Sutherland v. MI Dept Treas

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Sutherland, et al. v. Mich. No. 01-2052

ELECTRONIC CITATION: 2003 FED App. 0334P (6th Cir.) Dep’t of Treasury, et al.

File Name: 03a0334p.06

_________________

UNITED STATES COURT OF APPEALS COUNSEL

FOR THE SIXTH CIRCUIT ARGUED: Charles J. Porter, Clarkston, Michigan, for

_________________ Appellants. Joseph E. Potchen, Richard P. Gartner, OFFICE

OF THE ATTORNEY GENERAL, Lansing, Michigan, for

THOMAS E. SUTHERLAND, et X Appellees. ON BRIEF: Charles J. Porter, Clarkston,

- Michigan, for Appellants. Joseph E. Potchen, James Erwin

al., Long, Susan Przekop-Shaw, OFFICE OF THE ATTORNEY

Plaintiffs-Appellants, - GENERAL, Lansing, Michigan, for Appellees.

- No. 01-2052

-

v. > _________________

,

- OPINION

MICHIGAN DEPARTMENT OF - _________________

TREASURY , et al., -

Defendants-Appellees. - ALGENON L. MARBLEY, District Judge. This is a

- “reverse” race discrimination case brought pursuant to Title

N VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

Appeal from the United States District Court § 2000e et seq. (1991) (“Title VII”), 42 U.S.C. § 1983, and

for the Eastern District of Michigan at Detroit. the Michigan Elliott-Larsen Civil Rights Act, M.C.L. 37.2102

No. 99-73571—Avern Cohn, Senior District Judge. et seq. Plaintiffs-Appellants, Thomas E. Sutherland and

Nancy Karim, both Caucasian, brought suit alleging that they

Argued: June 18, 2003 were denied promotions over less qualified minorities. They

now appeal the district court’s orders granting summary

Decided and Filed: September 18, 2003 judgment to, and dismissing the claims against, Defendants-

Appellees, and denying Plaintiffs-Appellants’ motion for

Before: BOGGS and GILMAN, Circuit Judges; partial summary judgment.

MARBLEY, District Judge.*

For the following reasons, we AFFIRM the rulings of the

district court.

*

The Honorable Algenon L. Marbley, United States District Judge for

the Southern District of Ohio, sitting by designation.

1

No. 01-2052 Sutherland, et al. v. Mich. 3 4 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

I. BACKGROUND On April 22, 1998, Plaintiff-Appellant Karim filed a

grievance challenging the April 17, 1998 re-posting of the

A. Facts Pontiac Auditor Manager 14 position. In her statement of

grievance, Karim indicated that the Audit Division’s past

Plaintiff-Appellant Thomas E. Sutherland, Caucasian, practice was to post a position for transfer only once prior to

began his employment with the Audit Division of the its being filled. She stated that if no eligible transferees

Michigan Department of Treasury on June 8, 1969. During indicated their interest in the position by the posted deadline,

his employment, Sutherland was promoted to Auditor 11, then past practice dictated that the position be filled through

Auditor 12, and, eventually, in May 1996, he was appointed the promotional process, not through a re-posting of the

to acting Auditor Manager 14.1 Plaintiff-Appellant Nancy transfer position. Accordingly, Karim requested that

Karim, also Caucasian, began her employment with the Audit Robinson’s lateral transfer be rescinded, and that the Pontiac

Division of the Michigan Department of Treasury on Auditor Manager 14 position be opened for competitive

January 3, 1984. Throughout her employment, she was interviews.

promoted to Auditor 11, Auditor 12, and, in May 1996, she

was appointed to the position of acting Auditor Manager 14. In July 1998, Micheal Davis, Treasury’s labor relations

officer, issued a “step three” resolution to Karim’s grievance.

On January 28, 1998, Audit Division Administrator David Davis acknowledged that Treasury’s past practice after

Husted issued a memorandum notifying Revenue Audit staff posting a job soliciting eligible candidates for transfer was to

that a vacancy existed for an Auditor Manager 14 position at proceed with the promotion process if no interested or eligible

Treasury’s Pontiac office, and that candidates interested in employees responded in a timely manner. Davis also

transferring into that position should respond by February 11, indicated that, while the written transfer policy did not

1998. No one responded to the transfer memorandum by the prohibit a re-posting, such a re-posting was not in line with

posted deadline. the division’s normal application of the policy. Accordingly,

Davis proposed the following resolution to Karim’s

On April 17, 1998, Husted re-posted the Pontiac Auditor grievance: (1) rescind Robinson’s transfer to the Pontiac

Manager 14 position. When the position was re-posted, Auditor Manager 14 position; (2) open the position to the

Rosalind Robinson, an African-American who had worked promotional process; and (3) allow Robinson to compete for

for two years as an Auditor Manager 14 in Treasury’s Detroit the position along with other eligible candidates. Karim did

office, and who was eligible to transfer to the Pontiac not appeal Davis’s resolution to her grievance.

position, submitted a transfer request. Robinson was

permitted to make the lateral transfer into the Pontiac position By summer 1998, six Auditor Manager 14 positions

without an interview. became available in the Treasury’s Audit Division, including

the position in Pontiac that had been re-opened as a result of

1

the resolution of Karim’s grievance. Of the five positions in

At some point within the last decad e, the auditor po sitions were addition to the one in Pontiac, two were located in Detroit,

renumbered, so that the variou s positions were designated acco rding to two were located in Lansing, and one was located in Traverse

the digits set forth above, rather than by roman numerals, as they had been

previously. Throughout this opinion, we will refer to the job titles as they

City. Husted, who was responsible for overseeing the

are currently used. Auditor Manager 14 selection process, selected Defendant-

No. 01-2052 Sutherland, et al. v. Mich. 5 6 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

Appellee Anthony Taylor to chair the interview panel to fill percent or above were given oral interviews. In August 1998,

the various Auditor Manager 14 positions. Taylor, in turn, twenty-six candidates were interviewed for the six available

contacted Defendants-Appellees Jane Osburn, Auditor Auditor Manager 14 positions. Prior to the interviews, all

Manager 14 from the Grand Rapids office, and Larry Collar, candidates were asked to specify the locations where they

Department Specialist 14, Office of Quality Management, to were willing to work, and to rank their job preferences if they

assist him in interviewing eligible candidates for the sought more than one position.

