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Foster v. Judnic

United States District Court, E.D. Michigan

August 12, 2013

Bellandra Foster, et al., Plaintiffs,
Victor Judnic, et al., Defendants

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For Bellandra Foster, BBF Engineering Services, PC, Plaintiffs: Avery K. Williams, Williams Acosta, Detroit, MI.

For Victor Judnic, Kirk T. Steudle, Director of the Michigan Department of Transportation, Rick Snyder, Governor of the State of Michigan, Mark Steucher, Defendants: Michael J. Dittenber, Michigan Department of Attorney General, Transportation Division, Lansing, MI.


Honorable Nancy G. Edmunds, United States District Judge.

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Before the Court is Defendants Rick Snyder, Kirk T. Steudle, Victor Judnic, and Mark Steucher's motion for summary judgment on Plaintiffs BBF Engineering Services, PC, and Bellandra Foster's first amended complaint. Plaintiffs allege that the Michigan Department of Transportation (MDOT), through Judnic and Steucher, discriminated against her, in violation of 42 U.S.C. § § 1983 and 1981, based on Plaintiff Foster's gender and race, by not awarding BBF various consulting contracts. Plaintiffs also allege that Defendants violated the Michigan Whistleblowers' Protection Act (WPA), Mich. Comp. Laws § 15.361 et seq., by taking an adverse action against Plaintiff Foster and BBF when she filed a Title VI complaint against MDOT. (Dkt. 50.)

Because the Court finds that Plaintiff Foster has not met her burden in bringing forth evidence that Defendants treated similarly-situated individuals or entities differently than her and because she cannot establish a class-of-one equal protection theory, Plaintiffs' discrimination claims cannot survive summary judgment. Because the Court finds that Plaintiffs' WPA claim fails under various arguments, as the Court discusses below, the Court dismisses that claim as well.

For the reasons explained below, therefore, the Court GRANTS Defendants' motion for summary judgment and dismisses this case.

I. Facts

A. Background

Plaintiff Foster, an African-American woman, is a professional engineer, licensed and registered in Michigan. (Dkt. 42, Am. Compl. ¶ ¶ 3, 17, 18.) She is the president and sole shareholder of Plaintiff BBF Engineering (BBF), an engineering consulting firm. BBF is a certified Disadvantaged Business Enterprise (DBE).[1] ( Id. ¶ 32.)

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This lawsuit involves Plaintiff and BBF's relationships with MDOT, its practices, its director, and its employees. Defendant Rick Snyder is the Governor of Michigan. (Am. Compl. ¶ 10.) Plaintiffs allege that Snyder is liable and can enforce any injunctive relief the Court could award because he " is connected to and has responsibility for MDOT and its consulting contracts." (Pls.' Resp. at 38.) Defendant Kirk Steudle is MDOT's director. (Compl. ¶ 11.) Plaintiffs allege that Steudle is liable because he is MDOT's director and oversees its budget and " is responsible for the construction, maintenance[,] and operation of nearly 10,000 miles of state highways and more than 4,000 state highway bridges." (Pls.' Resp. at 38-39.) Defendant Victor Judnic and Defendant Mark Steucher were, at the times relevant to this case, MDOT project engineers/project managers. (Compl. ¶ ¶ 12, 13.) Plaintiffs base their gender and race discrimination claims on statements that Judnic and Steucher allegedly made.

Plaintiff Foster and BBF sue Defendants for allegedly-discriminatory practices they took against her and BBF in MDOT contract bidding and awarding processes. In1997, Plaintiff states, she and BBF began providing contract work and consulting services to MDOT. (Am. Compl. ¶ 9.)

B. The MDOT contract-bidding process

Defendants have submitted an explanation of how MDOT bidding works. (Defs.' Mot. for Summ. J. at 1-2.) They state MDOT selects professional engineering firms in accordance with the Brooks Act, 40 U.S.C. § 1101, et seq., 23 U.S.C. § 112. ( Id. at 1.) The Brooks Act, they say, requires selections based on a firm's qualifications, and not on price. ( Id. ) Defendants state that MDOT has published a " Selection Guidelines for Service Contracts," which implements 23 U.S.C. § 112's mandate. ( Id. ) They explain that MDOT publishes a Request for Proposals (RFP) to advertise the intended scope of the project work and other relevant details. ( Id. ) After MDOT issues the RFP, Defendants state that interested firms must submit a proposal detailing its qualifications, personnel, and information relating to any subconsultants that may perform work on the contract. ( Id. )

