DeVooght et al v. City of Warren

Filing 37

OPINION AND ORDER Denying Plaintiff's 26 Motion for Partial Summary Judgment and Denying Defendant's 27 Motion to Dismiss or for Summary Judgment and Ordering parties to submit a new proposed scheduling order by December 4, 2020. Signed by District Judge George Caram Steeh. (BSau)

Case 2:20-cv-10812-GCS-DRG ECF No. 37, PageID.1559 Filed 11/16/20 Page 1 of 24

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LINDA DeVOOGHT, TRESSA
SINHA, JENNIFER PIPER
and DAWN McLEAN,
Plaintiffs,
Case No. 20-CV-10812
vs.
HON. GEORGE CARAM STEEH
CITY OF WARREN,
Defendant.
_____________________________/
OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT [ECF No. 26] AND DENYING DEFENDANT’S
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [ECF No. 27] \
Plaintiffs Tressa Sinha, Jennifer Piper and Dawn McLean work as
dispatchers and Linda DeVooght works as a dispatch supervisor for
defendant City of Warren’s Police Department. Plaintiffs each allege that
they are discriminated against based on their gender by defendant’s policy
and practice of requiring female dispatchers to perform searches on
arrestees, while male dispatchers are never required to perform such
searches. In their Amended Complaint, plaintiffs assert that defendant’s
policy and practice violates their rights under the Equal Protection Clause
as provided for by 42 U.S.C. § 1983 (Count I), as well as their rights under

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Michigan law as guaranteed by the Elliott-Larsen Civil Rights Act
(“ELCRA”), M.C.L. § 37.2101 et seq. (Count II).
The matter is before the court on plaintiffs’ motion for partial summary
judgment [ECF No. 26] in which plaintiffs seek a declaratory judgment that
defendant’s policy is unconstitutional and violates the ELCRA. Also before
the court is defendant’s motion to dismiss or for summary judgment [ECF
No. 27] wherein defendant seeks dismissal of plaintiff’s lawsuit. Oral
argument was held on November 12, 2020. For the reasons stated below,
plaintiffs’ motion for partial summary judgment is DENIED and defendant’s
motion to dismiss or for summary judgment is DENIED.
FACTUAL BACKGROUND1
Defendant City of Warren employs 20 people as dispatchers and
dispatch supervisors – 16 women and four men. Three of the plaintiffs are
women employed as emergency dispatchers, and one plaintiff, Linda
DeVooght, is a woman employed as a dispatch supervisor. The City’s
main police station houses the dispatch center where plaintiffs work, as
well as a jail.

1

The parties submitted a joint statement of facts for purposes of the pending crossmotions for summary judgment [ECF No. 25]. The Court draws the following recitation
of the facts from that document as well as from exhibits attached to the parties’ briefs.
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The City’s General Order 19-04 governs arrest procedures for
prisoners taken into custody by the Warren Police. The Order provides that
an available male officer shall conduct the search of a male prisoner
arrested by a female officer (19-04, III.G.9). By contrast, when a female
prisoner is arrested by a male officer, an available female officer who is on
duty and in the station shall be called upon to conduct the search prior to
calling upon a female dispatcher to perform the search (19-04, III.G.10).
The search is to be conducted by a female dispatcher when there are no
female officers on duty and in the building at the time of booking (19-04,
III.G.14.a.). There is no provision for male dispatchers to ever search a
prisoner. The City’s policies have required female dispatchers to conduct
prisoner searches since the mid-1970’s.
The job description for dispatchers was last revised in 2003. Earlier
versions of the dispatcher’s duties listed “processing” arrested persons, but
the revised version provides that dispatchers “[a]ssist[] in the
searching/processing of arrested persons in the station, as necessary, at
the direction of a supervisor.” Job duties for the position of Dispatcher
Supervisor include: “Performs general dispatch duties.” The collective
bargaining agreement (“CBA”) governing the terms of employment for the
dispatchers does not mention prisoner searches.
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Plaintiffs contend that the City’s General Order discriminates against
female dispatchers on the basis of gender, creating two separate and
unequal workplaces for its dispatcher employees. On an average day,
approximately 9.1 prisoners are brought into the jail with an average of 2.4
being female. City records reveal the number of searches of female
prisoners conducted by female dispatchers has increased from about a
quarter to over a third of all such searches over the last few years:
2017 - 194 out of 725 searches, or 26.8% of searches,
2018 – 253 out of 978, or 25.9% of searches,
2019 – 300 out of 806, or 37.2% of searches,
January to March, 2020 – 69 of 156, or 44.2% of searches.
The duty to conduct a prisoner search exposes the dispatcher to
significant dangers. Plaintiffs describe instances in which dispatchers were
required to conduct searches without officer backup, searched a subject
with a knife, struggled with prisoners who are intoxicated and verbally and
physically aggressive, searched arrestees with open wounds and sores, or
who were high on drugs. Some dispatches came into contact with an
arrestee’s blood or urine, and some performed strip searches alone without
assistance from an officer.

