           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    Sutherland, et al. v. Mich.               No. 01-2052
        ELECTRONIC CITATION: 2003 FED App. 0334P (6th Cir.)                    Dep’t of Treasury, et al.
                    File Name: 03a0334p.06
                                                                                             _________________
UNITED STATES COURT OF APPEALS                                                                    COUNSEL
                  FOR THE SIXTH CIRCUIT                                   ARGUED: Charles J. Porter, Clarkston, Michigan, for
                    _________________                                     Appellants. Joseph E. Potchen, Richard P. Gartner, OFFICE
                                                                          OF THE ATTORNEY GENERAL, Lansing, Michigan, for
 THOMAS E. SUTHERLAND, et           X                                     Appellees. ON BRIEF: Charles J. Porter, Clarkston,
                                     -                                    Michigan, for Appellants. Joseph E. Potchen, James Erwin
 al.,                                                                     Long, Susan Przekop-Shaw, OFFICE OF THE ATTORNEY
           Plaintiffs-Appellants, -                                       GENERAL, Lansing, Michigan, for Appellees.
                                     -  No. 01-2052
                                     -
             v.                       >                                                      _________________
                                     ,
                                     -                                                           OPINION
 MICHIGAN DEPARTMENT OF              -                                                       _________________
 TREASURY , et al.,                  -
          Defendants-Appellees. -                                           ALGENON L. MARBLEY, District Judge. This is a
                                     -                                    “reverse” race discrimination case brought pursuant to Title
                                    N                                     VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
        Appeal from the United States District Court                      § 2000e et seq. (1991) (“Title VII”), 42 U.S.C. § 1983, and
       for the Eastern District of Michigan at Detroit.                   the Michigan Elliott-Larsen Civil Rights Act, M.C.L. 37.2102
     No. 99-73571—Avern Cohn, Senior District Judge.                      et seq. Plaintiffs-Appellants, Thomas E. Sutherland and
                                                                          Nancy Karim, both Caucasian, brought suit alleging that they
                     Argued: June 18, 2003                                were denied promotions over less qualified minorities. They
                                                                          now appeal the district court’s orders granting summary
            Decided and Filed: September 18, 2003                         judgment to, and dismissing the claims against, Defendants-
                                                                          Appellees, and denying Plaintiffs-Appellants’ motion for
        Before: BOGGS and GILMAN, Circuit Judges;                         partial summary judgment.
                 MARBLEY, District Judge.*
                                                                            For the following reasons, we AFFIRM the rulings of the
                                                                          district court.




    *
     The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.

                                  1
No. 01-2052                         Sutherland, et al. v. Mich.           3    4    Sutherland, et al. v. Mich.                  No. 01-2052
                                     Dep’t of Treasury, et al.                      Dep’t of Treasury, et al.

                        I. BACKGROUND                                             On April 22, 1998, Plaintiff-Appellant Karim filed a
                                                                               grievance challenging the April 17, 1998 re-posting of the
                                A. Facts                                       Pontiac Auditor Manager 14 position. In her statement of
                                                                               grievance, Karim indicated that the Audit Division’s past
  Plaintiff-Appellant Thomas E. Sutherland, Caucasian,                         practice was to post a position for transfer only once prior to
began his employment with the Audit Division of the                            its being filled. She stated that if no eligible transferees
Michigan Department of Treasury on June 8, 1969. During                        indicated their interest in the position by the posted deadline,
his employment, Sutherland was promoted to Auditor 11,                         then past practice dictated that the position be filled through
Auditor 12, and, eventually, in May 1996, he was appointed                     the promotional process, not through a re-posting of the
to acting Auditor Manager 14.1 Plaintiff-Appellant Nancy                       transfer position. Accordingly, Karim requested that
Karim, also Caucasian, began her employment with the Audit                     Robinson’s lateral transfer be rescinded, and that the Pontiac
Division of the Michigan Department of Treasury on                             Auditor Manager 14 position be opened for competitive
January 3, 1984. Throughout her employment, she was                            interviews.
promoted to Auditor 11, Auditor 12, and, in May 1996, she
was appointed to the position of acting Auditor Manager 14.                      In July 1998, Micheal Davis, Treasury’s labor relations
                                                                               officer, issued a “step three” resolution to Karim’s grievance.
