Patricia J Dignan v. Ypsilanti Community Schools

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PATRICIA J. DIGNAN, UNPUBLISHED

February 7, 2019

Plaintiff-Appellant,

v No. 340089

Washtenaw Circuit Court

YPSILANTI COMMUNITY SCHOOLS, LC No. 16-000802-CD

Defendant-Appellee,

and

MDW AND ASSOCIATES,

Defendant.

Before: CAMERON, P.J., and BECKERING and RONAYNE KRAUSE, JJ.

PER CURIAM.

In this employment discrimination action, plaintiff, Patricia Dignan, appeals by right

from an order granting summary disposition in favor of defendant, Ypsilanti Community

Schools, pursuant to MCR 2.116(C)(10) (no genuine issue of material fact, movant entitled to

judgment as matter of law). Plaintiff’s claim alleged that defendant’s agent, MDW and

Associates, Inc., doing business as Michigan Leadership Institute (MLI) 1, committed age or race

discrimination in violation of MCL 37.2202 by failing to include her job application among the

narrowed-down pool of applicants for consideration by defendant when filling a superintendent

position, which went to a younger, less qualified candidate of another race. Plaintiff is

Caucasian and was 72 years old at the time she applied. The trial court held that plaintiff failed

to present any evidence establishing directly or circumstantially that either her age or her race

1

MLI was also named as a defendant, but later settled with plaintiff and was dismissed from the

case.

was a motivating factor in the applicant pool selection process, or that defendant’s failure to hire

plaintiff was a pretext for unlawful discrimination. We affirm.

I. RELEVANT FACTS AND PROCEEDINGS

In April 2015, defendant hired MLI to conduct a search for the superintendent position

within defendant’s school district. MLI agreed to recruit a qualified candidate pool and

recommend approximately four to six candidates to the board for interview.

Plaintiff submitted an online application to MLI in May 2015. Her application indicated

that she was currently self-employed, working part-time in consulting and writing about

education, which she had been doing since 2008. Plaintiff’s application also indicated that she

had not been an employee in a school district since she served as executive director for student

achievement for Detroit Public Schools from June 2000 to June 2005. Plaintiff had experience

as an assistant superintendent and superintendent at Milan Area schools from 1988-1995. From

October 1995 to April 1997, she had a superintendent position at Falls Church Schools in Falls

Church, Virginia, at which time she was offered a buyout because “the Board and I were starting

to differ philosophically on key issues.” Plaintiff alleged on the first page of her application that

she had 15 years of experience in positions similar to superintendent. However, her

superintendent and assistant superintendent positions totaled approximately nine years.

Plaintiff’s last principal position ended in 1988. Her application also showed that plaintiff

received her bachelor’s degree in 1963. The application form did not ask for the race or age of

the candidate.

MLI received 27 applications for the superintendent position and selected five

applications to forward to defendant for its review. MLI did not forward plaintiff’s application

to defendant for consideration, and defendant did not receive any materials related to plaintiff’s

application during the review process. The candidates forwarded to defendant for consideration

were all currently or very recently employed by school districts in leadership positions, and had

other recent experience working in school districts.

In June 2015, plaintiff was informed that she was no longer being considered for the

position. Plaintiff subsequently filed a complaint with the Michigan Department of Civil Rights

and the Equal Employment Opportunity Commission on January 5, 2016, alleging that she was

not hired because of her race and age. In August 2016, plaintiff filed a complaint with the

Washtenaw Circuit Court, alleging age and race discrimination and requesting that the trial court

award her 2 years’ worth of salary and benefits, amounting to approximately $600,000, which

she would have earned had she been hired. In September 2016, both MLI and defendant

answered the complaint with affirmative defenses. MLI asserted that plaintiff’s application

“lacked viability on a comparative and/or objective basis.” MLI responded to a set of

interrogatories issued by plaintiff in November 2017. In that response, MLI stated that its

knowledge of the candidates was limited to their “paper” applications because MLI conducted no

employment interviews. MLI also stated that plaintiff was eliminated from consideration based

on her disclosed credentials.

