                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0896n.06
                           Filed: November 15, 2005

                                           No. 04-2152

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


Eddie Hopson,                                     )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR
DaimlerChrysler Corporation,                      )   THE EASTERN DISTRICT OF
                                                  )   MICHIGAN AT DETROIT
       Defendant-Appellee.                        )
                                                  )
                                                  )


       Before: DAUGHTREY and COLE, Circuit Judges; BARZILAY, Judge.*
       BARZILAY, Judge. Plaintiff-Appellant Eddie Hopson, Jr., appeals from the district court’s

August 19, 2004, order granting Defendant-Appellee DaimlerChrysler Corporation’s

(“DaimlerChrysler”) motion for judgment as a matter of law pursuant to FED. R. CIV. P. 50.

Specifically, Hopson contests the court’s dismissal of all but one of his Title VII claims and of all

of his claims under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) in its March 12, 2004,

partial grant of summary judgment for the Defendant. He also challenges the trial court’s refusal

to admit the evidence presented by Ethelbert Slater and John Sase, Ph.D. For the reasons stated

below, the district court’s judgments are AFFIRMED.




       *
         The Honorable Judith M. Barzilay, Judge of the United States Court of International
Trade, sitting by designation.
                            I. Factual and Procedural Background
       Plaintiff-Appellant Hopson, an African-American, has worked with Defendant-Appellee

DaimlerChrysler since February 1968. Since mid-1998 he has applied unsuccessfully for numerous

job positions within the company. In January 1998, he filed a complaint with the Equal Employment

Opportunities Commission (EEOC) alleging race discrimination and brought suit against

DaimlerChrysler in the Eastern District of Michigan on August 17, 1999, based on Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17, and ELCRA, MICH. COMP. LAWS ANN. §

37.2101.


       In his initial complaint, Hopson made a prima facie showing of discrimination as required

by Title VII according to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973). However,

after DaimlerChrysler set forth legitimate, non-discriminatory reasons for its employment decisions,

the district court granted the firm summary judgment. It found that Hopson could not provide

sufficient evidence to raise a genuine issue of material fact that DaimlerChrysler’s justifications

amounted to pretexts for race discrimination or retaliation. This Court reversed and remanded the

case for trial. See Hopson v. DaimlerChrysler Corp., 306 F.3d 427 (6th Cir. 2002) (“Hopson I”).

       Following remand, Hopson twice amended his complaint to encompass more employment

claims. These amendments, along with the dismissal or abandonment of other counts, left ten claims

at issue before the lower court. On March 12, 2004, the district court granted partial summary

judgment for DaimlerChrysler on all but one Title VII count because Hopson had not exhausted his

administrative remedies through the EEOC, thereby denying the court jurisdiction over the claims.

The district court also dismissed his ELCRA retaliation claim since Hopson had insufficient

evidence to raise a genuine issue of material fact that DaimlerChrysler’s employment decisions were


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retaliatory. Before trial, the district court also granted DaimlerChrysler’s renewed motion in limine

to exclude the evidence of Ethelbert Slater and John Sase, Ph.D.


       The case then moved to trial on two counts of race discrimination pursuant to Title VII and

ELCRA, respectively. At the close of Hopson’s case, the district judge granted DaimlerChrysler’s

Rule 50 motion for judgment as a matter of law, stating that Hopson had presented no evidence that

his inability to secure job positions to which he applied arose from race discrimination. Hopson now

appeals the partial grant of summary judgment for Defendant, the exclusion of the evidence

proffered by Ethelbert Slater and John Sase, and the judgment as a matter of law for Defendant.


                          II. The Partial Grant of Summary Judgment
       This court reviews a district court’s grant of summary judgment de novo. See Killian v.

Healthsource Provident Adm’rs, Inc., 152 F.3d 514, 520 (6th Cir. 1998). The Court must examine

the evidence in a light most favorable to the nonmoving party to determine whether “the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” Noble v. Chrysler Motors Corp., Jeep Div., 32 F.3d 997,

999 (6th Cir. 1994) (quoting Massey v. Exxon Corp., 942 F.2d 340, 342 (6th Cir. 1991)) (quotations

omitted); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“[T]he

nonmoving party must come forward with specific facts showing that there is a genuine issue for

trial.”) (quotations & citations omitted). If there exists a genuine issue of material fact – one that

“might affect the outcome of the suit under the governing law” – the summary judgment must be

overturned. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).




                                                  3
                                      A. The Title VII Claims
        In its partial grant of summary judgment, the district court accurately noted that “[i]t is well

settled that federal courts do not have subject matter jurisdiction to hear Title VII claims unless the

claimant explicitly files the claim in an EEOC charge or the claim can be reasonably expected to

grow out of the EEOC charge.” J.A. 382 (quoting Doan v. NSK Corp., 266 F. Supp. 2d 629, 635

(E.D. Mich. 2003) (citing Strouss v. Mich. Dep’t of Corr., 250 F.3d 336, 342 (6th Cir. 2001))); see

42 U.S.C. § 2000e-5(e); EEOC v. Wilson Metal Casket Co., 24 F.3d 836, 839 (6th Cir. 1994). In

the present case, Hopson filed only one claim with the EEOC and could not “provide[] the court

with any reason to conclude that his other race discrimination and retaliation claims could be

reasonably expected to grow out of the EEOC charge.” J.A. 383. Consequently, the court found

that it had no subject matter jurisdiction over any of the Title VII claims except for the one charge

Hopson filed with the EEOC.


