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Perkola v. The University of Michigan Board of Regents

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

March 28, 2018

Stephen Perkola, Plaintiff,
v.
The University of Michigan Board of Regents, et al., Defendants.

          OPINION & ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          SEAN F. COX UNITED STATES DISTRICT COURT JUDGE

         Plaintiff Stephen Perkola is employed by the University of Michigan as a Police Sergeant with the University's Police Department at its Dearborn, Michigan campus. After he applied for and was denied a promotion to Deputy Chief at the Dearborn campus, he filed this action against Defendants, asserting reverse race and sex discrimination claims under both Title VII and Michigan's Elliott Larsen Civil Rights Act (“ELCRA”). The matter is currently before the Court on Defendants' Motion for Summary Judgment, following the close of discovery. The parties have fully briefed the issues and the Court heard oral argument on March 22, 2018. As explained below, the Court shall GRANT THE MOTION IN PART AND DENY IT IN PART. The Court shall GRANT the motion to the extent that it grants summary judgment in Defendants' favor as to Plaintiff's reverse sex discrimination claims under Title VII because Plaintiff has failed to meet his heightened burden of establishing a prima facie case as to a reverse sex discrimination claim under Title VII. The Court will DENY the motion in all other respects. As such, Plaintiff's Title VII reverse race discrimination claim, along with Plaintiff's reverse race and sex discrimination claims under the ELCRA, will proceed to a jury trial.

         BACKGROUND

         Plaintiff Stephen Perkola (“Plaintiff”) filed this action on July 12, 2016. His First Amended Complaint is the operative complaint and names the following seven Defendants: 1) the University of Michigan Board of Regents; 2) Anna Grbic; 3) Kevin Williams; 4) Renee Mainor; 5) Reetha Raveendran; 6) Dr. Debra Hutton; and 7) Eddie L. Washington, Jr. Plaintiff's First Amended Complaint asserts race and sex discrimination claims under both Title VII and Michigan's ELCRA.

         There were three different scheduling orders in this case. The final one provided that discovery closed on September 29, 2017. (D.E. No. 16).

         On October 30, 2017, Defendants filed this Motion for Summary Judgment. This Court's practice guidelines are included in the Scheduling Order and provide, consistent with Fed.R.Civ.P. 56 (c) and (e), that:

a. The moving party's papers shall include a separate document entitled Statement of Material Facts Not in Dispute. The statement shall list in separately numbered paragraphs concise statements of each undisputed material fact, supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate document entitled Counter-Statement of Disputed Facts. The counter-statement shall list in separately numbered paragraphs following the order or the movant's statement, whether each of the facts asserted by the moving party is admitted or denied and shall also be supported by appropriate citations to the record. The Counter-Statement shall also include, in a separate section, a list of each issue of material fact as to which it is contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute shall be deemed admitted unless controverted in the Counter-Statement of Disputed Facts.

(D.E. No. 16 at 2-3). The parties complied with the Court's practice guidelines for motions for summary judgment such that Defendants' motion includes a “Statement of Material Facts Not In Dispute” (“Defs.' “Stmt.”) and Plaintiff's response brief includes a “Counter-Statement of Disputed Facts” (“Pl.' s Stmt.”).

         The following material facts are gleaned from the evidence submitted by the parties, viewed in the light most favorable to Plaintiff, the non-moving party.

         Plaintiff is a white male. (Defs.' & Pl.'s Stmts. at ¶¶ 14-15). Plaintiff applied for a fulltime Police Sergeant position at the University's Dearborn, Michigan campus and began working for the University's Dearborn Police Department in April of 2011. (Id. at ¶ 2 & 8).

         Plaintiff is still working as a Sergeant at the University's Dearborn Police Department today. (Defs.' & Pl.'s Stmts. at ¶ 10). In that position, Plaintiff supervises two police officers, three security officers, and one dispatcher. (Id. at ¶ 12).

         When Plaintiff began working at the University, he reported to Lt. Kenneth Paris. (Id. at ¶ 30).

         In October of 2013, Chief Gordon retired and Lt. Paris became Interim Chief, still acting as Plaintiff's immediate supervisor. (Defs.' & Pl.'s Stmts. at ¶ 33).

         Defendant Renee Mainor is a black female (see Defs.' Stmt. at ¶ 3) who works in the University's Human Resources Department. Plaintiff testified that, shortly after Chief Gordon retired, Mainor asked Plaintiff if he knew of any good candidates for the position of Chief, and after Plaintiff responded affirmatively, Mainor asked Plaintiff if he “knew of any good black candidates.” (Defs.' & Pl.'s Stmts. at ¶ 34).

         Lt. Paris applied for the Chief of Police position; however, when he was not selected, he retired. (Defs.' & Pl.'s Stmts. at ¶ 37).

         Kevin Williams, a black male, became the Chief of Police for the University's Dearborn Police Department in May of 2014. (Id. at ¶ 38). Plaintiff then reported directly to Chief Williams for approximately one month because there was no Lieutenant or Deputy Chief. (Id. at ¶ 39).

         Plaintiff, at times, served as Interim Police Chief while the Police Chief was gone. (James Dep. at 25-26).

         Shortly after Chief Williams arrived at the Dearborn campus, he spoke to Eddie Washington, the University's Executive Director of Public Safety, [1] and Raymond Hall and Robert Neumann, Police Chiefs at the Flint and Ann Arbor campuses, respectively, to see if he could get help at the Dearborn campus. (Defs.' & Pl.'s Stmts. at ¶ 42). Williams testified that he knew, at that time, that he wanted a deputy police chief at Dearborn. (Williams Dep. at 34-35).

