Opinion
Case No. 4:01-CV-95
May 21, 2003
OPINION
This matter is before the Court on Defendants' Motion for Summary Judgment. The Court has reviewed the pleadings filed by the parties and does not believe oral argument is necessary. L. Civ. R. 7.2(d). The Court will grant in part and deny in part Defendants' Motion. I. Background
Following their high school graduations in the spring of 1994 and 1995 respectively, Plaintiffs and siblings David Oliver and Mandy Oliver began applying for employment with Defendant Covert Public Schools ("Covert"). Mr. Oliver claims he has applied every six months since his graduation for a position as a janitor and as a teacher's aide. He also states he has often applied for a job as a cook or for a position in student services. Similarly, Ms. Oliver claims she has applied every six months since her graduation for employment as a janitor, student services employee, teacher's aide, and a cook. Mr. Oliver and Ms. Oliver are white, life long residents of Covert School District, and graduates of Covert.
The parties' briefing is unclear as to the year David Oliver began applying for employment with Covert. Because he graduated high school in 1994, the Court will assume that is when he began submitting applications unless and until the parties indicate otherwise.
Covert School District encompasses Covert Township, part of South Haven, Coloma, and Watervliet.
For most of the time at issue in this action, Defendant Alfred Hawkins was Superintendent of Covert. Following his resignation in 2001, his daughter, Defendant Stephanie Burrage, was selected as his replacement. According to Defendants, essentially the same hiring policy was in place throughout the period at issue. All job openings were initially offered to union members (people already employed by Covert) for a posted period of time. A test was given in order to eliminate applicants lacking requisite skills. If no union member was selected for the position, the job was opened to public applicants. The same test was administered and top scorers would be invited for an interview. College graduates bypassed the testing process and were automatically offered interviews. Supervisors conducted the interviews and made a selection. Notice of job openings at Covert were provided as a courtesy to local churches and anyone with a current application on file would receive a letter regarding the testing date and time. The only real difference in hiring practices between the two superintendents is Ms. Burrage implemented a minimum test score requirement for obtaining an interview.
Janitorial positions appear to have been offered to employees of the bus garage as well. The Court is unclear as to whether bus garage employees are union members.
The test for janitorial positions was not implemented until approximately 1997. Prior to that time, janitors were hired by either the department supervisor or the building supervisor after interviewing. The record is inconsistent on this point. No test is given to applicants for a student services position. Interviews are conducted and a decision is made on that basis. Applicants for cook positions are not given a written test but must demonstrate an ability to cook. There is some indication in the record certain employment prerequisites existed for obtaining employment as a custodian — work in the bus garage, and for becoming a teacher's aide — work in the day care.
In her deposition, Ms. Burrage indicated she has posted job openings more widely than her predecessor, though such was not indicated specifically with respect to positions for which Plaintiffs applied.
Plaintiffs contend they were never invited to take a test for a position at Covert until late 1999/early 2000 when Mr. Oliver was invited to take the test for a teacher's aide opening. He also interviewed for the position but ultimately was not hired, despite being told he would be. Since that time, Plaintiffs have tested twice for a janitorial position, but neither were interviewed. According to Plaintiffs, virtually every new hire at Covert since 1994 has been African-American.
Plaintiffs have filed the instant cause of action pursuant to the Equal Protection clause of the Fourteenth Amendment, 42 U.S.C. § 1981, 42 U.S.C. § 1983, the Michigan Elliott-Larsen Civil Rights Act, and the Michigan Persons with Disabilities Civil Rights Act, claiming race and disability discrimination. Defendants now move for summary judgment. II. Standard of Review and Applicable Federal Rules
Review of a motion for summary judgment requires the Court to determine if there is no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must consider the record as a whole by reviewing all pleadings, depositions, affidavits, and admissions on file. Matsuhita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The facts are to be considered in a light most favorable to the non-moving party, and ". . . all justifiable inferences are to be drawn in his favor." Schaffer v. A.O. Smith Harvestore Prod., Inc., 74 F.3d 722, 727 (6th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (other citations omitted). Once the movant satisfies his/her burden of demonstrating an absence of genuine issue of material fact, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Kramer v. Bachan Aerospace Corp., 912 F.2d 151, 153-54 (6th Cir. 1990). The non-moving party may not rest on its pleadings but must present "specific facts showing that there is a genuine issue for trial," Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56(e)). It is the function of the Court to decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. The question is "`whether a fair-minded jury could return a verdict for the [non-moving party] on the evidence presented." Id. at 252.