        Hopson asserts that DaimlerChrysler waived its ability to question the district court’s subject

matter jurisdiction over his Title VII claims because it did not raise the issue during this case’s first

appeal. See Final Br. Appellant at 26. However, lack of subject matter jurisdiction is not a waivable

defect and may be raised sua sponte at any time during the proceedings.1 See Ambrose v. Welch,




        1
         In the alternative, Hopson invites the Court to extend the scope of the “single filing rule”
set out in Wilson Metal Casket Co., 24 F.3d at 839-40. In that case, this Court held that in
actions concerning numerous employees with the same grievances, “where a substantially related
non-filed claim arises out of the same time frame as a timely filed claim, the complainant need
not satisfy Title VII’s filing requirement to recover. Id. at 840. The Court declines this
invitation.


                                                   4
729 F.2d 1084, 1085 (6th Cir. 1984). Therefore, this Court AFFIRMS the district court’s finding

that it lacked subject matter jurisdiction over the Title VII claims unrelated to Hopson’s EEOC

filing.


                                       B. The ELCRA Claims
          Retaliation claims under ELCRA are subject to the same burden-shifting analysis that applies

to Title VII claims. See Hazle v. Ford Motor Co., 628 N.W.2d 515, 521-22 (Mich. 2001). To

establish a prima facie case for retaliation under the act, a plaintiff must demonstrate by a

preponderance of the evidence“(1) that he engaged in activity protected by Title VII; (2) that the

exercise of his civil rights was known to the defendant; (3) that, thereafter, the defendant took an

employment action adverse to the plaintiff; and (4) that there was a causal connection between the

protected activity and the adverse employment action.” Harrison v. Metro. Gov’t, 80 F.3d 1107,

1118 (6th Cir. 1996) (citation omitted), overruled on other grounds by Jackson v. Quanex Corp.,

191 F.3d 647, 667 (6th Cir. 1999); see DeFlaviis v. Lord & Taylor, Inc., 566 N.W.2d 661, 663-64

(Mich. Ct. App. 1997). If the plaintiff meets this burden, the defendant must present a legitimate,

non-discriminatory explanation for its conduct. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 252-53 (1981).       The burden then returns to the plaintiff, who must then prove by a

preponderance of the evidence that the defendant’s stated reasons serve as a pretext for retaliation.

See id.


          In its ruling below, the district court found that Hopson could establish a prima facie case

for retaliation and that the affidavit of David E. Stepaniak presented legitimate, non-discriminatory

reasons for DaimlerChrysler’s conduct. J.A. 384. However, the court found that Hopson produced

no evidence that could substantiate that DaimlerChrysler’s claimed reasons for its employment

                                                   5
actions constituted a pretext for discrimination. J.A. 384-85. The evidence Hopson presented to the

court for this purpose – Slater’s opinion, the Sase statistics, and Hopson’s employment record –

showed race discrimination rather than retaliation and therefore “failed to show that Defendant’s

proffered reasons for adverse employment actions are pretext to mask retaliation[.]” J.A. 385

(emphasis added). Due to this evidentiary inadequacy, the court correctly granted summary

judgment for DaimlerChrysler on the ELCRA claims. Accordingly, this Court AFFIRMS the

district court’s decision.


                                   III. Evidentiary Exclusion
        This Court reviews evidentiary rulings by a district court for abuse of discretion. Bowman

v. Corrs. Corp. of Am., 350 F.3d 537, 547 (6th Cir. 2003) (citing GE Co. v. Joiner, 522 U.S. 136,

141 (1997); United States v. Schreane, 331 F.3d 548, 564 (6th Cir. 2003)). On August 10, 2004,

the district court granted DaimlerChrysler’s motion to exclude the testimony of Ethelbert Slater and

the statistical analyses of John Sase, Ph.D. The judge asserted that Mr. Slater’s opinion as set out

in his deposition neither bore a connection to the attitudes of the DaimlerChrysler employment

decision-maker that affected Hopson, nor stemmed from Mr. Slater’s personal knowledge or

observations. J.A. 460. “He in fact knew nothing about the filling of the jobs involved.” J.A. 460.

Similarly, the judge found Mr. Sase’s statistical data “wholly inadequate” because they did not

“identify the African-American workers qualified for supervisory or managerial jobs” or “identify

employees who applied for [the] positions” in question. J.A. 460. By not taking account of non-

discriminatory variables, the data are “not the product of reliable principles and methods[.]” J.A.

460.




