Thompson v. Lansing, City of et al

Filing 42

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

U N I T E D STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

R IC H A R D THOMPSON, P l a in tif f , F ile No. 1:08-cv-409 v. H O N . ROBERT HOLMES BELL C I T Y OF LANSING and THE CITY OF LANSING POLICE DEPARTMENT, and EDWARD FORREST, Mayor VIRG VERNERO, individually, jointly and severally, D e f e n d a n ts . / OPINION P la in tif f Richard Thompson sued Defendants City of Lansing, The City of Lansing P o lic e Department, Captain Edward Forrest, and Mayor Virg Bernero 1 alleging one count of re v e rs e discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000(e) et seq. ("Title VII"), and the Elliot-Larsen Civil Rights Act, Mich. Comp. Laws § § 37.2101 et seq. ("ELCRA"). Defendants filed a motion for summary judgment in July 2 0 0 8 . (Dkt. No. 16.) Plaintiff responded and also sought leave to amend the complaint, a tta c h in g a proposed amended complaint to add a claim of violation of equal protection p u rs u a n t to 42 U.S.C. § 1983, and a claim of discrimination pursuant to 42 U.S.C. § 1981.

The Court follows the spelling of Defendant Bernero's name as set forth in Defendants' pleadings rather than as set forth in Plaintiff's complaint.

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(D k t. No. 18.) Defendants filed a response to the motion to amend. (Dkt. No. 20.) At the c lo s e of discovery, Defendants filed a renewed motion for summary judgment based on new in f o rm a tio n . (Dkt. No. 30.) Plaintiff has filed a response to the renewed motion. (Dkt. No. 3 3 .) The Court heard oral argument from the parties on February 20, 2009. At oral arg um ent, the Court requested additional evidence and briefing from Defendants; Defendants f ile d supplemental briefs and evidence on February 24 and 25, 2009. (Dkt. Nos. 36, 37.) P la in tif f filed a response to the supplemental filings on March 10, 2009. (Dkt. No. 40.) I. The Court has subject matter jurisdiction over Plaintiff's Title VII and state law c la im s pursuant to 28 U.S.C. §§ 1331 and 1367. II. O n March 16, 2007, Plaintiff Richard Thompson, a white male, submitted an ap p lica tio n for employment with the City of Lansing for a position as a police officer. P la in t if f was interviewed for the position of Police Officer I on March 23, 2007. In April 2 0 0 7 , Plaintiff received a letter dated April 16, 2007, from HR Specialist Heather McGinnis in d ica tin g that he had been selected for the current police officer roster. The letter states, in re lev a n t part: D e a r Mr. Thompson: On behalf of the Lansing Police Department, I would like to congratulate you on your s u c c es s f u l completion of the Police Officer Oral Board Interview. It has been d e te rm in e d that the score you achieved in your interview allows you to be placed on the current Police Officer Roster. 2

. . . If you are selected to fill a vacancy with the Lansing Police Department while this ro s te r is in effect, I will be in contact with you regarding the next phase of the process. (D k t. No. 1, Ex. A.) M c G in n is prepared a roster of candidates for the 2006-2007 hiring process "on or a b o u t" April 27, 2007. (Defs. Ex. F, McGinnis Aff. ¶ 5.) As the hiring process continued " th e next to last column was filled in to show the final results of the process." (Id.) The r o s te r lists candidates in order according to their score following the oral interview process. (P l. Ex. 5, 2006-2007 Hiring Roster.) The roster also indicates the hiring decision for each c a n d id a te . (Id.) Next to the names of candidates Randall Hon and Dontae Hairston is typed th e word "Hired." Other candidates, including Plaintiff, have handwritten notes next to their n a m e , such as "hired" or "denied." (Id.) Lieutenant Craig Baylis testified that candidates th a t "passed" under the 2006 process were carried over to the 2007 process and were listed o n a merged "2006/2007" hiring roster. (Pl. Ex. 7, Baylis Dep. 43.) Baylis also testified that a ll of the names with typed entries for the hiring decision came from the 2006 hiring process, a n d that he entered this data after the hiring decision had been made and before the merged 2 0 0 6 /2 0 0 7 roster was prepared. (Baylis Dep. 44-47.) The roster indicates that as part of the 2 0 0 6 /2 0 0 7 hiring process, twelve of the fourteen officers that were hired were white, and e le v e n of the fourteen were white males, including eight white candidates that scored below P la in tif f . (Pl. Ex. 5, 2006/2007 Hiring Roster; McGinnis Aff. ¶ 5.) The lowest scoring c a n d id a te hired was a white male. (Id.) The two minority candidates listed on the roster,