positions. Husted approved Taylor’s selection of Osborn and

Collar to serve on the interview panel. Candidates were scored on their oral interviews based on

the pre-established model answers. Then, a background

Once the interview panel was established, the panel check was performed by asking each candidate’s supervisor

members developed written and oral interview questions and questions regarding the candidate’s initiative, work habits,

model answers. The interview panel also created past technical auditing ability, and leadership skills. The panel

performance evaluation questions. Husted and Deputy Audit members then scored each candidate based on his or her past

Division Administrator Stan Borowski reviewed and performance evaluation. Finally, the scores given to each

approved the panel’s oral and written questions, model candidate by each of the panel members were combined, and

answers, and past performance questions. the candidates were ranked for the available positions based

on their combined scores. After ranking the candidates, the

In May 1998, Raymond Heriford, Administrator of interview panel made hiring recommendations to Husted for

Treasury’s Human Resources Division, sent letters to eligible review and approval. Husted made one change in the

Treasury employees notifying them that Treasury was filling recommendations, based on one applicant’s employment

permanent Auditor Manager 14 positions in Detroit, Lansing, preference. Then, each of the candidates selected was offered

and Traverse City. After the resolution of Karim’s grievance a position, and each accepted. Defendant-Appellee Alfinio

as set forth above, employees were also notified of the Olivarez, Treasury’s Equal Employment Opportunity Officer,

interviews to be held for the Auditor Manager 14 position in reviewed and approved the foregoing hiring process.

Pontiac. The letters to employees set forth the minimum

requirements for eligibility for the Auditor Manager 14 During the August 1998 interviews, Plaintiff-Appellant

positions. In particular, a candidate had to have a B.S. or Sutherland sought and interviewed for only the Traverse City

B.A. degree with a major in accounting, and two years of Auditor Manager 14 position. In addition to Sutherland,

professional experience in an Auditor 11 position or in a Kimberly Knoll, a Caucasian female, and Braysley

position of equivalent responsibility. Interested candidates Famuwera, a black male, also interviewed for that position.

were asked to submit a pre-employment application, pre- Knoll was the highest scoring candidate for the Traverse City

employment authorization and certification, a written position. Knoll was also the highest scoring candidate for

exercise, and a detailed résumé. two other available positions, however, including the Lansing

Field Office position, which she had ranked higher in

Before scheduling interviews for the six vacant positions, preference than the Traverse City position. Knoll was offered

the interview panel members reviewed, scored, and ranked the and accepted the Lansing Field Office position. Famuwera

candidates’ written responses in accordance with the pre- was the second highest scoring candidate for the Traverse

approved guidelines. Candidates with scores of seventy City position. Therefore, as a result of the hiring process set

No. 01-2052 Sutherland, et al. v. Mich. 7 8 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

forth above, Famuwera was offered and accepted the Auditor On April 18, 2000, Plaintiffs-Appellants filed a one-count

Manager 14 position in Traverse City. amended complaint against the Department of Treasury,

alleging race discrimination in violation of Title VII.

Twenty individuals interviewed for the Pontiac Auditor Subsequently, they filed a separate two-count complaint

Manager 14 position, including both Rosalind Robinson and pursuant to 42 U.S.C. § 1983 and Michigan’s Elliott-Larsen

Plaintiff-Appellant Karim. Robinson and Karim sought only Civil Rights Act against Alfinio Olivarez, Treasury’s Equal

the Pontiac position. Based on the combined scores of the Employment Opportunity Officer, and Anthony Taylor, Jane

interview panel members, the top four candidates for the Osborn, and Larry Collar, the members of the interview panel

Pontiac Auditor Manager 14 position were: (1) Rosalind who determined the promotions at issue (collectively,

Robinson, (2) Charles Wright, (3) Bonnie McWilliams, and included within the group designated “Treasury Defendants”

(4) Nancy Karim, in that order. As the highest scoring above). On April 27, 2000, the second lawsuit was

candidate, Robinson was offered and accepted the Pontiac consolidated with the case now on appeal.

position.

On May 22, 2000, Plaintiffs-Appellants filed a motion for

B. Procedural History partial summary judgment, through which they sought an

order declaring that the Treasury Defendants’ “past

Based on the foregoing hiring decisions, on July 19, 1999, affirmative action,” “racial and gender preferences in hiring

Sutherland and Karim brought suit under Title VII against the and promotions,” and “current ad hoc informal affirmative

Michigan Department of Treasury, Mark Murray, the State action” violate the Fourteenth Amendment to the United

Treasurer (collectively, “Treasury Defendants”), the Michigan States Constitution, and Michigan’s Elliott-Larsen Civil

Department of Civil Service, David Adamany, Rea Lee Rights Act. Subsequently, the Treasury Defendants filed a

Chabot, Robert P. Hunter, Susan Grimes Munsell, all of motion for summary judgment, arguing that the Plaintiffs had

whom are members of Michigan’s Civil Service Commission, failed to demonstrate that race was considered in selecting

Mary Pollack, the former Equal Employment Opportunity and candidates to fill the Auditor Manager 14 positions for which

Affirmative Action Officer for the Civil Service Department, the Plaintiffs had applied.

John F. Lopez, the State Personnel Director (collectively,

“Civil Service Defendants”), and the State of Michigan. On January 22, 2001, the district court issued a

Before the Defendants answered the complaint, they all filed memorandum and order denying the Plaintiffs’ motion for

motions to dismiss, or alternatively, for summary judgment. partial summary judgment. In that same order, the district

On March 21, 2000, the district court issued a memorandum court granted the Treasury Defendants’ motion for summary

and order granting the Civil Service Defendants’ motion to judgment as to Sutherland, but denied the motion as to Karim.

dismiss, as well as that of the State of Michigan. The district In light of its decision to grant summary judgment to the

court also granted the Treasury Defendants’ motion with Treasury Defendants with respect to Sutherland, the district

respect to Defendant Murray, but denied their motion with court also dismissed Defendants Taylor, Osborn, and Collar,

respect to the Department of Treasury. Thus, the district the interview panel members, from the action. Thus, after the

court allowed Plaintiffs-Appellants to proceed on their Title court’s January 22, 2001 order, the only remaining issue in

VII claims against only the Department of Treasury. the case was Karim’s race discrimination claim against

Defendants Treasury and Olivarez.

No. 01-2052 Sutherland, et al. v. Mich. 9 10 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

On February 12, 2001, Defendants Treasury and Olivarez 1. Standard of Review

filed a motion for summary judgment as to Karim’s

remaining claim. On June 19, 2001, the district court entered Prior to filing their answer, the Civil Service Defendants

a memorandum and order granting that motion based on the filed a motion to dismiss or, in the alternative, for summary

finding that, even if Robinson had not competed for the judgment. The district court granted that motion, but it is

position, Karim still would not have been promoted. The unclear whether the court granted it as a motion to dismiss or

district court issued an order of judgment that same day. as a motion for summary judgment. In either case, the district

court’s decision is subject to de novo review by this Court.