I. Analysis
A. Plaintiffs' Count I
Plaintiffs assert a violation of their Equal Protection rights under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983. Section 1983 permits a private cause of action against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." The key to proving an equal protection claim against a public employer under § 1983 is establishing that an adverse employment decision by an employer was the result of the employer's discriminatory intent and purpose. Weberg v. Franks, 229 F.3d 514, 522 (6th Cir. 2000) (internal citations omitted). `The plaintiff may not simply introduce evidence of discriminatory intent and suggest that `such intent could have played a role in an adverse employment decision. Rather, a plaintiff is required to demonstrate that the adverse employment decision would not have been made `but for' her [race].'" Id.
Defendants contend that an equal protection claim cannot be established by mere demonstration of disparate impact. While this is true, Defendants have misconstrued Plaintiffs' Complaint. Plaintiffs contend Defendants have discriminated against them in their hiring practices. Statistical evidence regarding Defendants' hiring practices over recent years may be relevant to the extent it helps state a prima facie case of discrimination and demonstrates Defendants' explanations of their hiring decisions are a mere pretext for their true discriminatory purpose. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579-Q(197S); Hazelwood Sch.Dist. v. United States, 433 U.S. 299 (1977). Plaintiffs do not rest their claim under the Equal Protection clause on a disparate impact theory, but rather endeavor to demonstrate they were treated differently from similarly situated people on account of their race in violation of the Equal Protection clause. Plaintiffs rely on statistical information as evidence of Defendants' racial motivation for their actions in order to demonstrate that Defendants' explanations are mere pretext. Therefore, the question before the Court is not whether a disparate impact theory of recovery is warranted in this action, but whether Plaintiffs have demonstrated the existence of questions of fact regarding their claims of discriminatory treatment by Defendants. The Court believes they have.
The Sixth Circuit Court of Appeals has made it clear that in order to establish a Fourteenth Amendment equal protection claim under 42 U.S.C. § 1983, a plaintiff must prove the same elements required to establish a disparate treatment claim under Title VII of the Civil Rights Act of 1964. Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988). "[I]n order to establish a prima facie case, the plaintiff must set forth the following elements:' 1) he was a member of a protected class; 2) he was subject to an adverse employment action; 3) he was qualified for the job; and 4) for the same or similar conduct, he was treated differently from similarly situated non-minority employees.'" Perry v. McGinnis, 209 F.3d 514, 600 (6th Cir. 2000) (internal citations omitted) (noting a plaintiffs race need only be a motivating factor and not necessarily the sole factor for him or her to succeed). In finding parties similarly situated, the Court should seek relevant similarity and not exact correlation. Id. Upon plaintiff presenting evidence satisfying each element, the burden of persuasion shifts to defendant to show that it would have taken the same action for nondiscriminatory reasons. Weberg, 229 F.3d at 522-23 (discussing the McDonnell-Douglas framework applicable to claims of racial discrimination). The plaintiff can then present evidence indicating the defendant's explanation is a mere pretext.
Because this is so, the Court addresses Plaintiffs' race discrimination claim as one claim though brought pursuant to various statutory and constitutional provisions. The elements of proof are essentially the same for each.
