U.S. ex rel Diop v. Wayne Cty. Comm. College Dist., 00-CV-74992-DT.

• Decision Date: 31 January 2003
• Docket Number: No. 00-CV-74992-DT.,00-CV-74992-DT.
• Citation: 242 F.Supp.2d 497
• Parties: UNITED STATES of America Ex. rel. Seydou DIOP, and Seydou Diop, individually, Plaintiff, v. WAYNE COUNTY COMMUNITY COLLEGE DISTRICT, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

242 F.Supp.2d 497

UNITED STATES of America Ex. rel. Seydou DIOP, and Seydou Diop, individually, Plaintiff, v. WAYNE COUNTY COMMUNITY COLLEGE DISTRICT, et al., Defendants.

No. 00-CV-74992-DT.

United States District Court, E.D. Michigan, Southern Division.

January 31, 2003.

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OPINION AND ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROSEN, District Judge.

I. INTRODUCTION

This False Claims Act/Section 1983/Michigan Elliott-Larsen action is presently before the Court on Defendants' Motion for Summary Judgment. Plaintiff has responded to Defendants' Motion to which Response Defendants have replied. Having reviewed and considered the parties' briefs and supporting evidence, and having heard the oral arguments of counsel on January 9, 2003, the Court is now prepared to rule on this matter. This Opinion and Order sets forth the Court's ruling.

II. FACTUAL BACKGROUND

THE PARTIES

Plaintiff Seydou Diop is an African male who was born in the Republic of Guinea. Since August 1975, Mr. Diop has been employed as a part-time chemistry professor by Defendant Wayne County Community College District (referred to herein as "WCCCD" or the "College").

WCCCD operates five campuses: the Western Campus in Belleville; the Downriver Campus in Taylor; the Northwest Campus on Greenfield; the Eastern Campus; and the Downtown Campus. The College offers a comprehensive college curriculum including liberal arts and vocational-technical programs.

WCCCD offers 2,500 individual course selections per year in more than 50 departments. The chemistry department is one such department. The College offers seven different chemistry courses each year. These are Chem 105—general high school chemistry; Chem 136—general chemistry college course; Chem 145—the second general chemistry college course; Chem 155—a survey of biochemistry and organic chemistry; Chem 250—organic chemistry lecture; Chem 252—organic chemistry lecture; and Chem 255—organic chemistry lab and lecture. Five of these courses— Chem 105, 136, 145, 155 and 255—include labs. Each of the College's five campuses maintain chemistry labs. However, only the Downtown Campus has an organic chemistry lab.

As a part-time faculty member, Plaintiff Diop's employment with WCCCD is covered by a collective bargaining agreement ("CBA") entered into between the College and Local 2000 of the American Federation of Teachers (the "AFT" or the "Union"). In addition to his part-time teaching position at WCCCD, at all times relevant to this action, Plaintiff also worked as an environmental consultant with a private company, Chemical & Environmental Engineering, Inc.¹

Defendants Frank Hayden, Larry K. Lewis, Mary Ellen Stempfle, Charles Paddock, Juanita Ford, Myron Wahls, Jr., Denise Wellons-Glover, Edward D. Clemente and Michael Reddy are members of Defendant Wayne County Board of Trustees (the "Board"), which is the governing body of WCCCD. Defendant Curtis L. Ivery is the Chancellor of WCCCD. Defendant Janet Dettloff is the Assistant Dean of Instruction and Chairperson of the Department of Life and Physical Sciences of WCCCD.

THE POSTING OF A FULL-TIME FACULTY POSITION

In February 2000, in accordance with the requirements of the AFT Collective Bargaining Agreement, WCCCD posted a job notice for a full-time chemistry faculty position. Dr. Dettloff sent copies of the posting to all part-time instructors. The job notice specified that to be minimally qualified, the applicant needed to have a Master's degree in the subject area and directed that all applications were to be sent to the Human Resources Department. [See Plaintiffs Ex. N.] Dr. Dettloff testified that she wanted the new full-time faculty member to be in place for the fall, 2000 semester.