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R a n d a ll Hon and Dontae Hairston, scored below Plaintiff. (Id.) On June 25 2007, Plaintiff signed a "Conditional Offer of Probationary Employment" n o tin g that Plaintiff's employment would be subject to Plaintiff successfully passing certain p re re q u is ite s, including a background investigation, psychological tests, approval by the h irin g committee, a physical exam, and an interview with or approval by the chief of police.2 (P l. Ex. 8, Conditional Offer of Probationary Employment.) D e te c tiv e Steve McClean conducted a background investigation of Plaintiff and s u b m itte d his report, dated May 31, 2007, to Defendants. (Pl. Ex. 16, Background

In v e stig a tio n Report of Richard Allen Thompson.) According to the report, Plaintiff in d ic a te d that at a previous job with the Kalkaska Sheriff's Department, a female trainee filed a complaint that he "was intimidating her," but he was cleared of any wrongdoing and no d is c ip lin e resulted. (Id. at 10.) The report also notes that: N e a r the end of my completion of this report, I was advised by Sgt. Del Kostanko that . . . he was approached by two Sergeants from the Kalkaska Sheriffs Department that a d v is e d him that . . . if Thompson were hired he would immediately create problems f o r our agency. . . . I further inquired through Sgt. Kostanko as to more specific information provided by th e sergeants. He advised me that they said specifically that he "hated women", and th a t Thompson was a "job jumper" who would always be looking for a reason to sue th e department.

The Court is somewhat troubled by what it perceives as Plaintiff's perception that Defendants' conditional offer of employment constituted a firm offer or expectation of employment. The document signed by Plaintiff could not be more clear that any offer of employment was "conditional" upon meeting certain prerequisites and could be "withdrawn at any time in the sole discretion of the City of Lansing." (Pl. Ex. 8.) 4

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(Id . at 16.) Detective McClean spoke with the female officer that filed a complaint against P la in tif f at the Kalkaska Sheriff's Department. McClean reported that this officer . . . was not of the opinion Thompson had "woman issues", but he was at that time w h a t she best described as "pretty egotistical" . . . . She felt that her issues with him s h o u ld not preclude him from working with this agency both because of the time that h a s elapsed since then during which time he has probably matured and because his " a ttitu d e s" had not prevented him from doing a good job. (Id . at 17.) Ultimately, the McClean's report concludes: A s far as the issue related to some of his "coworkers" that he had issues with in K a lk a sk a , I came away with the idea that he was just tied up in a quagmire of small t o w n , petty gossip and jealousies, which were pretty much confirmed in the in f o rm a tio n provided by Under Sheriff Gaultiere. Regarding the allegations made by [ th e female officer at the Kalkaska Sheriff's Department], I have no reason to believe th e y are not true, but I don't feel they are anything out of the ordinary for something o n e might expect to hear from the "rookie male cop" as he goes through the first c o u p le years thinking he is pretty special. . . . I see him being able to relate with those we are many times asked to relate with in a respectable, even sympathetic way when necessary. I also have no reason to think th a t he'll have any problems standing up to those that will unquestionably challenge h im personally. (Id . at 19-20.) Defendant Forrest testified at his deposition that he reviewed the background in v e stig a tio n by Detective McClean and decided not to recommend the hiring of Plaintiff: Q. A. W h y did you decide to pass on the candidacy of Mr. Richard Thompson? Because of the indicators and factors that I previously explained. It appeared th at there was an issue that he had with women. Also that there were in d iv id u a ls that came forward from his organization that provided information th a t I believe that there were some other underlying issues there.