In May 2017, defendant filed a motion for summary disposition pursuant to MCR

2.116(C)(10). Defendant argued that plaintiff did not have any evidence to support her prima

-2-

facie case against defendant because she could not establish that “she was considered for and

denied the position” by defendant. Defendant did not even know that she had applied.

Defendant also argued that it was not liable for any alleged discrimination by MLI because it

would have been intentional and outside the scope of employment. Plaintiff opposed summary

disposition, arguing that MLI was acting as an agent for defendant when it passed her over and,

as a result, defendant was vicariously liable for MLI’s discrimination. She also argued that she

was “uniquely qualified” and that the man whom defendant hired was nowhere near as qualified

as she was. She continued that the only possible reason for her being passed over for an

interview was because of her age or her race. She argued that she was discriminated against

based on race because only one Caucasian person was selected for an interview. She also argued

that MLI knew her general age because she told the search consultant for MLI and her resume

indicated that she received her bachelor’s degree in 1963. Plaintiff also argued that there was an

issue of material fact because her qualifications begged the question of why she was not

interviewed, and there was an issue as to whether MLI knew her age. Defendant filed a reply to

plaintiff’s response and plaintiff filed a response to defendant’s reply, neither party raising

significant new arguments.

The trial court heard argument on defendant’s motion for summary disposition on June

21, 2017. During that hearing, defendant argued that MLI did not forward on plaintiff’s

application because of her disclosed credentials, which revealed the fact that at the time of her

application she was not working at, nor had she recently worked at, a school district. Defendant

noted that two of the applications submitted to it for consideration were from people in their 60s

and at least one was from a Caucasian person; further, two were superintendents and two were

assistant superintendents in that time frame. Defendant pointed out that there were important

reasons why recent school experience was relevant. In the past 10 years, during which plaintiff

had not been working for a school district, things had changed, such as “financing, MEAP,

different governors, different funding from state, [and] different funding from the federal

government.” Defendant also argued that MLI was not acting as defendant’s agent when it did

not forward plaintiff’s application.

Plaintiff argued that MLI was clearly acting as defendant’s agent and knew her age from

the date she graduated college, along with the fact that she told an MLI employee her age on the

phone, and knew an employee of MLI personally. She also argued that the posting did not list

“currently employed by a school district” as a criterion, even though it listed 27 other criteria.

Therefore, it could not be the reason that her name was not forwarded for consideration. Plaintiff

continued to argue that she was more qualified than were all the candidates forwarded to

defendant, especially the candidate whom defendant hired.

The trial court declined to opine on whether MLI was acting as an agent of defendant

when it did not forward plaintiff’s application. The trial court found that MLI had articulated a

rational reason to pass over plaintiff’s application, “that being her lack of current academic

leadership experience.” The trial court held that summary disposition was appropriate because

there was an “absence of any evidence that there were other considerations.” Accordingly, the

trial court granted defendant’s motion for summary disposition. Plaintiff filed an unsuccessful

motion for reconsideration, followed by this appeal.

II. ANALYSIS

-3-

As an initial matter, we acknowledge defendant’s argument that MLI was not acting as

defendant’s agent when it excluded plaintiff from the pool of candidates for defendant’s

consideration and, therefore, that it cannot be vicariously liable for MLI’s recruitment decisions.

The trial court declined to address this argument, proceeded by assuming without deciding that

MLI was acting as an agent for defendant, and analyzed the merits of plaintiff’s claim. We will

do likewise.

Plaintiff first argues that the trial court erred in granting defendant’s motion for summary

disposition because defendant did not articulate a nondiscriminatory reason for taking an adverse

employment action against her and that the criterion considering current employment by a school

district was mere pretext. We disagree. This Court reviews de novo a trial court’s ruling on a

summary disposition motion. Southfield Ed Ass’n v Bd of Ed of Southfield Public Sch, 320 Mich

App 353, 361; 909 NW2d 1 (2017).

