Attorneys Win Case for Local Municipality: Plaintiff Sought $1,020,000 in Damages, Awarded $0

In a case recently won by Linda Davis Friedland and Elizabeth Rae O’Donnell, a firefighter sued a local municipality, five former and current Trustees, and the Fire Chief, under Title VII of the Civil Rights Act of 1964 and Michigan’s Elliott-Larsen Civil Rights Act (ELCRA).  Plaintiff sought $1,020,000.00 in damages and was awarded nothing.

Plaintiff, who is of Asian descent and a part-time firefighter with the municipality’s fire department, submitted an application to the Board of Trustees for the vacant position of Fire Chief. In a 5 to 1 vote, the Board disqualified Plaintiff’s application as insufficient during an open Board Meeting in 2012. Two years previously, Plaintiff had filed a complaint with the EEOC, charging that he had been removed as the municipality’s IT Administrator because he is Asian. The municipality defended the EEOC action on the grounds that Plaintiff

could not have been the IT Administrator, because the municipality did not have an IT Administrator, which is why it hired an outside contractor to handle its networking and computer matters. Plaintiff received a Right to Sue Letter, but he did not pursue a lawsuit against the Township at that time.

Following the disqualification of his application for the Fire Chief position in 2012, however, Plaintiff did file a lawsuit against the municipality, five Trustees and the new Fire Chief, claiming that his application had been disqualified in retaliation for his 2010 EEOC complaint. Plaintiff also claimed that he was harassed by the new Fire Chief in 2013 and 2014 in retaliation for his 2010 EEOC complaint.

Plaintiff claimed $1,020,000.00 in damages for lost future wages, to which he believed he was entitled, as the one who should have been hired as the Fire Chief.

The one Trustee who voted “no” during the 2012 Board meeting testified during his deposition that in his opinion, the Board had disqualified Plaintiff’s application in retaliation for his 2010 EEOC complaint. This Trustee stated that two of his fellow Trustees had made negative comments regarding Plaintiff’s 2010 EEOC complaint, but he could not recall what was said, or when they were allegedly said. When asked whether these alleged negative comments could have been made back in 2010, the Trustee could not remember that either. Four of the five Trustees who had voted “yes” to disqualify Plaintiff’s application testified that the application was indeed insufficient to warrant an interview, and that the 2010 EEOC complaint had nothing to do with their decision. Their testimony was corroborated by the official recording of the Board meeting.

A second witness for the Plaintiff, a veteran firefighter, testified that in his opinion, the Board disqualified Plaintiff’s application because Plaintiff is Asian. This firefighter also testified that in his opinion, the Township discriminates against all those who are not white and against gays, but the only examples he could cite to support his opinion were allegations of discrimination against African Americans. This testimony was similar to Plaintiff’s deposition testimony, in which he alleged that African Americans suffered discrimination in the municipality, therefore, he must have suffered race discrimination too.

The municipality filed a motion for summary judgment, arguing that Plaintiff could not satisfy the “but for” test under University of Texas Southwestern Medical Center v Nassar, 133 S. Ct. 2517 (2013). Plaintiff responded by filing a motion to amend his complaint, in order to add a claim of race discrimination.

The Court denied Plaintiff’s motion to amend his complaint as being too late, as prejudicial to the municipality that had already filed its motion for summary judgment, and because Plaintiff could not present any evidence that he himself had suffered any discrimination on the basis of his race. The Court noted that Plaintiff is Asian, not African American.

The Court then found that Plaintiff could not provide direct evidence that Plaintiff’s application had been disqualified in retaliation for his 2010 EEOC complaint, and that temporal proximity could not be established given the two-year passage of time. The Court then applied the “but for” test under University of Texas Southwestern Medical Center to the burden-shifting framework under McDonnell Douglas Corp. v. Green, and found that Plaintiff could not establish the fourth prong, which required proof that “but for” the Plaintiff’s filing of his 2010 EEOC complaint, the Board would not have disqualified Plaintiff’s application. As such, the Court found that Plaintiff could not establish a prima facie case of retaliation under neither Title VII nor ELCRA, and entered summary judgment in favor of the municipality.

Linda Davis Friedland is an attorney in our Livonia office where she concentrates her practice on commercial litigation, employment and labor law, corporate and business law, estate planning, utilities law and municipal law. She may be reached at (734) 261-2400 or lfriedland@cmda-law.com.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law. She may be reached at (734) 261-2400 or erae@cmda-law.com.

Attorneys Attending MAC Conference

AJBMACHaider Kazim and Andrew Brege, both partners at CMDA, are attending the Michigan Association of Counties (MAC) Annual Conference today at the Grand Traverse Resort in Traverse City, MI.  They are enjoying the opportunity to further enhance and develop new relationships with MAC members.  If you are at the Conference, stop by and visit them at our exhibitor’s booth.

