Harville v. State Plumbing and Heating Inc.

Decision Date16 August 1996
Docket NumberDocket No. 175256
Parties, 71 Empl. Prac. Dec. P 44,826 Darren L. HARVILLE and Rena Harville, Plaintiffs-Appellants, v. STATE PLUMBING AND HEATING INC., Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Kelman, Loria, Downing, Schneider & Simpson by Janet M. Tooley, Detroit, for plaintiffs-appellants.

Thomas E. Marshall and Andrew J. Bean, Detroit, for defendant-appellee.

Before BANDSTRA, P.J., and MARKMAN and M.D. SCHWARTZ, * JJ.

MARKMAN, Judge.

Plaintiffs appeal as of right an order of judgment for defendant in this race discrimination action. We affirm.

In their complaint, plaintiffs alleged that defendant discriminated against plaintiff Darren L. Harville, a black employee of defendant, on the basis of race by punishing him for conduct for which white employees were not punished, and by terminating his employment. After a four-day trial, the jury found that defendant did not discriminate against plaintiff on the basis of his race in discharging him or laying him off. The trial court entered judgment in accordance with this verdict.

Plaintiffs' claims on appeal relate to the composition of the jury. Their first claim is that the jury was the product of a jury selection process that systematically and substantially underrepresented the black population of Wayne County. Specifically, they claim that the process resulted in juries that underrepresented black Wayne County residents because (1) Detroit residents who serve on Recorder's Court juries are excused from serving on another jury panel for one year, (2) a lower percentage of Detroit residents than non-Detroit residents return jury questionnaires, and (3) a lower percentage of Detroit residents than non-Detroit residents appear for jury duty. 1 They claim that the allegedly disparate effect of the jury selection process on black Wayne County residents violated Const.1963, art. 1, § 2, Michigan's equal protection provision. Because plaintiffs do not contend that the process was intentionally discriminatory, this appeal squarely raises the issue whether discriminatory effect alone violates art. 1, § 2.

Plaintiffs raised this issue during the impaneling of the jury and again in posttrial motions. The trial court had a jury administrator, Gary Wolfe, testify regarding the jury selection process on both occasions. The court, although not deciding whether disparate effect alone could constitute a violation of art. 1, § 2, concluded that the jury at issue was selected pursuant to a "random selection process" that was not "constitutionally violative."

We begin our analysis by considering cases interpreting the federal Equal Protection Clause, U.S. Const., Am. XIV, § 1. As discussed more fully below, the Michigan Supreme Court has held that art. 1, § 2 is coextensive with the federal Equal Protection Clause and, thus, understanding the latter is instructive in understanding the former. United States Supreme Court precedents consistently indicate that the United States Constitution's Equal Protection Clause reaches only intentional or purposeful discrimination. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) involved the alleged racially discriminatory effect of a written personnel test used by a police department. The Court of Appeals had focused on the disparate effect of the test rather than a possible discriminatory purpose. Id. at 238, 96 S.Ct. at 2046-47. The Washington Court held at 239, 96 S.Ct. at 2047:

The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups. But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact. [Citation omitted; emphasis in original.]

It further discussed adherence to "the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose." Id. at 240, 96 S.Ct. at 2048. The Washington Court continued at 242, 96 S.Ct. at 2048-49:

Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.... Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule ... that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations. [Citation omitted.]

In Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977), which involved a race discrimination claim arising out of the denial of a rezoning application, the Court held that "[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Later, in City of Mobile, Alabama v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), involving a challenge to the city's at-large electoral system for city commissioners as racially discriminatory, a majority of the Court confirmed the necessity of demonstrating discriminatory intent to establish an equal protection violation. The four-justice plurality opinion stated:

A plaintiff must prove that the disputed plan was "conceived or operated as [a] purposeful devic[e] to further racial ... discrimination."

This burden of proof is simply one aspect of the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment. [Citations omitted.]

* * * * * *

The ultimate question remains whether a discriminatory intent has been proved in a given case. [Id. at 66, 74, 100 S.Ct. at 1499, 1503.]

In an opinion dissenting on other grounds, Justice White stated at 94-95, 100 S.Ct. at 1513-14 that the Court recognized in Washington, supra, (in which he wrote the opinion of the Court) that "the Equal Protection Clause forbids only purposeful discrimination." 2 Recently, in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), involving the allegedly racially discriminatory use of a peremptory challenge, the Court reiterated that the relevant inquiry under the Equal Protection Clause was whether there had been "discriminatory intent" or "purposeful" discrimination. 514 U.S. at ---- - ----, 115 S.Ct. at 1770-71, 131 L.Ed.2d at 839.

The Court has defined "discriminatory purpose" and articulated the role of disparate effect evidence in equal protection cases. In Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), the Court considered a claim that a veterans preference in state employment resulted in sex discrimination. It stated that Washington and Arlington Heights "signaled no departure from the settled rule that the Fourteenth Amendment guarantees equal laws, not equal results." 442 U.S. at 273, 99 S.Ct. at 2293. It held at 279, 99 S.Ct. at 2296:

"Discriminatory purpose," however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group.

Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), involved a claim that a prosecutor used peremptory challenges to exclude Latino jurors because of uncertainty whether they would accept an interpreter's translation of Spanish-speaking witnesses. A majority of the Court reiterated that disparate effect, alone, is insufficient to establish an equal protection violation. The four-justice plurality opinion stated at 362, 111 S.Ct. at 1867:

[D]isparate impact should be given appropriate weight in determining whether the prosecutor acted with a forbidden intent, but it will not be conclusive in the preliminary race-neutrality step of the Batson [v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ] inquiry. An argument relating to the impact of a classification does not alone show its purpose. Equal protection analysis turns on the intended consequences of government classification. Unless the government actor adopted a criterion with the intent of causing the impact asserted, that impact itself does not violate the principle of race neutrality. [Citation omitted.]

Justices O'Connor and Scalia concurred in a separate opinion, in which they stated at 372-373, 111 S.Ct. at 1873:

An unwavering line of cases from this Court holds that a violation of the Equal Protection Clause requires state action motivated by discriminatory intent; the disproportionate effects of state action are not sufficient to establish such a violation.

This clear precedent indicates that plaintiffs' present claim, alleging only disparate effect, not discriminatory intent, would fail to state a violation had it been raised under the federal Equal Protection Clause. Plaintiffs nonetheless assert that their disparate effect claim states a violation of...

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