Nelson v. City of Flint
| Decision Date | 23 March 2001 |
| Docket Number | No. 99-CV-74992-DT.,99-CV-74992-DT. |
| Citation | 136 F.Supp.2d 703 |
| Parties | Ronald NELSON and Michael Ferris, Plaintiffs, v. CITY OF FLINT and Trevor Hampton, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Glen N. Lenhoff, Flint, MI, for plaintiff.
Edward L. Parker, Flint, MI, for defendant.
This Section 1983/Elliott-Larsen reverse discrimination action arises out of the allegations of Flint police officers Ronald Nelson and Michael Ferris that they were passed over for promotion to Sergeant three times, in 1996, 1997 and 1998, because they are white and/or male.1 The matter is presently before the Court on the City of Flint's and Flint Police Chief Trevor Hampton's Motion for Summary Judgment. Plaintiffs have responded to Defendants' Motion to which Response Defendants have replied. The Court heard the oral arguments of counsel at on December 14, 2000. At the close of the hearing, the Court ordered Plaintiffs to supplement the record2 and took the matter under advisement. Plaintiffs submitted their Supplemental Brief with attached exhibits on December 29, 2000 and Defendants submitted their Reply to Plaintiffs' supplemental submission on January 12, 2001. Having reviewed and considered the parties' briefs, supporting documents, and the oral arguments of counsel, the Court is now prepared to rule on this matter. This Opinion and Order sets forth the Court's ruling.
Plaintiff Ronald Nelson has been employed by the City of Flint as a police officer since 1977. Plaintiff Michael Ferris has been a Flint police officer since 1986. In December 1994, Nelson and Ferris, along with 74 other Flint police officers took and passed the written examination for promotion to Sergeant.
The written examination is required under the Collective Bargaining Agreement entered into between the City of Flint and the Flint Police Officers Association. As provided in the CBA, an Eligibility List for promotions to Sergeant is compiled by ranking the candidates according to their test scores on the written examination. Article 38, Section 2 of the CBA sets forth the procedure for selecting eligible candidates from the List for promotion. This section provides, in pertinent part, as follows:
The City shall have the right to select among the top three (3) rank[ed] eligibles or from among all eligibles falling with three percentage (3%) points of the highest score certified, whichever produces the greatest of eligibles, plus all ties with the lowest score certified.
[CBA, Art. 38, § 2, Defendants' Ex. F; Plaintiffs' Ex. 12.]
This provision is commonly referred to as the "Rule of Three or Three Percent." Pursuant to this Rule, promotions can only be made from among those officers who are ranked among the top three candidates on the Eligibility List, or from among officers who were within three percentage points of the highest score that had been certified, if a greater number of candidates fell within this latter group (i.e., if more than three candidates fell within three percentage points of the highest certified score.) It is undisputed that the Rule of Three plus Three Percent was followed with respect to the 1996, 1997 and 1998 promotions at issue in this case.
