Vere v. Adrian, City of et al

Filing 39

OPINION AND ORDER Granting Defendants' 30 Motion for Summary Judgment and Denying Plaintiff's 36 Motion to File Amended Complaint. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GALE VERE,
Plaintiff,

Case No. 15-cv-10745
Hon. Matthew F. Leitman

v.
CITY OF ADRIAN et al.,
Defendants.
_________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (ECF #30) AND DENYING PLAINTIFF’S
MOTION TO FILE AMENDED COMPLAINT (ECF #36)
In this action, Plaintiff Gale W. Vere (“Vere”) claims that the City of Adrian
(the “City”) and one of its employees, Heather Laskey (collectively,
“Defendants”), violated the Equal Protection Clause of the Fourteen Amendment
when they refused to hire him because he resided outside of the City.

The

Defendants have moved for summary judgment on that claim (see the “Motion for
Summary Judgment,” ECF #30), and Vere has filed a motion to amend his
Complaint (the “Motion to Amend,” ECF # 36). For the reasons explained below,
Defendants’ Motion for Summary Judgment is GRANTED and Vere’s Motion to
Amend is DENIED.

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ESSENTIAL FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Vere lives in Adrian Township, Michigan. (See Compl. at ¶ 2, ECF #1 at 2,
Pg. ID 2.)

In April 2012, October 2012, and January 2014, he applied for

employment with the City of Adrian, a municipality that is adjacent to Adrian
Township. (See id. at ¶ 6, ECF #1 at 2, Pg. ID 2.) At the time of Vere’s
applications, the City had a policy favoring its residents in the employment
application process.

The policy provided that “[i]f the qualifications of two

applicants for new hires are equal, the applicant living within the city limits shall
be given job preference” (hereinafter, the “Policy”). (See ECF #30-9 at 3, Pg. ID
392.)
The City did not interview Vere for any of three positions for which he
applied and it ultimately hired other applicants. (See id. at ¶ 7, ECF #1 at 2, Pg. ID
2.) The City filled two of the positions with residents and one with a non-resident.
(See Mot. Summ. J., ECF #30 at 12-14, Pg. ID 219-21; Pl.’s Resp. Br., ECF #32 at
9, Pg. ID 413.)
In December 2013, Vere filed a complaint against the City with the United
States Equal Opportunity Employment Commission (the “EEOC”).

In that

complaint, he alleged that the City discriminated against him based upon his age
when it declined to hire him for the first two positions. The City responded that it
had non-discriminatory reasons for its decision not to hire Vere.
2

The City

explained, among other things, that it chose particularly well-qualified applicants
for the positions, and it added that it “gave a preference to applicants that lived
within city limits, as [the City] believes that employees residing within the city
limits have a vested interest in city operations because they are directly affected.”
(ECF #30-3 at 5, Pg. ID 272.)
After reviewing the City’s response to his EEOC filing, Vere filed this
action against the City and two of its employees: Heather Laskey and Dane
Nelson.1 (See Compl., ECF #1.) Vere alleged that the Defendants violated his right
to equal protection of the laws when, pursuant to the Policy, it treated his nonresidency as a factor in their decision not to interview and/or hire him for the three
positions. (See Compl. at ¶¶ 9-14, ECF #1 at 2-3, Pg. ID 2-3.)
On May 22, 2015, the Court entered a scheduling order setting deadlines for,
among other things, fact discovery cutoff, expert disclosures, and filing dispositive
motions (the “Scheduling Order”). (See ECF #18.) The Scheduling Order directed
the parties to complete fact discovery by December 31, 2015. (See id. at 1, Pg. ID
67.) The Court later entered a stipulated order extending fact discovery through
March 29, 2016. (See ECF #24.) On April 29, 2016, after the close of fact
discovery, the Defendants moved for summary judgment. (See ECF #30.) On

1

Nelson was dismissed from this action on January 15, 2016. (1/15/2016 Dkt.
Entry.)
3

June 24, 2016, the Court scheduled a hearing on that motion for July 13, 2016.
(See Notice of Hearing, ECF #35.)
On June 29, 2016 – approximately three months after the already-extended
fact-discovery cutoff, two months after the Defendants moved for summary
judgment, and fourteen days before the scheduled hearing on that motion – Vere
filed the Motion to Amend. (See ECF #36.) In that motion, Vere sought to add
claims based, in part, upon alleged acts that occurred after the already-extended
discovery cutoff and after the Defendants moved for summary judgment. More
specifically, Vere’s proposed Amended Complaint seeks to add claims that the
Defendants violated the Equal Protection Clause, the First Amendment, and
Michigan’s Elliott-Larsen Civil Rights Act, M.C.L. § 37.2101 et seq. (the
“ELCRA”), in June of 2016 when they hired someone else to serve in the City’s
Finance Department. (See Motion to Amend, ECF #36-1 at 5-6, Pg. ID 615-17.)
The proposed Amended Complaint also adds a new Defendant, Cindy Prue. (See
id. at 1, Pg. ID 612.)
THE MOTION FOR SUMMARY JUDGMENT
A.