(P l. Ex. 13A, Forrest Dep. 77.) Defendant Forrest also testified that he consulted with both 5

C h ie f of Police Mark Alley, a white male, and HR Specialist Susan Graham, and they each a g re e d with the decision not to hire Plaintiff based on the information in the background re p o rt. (Id. at 72-73.) Chief Alley testified that he also reviewed the background report and th a t he is ultimately responsible for the hiring decisions. (Pl. Ex. 14, Alley Dep. 18, 27.) O n July 12, 2007, Plaintiff received a letter from Defendant Forrest dated July 3, 2 0 0 7 , denying him an offer of employment. (Pl. Ex. 9, 07/03/2007 Forrest Letter; Thompson A f f ¶ 9.) Plaintiff subsequently contacted Detective McClean, who allegedly told Plaintiff th a t, despite the fact that Plaintiff had been approved, Plaintiff was "`bumped' in favor of m in o ritie s that Defendant Forrest had moved from the bottom of the list and that room had t o be made for the minorities." (Thompson Aff. ¶ 10.) McClean denies making this s ta te m e n t to Plaintiff. (McClean Dep. 20.) Plaintiff also alleges that McClean formed a plan w ith Lieutenant Baylis to meet with Defendant Forrest and Chief of Police Mark Alley to c o n v in c e them to have both minorities hired as well as Plaintiff. (Thompson Aff. ¶ 11.) M c C le a n testified that he did meet with Defendant Forrest and Lieutenant Baylis to discuss th e decision to deny employment to Plaintiff, but he denies having conceived a plan to have P la in tif f hired together with minorities. (McClean Dep. 20.) McClean also testified that he w a s not part of the decision-making process and had not seen the hiring list prior to speaking w ith Plaintiff. (Id. at 20, 42.) P la in tif f testified that he did not suffer any wage losses as a result of not being hired, b e c au s e he was being paid a higher salary in his then-current position than he would have

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m a d e as a Lansing Police Officer. (Pl. Ex. 3, Thompson Dep. 26.) Plaintiff also testified that h e has not experienced any medical or psychological issues as a result of not being hired. (Id . at 73.) I I I. A . Stipulated Dismissal D e f e n d a n ts assert that the City of Lansing Police Department is not a separate entity th a t can be sued. Plaintiff agrees. All claims against the City of Lansing Police Department w ill be dismissed. D e f e n d a n t s assert that individual Defendants Forrest and Bernero do not have " e m p lo ye r" liability under Title VII. Plaintiff agrees. The Title VII (but not the Michigan s ta te law claim) against Defendants Forrest and Bernero will be dismissed. Plaintiff also stipulates to dismissal of claims against Defendant Bernero in his official a n d individual capacity. T h u s , after dismissal of claims, what remains from Plaintiff's original complaint is the T itle VII claim against the City of Lansing, and the ELCRA state law claim against D e f e n d a n ts Forrest and the City of Lansing. Also remaining are the equal protection claim u n d e r § 1983 and the discrimination claim under § 1981 from Plaintiff's proposed amended c o m p lain t. B . Summary Judgment D e f e n d a n ts seek summary judgment on Plaintiff's claims of discrimination under Title

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V II and the ELCRA. Under Rule 56(c) of the Federal Rules of Civil Procedure, summary ju d g m e n t is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In evaluating a motion for summary judgment, the C o u r t must look beyond the pleadings and assess the proof to determine whether there is a g e n u in e need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1 9 8 6 ). If Defendants carry their burden of showing there is an absence of evidence to su p p o rt a claim, then Plaintiff must demonstrate by affidavits, depositions, answers to in ter ro g a to rie s, and admissions on file, that there is a genuine issue of material fact for trial. C e lo tex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). In considering a motion for summary judgment, the court must construe the evidence a n d draw all reasonable inferences in favor of the nonmoving party. Minges Creek, L.L.C. v . Royal Ins. Co. of Am., 442 F.3d 953, 955-56 (6th Cir. 2006) (citing Matsushita, 475 U.S. a t 587). The Court must view the facts in the light most favorable to the nonmoving party o n ly when there is a "genuine" dispute as to those facts. Scott v. Harris, 550 U.S. 372, 127 S . Ct. 1769, 1775 (2007). The mere existence of a scintilla of evidence in support of P la in tif f 's position is not sufficient to create a genuine issue of material fact. Anderson v. L ib e rty Lobby, Inc., 477 U.S. 242, 252 (1986). The proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for Plaintiff. Id. at 252; see generally S tr e e t v. J.C. Bradford & Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989).