To award a contract over $25,000.00 to a firm, Defendants state that MDOT " convenes a selection team to evaluate the proposals." (Defs.' Resp. at 1.) The selection team, Defendants maintain, reviews the proposals and assigns scores for each proposal in accordance with a scoring worksheet. ( Id. at 1-2.) After the team meets and tallies the scores, Defendants represent that MDOT forwards the scores to the Central Selection Review Team in Lansing for final approval. ( Id. at 2.) If the CSRT approves the scores, then the project engineer requests a " price proposal," then negotiations start, and if the parties reach an agreement, then the consultant and MDOT enter a contract for the project work. ( Id. )

As Plaintiff Foster understands the RFP process, she alleges that the project engineer " has basically the ultimate power." (Pls.' Resp. Ex. 12, Foster Dep. at 38.) She maintains that the project engineer assists in writing the RFP and has a primary hand in picking the selection panel. ( Id. ) She further alleges that the project engineers often, before the selection committee meets, have decided on which companies they want to work with. ( Id. at 39-40.)

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C. Judnic's alleged discriminatory statement

Plaintiff Foster bases much of her discrimination claim on a statement Judnic made in 2006, which his word-processing assistant, Mary Caldwell heard. (Pls.' Resp., Ex. 2, Caldwell Dep.) Caldwell stated that she heard Judnic say that " no woman should be making that kind of money." ( Id. at 31.) She explained that she could not, with one-hundred percent certainty state that Judnic directed his statement at BBF or Plaintiff Foster. ( Id. ) Caldwell stated that she did not know whether a woman other than Plaintiff Foster was working for MDOT at the time that Judnic allegedly made the statement. ( Id. ) She stated, though, that she was not aware of any other woman-owned company that was working at the time Judnic allegedly made the statement. ( Id. at 32-33.) Caldwell said that Judnic's statement was about gender, women, and not about race. ( Id. at 35.) She stated that she did not think that he said anything akin to " no Black woman." ( Id. )

Caldwell told Plaintiff Foster about the statement, but that she did not remember if she told Plaintiff Foster immediately or even that year. (Caldwell Dep. at 34.)

When questioned whether BBF experienced a change in the amount of work it received from MDOT, Caldwell stated that she noticed that Plaintiff Foster and her people were not around as much as they had been before. (Caldwell Dep. at 36-37.)

D. MDOT cuts Plaintiffs' Contract 2006-0490 in half

Also in 2006, Plaintiffs submitted a proposal for an RFP for an MDOT project on Michigan's M-10 highway, the Lodge Freeway. (Foster Dep. at 44-45.) Plaintiff Foster stated that Judnic was the project engineer on the project. Sometime after she submitted her proposal, Plaintiff Foster stated that MDOT had selected BBF for the contract, but that Judnic later called her and told her that MDOT was cutting half of the contract and was going to re-bid the other half. ( Id. at 46.) Plaintiff Foster added that Judnic told her that Lansing made the decision to re-bid the contract. ( Id. at 47.) The contract was reduced from $4.2 million to $2.2 million.

Plaintiff Foster alleged that the contract cut evidenced discrimination, either based on gender or race, because MDOT did not cut any other firm's contract. (Foster Dep. at 49.) Plaintiff Foster stated that BBF ultimately received the reduced portion of the contract, an " as-needed" services contract, but that the contract did not include work on M-10, which was part of the original contract. ( Id. at 51-52.) Plaintiff Foster acknowledged, though, that BBF did not bid on the M-10 portion of the contract after the original contract was cut and MDOT awarded her the as-needed services contract. ( Id. at 55.)

Judnic recalled that he had received a message from Lansing " that the contract was going to be reduced so that [Lansing] could get more work to people in the industry." (Judnic Dep. at 89.) Judnic explained that Lansing meant to spread the work around to more consultants, not just more DBEs. ( Id. at 90.)

The second half of the M-10 contract was awarded to Fishbeck, a large, non-DBE consulting firm.

Plaintiff Foster testified that MDOT did not cut anyone else's contract in half, and that fact shows discrimination based on race and gender. (Foster Dep. at 49.)

Defendants have also submitted affidavits supporting their position that Judnic was not responsible for cutting BBF's contract.

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(Defs.' Mot. at 3; Ex. 6, Kratofil Aff. ¶ 4; Ex. 7, Screws Aff. ¶ 4.)

E. MDOT attempts to reduce Plaintiff's Contract 2008-0044

In 2008, Plaintiffs allege that MDOT attempted to cut another contract that BBF was awarded, contract 2008-0044. (Foster Dep. at 61-62.) Foster stated that Jason Voigt was the person who indicated to her that MDOT was reducing the contract duration from two years to one year. ( Id., Am. Compl. ¶ 43.) Foster stated, though, that she contacted Myron Frierson, Voigt's supervisor, and after that contact, MDOT did not reduce the contract duration. (Foster Dep. at 62-63.)