Governing Legal Standard
A movant is entitled to summary judgment when it “shows that there is no

genuine dispute as to any material fact . . . .” SEC v. Sierra Brokerage Servs., Inc.,
712 F.3d 321, 326-27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477
4

U.S. 242, 251-52 (1986)) (quotations omitted). When reviewing the record, “the
court must view the evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor.” Id. “The mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for
[that party].” Anderson, 477 U.S. at 252. Summary judgment is not appropriate
when “the evidence presents a sufficient disagreement to require submission to a
jury.” Id. at 251-52. Indeed, “[c]redibility determinations, the weighing of the
evidence, and the drafting of legitimate inferences from the facts are jury
functions, not those of a judge . . . .” Id. at 255.
B.

Analysis
“The Equal Protection Clause prohibits discrimination by government which

either burdens a fundamental right, targets a suspect class, or intentionally treats
one differently than others similarly situated without any rational basis for the
difference.” Loesel v. City of Frankenmuth, 692 F.3d 452, 461 (6th Cir. 2012)
(quoting Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681-82 (6th Cir.
2011)). Non-residents of a municipality “do not constitute a suspect class” under
the Equal Protection Clause. Hudson Cty. Bldg. & Constr. Trades Council v. City
of Jersey City, 960 F. Supp. 823, 832 (D.N.J. 1996) (citing Baldwin v. Fish &
Game Comm’n, 436 U.S. 371, 389 (1978)); see also Assoc. of Cleveland Fire
5

Fighters v. City of Cleveland, 502 F.3d 545, 549 (6th Cir. 2007) (noting that a
municipal employer’s residence requirement did not “make[] classifications along
suspect lines.”). Thus, in order to establish that the Defendants violated the Equal
Protection Clause, Vere must show that the consideration of his non-residency
impermissibly burdened one of his fundamental rights or lacked a rational basis.
He has failed to make either showing.
A.

The Policy Does Not Burden Vere’s Fundamental Rights
Vere has not established that the Defendants burdened any of his

fundamental rights in any way. He contends that they infringed his fundamental
right to travel when they counted his non-residency against him, but that argument
cannot be squared with the controlling Supreme Court precedent.
The Supreme Court “frequently has considered constitutional challenges to
residence requirements,” and it “always has been careful to distinguish . . .
durational residence requirements from bona fide residence requirements.”
Martinez v. Bynum, 461 U.S. 321, 325 (1983). Durational residence requirements
“condition receipt of a benefit on a minimum period of residence within a
jurisdiction.” Id. (emphasis added). These requirements burden “the constitutional
right to travel from one statement to another” – a right that “occupies a position
fundamental to the concept of our Federal Union” and which “has been firmly
established and repeatedly recognized.” Shapiro v. Thompson, 394 U.S. 618, 637
6

(1969) (quoting United States v. Guest, 383 U.S. 745, 757-58 (1966)), overruled
on other grounds by Edelman v. Jordan, 415 U.S. 651 (1974).
In contrast, a bona fide residence requirement does not condition receipt of a
benefit upon any minimum period of residency; it “simply requires that the person
does establish residence before demanding the services that are restricted to
residents.” Martinez, 461 U.S. at 329 (emphasis in original). Bona fide residence
requirements, in general, do “not burden or penalize the constitutional right of
interstate travel, for any person is free to move to a State and to establish residence
there.” Id. And, more specifically, a bona fide residence requirement for public
employment – i.e., a requirement that a public employee live within the employing
jurisdiction, albeit not for any fixed period of time before commencing
employment – does not “burden” an employee/applicant’s “right to travel.” Assoc.
of Cleveland Fire Fighters, 502 F.3d at 549.
Here, the Policy is plainly a bona fide residence requirement, not a
durational one.2

The Policy’s plain language – which provides that “[i]f the

qualifications of two applicants for new hires are equal, the applicant living within
the city limits shall be given job preference” – imposes no minimum period of City
residency for the applicant to receive “job preference.” (ECF #30-9 at 3, Pg. ID
392.) Indeed, an applicant who has lived in the City for a week (or even a day)
2

The court refers to the City’s Policy as a “residence requirement” for ease of
reference.
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would receive the same hiring preference as a person who has lived in the City for
twenty years.