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Sworn police officers undergo extensive training on how to conduct a
custodial search, disarm a prisoner, manage a chain of evidence and
remove dangerous articles. Plaintiffs argue the City of Warren has failed to
provide training to the civilian female dispatchers that is comparable to the
training police officers receive. For example, dispatchers do not receive
training in self-defense or in the use of force to subdue a prisoner. Nor
have they had training to search, disarm, or remove contraband from a
prisoner. The training provided at initial hiring for dispatchers lasts
approximately 15 minutes. (Sinha Decl. ¶ 9.) Ms. DeVooght recalls a
video, shown approximately once a year, demonstrating custodial searches
of prisoners. (DeVooght Decl. ¶ 10.) Ms. Piper and Ms. McLean’s only
training in their 15 years and 23 years of employment was a single
demonstration provided by a dispatcher. (Piper Decl. ¶ 8; McLean Decl. ¶
9.)
Plaintiffs argue that in addition to the discriminatory policy of being
required to perform searches based on their gender, the City also
discriminates by failing to provide additional compensation or benefits to
female dispatchers to reflect the work required of them but not of male
dispatchers.

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There is a history of complaints by dispatchers to the union regarding
the requirement to conduct searches. In 1993, dispatchers, all of whom
were female at the time, received a pay increase after a grievance
prompted the union to negotiate on their behalf. Defendant does not
dispute that today there is no pay differential based on gender despite the
difference in duties as it relates to conducting prisoner searches.
There are various unexpected ways in which plaintiffs are treated
differently than their male counterparts due to the requirement that they
conduct prisoner searches. Plaintiff Piper underwent knee surgery and
took a medical leave of absence in the summer and fall of 2019. She
attempted to return to work once she was cleared to perform sedentary
duty. However, defendant refused to allow Ms. Piper to return to work until
she could perform the physical demands of completing a prisoner search.
Ms. Piper was not paid until she was able to perform prisoner searches due
to the terms of defendant’s General Order. By contrast, a male dispatcher
who underwent hernia surgery around the same time, was able to resume
work as a dispatcher having only been cleared for sedentary work.
Plaintiffs also maintain that although the General Order requires that
a female officer on duty and in the station be called upon to conduct a
prisoner search, in practice this policy is not always followed. Plaintiffs
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document 22 occasions from June 2019 through June 2020 where a
female dispatcher was required to conduct a prisoner search even though a
female officer was available [ECF No. 26-7].
According to the Department of Justice, in 2013 the number of female
police officers in municipal police departments averaged 12%. At the
Warren Police Department, approximately 7% of the police force is made
up of female sworn officers of various ranks (approximately 14 of 200
officers are female).
Plaintiffs’ expert witness, Brandon del Poso, reviewed the Warren
Police Department’s policy regarding searches of female prisoners and
offered his opinion. In his report, del Poso states that best practices in
policing and maintaining a jail at a police station dictate that safe searches
of arrested individuals be conducted as follows: 1) direct a sworn officer of
the sex requested by the prisoner to conduct the search; or 2) direct a
sworn officer who matches the apparent sex of the prisoner; or 3) if no such
officer is available, summon a sworn officer from a neighboring jurisdiction
who matches the prisoner’s apparent sex or requested sex to conduct the
search (del Poso Expert Report at pp. 865-7).
In order to encourage female officers to work full-time in the Warren
Jail, WPD offers a shift premium. This results in at least one female officer
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in the Warren Jail on every shift. However, there are times when the officer
is not physically present in the jail, such as if she is called to active duty or