Recent Changes to Nonprofit Corporation Act Could Impact Michigan Community Associations

Joe Wloszek_8x10@300Recent changes to the Nonprofit Corporation Act have impacted Michigan condominium associations and their board of directors. In the most recent Michigan Real Property Review, Joe Wloszek and Brandan Hallaq summarize the changes to the Act, outline potential issues that may present themselves as a result of these changes, and offer suggestions on what actions condominium associations should take to comply with the updates.

Joe Wloszek is an attorney in our Livonia office and concentrates his practice on dispute avoidance, condominium law, commercial litigation, commercial real estate, large contractual disputes, and title litigation.  He may be reached at (734) 261-2400 or jwloszek@cmda-law.com.

Attorneys Selected as 2015 Michigan Super Lawyers & Rising Stars

We are pleased to announce that several CMDA attorneys have been selected for inclusion in the 2015 Michigan Super Lawyers & Rising Stars List.  Please join us in congratulating the following attorneys:

2015 Michigan Super Lawyers

Jeff Clark, Top Rated State, Local and Municipal Attorney
Allan Vander Laan, Top Rated State, Local and Municipal Attorney
Haider Kazim, Top Rated State, Local and Municipal Attorney
The Super Lawyers List recognizes no more than 5% of attorneys in Michigan.

2015 Michigan Rising Stars

Andy Brege, Top Rated State, Local and Municipal Attorney
Kevin Hirzel, Top Rated Real Estate Attorney
Greg Grant, Top Rated Civil Litigation Attorney
Joe Wloszek, Top Rated Civil Litigation Attorney
Jessica Hite, Top Rated State, Local and Municipal Attorney
The Rising Stars List recognizes no more than 2.5% of attorneys in Michigan.

Chris Schultz, managing partner of the Firm, explains, “Having several CMDA attorneys selected as Michigan Super Lawyers and Rising Stars is validation for the hard work they put into the Firm and the superb level of service they offer clients. All of our lawyers are completely dedicated to obtaining the best possible outcome for every client.”

Attorney Discusses Drone Use in Community Associations

Kevin Hirzel_8x10@300Kevin Hirzel, a partner in our Livonia and Clinton Township offices, was interviewed for the September/October Common Ground magazine article “Identified Flying Objects.” The article outlines unmanned aircraft systems- more commonly known as drones- and whether communities can or should restrict their use.

In the article, Mr. Hirzel explains that the communities he represents have taken a range of stances on the use of drones, including some communities wanting to outright ban their use, while others desire to take a more moderate approach. Instead of making a firm decision today, Mr. Hirzel recommends communities amend their bylaws to include broad language about drones that allows for some flexibility to adopt rules and regulations in the future. Moreover, federal, state, and local governments may enact laws in the coming years regarding drone use. In addition to drones, Mr. Hirzel advises clients to be prepared to handle other technological advances that may impact community associations as well.

Kevin Hirzel is a partner and practices out of both our Clinton Township and Livonia office locations. He concentrates his practice on commercial litigation, community association, condominium law, construction law and real estate law. He may be reached at (734) 261-2400 or khirzel@cmda-law.com.

Please view The Michigan Community Association Law Blog at http://www.micondolaw.com for additional resources on Michigan Community Association Law.

CMDA Donates School Supplies to School in Need

SchoolSuppliesChildren throughout Michigan dusted off their backpacks and headed back to school today. We wish them the best of luck as they begin the new academic year.

To commemorate CMDA’s 50th Anniversary, every month throughout 2015 we are donating 50 (or more) items to a local charity. This month, we donated school supplies to Taylor International Academy, which is a K-8th grade school comprised of children from Detroit, Southfield and other nearby communities.  Many underprivileged students attend the school and have difficulty purchasing back to school supplies.  The donated items will be put to great use by their teachers and students. Thank you to everyone who donated.

Attorney Appointed Chairman of Legislative Action Committee

Kevin Hirzel_8x10@300Congratulations to Kevin Hirzel who has been appointed the Chairman of the Legislative Action Committee (LAC) for the Community Association Institute Michigan Chapter (CAI). The LAC is CAI’s official voice with legislators and regulators in Michigan. The LAC allows CAI to speak with one voice on legislative and regulatory matters that affect community associations, community association managers, and CAI business partners in Michigan and on a national level.

Mr. Hirzel is a partner and practices out of both our Clinton Township and Livonia office locations. He concentrates his practice on commercial litigation, community association, condominium law, construction law and real estate law. He has extensive litigation and trial experience in a wide variety of real estate and complex commercial litigation matters. Mr. Hirzel represents builders, community associations, condominium associations, cooperatives, co-owners, developers, homeowner associations, investors, property owners, and property managers throughout Michigan. He may be reached at (734) 261-2400 or khirzel@cmda-law.com.