   On January 28, 1998, Audit Division Administrator David                     Davis acknowledged that Treasury’s past practice after
Husted issued a memorandum notifying Revenue Audit staff                       posting a job soliciting eligible candidates for transfer was to
that a vacancy existed for an Auditor Manager 14 position at                   proceed with the promotion process if no interested or eligible
Treasury’s Pontiac office, and that candidates interested in                   employees responded in a timely manner. Davis also
transferring into that position should respond by February 11,                 indicated that, while the written transfer policy did not
1998. No one responded to the transfer memorandum by the                       prohibit a re-posting, such a re-posting was not in line with
posted deadline.                                                               the division’s normal application of the policy. Accordingly,
                                                                               Davis proposed the following resolution to Karim’s
  On April 17, 1998, Husted re-posted the Pontiac Auditor                      grievance: (1) rescind Robinson’s transfer to the Pontiac
Manager 14 position. When the position was re-posted,                          Auditor Manager 14 position; (2) open the position to the
Rosalind Robinson, an African-American who had worked                          promotional process; and (3) allow Robinson to compete for
for two years as an Auditor Manager 14 in Treasury’s Detroit                   the position along with other eligible candidates. Karim did
office, and who was eligible to transfer to the Pontiac                        not appeal Davis’s resolution to her grievance.
position, submitted a transfer request. Robinson was
permitted to make the lateral transfer into the Pontiac position                 By summer 1998, six Auditor Manager 14 positions
without an interview.                                                          became available in the Treasury’s Audit Division, including
                                                                               the position in Pontiac that had been re-opened as a result of
    1
                                                                               the resolution of Karim’s grievance. Of the five positions in
      At some point within the last decad e, the auditor po sitions were       addition to the one in Pontiac, two were located in Detroit,
renumbered, so that the variou s positions were designated acco rding to       two were located in Lansing, and one was located in Traverse
the digits set forth above, rather than by roman numerals, as they had been
previously. Throughout this opinion, we will refer to the job titles as they
                                                                               City. Husted, who was responsible for overseeing the
are currently used.                                                            Auditor Manager 14 selection process, selected Defendant-
No. 01-2052                 Sutherland, et al. v. Mich.    5    6    Sutherland, et al. v. Mich.                 No. 01-2052
                             Dep’t of Treasury, et al.               Dep’t of Treasury, et al.

Appellee Anthony Taylor to chair the interview panel to fill    percent or above were given oral interviews. In August 1998,
the various Auditor Manager 14 positions. Taylor, in turn,      twenty-six candidates were interviewed for the six available
contacted Defendants-Appellees Jane Osburn, Auditor             Auditor Manager 14 positions. Prior to the interviews, all
Manager 14 from the Grand Rapids office, and Larry Collar,      candidates were asked to specify the locations where they
Department Specialist 14, Office of Quality Management, to      were willing to work, and to rank their job preferences if they
assist him in interviewing eligible candidates for the          sought more than one position.
positions. Husted approved Taylor’s selection of Osborn and
Collar to serve on the interview panel.                           Candidates were scored on their oral interviews based on
                                                                the pre-established model answers. Then, a background
  Once the interview panel was established, the panel           check was performed by asking each candidate’s supervisor
members developed written and oral interview questions and      questions regarding the candidate’s initiative, work habits,
model answers. The interview panel also created past            technical auditing ability, and leadership skills. The panel
performance evaluation questions. Husted and Deputy Audit       members then scored each candidate based on his or her past
Division Administrator Stan Borowski reviewed and               performance evaluation. Finally, the scores given to each
approved the panel’s oral and written questions, model          candidate by each of the panel members were combined, and
answers, and past performance questions.                        the candidates were ranked for the available positions based
                                                                on their combined scores. After ranking the candidates, the
  In May 1998, Raymond Heriford, Administrator of               interview panel made hiring recommendations to Husted for
Treasury’s Human Resources Division, sent letters to eligible   review and approval. Husted made one change in the
Treasury employees notifying them that Treasury was filling     recommendations, based on one applicant’s employment
permanent Auditor Manager 14 positions in Detroit, Lansing,     preference. Then, each of the candidates selected was offered
and Traverse City. After the resolution of Karim’s grievance    a position, and each accepted. Defendant-Appellee Alfinio
as set forth above, employees were also notified of the         Olivarez, Treasury’s Equal Employment Opportunity Officer,
interviews to be held for the Auditor Manager 14 position in    reviewed and approved the foregoing hiring process.
