Foster v. Judnic

• Decision Date: 12 August 2013
• Docket Number: Case No. 11–14853.
• Citation: 963 F.Supp.2d 735
• Parties: Bellandra FOSTER, et al., Plaintiffs, v. Victor JUDNIC, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

963 F.Supp.2d 735

Bellandra FOSTER, et al., Plaintiffs,

v.Victor JUDNIC, et al., Defendants.

Case No. 11–14853.

United States District Court,

E.D. Michigan,

Southern Division.

Aug. 12, 2013.

Avery K. Williams, Williams Acosta, Detroit, MI, for Plaintiffs.

Michael J. Dittenber, Michigan Department of Attorney General, Lansing, MI, for Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [54]

NANCY G. EDMUNDS, District Judge.

Before the Court is Defendants Rick Snyder, Kirk T. Steudle, Victor Judnic, and Mark Steucher's motion for summary judgment on Plaintiffs BBF Engineering Services, PC, and Bellandra Foster's first amended complaint. Plaintiffs allege that the Michigan Department of Transportation (MDOT), through Judnic and Steucher, discriminated against her, in violation of 42 U.S.C. §§ 1983 and 1981, based on Plaintiff Foster's gender and race, by not awarding BBF various consulting contracts. Plaintiffs also allege that Defendants violated the Michigan Whistleblowers' Protection Act (WPA), Mich. Comp. Laws § 15.361 et seq., by taking an adverse action against Plaintiff Foster and BBF when she filed a Title VI complaint against MDOT. (Dkt. 50.)

Because the Court finds that Plaintiff Foster has not met her burden in bringing forth evidence that Defendants treated similarly-situated individuals or entities differently than her and because she cannot establish a class-of-one equal protection theory, Plaintiffs' discrimination claims cannot survive summary judgment. Because the Court finds that Plaintiffs' WPA claim fails under various arguments, as the Court discusses below, the Court dismisses that claim as well.

For the reasons explained below, therefore, the Court GRANTS Defendants' motion for summary judgment and dismisses this case.

I. FactsA. Background

Plaintiff Foster, an African–American woman, is a professional engineer, licensed and registered in Michigan. (Dkt. 42, Am. Compl. ¶¶ 3, 17, 18.) She is the president and sole shareholder of Plaintiff BBF Engineering (BBF), an engineering consulting firm. BBF is a certified Disadvantaged Business Enterprise (DBE).¹ ( Id. ¶ 32.)

This lawsuit involves Plaintiff and BBF's relationships with MDOT, its practices, its director, and its employees. Defendant Rick Snyder is the Governor of Michigan. (Am. Compl. ¶ 10.) Plaintiffs allege that Snyder is liable and can enforce any injunctive relief the Court could award because he “is connected to and has responsibility for MDOT and its consulting contracts.” (Pls.' Resp. at 38.) Defendant Kirk Steudle is MDOT's director. (Compl. ¶ 11.) Plaintiffs allege that Steudle is liable because he is MDOT's director and oversees its budget and “is responsible for the construction, maintenance[,] and operation of nearly 10,000 miles of state highways and more than 4,000 state highway bridges.” (Pls.' Resp. at 38–39.) Defendant Victor Judnic and Defendant Mark Steucher were, at the times relevant to this case, MDOT project engineers/project managers. (Compl. ¶¶ 12, 13.) Plaintiffs base their gender and race discrimination claims on statements that Judnic and Steucher allegedly made.

Plaintiff Foster and BBF sue Defendants for allegedly-discriminatory practices they took against her and BBF in MDOT contract bidding and awarding processes. In 1997, Plaintiff states, she and BBF began providing contract work and consulting services to MDOT. (Am. Compl. ¶ 9.)

B. The MDOT contract-bidding process

Defendants have submitted an explanation of how MDOT bidding works. (Defs.' Mot. for Summ. J. at 1–2.) They state MDOT selects professional engineering firms in accordance with the Brooks Act, 40 U.S.C. § 1101 et seq.,23 U.S.C. § 112. ( Id. at 1.) The Brooks Act, they say, requires selections based on a firm's qualifications, and not on price. ( Id.) Defendants state that MDOT has published a “Selection Guidelines for Service Contracts,” which implements 23 U.S.C. § 112's mandate. ( Id.) They explain that MDOT publishes a Request for Proposals (RFP) to advertise the intended scope of the project work and other relevant details. ( Id.) After MDOT issues the RFP, Defendants state that interested firms must submit a proposal detailing its qualifications, personnel, and information relating to any subconsultants that may perform work on the contract. ( Id.)

To award a contract over $25,000.00 to a firm, Defendants state that MDOT “convenes a selection team to evaluate the proposals.” (Defs.' Resp. at 1.) The selection team, Defendants maintain, reviews the proposals and assigns scores for each proposal in accordance with a scoring worksheet. ( Id. at 1–2.) After the team meets and tallies the scores, Defendants represent that MDOT forwards the scores to the Central Selection Review Team in Lansing for final approval. ( Id. at 2.) If the CSRT approves the scores, then the project engineer requests a “price proposal,” then negotiations start, and if the parties reach an agreement, then the consultant and MDOT enter a contract for the project work. ( Id.)