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1 . Direct Evidence A plaintiff may show unlawful discrimination by direct evidence, which is evidence th a t, if believed, "requires the conclusion that unlawful discrimination was at least a m o t iv a tin g factor in the employer's actions." Wexler v. White's Fine Furniture, Inc., 317 F .3 d 564, 570 (6th Cir. 2003) (quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales C o r p ., 176 F.3d 921, 926 (6th Cir.1999)). As direct evidence, Plaintiff submits that Detective McClean told him that Defendants " b u m p e d " Plaintiff from the hiring process "in favor of minorities that Defendant Forrest had m o v e d from the bottom of the list and that room had to be made for the minorities." (T h o m p s o n Aff. ¶ 10.) McClean denies making this statement, contending that he had not s e e n the hiring list and did not have a basis for making the statement.3 (McClean Dep. 20.) A t first blush, the testimony by Plaintiff about what McClean said is inadmissible hearsay. S e e Fed. R. Evid. 801, 802. However, before addressing this evidentiary issue, the Court m u s t assess McClean's involvement in the decision-making process. The Sixth Circuit has held that "comments made by individuals who are not involved in the decision-making process regarding the plaintiff's employment do not constitute direct e v id e n c e of discrimination." Carter v. Univ. of Toledo, 349 F.3d 269, 273 (6th Cir. 2003). M c C le a n testified that he did not have a role in the hiring process other than to conduct and

Plaintiff contends that McClean's denial is disingenuous, referring to McClean's testimony that "If that information [in Plaintiff's affidavit] were believed and could be substantiated, yeah, initially, I thought, holy cow, you know, if somebody reads this that I'm going to work with, it's certainly going to affect my career." (McClean Dep. 37.) 9

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s u b m it the results of the background investigation. (McClean Dep. 42.) The parties do not d is p u te that Defendant Forrest made the initial hiring decision after review of the background in v e stig a tio n report, and that Chief Alley consulted with Forrest and HR Specialist Susan G ra h a m to make the final decision.4 Though McClean offered information and a

re c o m m e n d a t io n that would be evaluated by Defendant Forrest and Chief Alley, Plaintiff o f f ers no evidence that McClean was a decision-maker in the hiring process or had any a u th o rity to overrule a decision made by Defendant Forrest or Chief Alley. Plaintiff c o n c ed e s that McClean was not the final decision-maker. (Dkt. No. 33, Pl.'s Resp. in Opp. to Summ. J. 15.) Thus, even if McClean's alleged statements are admitted and believed by a jury, they do not constitute direct evidence of discrimination. See Carter, 349 F.3d at 273 (c o n c lu d in g that because the declarant was not a decision-maker, his statements are not direct ev iden ce of discrimination). E v e n if it were direct evidence, it is not admissible because it lacks foundation and it is hearsay. See Jacklyn, 176 F.3d at 927 (holding that the court may not consider hearsay e v id e n c e on a motion for summary judgment). Plaintiff contends that it is not hearsay b e c au s e it is an admission by Defendants' "employee . . . concerning a matter within the s c o p e of the agency or employment, made during the existence of the relationship . . . ." Fed. R . Evid. 801(d)(2). There is no dispute that McClean is an employee of the police

d e p a rtm e n t for the City of Lansing. (McClean Dep.10.) However, Defendants argue that
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Though not relevant for this issue, the parties disagree as to whether Chief Alley made an independent decision or merely "rubber-stamped" the decision of Defendant Forrest. 10

M c C le a n had no foundation for such a statement because McClean was not involved in the d e c i sio n - m a k i n g process. "[A] statement of an agent or employee may be admissible against th e principal . . . if within the scope of his agency or employment, but a proper foundation m u s t be made for such a statement to show it was within the scope of his agency or e m p lo ym e n t." Mitroff v. Xomox Corp., 797 F.2d 271, 276 (6th Cir. 1986). "[T]he party a rg u in g for admission bears the burden of establishing the proper foundation for the a d m is s ib ility of the statements." Liadis v. Sears, Roebuck & Co., 47 F. App'x 295, 303 (6th C ir. 2002) (citing Mitroff, 797 F.2d at 275). Plaintiff contends that the statement was made a f te r investigation by McClean, but Plaintiff offers no evidence as to what McClean in v e stig a ted , what information he might have gleaned, or what would have given him a basis f o r commenting on the reasons for Defendants' decision not to hire Plaintiff. Furthermore, "[s]tatements by employees are outside the scope of an employee's em p loym en t, and therefore not subject to the party-admission rule, when they concern d e c is io n -m a k in g processes into which the employee has no input, or decisions to which they w e re not a party." Id. (emphasis added) This issue is not resolved solely by determining w h e th e r the declarant is a direct decision-maker with respect to the adverse employment a c tio n , but involves other factors, such as whether the statements "`were made by m a n a g eria l-le v e l employees who have the ability to influence a personnel decision'" or w h e th e r the declarant has oversight over the composition of the workforce. Carter, 349 F.3d a t 275 (quoting Johnson v. Kroger, 319 F.3d 858, 868 (6th Cir. 2003)). There is no evidence

