Opinion
Case No. 99-73571
June 19, 2001
MEMORANDUM AND ORDER
I. Introduction
This is a reverse race discrimination case. Plaintiffs Thomas E. Sutherland (Sutherland) and Nancy Karim (Karim), employees of the Audit Division of the Bureau of Revenue of defendant Michigan Department of Treasury (Treasury Department), are suing their employer, defendant Treasury Department, and various other defendants claiming that they were denied a promotion on the basis of race. In a Memorandum and Order dated January 22, 2001, the Court granted summary judgment in favor of defendants on Sutherland's claims and dismissed the 1998 interview panel as defendants. Currently, only Karim's claim for race discrimination against the Treasury Department and Alfinio Olivarez (Olivarez), the Treasury Department's equal employment officer, remain.
Now before the Court are plaintiff Sutherland's motion for rehearing (i.e., reconsideration of the dismissal of his claim) and defendants' motion for summary judgment on Karim's claim. For the reasons that follow, the motion for reconsideration will be denied and the motion for summary judgment will be granted.
II. Facts
The background of the case is described in the Court's Memorandum and Orders of January 22, 2001 and March 21, 2000. In brief, Sutherland and Karim are longtime employees of the Treasury Department, Audit Division who were passed over for promotions to the position of Auditor Manager 14 in favor of African-American candidates, under separate circumstances.
On January 22, 2001, the Court granted summary judgment in favor of the defendants on Sutherland's claim. The Court found no merit to Sutherland's claim that he was better qualified for the position than Famurawa, the person who was ultimately given the job. The Court also dismissed the interview panel as defendants on Karim's claim finding that they did not have anything to do with the allegedly discriminatory conduct.
III. Sutherland's Motion for Reconsideration A.
Sutherland now seeks reconsideration of the Court's grant of summary judgment In favor of defendants on his claim of race discrimination. He argues that he has "undisputed objective evidence that he has far superior qualifications than Mr. Famurewa," and therefore, the Court's decision was in error. Plaintiffs motion at 1. In particular, Sutherland says that the deposition testimony given by Michael Steinman (Steinman) and Brenda Broughan (Broughan), in which they evaluate the answers given by the candidates to a particular question on the written examination and opine that they would have scored Sutherland "at least a good as [Famurawa's] scores," creates a genuine issue of material fact as to whether Sutherland's written exam was deliberately downgraded on account of his race. Sutherland argues that the fact that neither Steinman, nor Broughan saw any of the model answers to the written examination is of no consequence because they "are aware of the general criteria used in assigning audits; because Mr. Steinman's review of five candidates' answers used the criteria actually listed by the candidates; and because comparing candidate's answers by the criteria they actually used, and comparing plaintiff Sutherland's answer with Mr. Famurewa's answer on that basis, Is the only credible was (sic) to judge whether plaintiff Sutherland's score was downgraded."
Although Sutherland now includes more details on how his and Famurawa's answers to question I of the written examination are objectively similar, it is still undisputed that Steinman and Broughan were not involved in the interview process, did not see the model answers, and are longtime friends and co-workers of Sutherland. Most importantly, there is still no evidence of a deliberate downgrading of Sutherland's written examination on the basis of his race. Simply because there may be a disagreement on the merits of Sutherland's examination answers, and Sutherland happens to be a white man, does not implicate race discrimination. Not even Steinman and Broughan suggest that any deliberate discrimination was involved in the scoring of the written examination process. In short, there is no evidence showing a causal connection between Sutherland's score on a single examination question and his race. As such, Sutherland has failed to demonstrate that the Court's previous decision on this issue was palpably defective.
B.
Sutherland also asserts that Famurewa was "totally unqualified" because in 1988, the former Administrator of the Audit Division told Olivarez that an auditor had to have two to four years at the Auditor 12 position to be able to assume the duties of Auditor Manager 14. However, the document submitted in support of this allegation does not clearly indicate this. See exhibit 4 attached to plaintiffs brief. The document talks in terms of auditor positions using roman numerals, (e.g., Auditor VI) which do not correspond to levels of the currently used numeric system (e.g., Auditor 12). Indeed, in his deposition, Steinman indicates that the position levels have changed two or three times" since he started in the 1970's. Sutherland proffers no proof that the positions and levels referred to in 1988 (discussed in exhibit 4) are the equivalent of the positions and levels of today. Accordingly, there is no proof supporting Sutherland's allegations that Famurewa was unqualified for the position of Audit Manager 14.