                                                 6
       The Court finds no fault with the district court’s decisions. Under the Federal Rules of

Evidence, only “evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence” may be used in court. FED. R. EVID. 401. Furthermore, what constitutes

relevant evidence depends on the nature of the evidence proffered. Opinion testimony by a lay

witness, such as Mr. Slater, may only encompass opinions or inferences “(a) rationally based on the

perception of the witness [and] (b) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue[.]” FED. R. EVID. 701. Mr. Slater’s testimony does neither. His

opinions shed no light upon the attitudes of the relevant DaimlerChrysler decision-makers and, in

fact, deal only with his own experience with unrelated employees. Testimony by experts, such as

Mr. Sase, must be “based upon sufficient facts or data[,]” and the witness must have “applied the

principles and methods reliably to the facts of the case.” FED. R. EVID. 702. As the district court

explained – and we agree – Mr. Sase’s statistics do not pass this test.


       Nevertheless, Hopson retorts that this Court’s mandate in Hopson I “ordered that said

testimony [by Messrs. Slater and Sase] be placed before the jury.” Final Br. Appellant at 37-38, 41-

42. While Hopson is correct in that “the trial court is bound to ‘proceed in accordance with the

mandate and law of the case as established by the appellate court[,]’” the court must first glean the

substance of the mandate in question. Hanover Ins. Co. v. Am. Eng’g Co., 105 F.3d 306, 312 (6th

Cir. 1997) (quoting Petition of U.S. Steel Corp., 479 F.2d 489, 493 (6th Cir. 1973)). This Court

reviews the interpretation of mandates de novo. See United States v. Moore, 131 F.3d 595, 598 (6th

Cir. 1997).




                                                 7
          Plaintiff-Appellant misconstrues this Court’s opinion. Hopson I was an appeal from

summary judgment for the defendant. 306 F.3d at 428. As such, this Court examined the evidence

in a light most favorable to Hopson when it determined that the Slater and Sase evidence “give rise

to a genuine issue of material fact.” Id. at 436. At no point did the Court rule on the evidence’s

admissibility. On the contrary, this Court expressed that “Hopson will have to demonstrate that

Slater’s opinion is connected to the decision-makers’ actual attitudes” to avoid exclusion. Id. at 437.

Likewise, Hopson I “recognize[d] that, on remand, Defendant-Appellee may challenge various

aspects of Hopson’s statistics.” Id. at 438. The district court did not abuse its discretion by

excluding this evidence at trial, and so we AFFIRM its decision.


                             IV. The Judgement as a Matter of Law
          This Court reviews motions for judgment as a matter of law de novo. See Estate of Riddle

v. S. Farm Bureau Life Ins. Co., 421 F.3d 400, 407-08 (6th Cir. 2005) (citing Bowman, 350 F.3d at

544). “If during a trial by jury a party has been fully heard on an issue and there is no legally

sufficient evidentiary basis for a reasonable jury to find for that party on that issue,” a judgment as

a matter of law for the opposing party is appropriate. FED. R. CIV. P. 50(a)(1). A court may not

grant the motion if reasonable minds could reach different conclusions from the evidence. See

Bowman, 350 F.3d at 544 (citing McJunkin Corp. v. Mechs., Inc., 888 F.2d 481, 486 (6th Cir.

1989)).


          After the district court properly granted DaimlerChrysler the summary judgment and

evidentiary exclusions above, Hopson’s case-in-chief succeeded only in proving prima facie race

discrimination and could not muster proof, apart from Hopson’s personal opinion, that



                                                  8
DaimlerChrysler’s stated reasons for its employment decisions were pretexts for discrimination. The

court therefore granted DaimlerChrysler judgment as a matter of law. J.A. 791-93. Because Hopson

produced no evidence from which a reasonable jury could have found for the Defendant-Appellee,

the district court properly granted the motion. Consequently, this Court AFFIRMS the judgment

as a matter of law for DaimlerChrysler.2


                                           V. Conclusion
       For the reasons outlined above, it is hereby


       ORDERED that the district court’s partial grant of summary judgment for DaimlerChrysler

is AFFIRMED; it is further


       ORDERED that the district court’s exclusion of the evidence provided by Ethelbert Slater

and John Sase, Ph.D., is AFFIRMED; and it is further


       ORDERED that the district court’s judgment as a matter of law for DaimlerChrysler is

AFFIRMED.




       2
         In addition to the arguments discussed above, Plaintiff-Appellant avers that the trial
court improperly forbade him from presenting the issues of front pay and constructive discharge
to the jury as well as providing the jury with special instructions on pattern and practice. See
Final Br. Appellant at 46, 51. Because this Court affirms the judgment as a matter of law for
Defendant-Appellee, these issues are moot. Plaintiff-Appellant also contests the lower court’s
refusal to admit evidence of pattern and practice. See Final Br. Appellant at 51. The court did
not abuse its discretion by excluding the evidence. “[T]he pattern-or-practice method of proving
discrimination is not available to individual plaintiffs. . . . because it does not address individual
hiring decisions[.]” Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 574 (6th Cir. 2004).

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