is on sick or vacation leave. At oral argument, counsel described these
instances as “exceptionally rare.”
When plaintiffs filed this case on March 27, 2020, they sought
preliminary injunctive relief after expressing concerns regarding the lack of
personal protection equipment (“PPE”) necessary to conduct arrestee
searches during the coronavirus pandemic. PPE was made available and
distributed to all personnel, including dispatchers. In lieu of a preliminary
injunction hearing the parties entered a Stipulated Interim Agreement.
Pursuant to the Stipulation, General Order 20-03 was issued, which
amended the current dispatcher search policy to include gender-neutral
language. The manner in which the policy is implemented has not
changed.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows the Court to make an
assessment as to whether the plaintiff has stated a claim upon which relief
may be granted. Under the Supreme Court=s articulation of the Rule
12(b)(6) standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56
(2007), the Court must construe the complaint in favor of the plaintiff,
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accept the allegations of the complaint as true, and determine whether
plaintiff=s factual allegations present plausible claims. Even though the
complaint need not contain Adetailed@ factual allegations, its Afactual
allegations must be enough to raise a right to relief above the speculative
level on the assumption that all the allegations in the complaint are true.@
New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051
(6th Cir. 2011) (citing Twombly, 550 U.S. at 555).
Federal Rule of Civil Procedure 56(c) empowers the court to render
summary judgment "forthwith if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." See Redding v. St.
Eward, 241 F.3d 530, 532 (6th Cir. 2001). The standard for determining
whether summary judgment is appropriate is "'whether the evidence
presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.'"
Amway Distributors Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390
(6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25152 (1986)). The evidence and all reasonable inferences must be construed
in the light most favorable to the non-moving party. Tolan v. Cotton, 572
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U.S. 650, 660 (2014); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001).
If the movant establishes by use of the material specified in Rule
56(c) that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law, the opposing party must come forward with
"specific facts showing that there is a genuine issue for trial." First Nat'l
Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v.
988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations
or denials in the non-movant's pleadings will not meet this burden, nor will
a mere scintilla of evidence supporting the non-moving party. Anderson,
477 U.S. at 248, 252. Rather, there must be evidence on which a jury
could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing
Anderson, 477 U.S. at 252).
ANALYSIS
I. Equal Protection Clause
Individuals have a right, protected by the Equal Protection Clause of
the Fourteenth Amendment, to be free from discrimination on the basis of
sex in public employment. Smith v. City of Salem, Ohio, 378 F.3d 566,
576–77 (6th Cir. 2004) (citing Davis v. Passman, 442 U.S. 228, 234–35
(1979). Individuals may bring Equal Protection claims under 42 U.S.C.
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§1983 asserting unlawful discrimination in the terms and conditions of their
employment against public employers. See, e.g., Smith, 378 F.3d at 577;
Weberg v. Franks, 229 F.3d 514 (6th Cir. 2000). The City’s decision to
impose different duties on male and female dispatchers is codified in its
General Orders, which are the official policy, practice, and custom of the
City; therefore, municipal liability is established. Pembaur v. City of
Cincinnati, 475 U.S. 469, 478 (1986).
In this case, the challenged policy, as well as its application, requires
female dispatchers, and never their male counterparts, to perform the
potentially dangerous work of searching prisoners. For purposes of stating
a claim of unlawful discrimination, “[t]he direct evidence and circumstantial