Because the Policy “simply requires that [an applicant] does

establish residence before” he is entitled to the hiring preference, it is a bona fide
requirement. Martinez, 461 U.S. at 328.
Vere resists this conclusion. He insists that the Policy creates a durational
residence requirement even though it says nothing about any minimum fixed
period of residence. In support, Vere relies on two cases – Grace v. City of
Detroit, 760 F. Supp. 646 (E.D. Mich. 1991) and Johnson v. City of Cincinnati,
310 F.3d 484 (6th Cir. 2002) – but neither convinces the Court that the Policy
imposes a durational residence requirement.
In Grace, the plaintiffs challenged residence requirements established by a
City of Detroit ordinance. That ordinance required that all applicants for positions
“in the city service be residents at the time of the application.” Grace, 760 F.
Supp. at 648. The record before the court established that, in “practical effect,” the
ordinance imposed a durational residence requirement:
The period of time between application and certification
may be as long as three years, depending upon the nature
of the job and the number of applicants for a position in
city service. The period from application through the
formulation of an eligibility list ranges from two months
to a year depending upon the same criteria. The practical
effect of these requirements is to impose a residency
requirement of substantial duration, for the mere
opportunity to compete without any certainty of ultimate
success.
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Id. at 649.3 Unlike the plaintiffs in Grace, Vere did not identify (in his motion for
summary judgment and supporting brief) any evidence that the City’s application
process is so inordinately lengthy that, in “practical effect,” the Policy imposes a
durational requirement. Thus, Grace is not on point.
And even if the facts of this case were closer to Grace, the Court would
respectfully decline to follow Grace. The Court is not aware of (and Vere has not
identified) any other decision that has treated a residence requirement with no
expressly-stated minimum duration as a durational requirement. And the Court is
concerned that the approach in Grace – treating a residence requirement for
employment as durational merely because there is a time lag between application
and decision – could erroneously transform almost every residence requirement for
government employment into a durational one. Moreover, the majority of federal
courts addressing residence requirements like the one at issue in Grace – ones with
no expressly-stated duration – treat those requirements as bona fide, not durational.
See, e.g., Andre v. Bd. of Trustees of Village of Maywood, 561 F.2d 48, 52-53 (7th
Cir. 1977) (city ordinance establishing hiring preference for city residents without
regard to length of residency was a bona fide residence requirement); Van Deelen
v. City of Kansas City, 411 F. Supp. 2d 1105, 1127 (W.D. Mo. 2006) (same).

3

The decision in Grace was issued on “cross motions for summary judgment.”
Grace, 760 F.Supp. at 647.
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Indeed, Vere has not cited any decision other than Grace that treats residence
requirements with no stated time frame as durational. The Court will follow the
majority approach to classifying residence requirements and will not follow Grace.
In Johnson, the United States Court of Appeals for the Sixth Circuit
considered the constitutionality of a municipal ordinance that established so-called
“drug-exclusion zones” – geographic areas that persons with certain drug-related
criminal records could not enter for a period time. See Johnson, 310 F.3d at 487.
The court held that the ordinance unconstitutionally burdened the fundamental
right to intrastate travel. But Johnson does not support Vere’s argument that the
Policy created a durational residence requirement because the court emphasized
that the case did “not involve [any type of] continuing residency requirement.” Id.
at 494 (emphasis added). Instead, the case “involve[d] a constitutional challenge
to an ordinance that excludes certain individuals from high crime areas of the city,
and presents issues of access not raised in [an earlier decision involving a residence
requirement].” Id. Simply put, Johnson says nothing about whether the Policy
amounts to a durational residence requirement. The Court remains convinced that
the Policy establishes a bona fide residence requirement that does not impose any
burden on Vere’s fundamental right to travel.

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B.

The Policy Is Rationally Related to a Legitimate Government Interest
Bona fide residence requirements like the Policy are subject to rational basis

review. See Martinez, 461 U.S. at 329 n.7; Wardwell v. Bd. of Educ. of City
School Dist. of Cincinnati, 529 F.2d 625, 628 (6th Cir. 1976). Rational basis
review requires only that the residence requirement be “rationally related to a
legitimate government purpose.” City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 439 (1985). “The burden is upon the challenging party to negative
‘any reasonably conceivable state of facts that could provide a rational basis for
the classification.’” Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S.
356, 367 (2001) (emphasis added) (quoting Heller v. Doe, 509 U.S. 312, 320
(1993)). The Policy easily passes the rational basis test.
As one federal court has explained, there are a number of legitimate reasons
that a municipal employer may favor its own residents, including
the recruitment and retention of employees who are
highly motivated and deeply committed to the city in
which they live in work, enhancement of the quality of
employee performance due to the greater knowledge of
City conditions and the greater personal stake in the
City’s progress, reduction in absenteeism and tardiness
due to the proximity of the employee’s work and home,
the availability of employees trained to respond to
emergency situations, and the general economic benefits
flowing from local expenditure of employee’s salaries.
Van Deelen, 411 F. Supp. 2d at 1127; see also Wardwell, 529 F.2d at 627-28
(identifying many “rational bases” supporting a school district’s policy of requiring
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its teachers to reside within the district). Given these legitimate interests, several
federal courts have held that municipal/governmental employer residence
requirements withstand rational basis review. See, e.g., Van Deelen, supra; Salem
Blue Collar Workers Assoc. v. City of Salem, 33 F.3d 265, 271 (3d Cir. 1994)
(applying rational basis test and upholding municipal employer’s residence
requirement); Wardwell, supra.