Pontiac. The letters to employees set forth the minimum
requirements for eligibility for the Auditor Manager 14           During the August 1998 interviews, Plaintiff-Appellant
positions. In particular, a candidate had to have a B.S. or     Sutherland sought and interviewed for only the Traverse City
B.A. degree with a major in accounting, and two years of        Auditor Manager 14 position. In addition to Sutherland,
professional experience in an Auditor 11 position or in a       Kimberly Knoll, a Caucasian female, and Braysley
position of equivalent responsibility. Interested candidates    Famuwera, a black male, also interviewed for that position.
were asked to submit a pre-employment application, pre-         Knoll was the highest scoring candidate for the Traverse City
employment authorization and certification, a written           position. Knoll was also the highest scoring candidate for
exercise, and a detailed résumé.                                two other available positions, however, including the Lansing
                                                                Field Office position, which she had ranked higher in
  Before scheduling interviews for the six vacant positions,    preference than the Traverse City position. Knoll was offered
the interview panel members reviewed, scored, and ranked the    and accepted the Lansing Field Office position. Famuwera
candidates’ written responses in accordance with the pre-       was the second highest scoring candidate for the Traverse
approved guidelines. Candidates with scores of seventy          City position. Therefore, as a result of the hiring process set
No. 01-2052                  Sutherland, et al. v. Mich.     7    8    Sutherland, et al. v. Mich.                No. 01-2052
                              Dep’t of Treasury, et al.                Dep’t of Treasury, et al.

forth above, Famuwera was offered and accepted the Auditor           On April 18, 2000, Plaintiffs-Appellants filed a one-count
Manager 14 position in Traverse City.                             amended complaint against the Department of Treasury,
                                                                  alleging race discrimination in violation of Title VII.
  Twenty individuals interviewed for the Pontiac Auditor          Subsequently, they filed a separate two-count complaint
Manager 14 position, including both Rosalind Robinson and         pursuant to 42 U.S.C. § 1983 and Michigan’s Elliott-Larsen
Plaintiff-Appellant Karim. Robinson and Karim sought only         Civil Rights Act against Alfinio Olivarez, Treasury’s Equal
the Pontiac position. Based on the combined scores of the         Employment Opportunity Officer, and Anthony Taylor, Jane
interview panel members, the top four candidates for the          Osborn, and Larry Collar, the members of the interview panel
Pontiac Auditor Manager 14 position were: (1) Rosalind            who determined the promotions at issue (collectively,
Robinson, (2) Charles Wright, (3) Bonnie McWilliams, and          included within the group designated “Treasury Defendants”
(4) Nancy Karim, in that order. As the highest scoring            above). On April 27, 2000, the second lawsuit was
candidate, Robinson was offered and accepted the Pontiac          consolidated with the case now on appeal.
position.
                                                                    On May 22, 2000, Plaintiffs-Appellants filed a motion for
                  B. Procedural History                           partial summary judgment, through which they sought an
                                                                  order declaring that the Treasury Defendants’ “past
  Based on the foregoing hiring decisions, on July 19, 1999,      affirmative action,” “racial and gender preferences in hiring
Sutherland and Karim brought suit under Title VII against the     and promotions,” and “current ad hoc informal affirmative
Michigan Department of Treasury, Mark Murray, the State           action” violate the Fourteenth Amendment to the United
Treasurer (collectively, “Treasury Defendants”), the Michigan     States Constitution, and Michigan’s Elliott-Larsen Civil
Department of Civil Service, David Adamany, Rea Lee               Rights Act. Subsequently, the Treasury Defendants filed a
Chabot, Robert P. Hunter, Susan Grimes Munsell, all of            motion for summary judgment, arguing that the Plaintiffs had
whom are members of Michigan’s Civil Service Commission,          failed to demonstrate that race was considered in selecting
Mary Pollack, the former Equal Employment Opportunity and         candidates to fill the Auditor Manager 14 positions for which
Affirmative Action Officer for the Civil Service Department,      the Plaintiffs had applied.