In sum, Sutherland has failed to demonstrate the palpable error required for reconsideration and appears merely to disagree with the Court's decision.
IV. Defendants' Motion for Summary Judgment (Karim's claim)
The Treasury Department and Olivarez move for summary judgment on Karim's claim on the grounds that even if Rosalind Robinson (Robinson), the woman who was ultimately given the position, had not competed for the position, the position would not have gone to Karim. Rather, they say, it would have been offered to the third highest scoring candidate, Bonnie McWilliams (McWilliams), who would have accepted the position. Also, they say that Karim cannot establish that defendants' non-discriminatory explanation for the decision to post a second transfer notice for the Pontiac office in 1998, or the decision to allow Robinson to participate in the interview process for the Pontiac position, are pretextual. Defendants finally contend that Karim failed to comply with the necessary prerequisite for filing a Title VII claim regarding the only remaining issue in the case.
A.
It is undisputed that Karim ranked fourth for the Pontiac position, below Robinson, Charles Wright, and McWilliams. Prior to interviewing for the Auditor 14 positions, each candidate was asked to specify which office location they were willing to work, and to rank their preferences. Robinson and Karim chose only Pontiac. McWilliams, however, ranked her preferences (from most preferred to least preferred) as Detroit Field, Pontiac Field, and Detroit CBAT. See affidavit of Anthony Taylor. Since McWilliams scored higher than Karim, she would have been offered, and would have accepted, the Pontiac position. See affidavit of Bonnie McWilliams; affidavit of Anthony Taylor. Defendants therefore assert that Karim's race discrimination claim must fail because even if Robinson had not interviewed for the Pontiac position -the action that Karim challenges- Karim still would not have received the position; It would have gone to McWilliams, the third highest scorer. Id.
Charles Wright was the highest scoring candidate for the Detroit Field position, which was his first preference. Accordingly, Wright was offered, and accepted the Detroit Field position.
Instead, McWilliams was offered and accepted her third choice position: Detroit OBAT. Later, in 1999, she was offered a position in Detroit-Field.
Defendants argue, without citing any authority, that since Karim cannot establish that she would have received the position sought, she cannot prevail as a matter of law, even assuming arguendo that there is an issue of fact as to whether race was improperly interjected into the decision to allow Robinson to compete. In short, although not presented as such, defendants say that there is no causal connection between the alleged discrimination and Karim's lack of promotion.
In response, Karim argues that:
defendants' present argument about Bonnie McWilliams is a purely academic, abstract, hypothetical and moot issue, because ensuing events since 1998 shows she achieved in late 1999 an Auditor Manager field position in Detroit, her 1998 first choice position and location; and the issue of whether she would have received the Pontiac position had not the ineligible Rosalind Robinson interviewed and been appointed, is a pretended controversy which has no effect in reality; and that intervening fact mans defendants' assertions no longer present an actual controversy, and are thus moot.
Plaintiffs brief in response at 5.
In support of this, Karim cites to several cases, including Haskins v. United States Dept. of the Army, 808 F.2d 1192 (6th Cir. 1987) andUnited States v. City of Miami, 195 F.3d 1292 (11th Cir. 1999). However, upon review of the two cases, Karim's reliance on Haskins andCity of Miami appears to be misplaced. Indeed, the cited cases are more helpful to defendants than to Karim.
