Perry v. McGinnis
| Citation | 209 F.3d 597 |
| Decision Date | 04 November 1999 |
| Docket Number | PLAINTIFF-APPELLAN,V,DEFENDANTS-APPELLEES,No. 98-1607,98-1607 |
| Parties | (6th Cir. 2000) EVERETT PERRY,KENNETH MCGINNIS, ET AL., Argued: |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 96-71373--Patrick J. Duggan, District Judge. [Copyrighted Material Omitted] William Goodman (argued), Center for Constitutional Rights, New York, NY, Julia Ila Sherwin (briefed), Haddad & Sherwin, Oakland, CA, for Plaintiffs-Appellants.
Frank J. Monticello (briefed), Office of the Attorney General, Public Employment and Elections Division, Lansing, MI, for Defendants-Appellees.
Frederick M. Baker, Jr. (briefed), Honigman, Miller, Schwartz & Cohn, Lansing, MI, for Amicus Curiae.
Before: Keith, Norris, and Clay, Circuit Judges.
KEITH, J., delivered the opinion of the court, in which CLAY, J., joined. ALAN E. NORRIS, J. (pp. __-__), delivered a separate opinion concurring in part and dissenting in part.
Plaintiff-Appellant Everett Perry ("Perry") appeals from the district court's decisions on Defendants-Appellees'1 (the "prison officials") motion for summary judgment pursuant to Federal Rule of Civil Procedure ("FRCP") 56(c) and motion to dismiss for failure to state a claim upon which relief can be granted pursuant to FRCP 12(b)(6). We REVERSE the district court's decisions and REMAND for further consideration consistent with this opinion.
On October 30, 1988, Perry, a Black man, was hired by the Michigan Department of Corrections (the "MDOC") as an Administrative Law Examiner ("ALE"). Specifically, he worked for the MDOC's Office of Policy and Hearings as a hearing officer and decision maker in major misconduct disciplinary hearings in Michigan state prisons. On November 5, 1993, Perry was fired.
Perry filed his initial complaint on March 27, 1996. After a volley of motions to dismiss and amended complaints, Perry filed his final amended complaint on September 20, 1996, bringing First and Fifth Amendment claims as well as a Fourteenth Amendment equal protection claim, a claim of equal protection violations in contravention of the Michigan Constitution, and a claim of race discrimination in violation of Michigan's Elliott-Larsen Civil Rights Act (the "ELCRA"). The prison officials subsequently filed a motion to dismiss for failure to state a claim upon which relief can be granted under FRCP 12(b)(6). On March 14, 1997, the court dismissed Perry's First and Fifth Amendment claims, but denied the prison officials' motion with respect to the equal protection and ELCRA claims. Perry, soon thereafter, voluntarily dismissed his equal protection claim brought under the Michigan Constitution. On September 16, 1997, the prison officials filed a motion for summary judgment, and on April 15, 1998, the district court granted summary judgment on the remaining claims. Perry appeals the lower court's grant of summary judgment for the prison officials as well as its grant of the prison officials' motion to dismiss.
Perry argues that the district court erred in determining that he failed to raise genuine issues of material fact as to his race discrimination claims under the Fourteenth Amendment and the ELCRA. We agree.
This Court reviews grants of summary judgment de novo, and applies the same standard that the district courts apply. That test is set out in FRCP 56(c): "Summary Judgment is only appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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." In applying this test, it is well settled that "[t]he evidence of the non-movant is to be believed, and that all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Furthermore, summary judgment is generally not well suited for cases in which motive and intent are at issue and in which one party is in control of the proof. See Cooper v. North Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986). In Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988), this Court established that a plaintiff asserting a Fourteenth Amendment equal protection claim under 42 U.S.C. §1983 must prove the same elements required to establish a disparate treatment claim under Title VII of the Civil Rights Act of 1964. Both parties agree that in 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." Perkins v. University of Mich., 934 F.Supp. 857, 861 (E.D. Mich. 1996); see Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). It should be noted that the plaintiff's race need only be a motivating factor - not necessarily the sole factor - in order for the plaintiff to succeed in his claim. See Gutzwiller, 860 F.2d at 1328.
Both parties agree that Perry has satisfied prongs one and two of this test. The parties, however, disagree with respect to prongs three and four. Perry argues that he was qualified for his job and that he was treated differently from his similarly situated White colleagues. The prison officials disagree.
After reviewing the record, it is clear that genuine issues of material fact exist as to whether Perry was qualified and whether he was treated differently from similarly situated colleagues. As such, the district court inappropriately granted summary judgment for the prison officials. We first address the issue of Perry's disparate treatment and then address his qualifications.
Considering that under summary judgment analysis all justifiable inferences are to be drawn in favor of the non-movant and the non-movant's evidence is to be believed, it is surprising that the district court decided as it did. This Court has held that to qualify as "similarly-situated" in the disciplinary context, the plaintiff and the colleagues to whom he seeks to compare himself "must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Mitchell, 964 F.2d at 583. In addition, this Court has asserted that in applying the standard courts should not demand exact correlation, but should instead seek relevant similarity. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). Here, all hearing officers were supervised by the same officials, subject to the same standards, and charged with the same duties. They were indeed similarly situated.
Abundant record evidence demonstrates that the prison officials treated Perry differently than these similarly situated non-minority employees. The depositions of non-minority hearing officers, as well as other portions of the record, are replete with instances of disparate treatment. The following represent just a few examples.
The prison officials disciplined Perry on several occasions for typographical errors. Hearing Officer Thomas Craig testified in his deposition that he commits a typographical error in every hearing report that he does. The prison officials, however, have never disciplined Craig for such errors. Similarly, Hearing Officer Miriam Bullock testified in her deposition that she commits a typographical error in all of her hearing reports. Like Craig, Bullock has never been cited for such errors.
Perry failed to correct an incorrect inmate number (that a corrections officer wrote) on a disciplinary ticket, and was disciplined. Officer Bullock herself once typed the wrong inmate number for a prisoner, resulting in the wrong prisoner receiving a guilty finding in his record. The prison officials, however, did not discipline her.
The prison officials disciplined Perry for stating the charge of "Destruction or Misuse of Property with a Value of $10.00 or More" as "Destruction: Misuse of Property with a Value of $10.00 or More." In other words, they disciplined him for replacing the word "or" with a colon. Officer Bullock, however, testified that she has frequently failed to type the proper name of a charge on the corresponding report, and yet Bullock has never been disciplined for failing to do so.
The prison officials disciplined Perry for re-listing a case to get physical evidence or a photograph of physical evidence that he deemed relevant. Hearing Officer Ann Baerwalde has re-listed cases to get physical evidence or a photograph of physical evidence that she deemed relevant, but has never been disciplined for doing so.
The prison officials disciplined Perry for failing to state in his hearing record that a door is worth more than $10 (when an element of the crime demanded that the property be worth more than $10). Leonard Den Houter, Supervisor of the Office of Policy and Hearings and Perry's direct supervisor, admits that other hearing officers have made the same mistake, but he does not recall disciplining them.
Perry's infractions and those of his colleagues were obviously of "comparable seriousness," as is required under the standard. Mitchell, 964 F.2d at 583 n.5. As such, it is abundantly clear that genuine issues of material fact exist as to whether the prison officials treated Perry differently from similarly situated non-minority employees. Consequently, we conclude that the district court erred in finding that Perry did not satisfy prong four of the test.
The court erred as to prong three as well. The prison officials accept that Perry would...
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