Plaintiffs-Appellants now appeal the district court’s various Peters v. Lincoln Elec. Co., 285 F.3d 456, 465 (6th Cir. 2002)

orders dismissing, or granting summary judgment to, the (holding that a decision granting summary judgment is

Treasury Defendants, the Civil Service Defendants, and the subject to de novo review by this Court); Stanek v. Greco, 323

State of Michigan, as well as the district court’s order denying F.3d 476, 478 (6th Cir. 2003) (stating that this Court reviews

Plaintiffs-Appellants’ motion for partial summary judgment. de novo a decision of the district court granting a motion to

dismiss for failure to state a claim).

II. DISCUSSION

2. Department of Treasury as Sole Employer

A. Dismissal of Civil Service Defendants2

Title VII applies only to “employers.” 42 U.S.C. § 2000e-

Plaintiffs-Appellants brought claims against the Civil 2. Plaintiffs-Appellants argue that the Civil Service

Service Defendants for violation of Title VII and 42 U.S.C. Defendants can be liable as their employers under Title VII

§ 1983 based on their assertion that the Civil Service by virtue of the fact that they retain the authority to regulate

Defendants control all conditions of state employment, and, all conditions of state employment, including whether such

therefore, must have been the source of the decision to employment should be free from racial preferences.

implement certain affirmative action devices. We conclude

that the district court properly dismissed the Civil Service The Michigan Civil Service Commission has plenary

Defendants as parties to this matter based on the finding that authority to regulate all conditions of employment in the state

those Defendants are not Plaintiffs-Appellants’ employer civil service, to make rules and regulations covering

under Title VII. personnel transactions, and to determine the qualifications of

all candidates for state positions. See Davis v. Dep’t of Corr.,

651 N.W.2d 486, 489 (Mich. Ct. App. 2002). The State

Personnel Director administers these powers of the

Commission through his position as head of the Department

of Civil Service by issuing regulations and procedures to

2

As indicated above, the “Civil Service Defendants” include the implement the Commission’s rules. The Department of Civil

Michigan Departm ent of C ivil Service, David Adamany, Rea Lee Chabot, Service, however, is an entity that is separate and distinct

Robert P. Hun ter, Susan Grimes Munsell, all of whom are members of from the Civil Service Commission. Id.

Michigan’s Civil Service Commission, Mary Pollack, the former Equal

Employment Op portunity and Affirmative Action O fficer for the Civil

Service Department, and John F. Lopez, the State Personnel Director.

No. 01-2052 Sutherland, et al. v. Mich. 11 12 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

Individual state agencies, such as Treasury, possess the appointing authority, only the Department of Treasury was

authority to create and abolish the civil service positions their employer under Title VII.

within their own agencies. In addition, each agency, through

its director or the director’s agents, retains the sole authority Therefore, we AFFIRM the district court’s order

to appoint, hire, fire, and promote eligible employees to dismissing the Civil Service Defendants as parties to this

positions within the agency in accordance with the rules matter on the ground that they were not Plaintiffs-Appellants’

promulgated by the Commission. Conlin v. Blanchard, 745 employer.

F. Supp. 413, 415-16 (E.D. Mich. 1990), aff’d, 947 F.2d 944,

1991 WL 224081 (6th Cir. Oct. 31, 1991). Thus, although the B. Dismissal of the State of Michigan

Commission promulgates rules to identify and certify eligible

candidates for vacant positions in the state departments, the The only claim brought against the State of Michigan was

decision-making authority with respect to selecting among a claim of employment discrimination in violation of Title

particular applicants certified as eligible under the VII. The district court dismissed the State of Michigan as a

Commission’s rules remains vested solely in the department party to this action based on its determination that the State of

itself. Id. Michigan was not the Plaintiffs-Appellants’ employer. We

conclude that dismissal of the State of Michigan was proper

The determination of whether a particular entity is an on that basis.

employer of a Title VII plaintiff involves an examination of

whether the alleged employer exercises control over the 1. Standard of Review

manner and means of the plaintiff’s work. See Nationwide

Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (discussing Although not explicit in the district court’s opinion, the

the analysis employed to distinguish an independent parties agree that the district court dismissed the State of

contractor from an employee).3 In light of the distinct roles Michigan as a Defendant pursuant to Federal Rule of Civil

of the various governmental entities set forth above, it is clear Procedure 21, which provides, in pertinent part, that “[p]arties

that the Department of Treasury has the authority to make key may be dropped or added by order of the court on motion of

employment decisions, and exercises control over the manner any party or of its own initiative at any stage of the action and

and means of its employees’ work, while the Civil Service on such terms as are just.” This Court reviews a decision to

Commission does not. Thus, the Civil Service Defendants drop a misjoined party pursuant to Rule 21 for abuse of

could not have been held liable for any adverse employment discretion. Letherer v. Alger Group, L.L.C., 328 F.3d 262,

actions that Plaintiffs-Appellants allegedly suffered because 266 (6th Cir. 2003). “Therefore, we affirm the dismissal of

they are not Plaintiffs-Appellants’ employer. Rather, as the a party for misjoinder ‘unless this court is left with a definite

and firm conviction that the trial court committed a clear error

of judgment.’” Id. at 266-67 (quoting Cincinnati Ins. Co. v.

Byers, 151 F.3d 574, 578 (6th Cir. 1998)).

3

Although Darden was an ERISA case, this Court has applied the

holding in Darden to other statutes, including the ADA. See Johnson v.

City of Saline, 151 F.3d 564, 568 (6th C ir. 199 8). As we recognized in

Johnson, Darden sets forth a rule of general applicability, and applies

here.

No. 01-2052 Sutherland, et al. v. Mich. 13 14 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

2. Department of Treasury as Sole Employer Accordingly, on appeal, we apply the same standard of review

as that applied by the district court.