evidence paths are mutually exclusive; a plaintiff need only prove one or
the other, not both. If a plaintiff can produce direct evidence of
discrimination[,] then the McDonnell Douglas–Burdine paradigm is of no
consequence.” Kline v. Tenn. Valley Auth., 128 F.3d 337, 348-49 (6th Cir.
1997)). A facially discriminatory policy serves as direct evidence of
discrimination. Heike v Guevara, 519 F. App’x 911, 919 (6th Cir. 2013)
(quoting Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)).
By treating female dispatchers differently based on their gender, the policy
at issue is indeed facially discriminatory.
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The burden then shifts to defendant to establish a justification for the
policy that satisfies the heightened standard for gender-based
classifications:
the reviewing court must determine whether the proffered
justification is “exceedingly persuasive.” The burden of
justification is demanding and it rests entirely on the State. The
State must show at least that the challenged classification
serves important governmental objectives and that the
discriminatory means employed are substantially related to the
achievement of those objectives.
United States v. Virginia, 518 U.S. 515, 532-33 (1996) (citation and
quotation marks omitted). It is not necessary to demonstrate “malevolent
motive” for a policy to be in violation of the Constitution. UAW v. Johnson
Controls, Inc., 499 U.S. 187, 199 (1991).
While plaintiffs bring their intentional discrimination claim under §
1983, courts evaluate such claims of disparate treatment by a state
employer the same as if brought under Title VII. See Grano v. Dept. of
Dev., 637 F.2d 1073, 1082 (6th Cir.1980). Under this analysis, overt
discrimination is permissible if the disparate treatment is based on a bona
fide occupation qualification (“BFOQ”). Reed v. Cty. of Casey, 184 F.3d
597, 599 (6th Cir. 1999). The BFOQ exception to Title VII was “meant to
be an extremely narrow exception to the general prohibition of
discrimination . . . .” Dothard v. Rawlinson, 433 U.S. 321, 334 (1977). The
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Supreme Court has framed the exception in various ways. For example,
“’discrimination based on sex is valid only when the essence of the
business operation would be undermined by not hiring members of one sex
exclusively.’” Id. (quoting Diaz v. Pan Am. World Airways, 442 F.2d 385,
388 (5th Cir.) (rejecting the contention that sex was a BFOQ for airline flight
attendants because the airline's proposed justification - to provide a
“pleasing environment” for passengers - was merely tangential to the
airline's primary objective of providing safe transportation)). Courts have
also held that “an employer could rely on the BFOQ exception only by
proving ‘that he had reasonable cause to believe, that is, a factual basis for
believing, that all or substantially all women would be unable to perform
safely and efficiently the duties of the job involved.’” Id. (citation omitted).
Where the employer institutes a sex-based policy that is the result of
a “reasoned decision-making process,” it may be entitled to a BFOQ
defense. See e.g., Everson v. Michigan Department of Corrections, 391
F.3d 737 (6th Cir. 2004); Reed, 184 F.3d 597; Strozier v. Warren Cty.,
Ohio, No. 1:17-CV-817, 2020 WL 3867316 (S.D. Ohio July 9, 2020).
Accepted reasons supporting the decision to institute sex-based polices
have included preventing sexual abuse in prisons and protecting the
privacy rights of prisoners. Reasons such as these justified excluding male
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correction officers from positions in the housing units at female prisons,
Everson, 391 F.3d at 753, and assigning female deputy jailers to
undesirable shifts in order to supervise female prisoners, Reed, 184 F.3d at
599.
The Sixth Circuit has held, in order to assert a valid BFOQ defense,
the employer bears the burden of showing that it: (1) had a “basis in fact”
for its belief that gender discrimination is “reasonably necessary” to the
normal operation of its business; (2) the job qualification relates to the
essence, or to the central mission, of the employer; and (3) that no
reasonable alternatives exist to discriminating based on sex. Everson, 391
F.3d at 748-49.
A.