F. Plaintiff Foster meets with Judnic on July 18, 2008 and Judnic details issues that MDOT had had with Love Charles, one of Plaintiffs' technicians

Plaintiff Foster requested debriefing meetings, which Judnic would not conduct with her, at first. (Foster Dep. at 73.) She conceded, though, that she has no evidence that Judnic would not conduct these meetings because of her gender or race. ( Id. ) She stated that there had to be some reason, though, why he would not meet with her. ( Id. )

On July 18, 2008, though, Judnic and Voigt had a meeting with Plaintiff Foster to discuss BBF's performance. (Foster Dep. at 83-84.) At the meeting, Plaintiff Foster received a list of issues that MDOT had with BBF on the M-10 job and with Love Charles. (Defs.' Mot., Ex. 14, Meeting Minutes.)

Love Charles worked for BBF from 1997 until 2008, in the capacity as DBE technician. (Foster Dep. at 83.) Charles stated that Judnic and his team took issue with him not logging his calls. (Pls.' Resp., Ex. 4, Charles Dep. at 53.) He stated that Judnic treated him like a child. ( Id. ) Charles testified that his experience gave BBF " points" for when BBF submitted RFPs. (Charles Dep. at 71.) He stated that he told Plaintiff Foster that, when he retired, she would be done, because he gave her a significant amount of points in the RFP process. ( Id. )

Charles also testified that one of the issues that Judnic addressed at the July 18, 2008 debriefing was Charles's failure to keep certain files up to date. (Charles Dep. at 41.) Charles stated that he understood that " certain things" were to " be in the files at certain times." ( Id. ) After Charles left the meeting, he found the missing items and returned them to Plaintiff Foster. ( Id. )

Charles stated that he was forced out of his job as a consultant with MDOT. (Charles Dep. at 45.)

G. The Gateway Project billing issues

Around June, 2010, Plaintiffs were working on the Gateway Project as a subconsultant with URS, another consulting firm. (Foster Dep. at 123.) Plaintiffs were not getting paid for the services they were rendering. ( Id. at 122-23.) When Plaintiff Foster inquired about the nonpayment, she stated that she learned that URS was not even submitting BBF's invoices. ( Id. at 123.) Plaintiff Foster alleged that Judnic played a role because he was the project manager on the project and the project manager reviews every invoice that gets submitted. ( Id. at 124.) Plaintiff Foster further alleged that Judnic's failure to question URS as to why it was not submitting BBF's invoice is discrimination because he had " no concern whether [Plaintiffs were paid.]" ( Id. at 127.) Plaintiffs ultimately received payment for

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the work they performed on the Gateway project. ( Id. at 128.)

H. Foster's billing as a principal

Plaintiffs also point to MDOT's policy to not allow Plaintiff Foster to bill as a principal to her contracts as gender and race discrimination. Defendants state that, for a time, MDOT did not permit principals of any consulting firm to charge directly to a contract. (Defs.' Mot. at 5, citing Judnic Dep. at 78.)

Judnic testified that, during the course of a negotiation with Plaintiff Foster, MDOT had a policy that principals were not to charge up to a certain point of time. (Pls.' Resp., Ex. 2, Judnic Dep. at 77.) He also testified that he " most likely conveyed the policy." ( Id. )

Dargin testified that he understood MDOT policy to be that a principal could bill time on a contract so long as that principal was providing services other than just being a principal. (Pls.' Resp., Ex. 6, Dargin Dep. at 42.)

Plaintiffs argue that Plaintiff Foster has never been allowed to bill her time to a contract, even after the MDOT policy changed. (Pls.' Resp. at 34.) They further argue that no one ever advised Plaintiff of the policy change. ( Id. ) Plaintiffs allege, though, that other firms' principals were allowed to bill to the contract. (Foster Dep. at 143-44.) She did not identify which principals were allowed. She stated that she heard that other principals were allowed, though. ( Id. at 139.)

I. Steucher incident

Plaintiffs also point to an incident that occurred in 2009 when BBF submitted a proposal in response to an RFP for work in Oakland County. Defendant Steucher testified that the project received its funding from American Recovery and Reinvestment Act funds, which resulted in an altered selection process. (Defs.' Mot. at 7, citing Steucher Dep. at 61.) Defendants explain that the selection team would identify the three highest scoring firms and forward those firms for a second-round evaluation. ( Id. at 7-8.) Defendants state that BBF was not one of three highest scoring firms.