As we recognized above, the Department of Treasury

possesses the sole authority to appoint, hire, fire, and promote Summary judgment is appropriate “[i]f the pleadings,

eligible employees to positions within that agency. depositions, answers to interrogatories, and admissions on

Furthermore, it is the Department of Treasury that controls file, together with the affidavits, if any, show there is no

the manner and means by which its employees’ work is genuine issue as to any material fact and the moving party is

accomplished. The State of Michigan did not, separate and entitled to judgment as a matter of law.” FED . R. CIV . P.

apart from its Department of Treasury, employ the Plaintiffs- 56(c). The movant has the burden of establishing that there

Appellants. Accordingly, it is the Department of Treasury are no genuine issues of material fact, which may be

alone, and not the State of Michigan, that is the employer of accomplished by demonstrating that the non-moving party

Plaintiffs-Appellants. lacks evidence to support an essential element of its case.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Logan

Therefore, we AFFIRM the district court’s dismissal of the v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001). In

State of Michigan as a party on the ground that the State of response, the non-moving party must present “significant

Michigan was not the Plaintiffs-Appellants’ employer under probative evidence” to show that “there is [more than] some

Title VII. metaphysical doubt as to the material facts.” Moore v. Philip

Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993).

C. Treasury Defendants’ Motions for Summary “[S]ummary judgment will not lie if the dispute is about a

Judgment material fact that is ‘genuine,’ that is, if the evidence is such

that a reasonable jury could return a verdict for the non-

In all, the Treasury Defendants filed three dispositive moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

motions. Plaintiffs-Appellants challenge the district court’s 242, 248 (1986).

initial order granting summary judgment to Defendant

Murray, the district court’s second order granting summary In evaluating a motion for summary judgment, the evidence

judgment to the Treasury Defendants with respect to must be viewed in the light most favorable to the non-moving

Sutherland’s claims, and the district court’s third order party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157

granting summary judgment to the remaining Treasury (1970). The non-moving party, however, “may not rest upon

Defendants with respect to Karim’s claims. its mere allegations . . . but . . . must set forth specific facts

showing that there is a genuine issue for trial.” FED . R. CIV .

1. Standard of Review P. 56(e); see Celotex, 477 U.S. at 324; Searcy v. City of

Dayton, 38 F.3d 282, 286 (6th Cir. 1994). The existence of

The district court’s grant of summary judgment is subject a mere scintilla of evidence in support of the non-moving

to de novo review by this Court. Peters v. Lincoln Elec. Co., party’s position will not be sufficient; there must be evidence

285 F.3d 456, 465 (6th Cir. 2002) (citing Darrah v. City of on which the jury could reasonably find for the non-moving

Oak Park, 255 F.3d 301, 305 (6th Cir. 2001), and Perez v. party. Anderson, 477 U.S. at 251; Copeland v. Machulis, 57

Aetna Life Ins. Co., 150 F.3d 550, 554 (6th Cir. 1998)). F.3d 476, 479 (6th Cir. 1995).

No. 01-2052 Sutherland, et al. v. Mich. 15 16 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

2. Plaintiff Sutherland’s Claims omitted). Therefore, all of Sutherland’s claims shall be

examined together.4

Sutherland brought claims against the Treasury Defendants

for “reverse” race discrimination in violation of 42 U.S.C. The analytical framework governing Title VII cases is well-

§ 1983, Title VII, and Michigan’s Elliott-Larsen Civil Rights established. First, the plaintiff must set forth a prima facie

Act. Sutherland’s claims are based on his belief that the case, which gives rise to an inference of discrimination. Tex.

interview panel judges intentionally scored him lower than Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53

they scored Famuwera to conceal the fact that their decision (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S.

with respect to the Traverse City promotion was based on 792 (1973)). To set forth a prima facie case of discrimination

race. based upon a failure to promote, a plaintiff must show: (1)

that he is a member of a protected class; (2) that he applied

To state a claim for violation of 42 U.S.C. § 1983, the and was qualified for a promotion; (3) that he was considered

plaintiff must demonstrate that: (1) a person, (2) acting under for and denied the promotion; and (4) other employees of

color of state law, (3) deprived him of a federal right. Sperle similar qualifications who were not members of the protected

v. Mich. Dep’t of Corr., 297 F.3d 483, 490 (6th Cir. 2002) class received promotions. Dews v. A.B. Dick Co., 231 F.3d

(citation omitted). Here, Sutherland claims that the Treasury 1016, 1020-21 (6th Cir. 2000). The Sixth Circuit has adapted

Defendants acted under color of state law to deprive him of this four-prong test to cases of reverse discrimination, where

his right to be free from racial discrimination, in violation of a member of the majority is claiming discrimination on the

the Equal Protection Clause of the Fourteenth Amendment to basis of race. In such cases, to satisfy the first prong of the

the United States Constitution. To succeed on a § 1983 claim prima facie case, the plaintiff must “demonstrate ‘background

of this kind, against a public employer for an equal protection circumstances [to] support the suspicion that the defendant is

violation, the plaintiff must show that the employer made an that unusual employer who discriminates against the

adverse employment decision “with a discriminatory intent majority.’” Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249,

and purpose.” Boger v. Wayne County, 950 F.2d 316, 324-25 255 (6th Cir. 2002) (quoting Murray v. Thistledown Racing

(6th Cir. 1991) (citations omitted). In analyzing the Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985) (quoting Parker v.

plaintiff’s claim, the court is to rely on Title VII disparate Baltimore and Ohio R.R. Co., 652 F.2d 1012, 1017 (D.C. Cir.

treatment cases for guidance. Weberg v. Franks, 229 F.3d 1981))). To satisfy the fourth prong in such cases, the

514, 522 (6th Cir. 2000) (“Because both Title VII and § 1983 plaintiff must show that the defendant treated differently

prohibit discriminatory employment practices by public

employers, this court looks to Title VII disparate treatment

cases for assistance in analyzing race discrimination in the

public employment context under § 1983.”) (citations

4

Claims under M ichigan’s Elliott-Larsen Civil Rights Act involve the

same analysis as Title VII claims. Thomas v. Autumn Woods Residential

Health C are F acility, 905 F. Supp. 414 , 419 (E.D. M ich. 1995).

No. 01-2052 Sutherland, et al. v. Mich. 17 18 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

employees who were similarly situated but were not members that support the suspicion that the Treasury Department is the

of the protected class. Id.5 unusual employer that discriminates against the majority.