         Crystal James[2] was sent to the Dearborn campus in early 2014. Williams had never met James when the decision was made to temporarily assign her to the Dearborn campus. (Defs.' & Pl.'s Stmts. at ¶ 45).

         James testified that she was told she was being sent to the Dearborn campus because Chief Williams had requested help with the day-to-day operations of the department and that is what her work entailed. (James Dep. at 12-13).

         Williams testified that after James came to Dearborn, he mentored James to help develop her to become a deputy police chief. (Williams Dep. at 34-35). Williams testified that he did not, however, believe that James was qualified to become a deputy police chief at that time because she lacked a college degree:

Q. What did Crystal James need mentoring in?
A. In this particular case this was mentoring to develop her to be a police chief. Q. A deputy police chief, right? A. Yes. Yeah, sure.
Q. You knew you wanted a deputy police chief, right? A. Oh, yes.
Q. And she would be mentoring towards that position, correct?
A. Yes.
Q. Okay. You were in a position where you knew you were going to ask for the position - or you had just asked for the position to be created of deputy police chief, right?
A. Yes.
Q. And this was the perfect opportunity to have the person that was here and mentor her as to what you were going to need for the future, correct?
A. No.
Q. No?
A. No.
Q. Why not?
A. Because she wasn't qualified in my mind.
Q. She wasn't qualified in your mind in the summer of 2014 to be a deputy police chief, correct?
A. Yes, based upon education specifically.
Q. Okay. Anything else?
A. No.
Q. Okay. It was just on education that she wasn't qualified. Anything else?
A. No.
Q. What was it about education?
A. I do not believe, and I've never believed, that a person should be an executive in the police department without having a college degree.

(Williams Dep. at 35-36).

         Plaintiff testified that James continued to hold the rank of lieutenant during her temporary assignment at the Dearborn campus, and that her role was essentially the same as the role Lt. Paris performed before retiring:

Q. Do you know what her rank was in Ann Arbor?
A. Lieutenant.
Q. Do you know if that rank changed when she came to Dearborn?
A. She acted in the capacity of deputy chief, but she was still a lieutenant.
Q. When you say acted in the capacity of deputy chief, what do you mean?
A. She would set policies. She was setting procedures for the department, even though she wasn't technically a member of the University of Michigan Dearborn Police Department . . .

(Pl.'s Dep. at 86-87).

         On May 27, 2014, Williams announced that he was eliminating the Lieutenant position (formerly held by Lt. Paris) and creating a Deputy Chief position. Williams told Plaintiff that he was qualified for the position and urged Plaintiff to apply for it. (Defs.' & Pl.'s Stmts. at ¶ 53-54).

         James returned back to the University's Ann Arbor campus in August of 2014. (Pl.'s Dep. at 88).

         The University posted the Deputy Chief position for Dearborn on August 22, 2014, with a closing date of September 5, 2014. The job posting listed the “working title, ” of the position as “Deputy Chief of Police” but the “Job Title” of the position as “Police Lieutenant.” (Defs.' Ex. 10).

         The job posting detailed the “Essential Qualifications” for the position, which included, among other things:

• A bachelor's degree in Criminal Justice or related field or an equivalent combination of education and experience
• 5 years of law enforcement experience
• 3 years of supervisory experience
• Excellent interpersonal skills and oral and written communication skills

(Defs.' & Pl.'s Stmts. at ¶ 56). The job posting also listed the duties of the Deputy Chief position as including:

- Establishes and maintains plans and operations in compliance with university, state and federal requirements;
- Supervises a team of direct reports; including managing work performance for completeness, accuracy and compliance within established university and departmental standards;
- Completes project assignments from Chief concerning policy construction and development, security needs/issues;
- Plans for responding to major crisis events and incidents on campus acting as part of a university incident management team or crisis management team;
- Serves on various University and Local/State law enforcement committees;
- Assists in developing, recommending, and implementing policies and procedures for the department. Serve in advisory capacity to Chief and other university officials for public safety concerns and methods for increased efficiency;
- Assists in departmental fiscal matters related to operations, payroll, purchasing, and other areas of the budget;
- Assists with planning for major all (sic) special events; athletic, social, or of a cultural nature; with focus on crowd control, traffic control and security operations; providing guidance and direction, ensuring adequate staffing, space and facilities for the subsequent performance of duties; and
- Performs non-law enforcement duties specific to campus needs.

(Id. at 57).

         In total, the University received 62 applications for the Deputy Chief position, including Plaintiff and Crystal James. (Defs.' & Pl.'s Stmt. at ¶ 58).

         Plaintiff and James each submitted a cover letter and copy of their resume when they applied for the position.

         James's cover letter expressed interest in the Dearborn Deputy Chief of Police position and included that “[i]n June 2014, I was asked to assist the Chief of Police at the University of Michigan, Dearborn Police Department (UMD) transition in a temporary Interim Lieutenant position working directly with him. In that capacity, I served as acting Chief of Police during the Chief's absence without issue.” (D.E. No. 18-22 at Pg ID 342). Her attached resume indicated that she anticipated receiving a Bachelor of Science Degree from Central Michigan University in June of 2015.[3] It further indicated that James had worked for the University since 1992, and that she had been a Lieutenant since 2004.

         Plaintiff's cover letter expressed interest in the position and stated that he had “over 28 years of progressively responsible ...


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