In Haskins, the Court of Appeals for the Sixth Circuit held that the district court did not err when it held that, even in the face of admitted sex discrimination against the plaintiff, the plaintiff was not entitled to relief because she could not show that "but for" the Army's discrimination she would have received the promotion. As quoted by Karim In her brief, the Haskins court stated:
[W]hen it is alleged that the Title VII plaintiff would not have been hired or promoted even in the absence of the unlawful discrimination, — i.e., that there was more than one reason for the adverse employment action — we held that the causation standard, or "same decision" test of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977) applied. Under the Mt. Healthy test, once a plaintiff has met his or her burden of showing that the illegal conduct more likely than not was a motivating factor in the employment decision, the defendant must be given the opportunity to show, by a preponderance of the evidence, that the same decision would have been reached even in the absence of discrimination.Haskins, 808 F.2d at 1197 (internal citations omitted).
Here, as defendants argue, even if it can be shown that Robinson's promotion was due to discrimination by defendants, it is of no consequence if, "even in the absence of discrimination, " Karim would still have lost out on the promotion. This is because there is no "but for" causation, and consequently, no liability. See Haskins at 1198 ("In our Circuit, therefore, the "same decision' causation test is to be applied in determining whether there is Title VII liability, rather than fashioning the appropriate relief."); cf. Bibbs v. Block, 778 F.2d 1318 (8th Cir. 1985), en banc, (holding liability established, but shifted burden to defendant to prove that plaintiff would not have been hired or promoted in absence of discrimination); Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976) (same).
Karim's argument, relying on City of Miami, that it is impossible to "create the past as it would have existed absent an employer's discriminatory conduct," similarly misses the mark. City of Miami, 195 F.3d at 1299. In City of Miami, the issue was solely whether the district court's order of broad remedial relief was proper causation was not an issue. Id. at 1298-99. The court in City of Miami needed to "create the past" to "discern how the . . . promotions likely would have proceeded in the absence of the discriminat[ion]" merely to fashion an appropriate relief— not to decide if the causation prong was met. Id. at 1299. Thus, City of Miami is irrelevant to this discussion.
Further, the cases of Menominee County Taxpayers Alliance, Inc. v. Menominee County Clerk, 139 Mich. App. 814 (1985) and Harney v. Cahill, 206 N.E.2d 500 (III. 1965), cited by Karim for the proposition that "the question surrounding whether plaintiff would not have been promoted because of Bonnie McWilliams are now moot and irrelevant," are likewise inapposite. Although Karim is correct that in some circumstances, subsequent events can render a case moot, Menominee and Harney address the situation of when a plaintiff loses standing to bring a claim, based on subsequent events. Here, Karim appears to be relying on Menominee andHarney in arguing that because McWilliams is no longer in Pontiac and is instead now In her first location choice, Detroit Field, "she is removed as any impediment to retroactive promotion of plaintiff." This reasoning again confuses causation with relief. Contrary to Karim's contentions, the defendants do not appear to be arguing that the Court cannot grant the relief sought by Karim. Defendants' argument is solely on the issue of causation, which Karim fails to sufficiently address in her response. Accordingly, defendants are entitled to summary judgment on Karim's claims on the grounds that she cannot establish that any alleged discrimination caused her loss of promotion.
In her brief, Karim spends a great deal of time discussing whether she is entitled to a retroactive promotion involving the "bumping" of Robinson. However, as noted above, this Issue is not the basis of defendants' motion. Therefore, the Court will not address the issue at this time.
B.
Moreover, in its previous Memorandum and Order, the Court permitted Karim to proceed with her claim against the Treasury Department and Olivarez on the grounds that the decision to post a second transfer notice was out of the ordinary established past practices, which allowed an inference of discrimination. See Memorandum and Order dated Jan. 22, 2001 at 11-12. However, as defendants now point out, there does not appear to be any evidence that Olivarez was personally involved in the decision to re-post the notice. Rather, that decision appears to have been solely made by David Husted, the Audit Division Administrator. Although Oliverez may have approved the ultimate appointment of Robinson to the position, he had no involvement in the claimed alleged discriminatory conduct of posting the second notice. Accordingly, Karim's claim against Oliverez must be dismissed on these grounds as well.
V. Conclusion
For the reasons stated above, plaintiff Sutherland's #69 motion for reconsideration is DENIED, defendants' #70 motion for summary judgment is GRANTED, and the case is DISMISSED.
SO ORDERED.