Opinion
No: 5:01-CV-34
January 25, 2002
PARTIAL JUDGMENT AND ORDER OF REMAND
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Defendant Lansing Community College's Motion for Summary Judgment (Dkt. No. 25) is GRANTED IN PART AND DENIED IN PART. Said Motion is granted only with respect to Plaintiff Silvija D. Meija's federal law claims, which claims are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Clerk shall remand Plaintiff's remaining state law claim to the Circuit Court for Ingham County, Michigan.
IT IS FURTHER ORDERED that Defendant's request for Rule 1 I sanctions is DENIED.
IT IS FURTHER ORDERED that Defendant's request for attorney fees is DENIED as premature.
OPINION
Defendant Lansing Community College has moved for summary judgment in this reverse discrimination suit. For the reasons which follow, the Motion for Summary Judgment will be granted in part, but requests for sanctions and attorney fees will be denied.
FACTS
This suit was brought by Plaintiff Silvija D. Meija. It is based on the allegations that Defendant discriminated against her by its failure to hire her for a full-time teaching position, that the failure was based on her majority race and color (white), and that the Defendant instead hired a less-qualified minority applicant. The parties have filed deposition testimony, documents, admissions and affidavits in favor of their respective positions.
Plaintiff is a part-time instructor for Defendant, who has taught writing courses for the Defendant beginning in January 1989. (Plaintiff's Exhibit C.) Plaintiff has applied for a number of full-time teaching jobs posted by Defendant. However, each of the jobs for which Plaintiff applied was filled by a nonminority applicant. (See Defendant's Motion at 3-6 and referenced exhibits.)
One job referenced in Plaintiff's complaint, job posting number 424, was filled by a minority applicant. Job posting number 424 was formally posted at the College and the posting dictated application by use of a letter of application, resume and completed application form by February 21, 1997. (Defendant's Exhibit 0.) As to that posting, Plaintiff has said that she failed to submit a formal application, but instead submitted a letter of application. (Plaintiff's Deposition at 92.) Plaintiff has failed to produce a copy of the application letter, but has produced a "rough draft" which lacks any reference to the job posting number. (Id. at 93-95.) Plaintiff testifies that she called the Human Resource Department to confirm that her letter application for posting number 424 had been received; however, she cannot recall with whom she spoke. (Id. at 95-96.)
While the Court considers as evidence Plaintiff's statement that she called the Human Resources office for the purposes of confirming her application, the Court cannot consider as evidence the "answer" of the recipient of that call. See Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996) (stating that "hearsay" statements cannot be considered); Wiley v. United States, 20 F.3d 222, 225-226 (6th Cir. 1994) (same). This is because, without knowing the authority of the person who answered the telephone, the "answer" is a hearsay statement without a viable basis for its introduction under Federal Rules of Evidence 801 and 803.
Plaintiff's name did not appear on the list of thirty-one applicants for posting number 424. (Defendant's Exhibit P.) Nancy Wohlscheid, the Defendant's Human Resources Coordinator, who coordinated the hiring for position number 424, has sworn that her office did not receive any kind of application from Plaintiff for posting number 424 and that, for this reason, Plaintiff was not listed among the applicants. (Affidavit of Nancy Wohlscheid.) The successful applicant for posting number 424 was an Hispanic female, Melinda Hernandez, whom the Dean of the Department of Communications, Dean Gary Knippenberg, invited to interview for the position because of her strong qualifications as demonstrated in her application for job posting number 390. (Defendant's Exhibit Q.) According to Klippenberg's Memorandum, Hernandez was selected and hired after the hiring committee's initial posting was re-written because, based on the original version of the hiring requirements, none of the applicants was deemed qualified. (Id.) Plaintiff regards Melinda Hernandez as unqualified because she substituted in a class taught by Melinda Hernandez in which students complained about Melinda Hernandez's instruction. (Plaintiff's Dep. at 174-176.)
Plaintiff, though, in fact defended Hernandez' performance before Hernandez' students. At that time, Plaintiff had no personal knowledge for believing the student criticisms, which are hearsay, because she had not personally observed Hernandez's performance. Thus, a careful consideration of this evidence rejects it as hearsay.
Melinda Hernandez was selected only after the hiring committee culled the resumes received to narrow the group to minimally qualified applicants, interviewed the most qualified applicants, and selected top applicants for interview by the hiring official. (Defendant's Exhibits Q and R and Deposition of Queen Foreman McMiller at 117-118.) The selection of the hiring committee, according to College policy, does not even consider race and ethnicity. (Deposition of Queen Foreman McMiller at 144-146.) While the College encourages diversity hiring and has an "Affirmative Action Program," this policy promotes diversity only by encouraging qualified applicants to apply for positions and not through any racial preferences or quotas. (Id. at 144-147 and Plaintiff's Exhibit H.)
Plaintiff says that she had a meeting with Gary Knippenberg relating to another job posting in which he made the following statements to "I asked him if minorities will be given preference with the hiring process, ... and his response was absolutely not. We hire on individual merit. . . . Then he paused and then said there are certain quotas college-wide that we do have to meet. It is not by department. . . ." (Plaintiff's Dep. at 97.) There is no indication that Knippenberg made any statements to her about the reasons for hiring Melinda Hernandez or about the hiring for job posting number 424. (See id.)