Is Dispatcher’s Gender “Reasonably Necessary” to Normal
Operation of WPD?

Defendant must demonstrate that it has a “basis in fact” for its belief
that requiring female dispatchers, but not male dispatchers, to conduct
searches of female arrestees “is ‘reasonably necessary’ – not merely
reasonable or convenient—to the normal operation of its business.”
Everson, 391 F.3d at 748 (citations omitted).
Both sides acknowledge that prisoners maintain certain privacy rights
that mandate same-sex prisoner intake searches. See Cornwell v.
Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992) (Every incarcerated individual
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“maintains some reasonable expectations of privacy while in prison,
particularly where those claims are related to forced exposure to strangers
of the opposite sex, even though those privacy rights may be less than
those enjoyed by non-prisoners.”) It is therefore the case that a female
must perform a search on a female prisoner. It can also be said that
processing arrestees, which includes searching them at intake, is a task
that falls within the normal business of WPD.
The BFOQ defense is routinely analyzed in the jail or prison setting.
Both Everson and Reed are cases where the Sixth Circuit concluded that
female gender was a BFOQ for correction officers in female correctional
facilities as well as in jails where female prisoners are processed. The
Court also held that the “reasoned decisions of prison officials are entitled
to deference and that the goals of security, safety, privacy, and
rehabilitation can justify gender-based assignments in female correctional
facilities.” Everson, 391 F.3d at 750.
As has been documented, female officers make up only 7% of WPD’s
police force. Faced with a police force made up of very few female officers,
and a requirement that female prisoners be searched by a female, WPD
took measures to ensure that at least one female officer is on duty at the
jail during all shifts. In settling on the challenged policy, WPD struck a
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balance by imposing the female prisoner intake search duty upon female
dispatchers only when a female police officer is not available. Defendant
has shown that it has a basis in fact for its belief that requiring female
dispatchers to conduct searches of female arrestees when a female police
officer is not available is reasonably necessary to the normal operation of
its business.
B.

Does the Requirement that Female Dispatchers Search
Female Arrestees Relate to the Essence of the WPD’s
Business?

The Supreme Court has stressed that “in order to qualify as a BFOQ,
a job qualification must relate to the essence, or to the central mission of
the employer's business.” Johnson Controls, 499 U.S. at 203 (internal
citations and punctuation omitted). The essence of the WPD’s business
can be summed up as ensuring the safety of the community through law
enforcement. The Warren Police Station houses both a jail and a dispatch
center.
“The ‘essential nature’ of the [jail] is to lodge, keep, transport, feed
and care for prisoners.” Reed, 184 F.3d at 599. There is no dispute that it
is necessary to conduct a prompt and thorough intake search of each
prisoner, including female prisoners, coming into the Warren Jail to recover
concealed drugs, weapons, contraband and other items that could be
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dangerous, so that other prisoners and all WPD personnel remain safe and
secure in the facility. There is also no dispute that intake searches of
female prisoners must be conducted by a female.
However, because the discriminatory policy involves dispatchers, and
because the BFOQ defense is “an extremely narrow exception,” Dothard,
433 U.S. at 334, perhaps the essence of defendant’s business should also
be viewed more narrowly. If the focus is narrowed, the “essence or central
mission” of the dispatch center is to receive calls, dispatch units to respond
to emergencies, answer questions, verify information, and process and
maintain records related to emergency response. This is gleaned from the
statement of duties in the WPD Dispatcher job description:
Receives and transmits messages over a radio communication
system. Receives complaints and relays information or
instruction from and to remote units. Receives incoming
telephone calls and makes independent judgment relative to
the kind of action necessary. Receives, types and sends LEIN
messages and broadcasts to appropriate units. Enters
information into Computer Aided Dispatch consoles.
(“Dispatcher” revised 08/03). The job description also lists typical
examples of work, the last of which provides: “[a]ssists in the
searching/processing of arrested persons in the station, as necessary, at
the direction of a supervisor.” While we know that female dispatchers at
WPD are required to conduct prisoner searches, when viewed narrowly,
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the “essence” of the dispatch center is a place that receives calls and
connects people with appropriate emergency services.
Male dispatchers are not required to conduct searches because that
is not central to the job of dispatcher or to the essence of the business of
the dispatch center. Nor is there evidence that defendant has a reasonable
basis for believing that all male dispatchers would be unable to safely and
efficiently perform the duties of dispatcher, such that the job can only be
performed by females. See Dothard, 433 U.S. at 334. Indeed, defendant
employs male dispatchers.
If the essence of its business is viewed broadly, encompassing all
aspects of law enforcement, including prisoner care, defendant has a
stronger argument that a dispatcher’s gender relates to its mission. But if
the essence of its business is viewed more narrowly, focusing on the
central mission of the dispatch center, then defendant has not shown that
requiring female dispatchers to conduct intake searches of female
prisoners relates to the essence of its business. At this stage, the Court
need not decide this point because even assuming the second element of
the BFOQ defense has been met, defendant has not satisfied the third
element of the defense.

