344 F.3d 603 (6th Cir. 2003), 01-2052, Sutherland v. Michigan Dept. of Treasury

Docket Nº:01-2052
Citation:344 F.3d 603
Party Name:Sutherland v. Michigan Dept. of Treasury
Case Date:September 18, 2003
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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344 F.3d 603 (6th Cir. 2003)

Thomas E. SUTHERLAND, et al., Plaintiffs-Appellants,


MICHIGAN DEPARTMENT OF TREASURY, et al., Defendants-Appellees.

No. 01-2052.

United States Court of Appeals, Sixth Circuit

September 18, 2003

Argued June 18, 2003.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 25, 2003.

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Charles J. Porter (argued and briefed), Clarkston, MI, for Appellants.

Joseph E. Potchen (argued and briefed), Richard P. Gartner (argued), Office of the Attorney General, Lansing, MI, for Appellees.

James Erwin Long, Susan Przekop Shaw (briefed), Office of the Attorney General, Lansing, MI, for Appellees.

Before BOGGS and GILMAN, Circuit Judges; MARBLEY, District Judge. [*]


MARBLEY, District Judge.

This is a "reverse" race discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1991) ("Title VII"), 42 U.S.C. § 1983, thatthe Michigan Elliott-Larsen Civil Rights Act, M.C.L. 37.2102 et seq. Plaintiffs-Appellants, Thomas E. Sutherland and Nancy Karim, both Caucasian, brought suit alleging that they were denied promotions over less qualified minorities. They now appeal the district court's orders granting summary judgment to, and dismissing the claims against, Defendants-Appellees, and denying Plaintiffs-Appellants' motion for partial summary judgment.

For the following reasons, we AFFIRM the rulings of the district court.


A. Facts

Plaintiff-Appellant Thomas E. Sutherland, Caucasian, began his employment with the Audit Division of the Michigan Department of Treasury on June 8, 1969. During his employment, Sutherland was promoted to Auditor 11, Auditor 12, and, eventually, in May 1996, he was appointed to acting Auditor Manager 14. 1 Plaintiff-Appellant Nancy Karim, also Caucasian, began her employment with the Audit Division of the Michigan Department of Treasury on January 3, 1984. Throughout her employment, she was promoted to Auditor 11, Auditor 12, and, in May 1996, she was appointed to the position of acting Auditor Manager 14.

On January 28, 1998, Audit Division Administrator David Husted issued a memorandum notifying Revenue Audit staff that a vacancy existed for an Auditor Manager 14 position at Treasury's Pontiac office, and that candidates interested in transferring into that position should respond by February 11, 1998. No one responded to the transfer memorandum by the posted deadline.

On April 17, 1998, Husted re-posted the Pontiac Auditor Manager 14 position. When the position was re-posted, Rosalind Robinson, an African-American who had worked for two years as an Auditor Manager 14 in Treasury's Detroit office, and who was eligible to transfer to the Pontiac position, submitted a transfer request.

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Robinson was permitted to make the lateral transfer into the Pontiac position without an interview.

On April 22, 1998, Plaintiff-Appellant Karim filed a grievance challenging the April 17, 1998 re-posting of the Pontiac Auditor Manager 14 position. In her statement of grievance, Karim indicated that the Audit Division's past practice was to post a position for transfer only once prior to its being filled. She stated that if no eligible transferees indicated their interest in the position by the posted deadline, then past practice dictated that the position be filled through the promotional process, not through a re-posting of the transfer position. Accordingly, Karim requested that Robinson's lateral transfer be rescinded, and that the Pontiac Auditor Manager 14 position be opened for competitive interviews.

In July 1998, Micheal Davis, Treasury's labor relations officer, issued a "step three" resolution to Karim's grievance. Davis acknowledged that Treasury's past practice after posting a job soliciting eligible candidates for transfer was to proceed with the promotion process if no interested or eligible employees responded in a timely manner. Davis also indicated that, while the written transfer policy did not prohibit a re-posting, such a re-posting was not in line with the division's normal application of the policy. Accordingly, Davis proposed the following resolution to Karim's grievance: (1) rescind Robinson's transfer to the Pontiac Auditor Manager 14 position; (2) open the position to the promotional process; and (3) allow Robinson to compete for the position along with other eligible candidates. Karim did not appeal Davis's resolution to her grievance.