STANDARDS FOR SUMMARY JUDGMENT
Defendant's Motion is brought pursuant to Federal Rule of Civil Procedure 56. Under the language of Rule 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The initial burden is on the movant to specify the basis upon which summary judgment should be granted and to identify portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden then shifts to the non-movant to come forward with specific facts, supported by the evidence in the record, upon which a reasonable jury could find there to be a genuine fact issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). If after adequate time for discovery on material matters at issue, the nonmovant fails to make a showing sufficient to establish the existence of a material disputed fact, summary judgment is appropriate. Celotex Corp., 477 U.S. at 323.
LEGAL ANALYSIS
A. Federal Claims
There is no dispute between the parties concerning the general principles guiding decision in federal employment reverse discrimination suits brought pursuant to 42 U.S.C. § 1983 and 1981. The parties agree, as they must, that the standards are those announced by the Sixth Circuit Court of Appeals in Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985). See also Pierce v. Commonwealth Life Insurance Co., 40 F.3d 796, 801 (6th Cir. 1994); Yeager v. General Motors Corp., 265 F.3d 389, 397 (6th Cir. 2001); Nelson v. City of Flint, 136 F. Supp.2d 703, 713714 (E.D. Mich. 2001). In other words, to establish a prima facie case of reverse discrimination, the Plaintiff must show that "'background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority,' and . . . that the employer treated differently employees who were similarly situated but not members of the protected group." Murray, 770 F.2d 63, 67 (6th Cir. 1985) (quoting Parker v. Baltimore and Ohio Railroad Co., 652 F.2d 1012, 1017 (D.C. Cir. 1981)).
In applying the above test, it is a prerequisite for liability that the complainant have applied for the position at issue, at least in the context in which the employer utilizes a formal hiring process. See Nguyen v. City of Cleveland, 229 F.3d 559, 563-65 (6th Cir. 2000); Wanger v. GA. Gray Co., 872 F.2d 142, 145-47 (6th Cir. 1989). While the Sixth Circuit Court of Appeals in the later case of Dews v. A.B. Dick, 231 F.3d 1016, 1021-22 (6th Cir. 2000) made an exception in a failure to promote case which did not involve the use of a formal hiring process, that exception clearly does not apply. The mechanism for hiring used in this case, as is typical of community colleges, was a formalized hiring process. Plaintiff did not meet the application requirements of that process and, for that reason, was not considered for the position. On this record, any reasonable finder of fact must conclude as a matter of law that Plaintiff cannot prevail as to her federal law claims.
B. State Law Claim
Plaintiff has also sued for the alleged employment discrimination under the Michigan Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101 et seq. Resolution of the state law claim involves potentially interpreting important provisions of MELCRA, including section 210 of MELCRA (Mich. Comp. Laws § 37.2210). As to the state law claim, the Court has supplementary jurisdiction pursuant to 28 U.S.C. § 1367. Nevertheless, given the important interest of the State of Michigan in interpreting state law and given that the federal law claims have been now been dismissed, Section 1367(c)(3) authorizes this Court to decline to exercise jurisdiction over the state law claim. The Court believes that the interests of justice would be best served by the state court's resolution of the remaining state issues and therefore declines to exercise jurisdiction over the remaining state law claim. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 357 (1988); Musson Theatrical Inc. v. Federal Express Corp., 89 F.3d 1244 (6th Cir. 1996). Accordingly, consistent with the above precedent, the remaining state law claim shall be remanded to the Circuit Court for the County of Ingham, Michigan.
C. Motion for Rule 11 Sanctions
Defendant incorporated in its Motion for Summary Judgment a request for Rule 11 sanctions based on the premise that Plaintiff's position was not well-ground in fact. As correctly noted by Plaintiff in response, Rule 11 creates a number of procedural hurdles for sanction requests including: (1) that a motion be made separately from other motions or requests; and (2) that the opposing party receive notification and a chance to withdraw the infringing pleading. See Fed.R.Civ.Proc. 11(c)(1), (c)(2).
In this case, neither of these prerequisites were met. Further, while the Rule provides the Court with discretion to order sanctions sua sponte (see Rule 11(c)(1)(B)), the Court elects not to do so on the particular facts of this matter, which do not cry out for an award of sanctions.
D. Motion for Attorney
Defendant has made, with its summary judgment motion, a request for attorney fees under 42 U.S.C. § 1988. The Court deems this request as premature because final judgment has not been determined and because the source of the attorney fees request is a "prevailing party" statute which requires an analysis of whether a party has prevailed with respect to all claims brought in the suit. See Hughes v. Rowe, 449 U.S. 5, 14-15 (1980) (applying Christianburg holding to fee awards to defendants under section 1988); Christianburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 422 (1978) (describing pertinent standards for fee awards to defendants under Title VII); Jones v. Continental Corp., 789 F.2d 1225, 1232 (6th Cir. 1986) (following Christianburg and Hughes); Riddle v. Egeniperger, 266 F.3d 542, 547 (6th Cir. 2001) (following Christianburg and Hughes). Accordingly, the Motion for Attorney Fees will be denied without prejudice as premature.
CONCLUSION
For the reasons stated, a Partial Judgment and Order of Remand shall issue which shall grant Defendant summary judgment as to Plaintiff's federal law claims, remand the pending state law claim to the Circuit Court for Ingham County, and deny Defendant's requests for attorney fees and sanctions.