Once the full-time chemistry position was posted, a Selection Committee was appointed jointly by the Chancellor and the Teacher's Union. That Committee, by District policy, included members of the three unions which represented College employees: the AFT, the UAW, and the Professional and Administrators Association (the "P & AA"). With respect to the selection of the new full-time chemistry professor, the Committee consisted of Willie Brown, an African-American Lab Technician/Coordinator who was a member of the UAW; Norm Samuelson, a white male AFT member; Cliff Lewis, an African-American AFT member; Dr. Jacqueline Hodges, an African-American female administrator; and Dr. Dettloff.²

The Committee's initial screening eliminated those applicants who did not have a Master's degree in the field and relevant teaching experience. Dr. Dettloff testified that all part-time instructors who applied, including Plaintiff, were advanced to the next step of the screening process and were granted an interview.³

The next step in the screening process involved arranging interviews with the candidates who met minimal qualifications. All of the members of the Selection Committee had agreed to set aside August 10 and 11, 2000 for completing the interviews.

The ministerial task of contacting the 15 or 16 candidates selected by the Selection Committee for interviews, however, was not handled by any of the Selection Committee members. Rather, that task was handled by the Human Resources Department. Human Resources Director Mark Sanford testified that he and several members of his staff were responsible for contacting the candidates for the full-time chemistry position. Plaintiff Diop was one of the candidates that Mr. Sanford himself contacted. Sanford, an African-American, testified that he did not know Mr. Diop and his having been the person who contacted Diop was a random act done simply to assist his staff in completing the scheduling process in a timely manner.

Sanford testified that when he reached Mr. Diop, he advised him of the two days available for him to interview with the Selection Committee but that Mr. Diop said he was not available either of those days. (Plaintiffs testimony varies from Sanford's in that he claims that Sanford only offered him one date to interview, not two. However, he does not dispute that he told Sanford that he was not available to interview on the date offered.)⁴

The Selection Committee then proceeded with the interviews. As it turns out, only seven candidates made themselves available for interviews so all of the interviews were completed in one day, August 10, 2000. The interviews were conducted by Dr. Dettloff, Willie Brown, Norm Samuelson, and Cliff Lewis. Dr. Hodges concurred in the Committee's final recommendation although she did not participate in the interviews. Plaintiff Diop was not interviewed because he did not make himself available for an interview.

THE SELECTION

After the interviews, each candidate was individually scored by each member of the Committee on a standardized format. The scores were totaled and averaged, and the two best candidates were recommended to the Chancellor for appointment. Chancellor Ivery, who himself is an African-American, ultimately chose Dr. Joann Wittbrodt. Dr. Wittbrodt, a white female, was, like Plaintiff, a part-time chemistry instructor at WCCCD. She also taught at Wayne State University. Dr. Wittbrodt not only had a Ph.D. in chemistry from WSU, but also, she impressed the Committee members during the teaching demonstration component of her interview.

Shortly after Dr. Wittbrodt was hired, Plaintiff Diop complained to his Union that a white female was hired for the full-time chemistry position. However, the Union filed no grievance, apparently having concluded that there was no violation of the collective bargaining agreement.

Three months later, on November 13, 2000, Plaintiff filed this lawsuit claiming that Defendants' failure to schedule him for an interview for the full-time chemistry position was the result of gender, race and ethnicity/national origin discrimination in violation of the Michigan Elliott-Larsen Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment, and was also done in retaliation for his having complained of Defendants' "academic fraud" in accepting federal funds to enroll students in ill-equipped chemistry lab courses in violation of the False Claims Act, 31 U.S.C. § 3730(h).⁵ Plaintiff further alleges that failure to afford him an interview for the full-time chemistry position violated his Fourteenth Amendment substantive and procedural due process rights. Additionally, Plaintiff has asserted a False Claims Act qui tam claim⁶ in which he alleges that, over approximately fifteen years, the Defendants received federal funds through WCCCD's participation in federal student financial aid programs by falsely certifying that the College was in compliance with all applicable statutory and regulatory provisions and accreditation standards. Plaintiff contends that the College was not in compliance with these regulatory provisions and accreditation standards because certain chemistry labs were inadequately equipped.

Discovery has now closed and the Defendants have moved for summary judgment on all of Plaintiffs claims.

III. DISCUSSION

A. STANDARDS APPLICABLE TO MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is proper "`if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Fed. R.Civ.P. 56(c).

Three 1986 Supreme Court cases—Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)—ushered in a "new era" in the standards of review for a summary judgment motion. These cases, in the aggregate, lowered the movant's...