Case 38: Flint, Michigan Fire Dept. Sued for Anti-White Bias |
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Update 02-14-05: Flint City Council awards $150,000 to white firefighter John Linker in his reverse discrimination claim. |
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1. Introduction and Overview
The appeals court ruled in part: "...the chief [Wiggins] used racial epithets daily for a prolonged period of time and in the context of employment decisions. Accordingly, although the substantial qualifications of the minority candidates makes this a very close case, the undisputed unfortunate comments of the chief regarding non-minorities in the workplace and regarding workplace decisions leaves us with little choice but to reverse [Judge Hayman's decision] and remand to allow the [lower court] jury to assess all the evidence. ... [W]e conclude that plaintiff [Linker] presented genuine issues of material fact regarding direct evidence of discrimination... We reverse and remand [to Judge Hayman's court] for further proceedings in accordance with this opinion." [Linker v. City of Flint, State of Michigan Court of Appeals case no. 238342 11/25/03.] FLINT DEMOGRAPHICS AND FACTS:
Flint, Michigan is about 58 miles northwest of Detroit. While Detroit is the "auto capital of the world", the local Flint economy was devastated by massive layoffs in the 1980's at the local General Motors facility. The Flint economy has never quite completely recovered. The lower court judge who initially rejected Linker's claim of reverse discrimination is part of the liberal, black power elite in Flint. Judge Hayman is black. He has political and personal ties to the black, former Mayor of Flint, Woodrow Stanley. It was Mayor Stanley and his administration that appointed black fire chief Theron Wiggins who, as the court found, just plain didn't care for white firefighters.
These workshops strongly endorse the notion that only blacks and other designated minorities are victims of racism, and that whites, in particular white males, are the exclusive purveyors of racism. The workshops are mute on the subject of black racism toward whites.
Flint's "Undoing Racism" workshop is so ultra-liberal in it's orientation to
racial discrimination that ex-president Bill Clinton openly praised the workshop in his Pathways
to One America in the 21st Century: Promising Practices for Racial Reconciliation.
Clinton's Pathways to One America had very little to do with equal treatment
under the law and had very much to do with enforcing racial quotas. <<Last known link to "Pathways" reference:
JUDGE HAYMAN'S ENVIRONMENTAL JUSTICE: Judge Hayman has invoked the liberal doctrine of "environmental justice" in a 1997 ruling in which he ruled against the operation of a wood-burning incinerator in a predominantly black Michigan community. In his ruling against Michigan and for the NAACP, Hayman said "... there was no testimony presented in this court that would indicate that any minorities were hired to construct this plant; that any monies were paid to any minorities in the building of this plant, and that any minorities were, in fact, working at this plant. And it's an eighty million dollar facility. It's going to be polluting an African-American community for the next 30 years or so.
"And as best as I can tell, the owners all live in Dearborn or somewhere where
they're not going to be polluted and they're going to be reaping the benefits, and I found
that to be appalling and I think [it] ought to be a statement that this society ought to
take into consideration when we're permitting these plants and we're polluting communities
and at the same time the people that live in those communities get no benefit at all from
those facilities in terms of employment." <<Last
known link to this reference: On Nov. 30, 2003 the Flint Journal summarized John Linker's case as follows: Headline: City of Flint still putting out fires from racial woes "Testimony stemming from a discrimination lawsuit suggests a climate of racial prejudice was fostered at the highest levels in the Flint Fire Department during the [black mayor] Stanley administration, the consequences of which continue to cost the city.
"Linker's case is far from over, as the city may appeal to the state Supreme Court. If he eventually collects, however, it would not be the first time the city has paid off in a discrimination suit that accused [black fire chief] Wiggins, who retired in September 2001." No link is available to the original story. STATE OF MICHIGAN
PER CURIAM. In this reverse discrimination claim, plaintiff John Linker appeals by right the trial court's judgment granting defendants' motion for summary disposition under MCR 2.116(C)(10). We reverse.