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C. Does a Reasonable Alternative Exist to Requiring Female
Dispatchers to Conduct Prisoner Searches?
The Sixth Circuit requires employers asserting a BFOQ defense to
establish that no reasonable alternatives exist to discrimination on the basis
of sex. Everson, 391 F.3d at 749 (citing Reed, 184 F.3d at 600). Plaintiffs
propose several alternatives to the current policy. Defendant rejects each
one as not being reasonable.
Defendant’s position is that the number of female police officers at
WPD is insufficient to ensure that one will always be readily available to
search female prisoners when they arrive at intake. Defendant explains
that because WPD is one of the few local police departments with its own
dispatch center in the state of Michigan, and given that dispatchers are
located on-site 24 hours a day, 7 days a week, it has chosen to impose the
search job duty upon its female dispatchers to ensure that female intake
searches are timely done by trained personnel in accordance with prisoner
privacy interests.
In support of its chosen solution, defendant points out that the policy
has been narrowly drafted to provide that a female dispatcher is to be
called upon only when a female police officer is not available. General
Order 2019-04; General Order 2020-03. It also points to the fact that

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dispatchers were given a raise almost forty years ago to compensate them
for this additional job duty.
Plaintiffs’ expert opines that a reasonable alternative is for WPD to
have female police officers always search the female prisoners. If WPD
ensured that female officers are distributed across shifts, it would contribute
to the “good order and efficiency of the department” (Expert Report, p. 7).
Defendant points out it is already doing this by offering shift premiums to
female officers who are willing to occupy a full-time position at the jail.
However, the female officer on duty at the jail does not perform all of the
searches at issue. The statistics show that over a third of the searches,
amounting to almost one per day, still fall to the female dispatchers.
Plaintiffs’ next proposal is to hold female prisoners in a location
separated from others until a female police officer becomes available.
Defendant responds that this alternative has several flaws. First is that
female inmates may be left waiting for an indeterminate period of time
which raises obvious safety concerns if the primary reason for conducting
an arrestee search is to confiscate contraband. Second, with only one
holding cell and two detox cells, there is not always going to be an
available place to hold a female arrestee who has not yet been searched.