Once the plaintiff establishes a prima facie case, the burden To satisfy the burden of demonstrating background

shifts to the defendant to offer a legitimate, non- circumstances that give rise to a suspicion of discrimination

discriminatory reason for the adverse employment action at against the majority in employment, the plaintiff may present

issue. Burdine, 450 U.S. at 253 (citing McDonnell Douglas, evidence of the defendants’ unlawful consideration of race in

411 U.S. at 802). If the defendant meets this burden, then the employment decisions in the past. Zambetti, 314 F.3d at 256

burden of production shifts back to the plaintiff to (finding that such evidence “justifies a suspicion that

demonstrate that the proffered reason is a pretext. Id. (citing incidents of capricious discrimination against whites because

McDonnell Douglas, 411 U.S. at 804). When the burden of their race may be likely”). Both at the trial level and on

shifts back to the plaintiff, although he must come forward appeal, Plaintiffs-Appellants present significant evidence in

with evidence that the defendant’s reason for the employment the form of statistical data tending to show that in the years

action is false, he need not present independent evidence that prior to the employment decisions at issue, the Treasury

the proffered reason is pretext for racial discrimination. Department considered race in making employment decisions.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, Reviewing that evidence, the district court stated: “Plaintiffs

148 (2000) (“[A] plaintiff’s prima facie case, combined with include in their papers considerable statistical data regarding

sufficient evidence to find that the employer’s asserted the Treasury Department’s promotion and hiring patterns and

justification is false, may permit the trier of fact to conclude vigorously assert that ‘illegal racial and gender preferences

that the employer unlawfully discriminated.”). have been rampant for years.’”

a. Sutherland’s Prima Facie Case We agree with the district court’s view that Plaintiffs-

Appellants provided a substantial amount of statistical data

The district court found that Sutherland set forth all of the relating to the Treasury Department’s promotion and hiring

elements necessary to establish a prima facie case of reverse patterns over the past few decades as they relate to race. For

race discrimination. On appeal, the parties do not dispute that example, Plaintiffs-Appellants point out that in 1983, blacks

Sutherland demonstrated that he was qualified for the held 11.5% of the auditor positions in Treasury, even though

Traverse City position, that he suffered an adverse blacks represented only 5.2% of the qualified labor force in

employment decision, and that the promotion was given to Michigan. In addition, they assert that, from 1980 through

someone outside Sutherland’s racial class. Defendants- July 1989, protected class members, including racial

Appellees assert, however, that Sutherland failed to present minorities, females, and disabled people, represented seventy-

sufficient evidence to demonstrate background circumstances seven percent of all new hires in the Audit Division of

Treasury. Furthermore, Plaintiffs-Appellants claim that as

recently as March 2000, a roster of the Audit Division

5 indicated that protected class members held seventy-one

Michigan courts have adopted this form of the prim a facie case for percent of the auditor positions in the Michigan offices of the

reverse discrim ination c laims brought under the E lliott-Larsen Civil

Rights Act. Allen v. Co mprehensive Hea lth Servs., 564 N.W.2d 914, 917

Audit Division. Specifically, the March 2000 roster indicates

(Mich. Ct. App. 199 7). that black employees held twenty-nine percent of the Audit

No. 01-2052 Sutherland, et al. v. Mich. 19 20 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

Division positions in Michigan, even though a 1990 census, The fact that Sutherland had worked with Treasury longer

the most recent census prior to the March 2000 roster, and at a higher level than Famuwera had does not negate the

demonstrated that blacks represented only 7.7% of the Defendants’ legitimate, non-discriminatory reason for their

qualified labor force in Michigan at that time. Based on this employment decision. Despite having less experience,

significant statistical evidence, we believe that Plaintiffs- Famuwera received a higher total score than Sutherland based

Appellants at least raised a genuine issue of material fact with on the fact that he had more education than Sutherland and

respect to whether background circumstances tended to show performed better than Sutherland during the oral interview

that Treasury is the “unusual employer who discriminates process. During his deposition, even Sutherland conceded

against the majority.”6 that “it was not one of [his] better interviews.” Thus,

Famuwera’s higher total score is attributed, in part, to his

Therefore, we conclude that Plaintiffs-Appellants raised a higher score on the oral interview portion of the promotional

genuine issue of material fact with respect to whether they process; Famuwera scored a 300, while Sutherland scored

established a prima facie case of discrimination. only 266.

b. Legitimate, Non-Discriminatory Reason Based on the fact that Famuwera received a higher total

score for his interview than Sutherland did, and the fact that

Having concluded that Plaintiffs-Appellants raised a Famuwera was the highest scoring candidate for the Traverse

genuine issue of material fact with respect to their prima facie City position other than Knoll, who was offered a position

case of discrimination, we now turn to the question of that she ranked more highly than the Traverse City position,

whether the Treasury Defendants established a legitimate, we conclude that the Treasury Defendants set forth a

non-discriminatory reason for their employment decision. legitimate, non-discriminatory reason for their decision to

award the Traverse City position to Famuwera over

We believe that the Treasury Defendants satisfied their Sutherland.

burden of establishing a legitimate, non-discriminatory reason

for their employment decision. Quite simply, the non- c. Pretext

discriminatory reason for the decision to offer the Traverse

City position to Famuwera was that he achieved an overall We now turn to the question of whether Sutherland raised

higher score than Sutherland on the interviews – 619.5, as a genuine issue of material fact with respect to whether the

compared to Sutherland’s score of 604. This proffered reason Defendants-Appellees’ proffered reason for their employment

is supported by Defendants-Appellees’ assertion that all decision was pretextual. If he did raise a genuine issue of

scoring for the interviews was valid, based on the pre- material fact with respect to pretext, then summary judgment

determined criteria. in favor of the Treasury Defendants was improper.

In support of his claim that the Defendants’ proffered

6

reason for their employment decision is pretextual, Sutherland

We rely on the statistics provided by Plaintiffs-Appellants only for asserts that he was objectively the better candidate for the

the narrow conclusion that they demonstrate background circumstances promotion than Famuwera was. He points out, in particular,

sufficient to raise a genuine issue of material fact with respect to a prima that he had sixteen years of experience as an Auditor 12

facie case o f discrimination a gainst the majo rity.

