Lewis v. City of Detroit, Case No. 16-1132

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBERNICE BOUIE DONALD, Circuit Judge.
PartiesFRANKIE LEWIS, et al., Plaintiffs-Appellants, v. CITY OF DETROIT, et al., Defendant-Appellee.
Docket NumberCase No. 16-1132
Decision Date14 July 2017

FRANKIE LEWIS, et al., Plaintiffs-Appellants,
CITY OF DETROIT, et al., Defendant-Appellee.

Case No. 16-1132


July 14, 2017

File Name: 17a0412n.06




BERNICE BOUIE DONALD, Circuit Judge. Plaintiffs are a group of Detroit police officers who claim that the City of Detroit Police Department ("Defendant") discriminated against them, based on their age, in promotion decisions. Plaintiffs filed suit against Defendant asserting a claim of age discrimination in violation of the ADEA and Michigan's comparable statute, the ELCRA. Defendant moved for summary judgement, and, finding no genuine issue of material fact, the district court granted that motion. Plaintiffs appeal. Because Plaintiffs fail to meet their burden, we AFFIRM the district court's judgement.

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A. Events Leading to the Lawsuit

Under former City of Detroit Chief of Police Ralph Godbee and Interim Police Chief Chester Logan, Plaintiffs all held appointments on the Chief's Executive Team/Command Staff. During Interim Police Chief Logan's reign, the collective bargaining agreement previously in place expired, and the City of Detroit imposed the City Employment Terms ("CET"), which gave the chief the ability to appoint/de-point his executive team without cause. Under the CET, upon de-appointment, employees would revert to the position they held prior to any appointment.

On July 1, 2013, James Craig ("Craig") became the Chief of the Detroit Police Department and subsequently made changes to the following command ranks: Assistant Chief, Deputy Chief, Commander, and Captain/Inspector. Prior to Chief Craig assuming his duties, Robert Wasserman ("Wasserman"), from Strategic Police Partnership, LLP, was hired as a consultant to the City of Detroit. Wasserman spoke with selected personnel at the command level and compiled files which contained, among other information, the officers' number of years on the job. Wasserman discussed those individuals, and his conversations with and assessments of them, with Craig.

Additionally, Craig met with the Command Staff's union president and informed him of the possibility of several command positions being eliminated. Craig's appointment process was unstructured and designed to be as informal as possible. On July 3, 2013, the department issued a teletype directing employees interested in applyingfor the positions of Deputy Chief/Assistant Chief to submit their resumes and cover letters. Several members of the department applied, including all of the Plaintiffs. None of the Plaintiffs, however, received interviews for positions

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on the executive team. Most of the officers that held an appointment (i.e. command level position) prior to Craig's arrival did not retain their position.

Craig assumed his position with the mission of restructuring the department and selecting his leadership team. There were approximately ninety-two applicants for command staff positions out of 496 eligible members of the police department. Several appointees elected to retire rather than go through the application process (e.g., Robbin Rivers, Morris Wells, Paul Welles, Robert Ennis, etc.). Craig testified that he held the philosophy "every day is an interview" meaning any interaction could be assessed in an informal process of evaluation. R 13, Page ID #149. Craig further testified that although he did not have personal knowledge regarding some of the Plaintiffs, he based his decisions, in part, on recommendations from Wasserman. R 24, Page ID #646 ¶26.

B. The Plaintiffs

Plaintiff Duane McKissic, 51, a previous Commander, applied for Assistant Chief and Deputy Chief. Plaintiffs Frankie Lewis, 50, James Suchoski, 49, and John Serda, 59, all previous Commanders, applied for Deputy Chief. Plaintiff Gary Sroka, 60, applied to maintain his rank as Captain/Inspector.

Regarding Plaintiff McKissic (51), the trial court concluded Craig's motivation behind the decision not to promote McKissic was based on Craig's testimony that McKissic allegedly thought that others were more talented and deserving of command positions. R 30, Page ID #1137.

Regarding Plaintiff Frankie Lewis (50), the trial court stated: "Craig was informed that Major Crimes had an absence of leadership and management; therefore, the revocation of Lewis' appointed position, Commander of Major Crimes, was appropriate." R 30, Page ID #1137.

