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 firstname.lastname@example.org.
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 email@example.com.