As Plaintiff Foster understands the RFP process, she alleges that the project engineer “has basically the ultimate power.” (Pls.' Resp. Ex. 12, Foster Dep. at 38.) She maintains that the project engineer assists in writing the RFP and has a primary hand in picking the selection panel. ( Id.) She further alleges that the project engineers often, before the selection committee meets, have decided on which companies they want to work with. ( Id. at 39–40.)C. Judnic's alleged discriminatory statement

Plaintiff Foster bases much of her discrimination claim on a statement Judnic made in 2006, which his word-processing assistant, Mary Caldwell heard. (Pls.' Resp., Ex. 2, Caldwell Dep.) Caldwell stated that she heard Judnic say that “no woman should be making that kind of money.” ( Id. at 31.) She explained that she could not, with one-hundred percent certainty state that Judnic directed his statement at BBF or Plaintiff Foster. ( Id.) Caldwell stated that she did not know whether a woman other than Plaintiff Foster was working for MDOT at the time that Judnic allegedly made the statement. ( Id.) She stated, though, that she was not aware of any other woman-owned company that was working at the time Judnic allegedly made the statement. ( Id. at 32–33.) Caldwell said that Judnic's statement was about gender, women, and not about race. ( Id. at 35.) She stated that she did not think that he said anything akin to “no Black woman.” ( Id.)

Caldwell told Plaintiff Foster about the statement, but that she did not remember if she told Plaintiff Foster immediately or even that year. (Caldwell Dep. at 34.)

When questioned whether BBF experienced a change in the amount of work it received from MDOT, Caldwell stated that she noticed that Plaintiff Foster and her people were not around as much as they had been before. (Caldwell Dep. at 36–37.)

D. MDOT cuts Plaintiffs' Contract 2006–0490 in half

Also in 2006, Plaintiffs submitted a proposal for an RFP for an MDOT project on Michigan's M–10 highway, the Lodge Freeway. (Foster Dep. at 44–45.) Plaintiff Foster stated that Judnic was the project engineer on the project. Sometime after she submitted her proposal, Plaintiff Foster stated that MDOT had selected BBF for the contract, but that Judnic later called her and told her that MDOT was cutting half of the contract and was going to re-bid the other half. ( Id. at 46.) Plaintiff Foster added that Judnic told her that Lansing made the decision to re-bid the contract. ( Id. at 47.) The contract was reduced from $4.2 million to $2.2 million.

Plaintiff Foster alleged that the contract cut evidenced discrimination, either based on gender or race, because MDOT did not cut any other firm's contract. (Foster Dep. at 49.) Plaintiff Foster stated that BBF ultimately received the reduced portion of the contract, an “as-needed” services contract, but that the contract did not include work on M–10, which was part of the original contract. ( Id. at 51–52.) Plaintiff Foster acknowledged, though, that BBF did not bid on the M–10 portion of the contract after the original contract was cut and MDOT awarded her the as-needed services contract. ( Id. at 55.)

Judnic recalled that he had received a message from Lansing “that the contract was going to be reduced so that [Lansing] could get more work to people in the industry.” (Judnic Dep. at 89.) Judnic explained that Lansing meant to spread the work around to more consultants, not just more DBEs. ( Id. at 90.)

The second half of the M–10 contract was awarded to Fishbeck, a large, non-DBE consulting firm.

Plaintiff Foster testified that MDOT did not cut anyone else's contract in half, and that fact shows discrimination based on race and gender. (Foster Dep. at 49.)

Defendants have also submitted affidavits supporting their position that Judnic was not responsible for cutting BBF's contract.(Defs.' Mot. at 3; Ex. 6, Kratofil Aff. ¶ 4; Ex. 7, Screws Aff. ¶ 4.)

E. MDOT attempts to reduce Plaintiff's Contract 2008–0044

In 2008, Plaintiffs allege that MDOT attempted to cut another contract that BBF was awarded, contract 2008–0044. (Foster Dep. at 61–62.) Foster stated that Jason Voigt was the person who indicated to her that MDOT was reducing the contract duration from two years to one year. ( Id., Am. Compl. ¶ 43.) Foster stated, though, that she contacted Myron Frierson, Voigt's supervisor, and after that contact, MDOT did not reduce the contract duration. (Foster Dep. at 62–63.)

F. Plaintiff Foster meets with Judnic on July 18, 2008 and Judnic details issues that MDOT had had with Love Charles, one of Plaintiffs' technicians

Plaintiff Foster requested debriefing meetings, which Judnic would not conduct with her, at first. (Foster Dep. at 73.) She conceded, though, that she has no evidence that Judnic would not conduct these meetings because of her gender or race. ( Id.) She stated that there had to be some reason, though, why he would not meet with her....