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th a t McClean was a party to the decision not to hire Plaintiff, that McClean had oversight o v e r the hiring decision, or that McClean was a "managerial employee" with the ability to in f lu e n c e the hiring decision. Thus, the Court concludes that McClean's alleged statements la c k foundation, and are not party admissions under Rule 801(d)(2)(D). Finally, McClean's alleged statements are blatantly contradicted by the undisputed re s u lts of the 2006/2007 hiring process. Scott, 127 S. Ct. at 1775. ("When opposing parties te ll two different stories, one of which is blatantly contradicted by the record, so that no re a so n a b le jury could believe it, a court should not adopt that version of the facts for p u rp o s e s of ruling on a motion for summary judgment."). McClean's statement, as reported b y Plaintiff, is that Defendants did not hire Plaintiff in order to make room for minorities at th e bottom of the roster. Plaintiff also contends that Detective McClean formed a plan to m e e t with Captain Forrest to discuss how Defendants could "have both the minorities as well a s [Plaintiff] hired . . . ." (Thompson Aff. ¶¶ 10-11.) The hiring roster indicates that eight w h ite candidates with scores lower than Plaintiff's were hired. The two minority candidates a p p e a rin g on the 2006/2007 roster scored in the top half of the group of hires. In other w o r d s , out of the fourteen total hires, the seven lowest scoring hires were white. Thus, P lain tiff cannot point to any minority candidate at the low end of the roster that Defendants f a v o re d at Plaintiff's expense. E v e n assuming that Defendants intended to ensure that at least one or two minority c a n d id a te s would be hired from the roster, there would have been no need "bump" Plaintiff

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f ro m the process to do so. There were fourteen candidates hired as part of the 2006/2007 p r o c e s s , but the lowest scoring minority candidate that was hired had the twelfth highest s c o re on the roster. (Pl. Ex. 5.) Thus, even if all of the high-scoring non-minority candidates f ro m the top of the list, including Plaintiff, had been hired, the two minority candidates that P lain tiff claims were favored over him would still have made the cut. Under the rule in S c o tt, the Court is not required to adopt Plaintiff's contention that Defendants "bumped" P la in tif f in order to make room for minorities at the bottom of the roster. 2. Circumstantial Evidence - Prima Facie Case In the absence of direct evidence of discrimination, a plaintiff may also offer c irc u m s t a n tia l evidence to establish a prima facie case under the burden shifting analysis d e sc rib e d in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas D e p a rtm e n t of Community Affairs v. Burdine, 450 U.S. 248 (1981). White v. Baxter H e a lth c a r e Corp., 533 F.3d 381, 391 (6th Cir. 2008). Under this framework, the plaintiff b e a rs the initial burden of establishing a prima facie case of discrimination. A prima facie c a se of employment discrimination requires a plaintiff to show that: (1) he is a member of a protected class; (2) he was qualified for his job; (3) he suffered an adverse employment d e c is io n ; and (4) he was treated differently than similarly situated individuals who are not m e m b e rs of his protected class. McDonnell Douglas, 411 U.S. at 800-04; Thurman v. Yellow F r e ig h t Sys., Inc., 90 F.3d 1160, 1166 (6th Cir.1996). If the plaintiff meets this burden, the b u rd e n shifts to the employer to "articulate some legitimate, non-discriminatory reason" for