Defendant brought its motion for summary disposition pursuant to MCR 2.116(C)(10),

arguing that plaintiff failed to establish any evidence that age or race was a determining factor in

the decision of MLI not to pass on plaintiff’s application to defendant. “A motion under MCR

2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary

disposition brought under this subsection, a trial court considers affidavits, pleadings,

depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5).”

Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). “Where the proffered evidence

fails to establish a genuine issue regarding any material fact, the moving party is entitled to

judgment as a matter of law.” Id. A motion for summary disposition based on the lack of a

material factual dispute must be supported by documentary evidence. MCR 2.116(G)(3)(b);

Meyer v City of Center Line, 242 Mich App 560, 574; 619 NW2d 182 (2000).

In support of its motion for summary disposition, defendant submitted the original

posting, plaintiff’s application, applications of the five candidates whom MLI passed on to

defendant, and MLI’s answers to plaintiff’s interrogatories. Plaintiff submitted some of the same

documents, along with inadmissible, self-created documents containing tables that compared her

qualifications to those of the candidates forwarded for consideration by defendant.

Plaintiff brought her claim of race or age discrimination pursuant to MCL 37.2202(1)(a),2

which provides:

(1) An employer shall not do any of the following:

(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate

against an individual with respect to employment, compensation, or a term,

2

Plaintiff’s complaint did not specify whether she was proceeding under state or federal law.

During the hearing on defendant’s motion for summary disposition, plaintiff claimed that she

quoted MCL 37.2202 in her complaint and seemed to believe that it was clear that that was the

statute under which she was proceeding. Plaintiff’s response to defendant’s motion for summary

disposition and her brief on appeal cite MCL 37.2202 but rely primarily on federal caselaw.

-4-

condition, or privilege of employment, because of religion, race, color, national

origin, age, sex, height, weight, or marital status.

A plaintiff may prove unlawful discrimination based on direct evidence or indirect

evidence. Hazle v Ford, 464 Mich 456, 462; 628 NW2d 515 (2001). Direct evidence is

“evidence which, if believed, requires the conclusion that unlawful discrimination was at least a

motivating factor in the employer’s actions.” Id. (quotation marks and citation omitted).

Examples of direct evidence sufficient to advance a plaintiff’s case to a jury are racial slurs by a

decision maker, or evidence that managers disparaged and “pick[ed] on” older workers while

giving preferential treatment to younger workers. See Harrison v Olde Financial Corp, 225

Mich App 601, 610; 572 NW2d 679 (1997); Downey v Charlevoix Co Bd of Rd Comm’rs, 227

Mich App 621, 716-717; 576 NW2d 712 (1998). Plaintiff does not allege, nor does the record

show, any direct evidence of race or age discrimination.

Absent direct evidence of unlawful discrimination, plaintiffs must meet the requirements

set forth in McDonnell Douglas v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).

Hazle, 464 Mich at 462. First, the plaintiff must establish a prima facie case of discrimination.

Id. at 463. To establish a prima facie case of discrimination, plaintiffs must show that (1) they

are members of a protected class; (2) they were subject to an adverse employment action; (3)

they were qualified for the position; and (4) they suffered the adverse employment action under

circumstances that give rise to an inference of unlawful discrimination. Wilcoxon v Minn Mining

& Mfg Co., 235 Mich App 347, 360-361; 597 NW2d 250 (1999).

The parties do not dispute that plaintiff is a member of a protected class3, that she

suffered an adverse employment action when MLI did not forward her materials to defendant for

consideration, or that she is qualified for the position. The dispute rests on the fourth element,

namely, whether MLI failed to forward plaintiff’s application to defendant under circumstances

giving rise to an inference of unlawful discrimination. Wilcoxon, 235 Mich App at 361. To

establish an inference of unlawful discrimination, plaintiff must present evidence that the

employer’s actions, if unexplained, “are more likely than not based on the consideration of

impermissible factors.” Hazle, 464 Mich at 470-471. “As a matter of law, an inference of

unlawful discrimination does not arise merely because an employer has chosen between two

qualified candidates.” Id. at 471. “Under such a scenario, an equally—if not more—reasonable

inference would be that the employer simply selected the candidate that it believed to be the most

qualified for the position.” Id.