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Plaintiffs respond with their next alternative, which is that an on-duty
female police officer could be called in from the field when a female
arrestee is brought to the station. Defendant’s position on this alternative is
that if female officers are subject to being called away from their other
duties, they will become ineligible for prized assignments and will therefore
not be able to fully participate in their chosen fields. According to
defendant, the logical consequence is that female officers will become
limited-assignment employees while their male counterparts are able to
conduct the full array of police work.
The final alternative offered by plaintiffs is that aid could be solicited
from another jurisdiction when necessary. Defendant dismisses this idea
as unreasonable by simply saying it is something it cannot impose on its
neighboring police departments. But perhaps an agreement between two
or more police departments would prove to be mutually beneficial.
It is defendant’s burden to establish that no reasonable alternatives
exist. Defendant has not shown any significant effort to examine the
alternatives put forth by plaintiff’s expert witness. Nor has defendant
adequately explained how the measures undertaken to ensure that a
female officer is assigned to the jail during all shifts have nevertheless
resulted in female dispatchers doing more searches rather than fewer. The
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Court finds there is an issue of material fact whether there are any
reasonable alternatives to the facially discriminatory policy adopted by
defendant.
II. ELCRA Claim
Claims brought under Michigan’s ELCRA “involve the same analysis
as Title VII claims.” McDaniels v. Plymouth-Canton Comm. Sch., 755 Fed.
App’x 461, 469 n.3 (6th Cir. 2018) (citing Sutherland v. Mich. Dep’t of
Treasury, 344 F.3d 603, 614 n.4 (6th Cir. 2003)); see also Everson, 391
F.3d 748 n.14 (discussing M.C.L. § 37.2208); Reed, 184 F.3d at 599.
Therefore, pursuant to the Court’s analysis above, having found genuine
issues of material fact remain as to whether the BFOQ defense applies in
this case, the parties’ cross-motions for summary judgment on this count
are also denied.
III. Failure to Exhaust Under CBA
Plaintiffs McLean, Piper and Sinha are part of the Warren Police
Officer’s Association (“WPOA”) and covered under the terms of the
Collective Bargaining Agreement (“CBA”). Plaintiff DeVooght was
promoted to the position of Dispatch Supervisor on February 20, 2015 and
is part of the Warren Police Department Command Officer’s Association
(“WPCOA”), covered under the terms of the WPCOA CBA. The CBAs do
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not mention prisoner searches by dispatchers. Plaintiffs did not file a
formal grievance with the WPOA or WPCOA prior to filing this action.
Defendant argues that exhaustion of internal appeals under the CBA
is required before plaintiffs can bring their lawsuit in federal court.
Defendant relies on Clayton v. International Union, UAW, 451 U.S. 679
(1981), where the Court held that exhaustion of internal appeals is required
before an employee can sue the employer and the union under Section 301
of the Labor Management Relations Act. In § 301 cases, the plaintiff
alleges that the union breached its duty of fair representation, and the
employer breached the CBA by terminating without just cause. Clayton is
expressly limited to § 301 claims, and it does not compel exhaustion of
internal union remedies in a case alleging discrimination under state and
federal statutes. Bolin v. General Motors, LLC, 2019 WL 196885 (E.D.
Mich. Jan. 13, 2019) (rejecting union exhaustion requirement in ADEA
case). Another case relied on by defendant involved the imposition of a
drug screening requirement that was codified within and implemented
through the CBA. Bailey v. Beaver Precision Products, Inc., 678 F. Supp.
684 (E.D. Mich. 1998). Thus, the question of whether the drug screening
requirement was discriminatory involved interpretation of the terms of the
CBA itself.
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Unlike Bailey, the discriminatory policy in this case is implemented
through the City’s General Orders and is not set forth as a term of the CBA.
Plaintiffs have not sued the City for violating a CBA and have not asserted
that their unions breached any duty of fair representation. Therefore,
exhaustion of contractual remedies is not required.
CONCLUSION
The Court finds that plaintiffs have stated causes of action for which
relief can be granted. The Court further finds that there are issues of fact
that preclude the granting of summary judgment. Now, therefore,
IT IS HEREBY ORDERED that defendant’s motion to dismiss or for
summary judgment [ECF No. 27] is DENIED.
IT IS HEREBY FURTHER ORDERED that plaintiffs’ motion for partial
summary judgment [ECF No. 26] is DENIED.
IT IS HEREBY FURTHER OREDERED that the parties shall consult
with each other and submit a proposed scheduling order to the case
manager by Friday, December 4, 2020.
Dated: November 16, 2020
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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