By summer 1998, six Auditor Manager 14 positions became available in the Treasury's Audit Division, including the position in Pontiac that had been re-opened as a result of the resolution of Karim's grievance. Of the five positions in addition to the one in Pontiac, two were located in Detroit, two were located in Lansing, and one was located in Traverse City. Husted, who was responsible for overseeing the Auditor Manager 14 selection process, selected Defendant-Appellee Anthony Taylor to chair the interview panel to fill the various Auditor Manager 14 positions. Taylor, in turn, contacted Defendants-Appellees Jane Osburn, Auditor Manager 14 from the Grand Rapids office, and Larry Collar, Department Specialist 14, Office of Quality Management, to assist him in interviewing eligible candidates for the positions. Husted approved Taylor's selection of Osborn and Collar to serve on the interview panel.

Once the interview panel was established, the panel members developed written and oral interview questions and model answers. The interview panel also created past performance evaluation questions. Husted and Deputy Audit Division Administrator Stan Borowski reviewed and approved the panel's oral and written questions, model answers, and past performance questions.

In May 1998, Raymond Heriford, Administrator of Treasury's Human Resources Division, sent letters to eligible Treasury employees notifying them that Treasury was filling permanent Auditor Manager 14 positions in Detroit, Lansing, and Traverse City. After the resolution of Karim's grievance as set forth above, employees were also notified of the interviews to be held for the Auditor Manager 14 position in Pontiac. The letters to employees set forth the minimum requirements for eligibility for the Auditor Manager 14 positions. In particular, a candidate had to have a B.S. or B.A. degree with a major in accounting, and two years of professional experience in an Auditor 11 position or

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in a position of equivalent responsibility. Interested candidates were asked to submit a pre-employment application, pre-employment authorization and certification, a written exercise, and a detailed résumé.

Before scheduling interviews for the six vacant positions, the interview panel members reviewed, scored, and ranked the candidates' written responses in accordance with the pre-approved guidelines. Candidates with scores of seventy percent or above were given oral interviews. In August 1998, twenty-six candidates were interviewed for the six available Auditor Manager 14 positions. Prior to the interviews, all candidates were asked to specify the locations where they were willing to work, and to rank their job preferences if they sought more than one position.

Candidates were scored on their oral interviews based on the pre-established model answers. Then, a background check was performed by asking each candidate's supervisor questions regarding the candidate's initiative, work habits, technical auditing ability, and leadership skills. The panel members then scored each candidate based on his or her past performance evaluation. Finally, the scores given to each candidate by each of the panel members were combined, and the candidates were ranked for the available positions based on their combined scores. After ranking the candidates, the interview panel made hiring recommendations to Husted for review and approval. Husted made one change in the recommendations, based on one applicant's employment preference. Then, each of the candidates selected was offered a position, and each accepted. Defendant-Appellee Alfinio Olivarez, Treasury's Equal Employment Opportunity Officer, reviewed and approved the foregoing hiring process.

During the August 1998 interviews, Plaintiff-Appellant Sutherland sought and interviewed for only the Traverse City Auditor Manager 14 position. In addition to Sutherland, Kimberly Knoll, a Caucasian female, and Braysley Famuwera, a black male, also interviewed for that position. Knoll was the highest scoring candidate for the Traverse City position. Knoll was also the highest scoring candidate for two other available positions, however, including the Lansing Field Office position, which she had ranked higher in preference than the Traverse City position. Knoll was offered and accepted the Lansing Field Office position. Famuwera was the second highest scoring candidate for the Traverse City position. Therefore, as a result of the hiring process set forth above, Famuwera was offered and accepted the Auditor Manager 14 position in Traverse City.

Twenty individuals interviewed for the Pontiac Auditor Manager 14 position, including both Rosalind Robinson and Plaintiff-Appellant Karim. Robinson and Karim sought only the Pontiac position. Based on the combined scores of the interview panel members, the top four candidates for the Pontiac Auditor Manager 14 position were: (1) Rosalind Robinson, (2) Charles Wright, (3) Bonnie McWilliams, and (4) Nancy Karim, in that order. As the highest scoring candidate, Robinson was offered and accepted the Pontiac position.

B. Procedural History


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