No. 01-2052 Sutherland, et al. v. Mich. 21 22 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

before he was appointed to the position of acting Auditor two years as an Auditor 12 to be ready to assume the duties of

Manager 14 in May 1996, and that he scored in the top group an Auditor Manager 14.7

on a prior mid-management examination. Famuwera, on the

other hand, was an Auditor 11, had not yet achieved the level Sutherland’s reference to the 1988 memorandum is

of Auditor 12, and scored only in the second group on a prior likewise insufficient to raise a genuine issue of material fact

mid-management examination. Sutherland asserts that these with respect to the Treasury Defendants’ non-discriminatory

differences indicate that the scores on the reason for their employment decision. Although the 1988

Education/Experience portion of the interviews – 11 for memorandum may have called for two years of experience as

Sutherland and 10 for Famuwera – must have been an Auditor 12 before beginning work as an Auditor Manager

manipulated based on race. 14, the stated minimum requirements for the promotion in

1998 called for only two years of professional experience or

We do not believe this argument furthers Sutherland’s the equivalent in responsibility to an Auditor 11, not an

position that the Treasury Defendants’ non-discriminatory Auditor 12. That minimum requirement was clearly set forth

reason for their employment decision was pretextual. As in the letters that were distributed to all candidates eligible for

discussed above, the Treasury Defendants acknowledged that the promotions, and was established before any employees

Sutherland had greater experience than Famuwera, but applied for the promotions. At the time of the interviews,

explained that Famuwera’s relatively high score was based on Famuwera had two years of experience as an Auditor 11.

the fact that he had a more extensive educational background Thus, he met the experience requirement for the position.

than Sutherland. Sutherland does not present evidence that

refutes the truth of this explanation. Rather, he simply Furthermore, Plaintiffs-Appellants have presented no

reiterates the fact that he had greater experience than evidence that the memorandum written by Tomczyk

Famuwera. In light of the Treasury Defendants’ explanation, represented an official policy within Treasury. To the

however, this is insufficient to raise a genuine issue of contrary, it appears to embody nothing more than his personal

material fact with respect to whether the proffered reason was opinion as to what he believed constituted important work

a pretext for a decision based on race. experience. Tomczyk, however, played no role in the 1998

Sutherland also claims that the decision to award the

Traverse City position to Famuwera must have been based on 7

The memorandum , created in 1988, actually refers to the work

a racial preference because, irrespective of the fact that he had necessary as a senior auditor VII to be ready to assume the duties of a IX

less experience than Sutherland, Famuwera simply did not level crew chief position. In the interim between the drafting of the

have enough experience for the Auditor Manager 14 position. memorand um and the promotions at issue, the positions within the

Treasury Department were redesignated with new numbers. The district

Sutherland bases this argument on a memorandum that was court apparently based one of its rulings on its finding that Plaintiffs-

written by Audit Division Administrator Joseph Tomczyk in Appellants had not demonstrated that the positions referred to in the 1988

1988, which states that an individual must work for at least memorand um were, in fact, equivalent to the positions at issue in this

matter. We do not address this issue, as we base our decision on

Sutherland’s failure to raise a genuine issue of material fact with respect

to pretext. We assume that the positions referred to in the 1988

memorand um are, in fact, equivalent to the Auditor 12 and Auditor

Manager 14 positions now at issue.

No. 01-2052 Sutherland, et al. v. Mich. 23 24 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

promotions. Therefore, his personal opinion regarding the his deposition that he would have scored Sutherland at least

type of experience that is important for the promotions at as highly as Famuwera.

issue is irrelevant. Finally, even if the 1988 memorandum

had stated an official policy for promotions to Auditor Sutherland also showed his answer to the first written

Manager 14, Plaintiffs-Appellants have failed to present any question to Brenda Brougham, another Auditor Manager 15.

evidence that the policy remained unchanged during the ten Brougham formulated what she believed to be the proper

years between the time the memorandum was written and the criteria for evaluating the question, and then reviewed

time of the promotions at issue. Indeed, the written minimum Sutherland’s answer. She concluded that Sutherland’s answer

requirements for the 1998 promotions indicate that, if it had was entitled to a score of 80 to 91, as compared to

been an official policy in 1988, it was no longer in effect. Famuwera’s 88. Subsequently, after reviewing the additional

answers that were reviewed by Steinman, Brougham

Third, Sutherland contends that the scores on the answers conducted another analysis, and determined that Sutherland’s

to the first written question must have been manipulated score of 56 was extremely low. Sutherland asserts that,

based on Famuwera’s race. For the first written question, together, Steinman’s and Brougham’s analyses demonstrate

Sutherland received a combined score of 56 while Famuwera that, in actuality, his answer was as good as Famuwera’s, and

received a combined score of 88. Sutherland’s total score for should have been scored accordingly, which would have

that question resulted from scores of 16 out of 32 from two of resulted in a higher total interview score for Sutherland over

the interview panel members, Defendants Taylor and Osborn, Famuwera.

and a score of 24 from Defendant Collar. Famuwera’s total

score for that question resulted from scores of 32 from Like Sutherland’s other arguments, we conclude that this

Defendants Taylor and Osborn, and a score of 24 from argument fails to raise a genuine issue of material fact with

Defendant Collar.8 Sutherland asserts that his scores from respect to whether the Defendants’ legitimate, non-

Taylor and Osborn were objectively unreasonable, and discriminatory reason for their employment decision was

demonstrate that the Treasury Defendants’ proffered reason pretext. Plaintiffs-Appellants are correct that, at first blush,

for the employment decision was pretext for a decision based the fact that two panel members gave Sutherland a score that

on race. was half of the score they gave to Famuwera appears

suspicious. But this suspicion is eliminated when we recall

In support of this assertion, Sutherland explains that he that Famuwera was awarded his promotion based not on the

showed his answer to the first written question to Michael score he received for one question, but based on his total

Steinman, an Auditor Manager 15, who was Sutherland’s score. Although Famuwera did, indeed, score significantly

direct supervisor in Traverse City. Steinman also reviewed higher than Sutherland on the first question, Sutherland

the answers of the four top scorers for that question, including scored higher than Famuwera did on other questions. For

Famuwera. Based on his review, Steinman testified during example, although Sutherland scored lower on question one,

his overall score on the written portion of the interview

process was 8.5 points higher than Famuwera’s score. This

8 fact indicates that both Famuwera and Sutherland were

On appeal, Sutherland does not challenge the dismissal of Defendant

Collar in light of the fact that he gave the same score to both Sutherland

simply scored by the judges as they saw appropriate, and then

and Famuwera. ranked based on their overall scores.