3

Plaintiff alleges that she falls into a protected class based on her age and her race, as she claims

she was discriminated against because she is white. In Lind v City of Battle Creek, 470 Mich

230, 232; 681 NW2d 334 (2004), our Supreme Court held that “a claim of ‘reverse

discrimination’ ” need not satisfy different standards from those required of other claims of

discrimination, as the statute provides that “ ‘ [a]n employer shall not . . . discriminate against an

individual with respect to employment . . . because of . . . race . . . . ’ ” “MCL 37.2202(1)(a)

draws no distinctions between ‘individual’ plaintiffs on account of race” and thus, to do so would

be “inconsistent with our Civil Rights Act.” Id. at 232-233.

-5-

Plaintiff did not argue that the five candidates MLI forwarded to defendant were not

qualified, only that she was more qualified. However, when it came to superintendent

experience, plaintiff did not so outshine the selected candidates as to give rise to the inference

that MLI excluded her from the hiring pool based on impermissible factors. One candidate had

13 years of superintendent experience compared to plaintiff’s combined nine years of experience

in both assistant superintendent and superintendent positions. Two other candidates had assistant

superintendent experience, and another had five years of superintendent experience. Only one of

the five-applicant pool members was without direct assistant superintendent or superintendent

experience, but he had 15 consistent years of experience as principal of a high-achieving school.

In addition, along with assistant superintendent experience, one of the candidates had served as a

network executive officer, an executive leader of community engagement, and executive leader

of educational transitions, while another, in addition to having five years’ superintendent

experience, was an adjunct professor for the Flint campus of University of Michigan. In

situations such as this one, where there were multiple qualified candidates, it is equally, if not

more reasonable to infer that MLI selected the candidates that it believed to be best qualified for

the position of superintendent than that it excluded plaintiff from the candidate pool based on

unlawful discrimination. See Hazle, 464 Mich at 470-471.

In addition, consideration of the applicants MLI forwarded to defendant does not give

rise to an inference of unlawful discrimination because some of candidates were also members of

the same protected class. See Lytle v Malady, 458 Mich 153, 184; 579 NW2d 906 (1998)

(finding no evidence that gender was a factor in the plaintiff’s discharge in part because some of

those to whom her duties were redistributed were members of the same protected class). Two of

the applicants MLI forwarded for consideration were in their 60s and one was Caucasian.

Generally, an inference of discrimination cannot be made with circumstantial evidence where

there was not disparate treatment for members of the protected class. See id. at 177 n 26.

Disparate treatment requires a showing of either a pattern of intentional discrimination against

protected individuals or disparate impact, which requires a showing that an otherwise facially

neutral employment policy has a discriminatory effect on members of a protected class. Id.

Neither circumstance is present here, where MLI forwarded members of the protected class for

defendant’s consideration.

In order to survive summary disposition, a plaintiff may not rest upon mere allegations,

but must, by documentary evidence, set forth specific facts showing that there is a genuine issue

for trial. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). Plaintiff has

failed to set forth specific facts establishing that defendant’s actions were likely based on

impermissible factors. Candidates in the pool were qualified and some were members of the

same protected class in regard to age and race as plaintiff. Thus, plaintiff has not established a

prima facie case of discrimination. See Hazle, 464 Mich at 470-471.

Assuming for the sake of argument that plaintiff had presented evidence sufficient to give

rise to a presumption of discrimination, defendant could rebut this presumption by articulating a

“legitimate, nondiscriminatory reason for its employment decision.” Hazle, 464 Mich at 464. If

defendant makes such an articulation, “the presumption created by the McDonnell Douglas

prima facie case drops away.” Id. at 465. In this case, MLI responded to an interrogatory that it

based its decision not to forward plaintiff’s application to defendant on plaintiff’s “disclosed

credentials.” Plaintiff’s application materials showed that, while she had extensive and varied