Plaintiff claims that he presented both direct and circumstantial evidence that Wiggins's reasons for not promoting him were based on racial bias. We agree. This Court reviews a trial court's ruling on a summary disposition motion de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Where the motion was granted under MCR 2.116(C)(10), this Court must consider the available pleadings, affidavits, depositions, and other documentary evidence in a light most favorable to the nonmoving party and determine whether the moving party was entitled to judgment as a matter of law. Id. at 120; Unisys Corp v Comm'r of Ins, 236 Mich App 686, 689; 601 NW2d 155 (1999). Generally, when deciding a motion for summary disposition under MCR 2.116(C)(10), a court cannot make findings of fact. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). The court's job is merely to review the record evidence and all reasonable inferences therefrom and decide whether a genuine issue of any material fact exists to warrant a trial. Id. The moving party has the burden of supporting its position with evidence showing that there are no disputed facts. Smith v Globe Life Ins Co, 460 Mich 446, 455; 597 NW2d 28 (1999). "The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists." Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). All reasonable inferences are to be drawn in favor of the nonmoving party. Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347, 358; 597 NW2d 250 (1999). A court must be liberal in finding a genuine issue of material fact. Marlo Beauty v Farmers Ins, 227 Mich App 309, 320; 575 NW2d 324 (1998). Only where the nonmoving party fails to support its position with evidence showing that disputed facts exist should the motion be granted. Maiden, supra at 120; Smith, supra at 455 n 2. Where a case involves questions of credibility, intent or state of mind, summary judgment is hardly ever appropriate. Harrison v Olde Financial Corp, 225 Mich App 601, 606 n 5; 572 NW2d 679 (1997); Michigan National Bank-Oakland v Wheeling, 165 Mich App 738, 744-745; 419 NW2d 746 (1988). The court may not make findings of fact or weigh credibility in deciding a summary disposition motion. Skinner, supra at 161; Nesbitt v American Community Mutual Ins Co, 236 Mich App 215, 225; 600 NW2d 427 (1999). Thus, where the truth of a material factual assertion of a moving party's affidavit depends on the affiant's credibility, there exists a genuine issue to be decided at a trial by the trier of fact, and a motion for summary judgment cannot be granted. Metropolitan Life Ins Co v Reist, 167 Mich App 112, 121; 421 NW2d 592 (1988). For a successful employment discrimination claim – be it based on race, sex, or age – a plaintiff must produce some evidence of bias. Hazle v Ford Motor Co, 464 Mich 456, 462-463; 628 NW2d 515 (2001). If the plaintiff has direct evidence of bias, then he will proceed "in the same manner as a plaintiff would prove any other civil case." Id. at 462, citing DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 537-539; 620 NW2d 836 (2001), and Matras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986). In the civil rights context, direct evidence is "‘evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.'" Hazle, supra, at 462, quoting Jacklyn v Schering-Plough Healthcare Products Sales Corp, 176 F3d 921, 926 (CA6 1999). See also Downey v Charlevoix Road Comm'rs, 227 Mich App 621, 633; 576 NW2d 712 (1998), and Harrison, supra at 610. Statements that are made outside the immediate adverse action context – so-called "stray remarks" – and which plaintiff alleges to be direct evidence, must be examined for relevancy using the following four factors: "(1) Were the disputed remarks made by the decisionmaker or by an agent of the employer uninvolved in the challenged decision? (2) Were the disputed remarks isolated or part of a pattern of biased comments? (3) Were the disputed remarks made close in time or remote from the challenged decision? (4) Were the disputed remarks ambiguous or clearly reflective of discriminatory bias?" Krohn v Sedgwick James, Inc, 244 Mich App 289, 292; 624 NW2d 212 (2001). In this case, Rico Phillips, a former union vice-president, testified that on several occasions, Wiggins disciplined Caucasian firefighters more harshly than African-Americans and that he thought Wiggins was racist. Plaintiff also presented testimony of former deputy fire chief Willie Miller that Wiggins on a daily basis used terms such as "honky" and "white boy." Miller also testified that Wiggins, in a different promotion context, stated that "honkies" did not have anything coming to them from him. It was also alleged that Wiggins referred to the Caucasian union president as "Massa Joe" and to have said that he would have no problem firing a Caucasian firefighter. We must review the evidence in this case with the Krohn factors in mind. These statements came directly from the decision-maker, seem to form a pattern of biased comments, and were clearly reflective of discriminatory bias. See Krohn, supra at 292. The time frame of the comments is not clear. But Miller was in the department at least through 1999, so presumably the daily racist remarks were heard up until then. At the very least, plaintiff raised a genuine issue of material fact regarding Wiggins's remarks. When a plaintiff produces evidence that raises a genuine issue of material fact regarding possibly discriminatory remarks, whether those remarks give rise to liability "is an argument for the finder of fact to consider" and summary disposition is not appropriate. DeBrow, supra at 541. Thus, although defendant produced evidence of legitimate, non-discriminatory reasons for the challenged promotions, and although nothing in the record suggests that the two African-American applicants were not highly qualified, we nonetheless reverse because the substantial and continuous use of racial epithets by the fire chief raises a material issue of fact for the jury's consideration. Were the racial epithets isolated and far removed in time from the challenged event, this would be another matter. But according to former deputy fire chief Miller, the chief used racial epithets daily for a prolonged period of time and in the context of employment decisions. Accordingly, although the substantial qualifications of the minority candidates makes this a very close case, the undisputed unfortunate comments of the chief regarding non-minorities in the workplace and regarding workplace decisions leaves us with little choice but to reverse and remand to allow the jury to assess all the evidence. Because we conclude that plaintiff presented genuine issues of material fact regarding direct evidence of discrimination, we need not reach the issue of whether the same is true under the McDonnell-Douglas framework. We reverse and remand for further proceedings in accordance with this opinion. We do not retain jurisdiction. /s/ Jane E. Markey
Much of modern "civil rights" law is founded upon the Constitutionally dubious doctrines of proportional representation and disparate impact. These doctrines have resulted in a particularly adverse impact upon white employees of police, fire and municipal agencies all across the U.S.
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Case 38: (A) Introduction and Overview: Flint, Michigan Reverse Discrimination |
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38: (B) Flint Firefighter Awarded $150,000 for Reverse Discrimination |