The selection committee included Defendant Steucher, who was the project engineer, and three other MDOT engineers: Cedric Dargin, Mark Koskinen, and Sean Kerley. (Steucher Dep. at 62.)

Dargin stated that Steucher began the meeting and then left to take a phone call. (Pls.' Resp., Ex. 6, Dargin Dep. at 78.) While Steucher was absent, the selection committee ranked BBF number one in the rankings. ( Id. at 80.) But Dargin stated that BBF did not get the contract. ( Id. ) He stated that BBF did not get the contract, and that BBF did not even finish in the top three of the rankings because Steucher unilaterally changed the rankings. ( Id. at 81.) Dargin added that, when Steucher returned to the meeting, he saw the rankings, changed them, and stated, " I hate her," talking about Plaintiff Foster. ( Id. )

J. 2010 RFP incident with vehicles

In 2010, MDOT issued another RFP with Judnic as project engineer. This specific RFP required the consultants who wanted to submit proposals to have at least five leased vehicles. (Defs.' Mot., Ex. 24.) When questioned, Judnic did not answer whether the new vehicle requirement would have a negative impact on smaller contractors, who may have lacked the ability to invest in the vehicles up front. (Judnic Dep. at 147.) This RFP was the only one that contained the requirement. ( Id. at 149.)

Plaintiff Foster stated that she had never seen this type of requirement on any

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RFP before. (Foster Dep. at 132.) She acknowledged that the RFP was posted on the MDOT website and that any firm that wanted to could submit a proposal. ( Id. at 134.) Plaintiff Foster alleged that this RFP was discriminatory because it eliminated her, as a DBE, from submitting a proposal, because she did not have the five leased vehicles. ( Id. at 135-36.) Plaintiff Foster stated that she did not know who wrote the RFP and included the vehicle requirement. ( Id. at 136-37.) But Plaintiff Foster stated that Judnic changed the policy once HNTB, another consulting firm, received the work. ( Id. at 137.)

Dargin stated that he had never drafted an RFP to include a requirement that the consultant have leased vehicles.

Defendants stated that other states around the nation had required a similar leased vehicles requirement and that the requirement was an attempt at cost-saving. But Defendants also state that the contractor and consulting community responded so unfavorably to the requirement that MDOT never again required the vehicles.

K. Plaintiff Foster takes issue with BBF's 2008 evaluations, having to FOIA subconsultant evaluations, and meeting with Steve Griffiths for monthly meetings instead of Judnic

Plaintiffs state that they suffered discrimination because they had to FOIA, that is, file a Freedom of Information Act request, to get subcontractor evaluations for one of its projects on which it was the prime consultant. (Foster Dep. at 119120.) She stated that she had previously received such evaluations for her subconsultants without requesting them. ( Id. at 114-117.) She also stated that she had no evidence that Judnic refused to provide the subconsultant scores based on her race or gender. ( Id. at 118.)

So that Plaintiffs would not be blind-sided by an unfavorable evaluation, as with the 2008 subcontract, Plaintiff Foster stated that she requested monthly meetings with Judnic. (Foster Dep. at 119.) But she stated that Judnic said he did not have time for the meetings, so Steve Griffiths, Judnic's engineering assistant, attended the meetings instead. ( Id. at 119-120.) Plaintiff added that she sought the meetings so that she and BBF would receive high evaluation scores. ( Id. at 120.) She stated that she was not aware of Judnic holding any monthly meetings with any other prime consultants and that she did not know why Judnic did not meet with her. ( Id. at 121.)

On June 15, 2010, Plaintiff Foster sent a letter to Tony Kratofil of MDOT relating to contract 2008-0044. (Pls.' Resp., Ex. 7, Summary.) In the letter, Plaintiff Foster expressed her concern about MDOT's proposal and evaluation process. ( Id. ) She stated that she was concerned because MDOT had rated BBF the " lowest of the entire as-needed services team on two consecutive contracts with the same project engineer manager." ( Id. ) Plaintiff Foster stated that she was particularly disturbed because she had requested meetings for her recent contract. ( Id. ) She stated, at the end of each meeting, that she asked whether MDOT management had any concerns about the work product of the team or staff. ( Id. ) She explained that the management never had any major issues. ( Id. ) She stated that she was particularly alert to the issue because the low scores would prohibit her company from securing future work. ( Id. )

L. Plaintiffs state that MDOT required one of her employees to go to a recertification class

Plaintiffs allege that Defendants discriminated against her ...

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