From the Court's reading of the record, there appear to be material questions of fact on nearly every element of Plaintiffs' claim. For instance, the record is unclear as to whether Plaintiffs applied for employment at Covert every six months. Assuming they did, there is a question as to whether they received notification of testing opportunities and invitations to interview. There is a question of fact as to which new hires were similarly situated to Plaintiffs, particularly with respect to how post-secondary education was valued and how test scores were weighted. It is unclear what Defendants' hiring policies are for the various positions for which Plaintiffs applied. The Court will refrain from highlighting the many questions it has after reviewing the record and inconsistencies it noted and will find that in taking the evidence in the light most favorable to Plaintiffs, material questions of fact abound with respect to Plaintiffs' race discrimination claim pursuant to 42 U.S.C. § 1981, 42 U.S.C. § 1983, the Equal Protection Clause of the Fourteenth Amendment, and the Michigan Elliott-Larsen Civil Rights Act. Summary judgment therefore would be inappropriate.
B. Plaintiffs' Count II
Ms. Oliver asserts a claim pursuant to Michigan's Persons with Disabilities Civil Rights Act. Mich. Comp. Laws § 37.1101 et seq. She argues Defendants' perceived her to have a disability and discriminated against her because of that perception.
Under the statute, disability is defined in pertinent part as: "Being regarded as having a determinable physical or mental characteristic ['which may result from disease, injury, congenital condition of birth, or functional disorder']." Mich. Comp. Laws § 37.1103. The Michigan Supreme Court has determined, "while a plaintiff need not actually have a determinable physical or mental characteristic, to qualify as handicapped under subsection (iii), the plain statutory language does require that the plaintiff prove the following elements: (1) the plaintiff was regarded as having a determinable physical or mental characteristic; (2) the perceived characteristic was regarded as substantially limiting one or more of the plaintiffs major life activities; and (3) the perceived characteristic was regarded as being unrelated either to the plaintiffs ability to perform the duties of a particular job or position or to the plaintiffs qualifications for employment or promotion." Michalsk v. Reuven Bar Levav, 625 N.W.2d 754, 759-60 (2001). A plaintiffs physical or mental condition is evaluated as it was perceived at the time of the alleged discrimination. Id. at 760.
Ms. Oliver has presented evidence that Defendants may have perceived her to have a disability that prevented her from being hired by Covert, thereby satisfying the first prong of the test. However, she has offered no evidence demonstrating that Defendants regarded her perceived disability as substantially limiting one or more of her major life activities. The Michigan Supreme Court "has defined major life activities as `functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.'" Stevens v. Inland Waters, Inc., 559 N.W.2d 61, 64 (Mich.App. 1997). If the major life activity substantially affected is working, "the inability to perform a particular job does not constitute a substantial limitation." Id. Rather, Ms. Oliver must show the impairment significantly restricted performance of a wide range of jobs. Chiles v. Machine Shop, Inc., 606 N.W.2d 398, 407-08 (1999).
Taken in the light most favorable to Ms. Oliver, the evidence indicates Defendants thought Ms. Oliver could not perform a janitorial job while wearing a cast, not that she generally could not work. Even if Defendants perceived her to have a disability and did not hire her for that reason, the evidence does not in any way indicate Defendants did not believe her capable of performing major life activities. The evidence only indicates Defendants were unwilling to hire her as a janitor because of her leg injury. Nothing in the record indicates Defendants considered Ms. Oliver's leg injury to be permanent or substantially limiting. Id. at 408 (stating temporary medical conditions do not normally constitute a disability). Defendants could not have perceived Ms. Oliver to have suffered from an impairment that substantially limited a major life activity considering the temporariness of her injury. Id. at 409-10. There being no genuine issue for trial on this claim, the Court grants Defendants summary judgment on this claim only. IV. Conclusion
Therefore, the Court will grant in part and deny in part Defendants' Motion. A Partial Judgment consistent with this Opinion will be entered.
PARTIAL JUDGMENT
In accordance with an Opinion filed this day,IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (Dkt. No. 46) is GRANTED IN PART AND DENIED IN PART. Count II of Plaintiffs' Complaint is hereby dismissed.