Here, the Policy may reasonably further the

legitimate interests identified above, and it therefore survives rational basis review.
In sum, for all of the reasons above, the Court concludes that the Policy does
not violate the Equal Protection Clause and that the Defendants are entitled to
summary judgment on the equal protection claim in Vere’s Complaint.
THE MOTION TO AMEND
As described above, in the proposed Amended Complaint, Vere seeks to add
(1) new legal theories, (2) new factual allegations based on acts and omissions
occurring after the close of discovery and completion of summary judgment
briefing, (3) new claims, and (4) a new defendant. Even under the liberal standards
for amendment under Federal Rule of Civil Procedure 15(a), the proposed
amendments should not be allowed.
The Sixth Circuit has identified the factors that a district court should
consider when deciding whether to grant a party leave to amend its complaint:

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Several elements may be considered in determining
whether to permit an amendment. Undue delay in filing,
lack of notice to the opposing party, bad faith by the
moving party, the repeated failure to cure deficiencies by
previous amendments, undue prejudice to the opposing
party, and futility of amendment are all factors which
may affect the decision. Delay by itself is not a sufficient
reason to deny a motion to amend. Notice and
substantial prejudice to the opposing party are [the]
critical factors in determining whether an amendment
should be granted.
Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994) (emphasis added) (quotation
omitted). Here, the “critical factors” of notice and prejudice weigh heavily against
allowing Vere’s proposed amendment.
Most importantly, permitting Vere to amend his Complaint to add new
factual allegations and new claims following the close of discovery, and after
Defendants have moved for summary judgment, would cause Defendants
substantial prejudice. Indeed, the Sixth Circuit has recognized “that allowing
amendment after the close of discovery creates significant prejudice, and other
Circuits agree.” Duggins v. Steak ‘N Shake, 195 F.3d 828, 834 (6th Cir. 1999)
(citations omitted); see also Miller v. Admin. Office of Courts, 448 F.3d 887, 898
(6th Cir. 2006) (“Because the discovery deadline had already passed and the
deadline for filing dispositive motions on the issue of immunity was imminent, the
defendants would have been prejudiced if a further amendment had been permitted
by the district court.”).

Moreover, as the Second Circuit has explained, “a
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proposed amendment” is “especially prejudicial” when discovery is complete and
the defendant has “already filed a motion for summary judgment.” Krumme v.
WestPoint Stevens, Inc., 143 F.3d 71, 88 (2d Cir. 1998) (quoting Ansam Assoc. v.
Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985)). The prejudice under
these circumstances arises because the proposed amendments “would require a
new wave of discovery” and would substantially “delay the final disposition of the
action.” Id. Simply put, the Defendants would suffer material and unfair prejudice
if, at this extremely late stage in the proceedings, the Court allowed Vere’s
amendment, re-opened discovery, and effectively “turned back the clock” in this
action.
In addition, at no point during discovery did Defendants have notice that
they could potentially have to defend against Vere’s new proposed claims. Indeed,
they could not have had such notice because some claims are based upon alleged
acts and omissions that occurred after discovery closed. This lack of notice further
weighs against allowing the proposed amendments.
Vere argues that the Court should allow the proposed amendments because
Rule 15(a) embodies a liberal policy in favor of allowing amendments, he did not
delay in seeking to amend once he learned of the alleged facts underlying the
proposed new claims, and the proposed amendments are not futile. (See Motion to
Amend, ECF #36 at 4-5, Pg. ID 609-10.) On the facts of this case, these factors
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are not sufficient to justify the addition of new claims and new factual allegations.
If Vere wishes to pursue these new and additional claims, he may file a separate
action against Defendants.4 In short, the prejudice from the proposed amendments
at this advanced stage and the lack of notice to Defendants outweigh the factors
Vere identifies. The Court will not permit Vere to file his proposed Amended
Complaint.
CONCLUSION
For the reasons explained above, IT IS HEREBY ORDERED that the
Motion for Summary Judgment (ECF #30) is GRANTED and the Motion to
Amend (ECF #36) is DENIED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: July 20, 2016
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on July 20, 2016, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]
4

The Court expresses no opinion as to whether Defendants may interpose the
judgment here as a defense to any claims that Vere may attempt to assert in a
future action.
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