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Craig testified that the only input that he received about Lewis was "retired in place." R 17-8, Page ID #450. Craig further testified, "major crimes has been - to this day has been a source of major concern for me, and I attribute the problems in major crimes to an absence of leadership and an absence of management." Id.

Regarding Plaintiff Sroka, the district court emphasized Craig's testimony that he received reports that Sroka did not interact well with others. The district court also pointed to Wasserman's notes referring to Sroka as an "older-cantankerous guy" who "loafed in [the] room." R 27-2; Page ID #829.

Regarding Plaintiff Serda, the district court emphasized Craig's testimony that Serda's section was in "total disarray," that the community stakeholders did not have confidence in Serda, as well as Assistant Chief White's statements critical of Serda's leadership. R 30, Page ID #1138.

Regarding Plaintiff Suchoski, Craig testified that Suchoski "doesn't come on my radar at all," "doesn't come to mind at all," "not hearing anything that jumps out." R 27-2, Page ID #846.

C. The District Court Case

Plaintiffs filed suit against Defendant on August 11, 2014. Count I of the Complaint alleged that Defendant discriminated against Plaintiffs in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Count II alleged that Defendant discriminated against Plaintiffs in violation of the Elliot-Larsen Civil Rights Act ("ELCRA"), Mich. Comp. Laws § 37.2101 et seq. Plaintiffs' theory of the case was that Defendant treated them in a disparate manner and favored their younger colleagues with respect to the terms and conditions of employment, promotional opportunities, and compensation. On April 23, 2015,

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Defendant filed a motion for summary judgement. On May 28, 2015, Plaintiffs filed their opposition to Defendant's motion for summary judgment. The district court held a hearing on the motion on October 8, 2015, and entered an order granting Defendant's motion for summary judgment on January 6, 2016.

Plaintiffs appeal. Plaintiffs assert that: (1) the district court erred in determining that Plaintiffs failed to establish a prima facie case of age discrimination under either the ADEA or the ELCRA and, thus, failed to properly construe facts in their favor in violation of the summary judgement standard; (2) the district court erred in determining that Defendant had a legitimate, non-discriminatory reason for the adverse employment actions taken against each Plaintiff-Appellant; and (3) the district court erred in determining that Plaintiffs failed to establish that Defendant's articulated reasons for its employment decisions were pretextual.


This Court reviews a district court's grant of summary judgment de novo. Troche v. Crabtree, 814 F.3d 795, 798 (6th Cir. 2016). A movant is entitled to summary judgment only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). This Court draws all reasonable inferences and construes all evidence in favor of the nonmoving party. Tingle v. Arbors at Hillard, 692 F.3d 523, 529 (6th Cir. 2012) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). An issue is "genuine" within the meaning of Rule 56(a) "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Additionally, a fact is "material" within the meaning of Rule 56(a) if the dispute over it might affect the outcome of the lawsuit under the governing law. Id. The relevant question is "whether the evidence presents a sufficient disagreement to require

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submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.

As the party moving for summary judgment, Defendant bears the burden of showing the absence of a genuine issue of material fact as to at least one essential element of Plaintiffs' claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Like the district court below, we may not make credibility determinations nor weigh the evidence when determining whether an issue of fact remains for trial. Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir. 2001); Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999).


The ADEA prohibits an employer from discharging an employee "because of such individual's age." 29 U.S.C. § 623(a)(1). Similarly, the ELCRA provides that an employer shall not discharge an employee "because of" age. Mich. Comp. Laws § 37.2202(1)(a). Given this similar language, we have traditionally analyzed ADEA and ELCRA claims using the same causation standard. See Richardson v. Wal-Mart Stores, Inc., 836 F.3d 698, 702 (6th Cir. 2016) (collecting cases). More recently, however, the Supreme Court has clarified that an ADEA plaintiff must demonstrate that his "age was the 'but-for' cause of the challenged adverse employment action." Id. at 703 (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009)). Michigan courts, on the other hand, have held that an ELCRA plaintiff can prove discrimination if his age was merely a "motivating," or "determining factor in the employer's decision." Town v. Michigan Bell Tel. Co., 568 N.W.2d 64, 68-69 (Mich. 1997); see also Meagher v. Wayne State Univ.,...

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