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th e adverse employment action. McDonnell Douglas, 411 U.S. at 802. If the employer m e e ts its burden, the burden shifts back to the plaintiff to show that the defendant's proffered re a s o n was not its true reason, but merely a pretext for discrimination. Id. In reverse d i s c r im i n a t i o n cases under Title VII, but not under Michigan law, the first element of the p rim a facie case is that there are "background circumstances" that show that the defendant e m p lo ye r is the "unusual employer who discriminates against the majority." Sutherland v. M ic h . Dep't of Treasury, 344 F.3d 603, 614 (6th Cir. 2003). In their motion, Defendants challenge only the fourth prong of the Plaintiff's prima fa c ie case; thus, for purposes of this motion, the Court assumes that Plaintiff has met the re q u ire m e n ts of the first three prongs. Nevertheless, Plaintiff cannot make the required s h o w in g under the fourth prong. Plaintiff's claim fails because he cannot show that he was tre a te d less favorably than any similarly situated non-white candidates. Plaintiff was c o n sid e re d for hiring as part of the 2006/2007 roster of eligible candidates. Plaintiff was not s im ila rly situated with the two minority candidates listed on that roster, Randall Hon and D o n ta e Hairston, because they were not under consideration on that roster. The evidence s u b m itte d by the parties, including the 2006/2007 roster and the testimony of HR Specialist H e a th e r McGinnis and Lieutenant Craig Baylis, indicates that the decision to hire Hon and H a irs to n , had already been made before the 2006/2007 roster was created. There is no e v i d e n c e that any other non-white candidates were hired as part of the 2006/2007 process. P la in tif f asserts that there is a contradiction between the testimony of McGinnis and

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B a ylis regarding the creation of the roster, but their testimony indicates otherwise. McGinnis a ss e rts in an affidavit that, "On or about April 27, 2007, I prepared the hiring roster for the 2 0 0 6 -2 0 0 7 hiring process. Then as the process continued, the next to last column was filled in to show the final results of the process." (McGinnis Aff. ¶ 5.) The next-to-last column o n the roster is the column indicating in typed or handwritten text whether a candidate has b e e n hired or denied. Baylis testified that he personally entered the data for each of the typed e n t rie s into the departmental database during the 2006 process, prior to merger of the rosters.5 (B aylis Dep. 44-48.) Both of the minorities that are listed as hired on the 2006/2007 roster, H o n and Hairston, have typed entries indicating the hiring decision. (Pl. Ex. 5.) Baylis did n o t testify that he prepared all of the information in the roster, including the handwritten in f o r m a tio n , only that he entered the hiring data for the candidates from the 2006 process, in c lu d in g Hon and Hairston. (Id.) In comparison, McGinnis stated in her affidavit only that s h e "prepared" the roster in April 2007; she did not testify how she prepared it, other than th a t the hiring decisions were "filled in" as the process continued. She did not assert that she e n te re d the typed entries, or that the typed entries indicating the hiring decisions of Hon and H a irs to n were not present when she prepared the roster in April 2007. Plaintiff offers no e v id e n c e to dispute the hiring roster or the foregoing testimony of Baylis or McGinnis. Even

Earlier in his deposition, Baylis testified that the typed entries indicated decisions that were made prior to the handwritten decisions. (Baylis Dep. 40.) Upon further questioning, he recanted this statement stating, "I'm making an assumption based on the facts presented to me." (Id.) However, he later testified that he entered the typed entries during the 2006 process. (Id. at 46-47.) His later testimony is more specific and is not inconsistent with his earlier testimony. 15

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a ss u m in g arguendo that there is a dispute as to who created the roster document submitted b y Plaintiff, there is no genuine dispute that Baylis entered the hiring data regarding Hon and H a irs to n before the merged roster was created. F o llo w in g oral argument, the Court requested additional evidence from the parties re g a rd in g the timing of the hiring of Hon and Hairston. Defendants submitted additional e v i d e n c e indicating that both Hon and Hairston had been hired by March 2007. (Dkt. Nos. 3 6 , 37, Def. Exs. P - V.) Plaintiff objects to this evidence on the basis that it was not p ro v id e d in accordance with Rule 26(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. P lain tiff asks the Court to exclude this evidence pursuant to Rule 37(c), which states, in re lev a n t part: If a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion . . . u n le s s the failure was substantially justified or is harmless. F e d . R. Civ. P. 37(c). However, it is not necessary for the Court to consider Defendants' a d d itio n a l evidence or to decide whether the failure to provide the information is harmless o r substantially justified, because there is other evidence that supports Defendants' position. P l a in t i f f also argues that there is an issue of fact as to when Hairston was hired, s u b m i t t i n g a copy of a "position requisition form" which appears to indicate that Hairston s ta rte d the position of Police Officer I some time after October 2007, a few months after P la in tif f was denied employment. (Dkt. No. 40, Pl. Ex. C.) However, this evidence does not c re a te a genuine issue of fact because it does not indicate when the decision to hire Hairston