-6-

experience in educational leadership positions, she had not been employed by a school district

for a decade and she had not had employment as an assistant superintendent or superintendent in

nearly two decades. In addition, she disclosed in her application that she left her last

superintendent position pursuant to a buyout agreement reached after she and the board began to

differ philosophically.4 By contrast, all of the qualified candidates whom MLI forwarded to

defendant for consideration were not only qualified, but they also had extremely recent or current

employment in leadership positions in school districts. Our task is not to second-guess whether

MLI’s decision was “wise, shrewd, prudent, or competent,” Town v Mich Bell Tel Co, 455 Mich

688, 704; 568 NW2d 64 (1997) (quotation marks and citation omitted), but to focus on whether

the decision was lawful, that is, one that is not motivated by a “discriminatory animus.” Hazle,

464 Mich at 476 (quotation marks and citation omitted). Under these circumstances, we cannot

say that MLI failed to offer a legitimate, non-discriminatory reason for its decision to exclude

plaintiff’s application from those forwarded to defendant. Thus, even if plaintiff had established

a prima facie case of race or age discrimination that gave rise to a presumption of discrimination,

defendant rebutted this presumption by articulating a legitimate, nondiscriminatory reason for the

employment decision at issue. See Id. at 464-465.

Defendant having rebutted the presumption of discrimination, the burden would have

shifted again to plaintiff. Id. at 465. To survive summary disposition, plaintiff would have had

to demonstrate that MLI’s reason was a pretext and that the evidence, construed in her favor, was

“ ‘sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating

factor for the adverse action taken . . . .’ ” Id. at 465, quoting Lytle, 458 Mich at 176). In other

words, plaintiff would have had to do more than “raise a triable issue that the employer’s

proffered reason was pretextual”; she would have had to show “that it was a pretext” for age or

race discrimination. See Lytle, 458 Mich at 176. Plaintiff fails to meet this burden.

Plaintiff argues that summary disposition was improper because there remain two

genuine issues of material fact that a jury should resolve. The first involves the job posting

requirements. Plaintiff observes that the job posting did not list current employment in a school

district as a criterion for the superintendent’s position and argues therefrom that MLI’s exclusion

of her from the five-candidate hiring pool on the ground that she currently was not employed by

a school district was a pretext for race and age discrimination. However, given that MLI

included in the hiring pool candidates who were of the same race as plaintiff, who were members

of the same protected class, and who were currently or recently employed in school districts, it

seems unlikely that excluding plaintiff based on her lack of current or recent employment in a

school district was pretextual for unlawful discrimination. Further, plaintiff cites no authority

obligating an employer to make sorting and hiring decisions based only on criteria included in a

job posting. In a claim of unlawful discrimination, the issue is the employer’s motivation and

intent, not its business judgment. There is no prohibition against employers considering any

lawful, relevant factor not listed in the job posting when making an employment decision. As

4

Plaintiff served as superintendent in Falls Church, Virginia, and noted in her application and at

oral argument that she also wanted to return to Michigan for family reasons.

-7-

long as the criteria considered are lawful, courts must not second-guess whether an employment

decision was “wise, shrewd, prudent, or competent.” Town, 455 Mich at 704.

Finally, plaintiff contends that a genuine issue of material fact remains regarding

comparison of her credentials with those of the ultimately successful candidate. Plaintiff is

incorrect; comparisons between her qualifications and those of the candidate defendant hired are

immaterial to the case at hand. Plaintiff alleged that MLI, as plaintiff’s agent, excluded her from

the candidate pool because of her race or age. Which candidate defendant ultimately hired out of

a qualified pool that did not include her is not relevant to a claim arising from her not being

included in that pool in the first place. In conclusion, not only has plaintiff failed to make a

prima facie case for unlawful discrimination, but assuming for the sake of argument that she had,

she failed to show that MLI’s legitimate and non-discriminatory reason for its sorting decision

was a pretext for race or age discrimination. Therefore, we hold that the trial court properly

granted summary disposition.

Affirmed.

/s/ Thomas C. Cameron

/s/ Jane M. Beckering

/s/ Amy Ronayne Krause

-8-