No. 01-2052 Sutherland, et al. v. Mich. 25 26 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

The fact that the interview panel members awarded than the Traverse City position. To conclude that the

different scores – even significantly different scores, at least interview panel members manipulated the scores to conceal

with respect to question one – does not undermine the the fact that they awarded the promotion to Famuwera based

conclusion that the applicants were simply scored by the on his race would be to believe that the panel members

panel members as each saw appropriate based on the pre- determined how to achieve their desired result while still

determined criteria. Although they established model scoring Sutherland higher than Famuwera on some questions,

answers, the panel members were nonetheless asked to and awarding the highest total score to Knoll. While we do

evaluate fairly subjective criteria for much of the promotion not doubt the intelligence of the panel members, we find it

process. The fact that one interviewer might have disagreed difficult to believe that they possessed the mathematical

with the evaluation of an answer accorded by another sophistication, let alone the time, necessary to plan such an

interviewer is not evidence that either based his or her elaborately deceitful manner of scoring the candidates for the

evaluation on anything other than his or her honest Auditor 14 positions.

assessment of the answer. Rather, it simply indicates that the

two individuals disagree as to subjective factors, which one Additionally, Sutherland’s purported evidence in support of

would expect might happen from time to time. Indeed, it is his position that the scores were skewed is to no avail.

because we expect individuals to disagree with respect to Broughan’s notes were not submitted under oath, nor was her

subjective factors that we frequently employ more than one deposition ever taken. As such, her notes setting forth her

individual to evaluate subjective criteria, as the Treasury opinion regarding Sutherland’s answer amount to nothing

Defendants did here.9 more than inadmissible hearsay, which cannot be considered

on a motion for summary judgment. Jacklyn v. Schering

Moreover, the fact that it was Knoll, a Caucasian woman, Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927

not Famuwera, who actually received the highest total score (6th Cir. 1999) (holding that the court may not consider

for the Traverse City position demonstrates that all candidates hearsay on a motion for summary judgment).

were simply scored based on the individual panel members’

perceptions of the merits of the applicants’ answers to each Furthermore, neither Steinman nor Broughan was involved

portion of the interview process. The position was ultimately in the 1998 Auditor Manager 14 decision-making process.

offered to Famuwera simply because Knoll also received the During his deposition, Steinman admitted that he never spoke

highest score for another position, which she ranked higher with any of the interview panel members about the

interviews, he did not know the criteria used to grade the

written questions, and he did not see the model answers. As

9 such, he had no sound basis for evaluating the validity of

Comp are this situation to that which might arise during a figure

skating competition judged by a panel of figure skating experts. If one

Sutherland’s score. Finally, Plaintiffs-Appellants have

judge were to award a particular skater a low score on presentation, which presented no evidence that either Steinman or Broughan had

includes consideration of such subjective factors as choreography, flow, any first-hand information that Sutherland’s score was

and musical interpretation, and all the other judges were to award higher deliberately lowered, or that race was a factor in scoring the

scores, we would not presume that the lower scoring judge based his score candidates. Therefore, their opinions regarding Sutherland’s

on improper factors. R ather, we would rec ognize that jud ges evaluate

subjective factors differently, and rely on the fact that the lower score

score on his answer to the first question are insufficient to

would be balanced out by the higher scores awarded b y the other judges. raise a genuine issue of material fact with respect to the

No. 01-2052 Sutherland, et al. v. Mich. 27 28 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

Treasury Defendants’ assertion that they assigned scores Division’s prior practice was never to re-post positions for

based on the pre-determined criteria and awarded the transfer if the deadline passed without any eligible candidates

promotion based on those scores. seeking the transfer. Rather, if the deadline passed, the

position was opened up for promotional interviews. Second,

Viewed in its entirety, Sutherland’s purported evidence that the Audit Division’s prior practice also prohibited auditors

the scoring of the interviews for the Traverse City position from interviewing for the same level position at a different

was manipulated to disguise a decision based on affirmative location. Auditors were permitted to transfer if they had at

action amounts to nothing more than unsupported speculation. least two years of experience and a transfer position was

His argument that the Treasury Defendants’ decision was available, but they were not permitted to interview

based on the employees’ race appears to be grounded not in competitively against those seeking a promotion. Plaintiffs-

evidence, but in the outcome itself: the simple fact that he did Appellants assert that both of these policies were violated

not receive a promotion to which he felt entitled. This is not with respect to Robinson’s receipt of the Pontiac position:

sufficient to raise a genuine issue of material fact with respect first, when the position was re-posted for transfer, and second,

to the legitimate, non-discriminatory reason offered by the when Robinson was permitted to compete for the position

Treasury Defendants to explain their employment decision. against those seeking promotions.10 They note in this regard

that, although Robinson was eligible for transfer at the time

Accordingly, we AFFIRM the district court’s ruling of the second posting of the Pontiac position, at the time of

granting summary judgment to the Treasury Defendants with the first posting, which they argue should have been the only

respect to Sutherland’s claims of discrimination. posting, Robinson was not eligible for transfer because she

had not yet worked two years in her position.

3. Plaintiff Karim’s Claims

Reviewing Karim’s contentions regarding these alleged

a. Merits of the Claims violations of Audit Division policy, the district court

concluded that Karim had raised a genuine issue of material

Unlike Sutherland’s claims, Karim’s claim of racial fact with respect to whether the Treasury Defendants

discrimination is not based on the scoring of the candidates selectively enforced their policy regarding re-posting

during the interviews for the promotions. Rather, her claim positions for transfer in an effort to invite Robinson to seek

is based on her assertion that Rosalind Robinson should not transfer based upon her race.11 We conclude, however, that

have been able to interview for the Pontiac position, and that the district court erred, and a de novo review indicates that

the only reason she was permitted to do so was because of an Karim failed to raise a genuine issue of material fact with

illegal racial preference. Plaintiffs-Appellants concede,

however, that Robinson received the highest score of all the

candidates who interviewed for the Pontiac position, and that

10

the scoring was valid. As indicated above, K arim d id not file an internal appeal regarding

the resolution of her grievance.

Plaintiffs-Appellants assert that allowing Robinson to

11

interview for the Pontiac position violated two prior practices The district co urt noted that the decision to allow R obinson to

of the Treasury Department’s Audit Division. First, the Audit interview for the position was legitimately explained as a reasonable

resolution to K arim’s grievanc e.