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w a s made, and does not contradict the evidence from the police roster and from the testimony o f McGinnis and Baylis, which indicate that the decision to hire Hairston had already been m a d e before Plaintiff was included as part of the 2006/2007 roster of eligible candidates. T h u s , the Court concludes that Plaintiff has failed to establish that there remains a g e n u in e issue of material fact with respect to whether Plaintiff was treated differently from a n y similarly-situated non-white candidates.6 C . Motion to Amend the Complaint B e c au s e Plaintiff filed his motion to amend after Defendants responded to the c o m p lain t, the motion to amend is governed by Rule 15(a)(2) of the Federal Rules of Civil P ro c e d u re . See Fed. R. Civ. P. 15(a)(2) (requiring that, when a party must seek leave of the co u rt to amend a pleading, the court should "freely give leave when justice so requires"). P l a in t if f ' s proposed amended complaint adds a § 1983 claim of violation of the Equal P r o te c tio n Clause,7 and a claim of discrimination under 42 U.S.C. § 1981. Defendants argue th a t amendment would be futile. Plaintiff admits that the added claims would stand and fall o n the same facts. (Dkt. No. 18, Pl. Mot. to Amend Compl. 2.) Given that Plaintiff cannot The facts underlying this case are not complex; Plaintiff claims that he was denied employment so that lower-scoring minority candidates could be hired. There are only two minority candidates that were hired during the 2006/2007 process, yet the Court notes that neither party focused on the timing of the decision to hire these minority candidates until after many months of discovery and two motions for summary judgment. The Court is disappointed with counsel for both parties that the relevant facts, and all the evidence supporting them, were not brought to the Court's attention much earlier in the proceedings of this case. Plaintiff appears to assume that his original complaint states a claim of Equal Protection, though this is not obvious to the Court. For purposes of this motion, it is not relevant in which complaint it appears. 17
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s h o w discrimination under Title VII, it would be futile for him to try to show discrimination u n d e r the Equal Protection Clause or under 42 U.S.C. § 1981. See Jackson v. Quanex Corp., 1 9 1 F.3d 647, 658 (6th Cir. 1999) ("We review claims of alleged race discrimination brought u n d e r § 1981 and the Elliot-Larsen Act under the same standards as claims of race d iscrim inatio n brought under Title VII."); Noble v. Brinker Int'l, Inc., 391 F.3d 715, 720 (6th C ir. 2004) (noting that employment discrimination claims under § 1981 are subject to the sa m e analysis as Title VII); Gutzwiller v. Fenik, 860 F.2d 1317 (6th Cir. 1988) ("As this c o u rt has observed several times, the showing a plaintiff must make to recover on a disparate t r e a tm e n t claim under Title VII mirrors that which must be made to recover on an equal p ro tec tio n claim under section 1983."); Watson v. City of Cleveland, 202 F. App'x 844, 856 (6 th Cir. 2006) ("Proving intentional discrimination for an equal protection claim brought u n d e r § 1983 requires the plaintiff to make the same showing required to prove a violation o f Title VII."). T h e re is some Sixth Circuit precedent indicating that "futility" analysis on a motion to amend examines whether the amended claims could withstand a motion to dismiss, rather th a n a motion for summary judgment. Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 4 2 1 (6th Cir. 2000). In Rose, the Sixth Circuit ruled that it was an abuse of discretion for the d is tric t court to deny a motion to amend the complaint without explanation. Id. at 420. The a p p e lle e in Rose argued that the decision to deny the motion to amend should nevertheless b e upheld because it was harmless, given that other available evidence could eventually result

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in summary judgment on the amended claims. Id. at 420-21. The court in Rose rejected this a rg u m e n t, holding that the "futility" inquiry determines whether the amended complaint c o u ld survive a motion to dismiss. Id. at 420. Unlike the lower court in Rose, however, this C o u rt has considered the relevant evidence on Defendants' motion for summary judgment a n d Plaintiff has had an opportunity to respond; moreover, unlike the proposed amendments in Rose, Plaintiff's proposed amended claims involve the same relevant facts and the same lega l standards as the facts and claims already before the Court on summary judgment. If P la in tif f is unable to prove a claim of reverse-discrimination under Title VII, then neither can h e do so under either § 1983 or § 1981. Nothing in Plaintiff's proposed amended complaint w o u ld preclude summary judgment for the same reasons already stated with respect to the claim s in Plaintiff's original complaint. In other words, this is not a circumstance where "jus tice so requires" the Court to grant leave to amend. For the foregoing reasons, Plaintiff's m o tio n to amend will be denied. A n order will be entered that is consistent with this opinion.

Dated: March 20, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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