s
Section 1983 claim.

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IV.
As the Court will grant summary judgment as to Roschival’s sole federal claim, this
raises the question of whether the Court should retain supplemental jurisdiction over the
remaining state law claims.
“Generally, once a federal court has dismissed a plaintiff’s federal law claim, it should
not reach state law claims. Residual jurisdiction should be exercised only in cases where the
interests of judicial economy and the avoidance of multiplicity of litigation outweigh our concern
over needlessly deciding state law issues.” Experimental Holdings, Inc. v. Farris, 503 F.3d 514,
521 (6th Cir. 2007) (internal quotation marks and citations omitted). Here, the Court finds that
the interests of judicial economy and the avoidance of multiplicity litigation do not outweigh the
concern of needlessly deciding state law issues.
Roschival’s primary claim is wrongful termination under Michigan law. Defendants
concede that Roschival was a “just cause” employee for purposes of this claim because the
handbook “could have instilled legitimate expectations that she would not be terminated except
for just cause.” (Defs.’ Resp. at 1–2.) But Roschival relies on a narrow theory for her claim.
Specifically, in Boynton v. TRW, Inc., 858 F.2d 1178, 1184 (6th Cir. 1988) (en banc), the Sixth
Circuit held that under Michigan law, a terminated “just cause” employee could not bring a
wrongful discharge claim based on the “justness” of an employer’s termination decision that was
“born of economic necessity.” Nevertheless, the Court observed that the plaintiff could still
challenge the procedure his employer used in determining to discharge him instead of less senior
co-workers. Id. Roschival also cites Damrow v. Thumb Co-op. Terminal, Inc., 337 N.W.2d 338,
342–43 (Mich. Ct. App. 1983), where, outside of the reduction in force context, the Michigan
Court of Appeals held that when an employer’s manual establishes its obligations to its

23

employees, the employer must “comply with the rules set forth in the employee manual in
discharging its employees.”
Yet Boynton and Damrow were decided years before the Michigan Supreme Court held
in McCart v. J. Walter Thompson USA, Inc., 469 N.W.2d 284, 287 (Mich. 1991), that “bona fide
economic reasons for discharge constitute ‘just cause.’” At oral argument, Roschival’s counsel
urged that McCart concerned only the “justness” of the layoff—in other words, whether layoffs
should have happened at all. If true, that would mean McCart left intact Boyton’s cause action
for challenging layoff procedures. But the McCart court made clear that the plaintiff conceded
that at the time of his termination, his employer was “reducing its work-force for economic
reasons.” Id. at 286. So it seems that more than the “justness” may have been at issue. The
plaintiff challenged that his discharge was wrongful for numerous reasons, including that it had
“nothing to do with the reduction in work-force,” that “defendant attempted to disguise the true
nature of plaintiff’s discharge by doing it in the course of a work layoff,” and that “‘numerous
factual disputes’ existed such as . . . the method utilized by defendant to accomplish the
discharge.” Id. at 286. The court held that summary disposition was appropriate because the
plaintiff “failed to raise any genuine issue of fact regarding the validity of defendant’s proofs that
adverse business conditions existed and that the elimination of plaintiff’s position was
necessitated by those conditions.” Id. at 287.
McCart thus clouds whether Boynton’s alternate path to relief—challenging the
application of layoff procedures in a reduction in force case—is something a Michigan court
would deem available under the Michigan law of wrongful termination. And Roschival has
pointed to no post-McCart authority applying Boynton and Darrow in the way she urges.

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A Michigan court is better equipped to resolve this issue. And such a court would be as
equipped as this one to resolve Roschival’s ELCRA claim. Thus, the Court declines to exercise
supplemental jurisdiction over these two claims.
V.
For the reasons discussed, Defendants’ Motion for Summary Judgment (Dkt. 22) is
GRANTED IN PART. Summary judgment is GRANTED as to Count I of the amended
complaint because Roschival has raised no genuine issue of material fact. The remaining counts
are DISMISSED because the Court declines to exercise supplemental jurisdiction over those
claims.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: May 26, 2016

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 May 26, 2016.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson

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