Chief Hampton testified in his deposition that he decided who received the promotions at issue, but that he did not have final authority to establish employment policy for the Police Department. [See Hampton Dep. pp. 9-10]. He further testified that his discretion with respect to hirings, firings and promotions was limited by, among other things, the terms of the Collective Bargaining Agreement. [Hampton Dep. pp. 9-10; 38-39, Defendants' Ex. C]3
Plaintiff Nelson was ranked 13th and Plaintiff Ferris was ranked 15th on the Eligibility List compiled from the December 1994 examination results, both having scored 91.23% on the exam. [See Defendants' Ex. D.] The top 11 candidates were promoted in 1995. These 1995 promotions are not at issue in this case. Thus by October 1996, the highest rank eligible was Deborah Bayer, a white female, who had a score of 92.68%. Id. Plaintiff Nelson was the second rank eligible, followed by Harold Payer, a white male, and Plaintiff Ferris, all three of whom scored 91.23%. There were a total of 15 candidates whose scores fell within three percentage points of the highest certified score, 92.68%. These candidates were as follows:
Candidate Rank on Eligibility List Exam Score Race and Gender
Deborah Bayer 12 92.68 White female
Ronald Nelson 13 91.23 White male
Harold Payer 14 91.23 White male
Michael Ferris 15 91.23 White male
Sharon Dunbar 16 90.51 White female
Terry Speedy 17 90.51 White male
Michael Coote 18 90.51 Hispanic male
James Peterson 19 89.51 White male
Timothy Murley 20 89.06 White male
Alan Wehrli 21 88.33 White male
Stephen Hill 22 88.33 White male
Gregory Doerr 23 88.33 White male
Michelle Marshke 24 88.33 White female
Mitchell Brown 25 88.06 White male
Scott Sutter 26 87.61 White male
[See Defendants' Ex. D, G, and K.]4
There were four openings for Sergeant filled on October 6, 1996. Deborah Bayer, Harold Payer, Sharon Dunbar and Michael Coote received those four promotions. Plaintiff Nelson alleges that the promotions of Sharon Dunbar (a white female) and Michael Coote (a Hispanic male), who were ranked below him on the Eligibility List were based on gender and race. Plaintiff Ferris alleges that Sharon Dunbar's promotion was based on gender since she scored lower than he on the examination.5 Neither Plaintiff challenges the promotion of Deborah Bayer as she scored higher than both Plaintiffs. [See Nelson Dep. pp. 39-40 ( )]
Chief Hampton explained that once the pool of the top three percent of candidates is identified, in exercising his discretion with respect to deciding who should be promoted, he went to his captains and asked for their input as to who among these individuals would do the best job for the department. [Hampton Dep. pp. 24-25.] He testified that Sharon Dunbar was selected for a promotion because
The captains' input on Sharon Dunbar, I can only give you a composite, because based on when we selected her for a promotion the input I received from the captains was positive, that she was a self-starter, a go-getter, someone who had developed a reputation in the department on — Stolen auto recovery was a specialty of hers, that she would keep up with the vehicle license plates and search of those plates, keep a listing and in her duties throughout the city she would find stolen autos at a higher level than anyone else in the department. So she was highly regarded as a police officer, an excellent police reports writer, someone who took their job very seriously and worked very hard.
Hampton also recalled that one of his captains, Captain Peek Id. at 22.
The same Eligibility List [Defendants' Ex. D] was used for the three promotions on February 1, 1997 given to Timothy Murley, a white male; Alan Wehrli, a white male; and Michelle Marshke, a white female. Plaintiffs do not challenge the promotions of either Murley or Wehrli as they, like Plaintiffs, are both white males. They do, however, challenge on the grounds of reverse sex discrimination the promotion of Michelle Marshke, notwithstanding that Ms. Marshke and Alan Wehrli, whose promotion they are not challenging, had identical scores on the sergeant's exam.
Chief Hampton testified that the captains' input on Michelle Marshke was nothing but positive:
So, she was very — considered a very conscientious officer who worked very diligently with the community policing program. No negatives.
Pursuant to the Collective Bargaining Agreement, an Eligibility List expires after two years. Therefore, in January 1998, a new Sergeant's examination was given and a new Eligibility List compiled from the results of that exam. [See Ex. E.] Nelson scored 83.95%, placing him 11th on the list. Ferris scored 81.84%, placing him 17th on the list. There were 18 Sergeant vacancies to be filled on May 3, 1998 which for purposes of filling them, were divided into eight "requisition" groups. [See Defendants' Ex. H.] Five promotions in three requisition groups were made before Nelson was certified as among the top three percent. [See Defendants' Ex. H.] Nelson does not challenge these five promotions. When Nelson first became part of the certified eligibility pool, it was for the fourth requisition group. There were two vacancies to be filled in this group, and they were filled by the two candidates with the two highest scores on...
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