No. 01-2052 Sutherland, et al. v. Mich. 29 30 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

respect to whether the Defendants’ legitimate, non- lapsed since the first opening, and he anticipated a number of

discriminatory reasons for these employment decisions were job openings arising from the promotion of certain employees

a pretext for decisions based on race.12 who had held Auditor Manager 14 positions. In light of these

employment realities, he re-posted the position for transfer

1. Prima Facie Case because he believed that doing so was permissible under the

Treasury’s written transfer policy, which contained no

The parties do not dispute that Karim has met some explicit language prohibiting the Audit Division from re-

elements of her prima facie case, in that she was qualified for posting a position for transfer.

the position she was seeking, that, despite her qualifications,

she suffered an adverse employment decision, and that the Micheal Davis made the decision to allow Robinson to

position was given to a person outside her racial class. As interview for the Pontiac position after he rescinded the

they do with respect to Sutherland’s claim, however, the transfer as part of the resolution to Karim’s grievance. In his

parties dispute whether Karim has satisfied the first prong of affidavit, he states that he resolved Karim’s grievance as he

her prima facie case by setting forth the background did, rescinding the transfer but allowing Robinson to

circumstances necessary to establish that the Treasury interview for the position, because, as a labor relations

Defendants are the unusual employers who discriminate officer, he believed that to be the “most reasonable and

against the majority. For the reasons set forth above in our practical resolution of the matter.” In addition, he explains

discussion of Sutherland’s claim, we believe that Karim has that the Audit Division had

raised a genuine issue of material fact with respect to this

issue. [an] existing practice of allowing employees to interview

for vacancies if they had made themselves eligible as

2. Legitimate, Non-Discriminatory Reason candidates on the employment list from which the

position was being filled. Employees interested in

The Defendants set forth legitimate, non-discriminatory transferring could circumvent the “24 month in position”

reasons for both the decision to re-post the Pontiac position requirement and become a candidate for the vacant

for transfer and the decision to allow Robinson to interview position. . . . Thus, Ms. Robinson could have been

for the position. Husted alone made the decision to re-post considered as a transfer “appointment” for the Pontiac

the position for transfer. In his affidavit, he asserts that he position by simply calling Civil Service to have her name

made that decision based on the fact that three months had placed on the Oakland County employment list.

Thus, the decision to allow Robinson to interview for the

12 position was not only reasonable from a managerial

As set forth above, the district court denied the Treasury

Defend ants’ second motion for sum mary judgm ent with respect to perspective, it was also in line with the Audit Division’s

Karim’s claims. The district court subsequently granted the Treasury transfer policy, even though Robinson had held her Auditor

Defend ants’ third motion for summary judgment based on their assertion Manager 14 position for less than two full years at the time

of the “same decisio n” de fense. W e do not ad dress the validity of that the transfer position was initially posted.

defense in light of the fact that we affirm the district court’s ruling based

on Karim’s failure to raise a genuine issue of m aterial fact with respect to

pretext.

No. 01-2052 Sutherland, et al. v. Mich. 31 32 Sutherland, et al. v. Mich. No. 01-2052

Dep’t of Treasury, et al. Dep’t of Treasury, et al.

Based on the foregoing reasoning set forth by Husted and practice, the Defendants admitted as much in their resolution

Davis for their employment decisions, we believe that the of Karim’s grievance. Indeed, the failure to adhere to prior

district court correctly concluded that the Treasury practice was the basis for the decision to rescind Robinson’s

Defendants met their burden of establishing legitimate, non- transfer. The decision to allow her to participate in the

discriminatory reasons for both employment decisions competitive interviews for the position was simply the most

challenged by Karim. fair and logical way to resolve the situation that had been

created by the re-posting of the position. Karim’s reference

3. Pretext to the prior situation does nothing to demonstrate that the

reasoning set forth in Davis’s affidavit, explaining his

Karim contends that the Defendants’ non-discriminatory resolution of Karim’s grievance, was a pretext for

reasons for the employment decisions at issue are a pretext for discrimination.

discrimination, and that the decisions were made to favor

Robinson based on her race. In support of this position, Moreover, Plaintiffs-Appellants have offered no evidence,

however, she offers little evidence, but simply restates the fact other than the fact of the re-posting itself, that Husted’s

that both decisions violated prior practice of the Audit decision to re-post the Pontiac position for transfer was based

Division. on Robinson’s race. They have presented no evidence to

refute Husted’s assertion that he re-posted the position

The only purported evidence upon which Karim relies in because he did not believe that doing so violated the Audit

support of her claim of pretext is a situation that occurred Division’s transfer policy, as no written provision of the

within the Audit Division a number of years ago. Apparently, policy prohibited such a re-posting, and because he believed

two female auditors who had been Auditor 12s for less than that opening the position for transfer would help fill the

two years requested to interview for Auditor 12 vacancies in Division’s employment needs at the time.

another location so that they could relocate. The two females

were told that, although they were eligible to compete for the Karim’s arguments with respect to any alleged pretext are

vacancies under Civil Service guidelines, the interview panel based on unsupported speculation. Therefore, we AFFIRM

would not award them the positions because they felt that to the district court’s ruling granting summary judgment to the

do so would be to circumvent the transfer policy, which Treasury Defendants with respect to Karim’s claims, but on

required the women to hold their positions for at least twenty- the ground that Plaintiffs-Appellants failed to raise a genuine

four months before being eligible for transfer. Karim asserts issue of material fact with respect to whether the Treasury

that this prior situation demonstrates that the decision to allow Defendants’ proffered reason for their employment decision

Robinson to interview for the Pontiac position was contrary was pretext.

to prior practice, and intended to favor Robinson based on her

race. D. Remaining Issues

Karim’s reference to this prior situation does not raise a In addition to challenging the dismissal of, or grant of

genuine issue of material fact with respect to pretext. summary judgment to, all of the Defendants-Appellees,

Although the prior situation indicates that the decision to Plaintiffs-Appellants challenge the following rulings of the

allow Robinson to interview was in derogation of prior district court: (1) dismissal of the Plaintiffs’ claims for

No. 01-2052 Sutherland, et al. v. Mich. 33

Dep’t of Treasury, et al.

prospective, injunctive relief; and (2) denial of the Plaintiffs’

motion for partial summary judgment. In light of our

conclusion that all Defendants-Appellees were entitled to

summary judgment on, or dismissal of, the claims brought

against them based on the Plaintiffs-Appellants’ failure to

raise a genuine issue of material fact with respect to pretext,

as well as Plaintiffs-Appellants’ failure to demonstrate that

any governmental entity other than the Department of

Treasury was their employer, we need not reach these issues.

The foregoing conclusions preclude the possibility that

Plaintiffs-Appellants could have been entitled either to

summary judgment or any form of relief, injunctive or

otherwise.

Therefore, we AFFIRM the district court’s rulings

dismissing the Plaintiffs-Appellants’ claims for prospective,

injunctive relief and denying the Plaintiffs-Appellants’

motion for partial summary judgment.

III. CONCLUSION

For all of the foregoing reasons, we AFFIRM the district

court’s rulings granting Defendants-Appellees’ motions for

summary judgment and motions to dismiss, and denying

Plaintiffs-Appellants’ motion for partial summary judgment.