John F. Lopez, the State Personnel Director (collectively,
“Civil Service Defendants”), and the State of Michigan.             On January 22, 2001, the district court issued a
Before the Defendants answered the complaint, they all filed      memorandum and order denying the Plaintiffs’ motion for
motions to dismiss, or alternatively, for summary judgment.       partial summary judgment. In that same order, the district
On March 21, 2000, the district court issued a memorandum         court granted the Treasury Defendants’ motion for summary
and order granting the Civil Service Defendants’ motion to        judgment as to Sutherland, but denied the motion as to Karim.
dismiss, as well as that of the State of Michigan. The district   In light of its decision to grant summary judgment to the
court also granted the Treasury Defendants’ motion with           Treasury Defendants with respect to Sutherland, the district
respect to Defendant Murray, but denied their motion with         court also dismissed Defendants Taylor, Osborn, and Collar,
respect to the Department of Treasury. Thus, the district         the interview panel members, from the action. Thus, after the
court allowed Plaintiffs-Appellants to proceed on their Title     court’s January 22, 2001 order, the only remaining issue in
VII claims against only the Department of Treasury.               the case was Karim’s race discrimination claim against
                                                                  Defendants Treasury and Olivarez.
No. 01-2052                      Sutherland, et al. v. Mich.        9    10   Sutherland, et al. v. Mich.                  No. 01-2052
                                  Dep’t of Treasury, et al.                   Dep’t of Treasury, et al.

   On February 12, 2001, Defendants Treasury and Olivarez                                   1. Standard of Review
filed a motion for summary judgment as to Karim’s
remaining claim. On June 19, 2001, the district court entered               Prior to filing their answer, the Civil Service Defendants
a memorandum and order granting that motion based on the                 filed a motion to dismiss or, in the alternative, for summary
finding that, even if Robinson had not competed for the                  judgment. The district court granted that motion, but it is
position, Karim still would not have been promoted. The                  unclear whether the court granted it as a motion to dismiss or
district court issued an order of judgment that same day.                as a motion for summary judgment. In either case, the district
                                                                         court’s decision is subject to de novo review by this Court.
  Plaintiffs-Appellants now appeal the district court’s various          Peters v. Lincoln Elec. Co., 285 F.3d 456, 465 (6th Cir. 2002)
orders dismissing, or granting summary judgment to, the                  (holding that a decision granting summary judgment is
Treasury Defendants, the Civil Service Defendants, and the               subject to de novo review by this Court); Stanek v. Greco, 323
State of Michigan, as well as the district court’s order denying         F.3d 476, 478 (6th Cir. 2003) (stating that this Court reviews
Plaintiffs-Appellants’ motion for partial summary judgment.              de novo a decision of the district court granting a motion to
                                                                         dismiss for failure to state a claim).
                       II. DISCUSSION
                                                                               2. Department of Treasury as Sole Employer
         A. Dismissal of Civil Service Defendants2
                                                                            Title VII applies only to “employers.” 42 U.S.C. § 2000e-
  Plaintiffs-Appellants brought claims against the Civil                 2. Plaintiffs-Appellants argue that the Civil Service
Service Defendants for violation of Title VII and 42 U.S.C.              Defendants can be liable as their employers under Title VII
§ 1983 based on their assertion that the Civil Service                   by virtue of the fact that they retain the authority to regulate
Defendants control all conditions of state employment, and,              all conditions of state employment, including whether such
therefore, must have been the source of the decision to                  employment should be free from racial preferences.
implement certain affirmative action devices. We conclude
that the district court properly dismissed the Civil Service                The Michigan Civil Service Commission has plenary
Defendants as parties to this matter based on the finding that           authority to regulate all conditions of employment in the state
those Defendants are not Plaintiffs-Appellants’ employer                 civil service, to make rules and regulations covering
under Title VII.                                                         personnel transactions, and to determine the qualifications of
                                                                         all candidates for state positions. See Davis v. Dep’t of Corr.,
                                                                         651 N.W.2d 486, 489 (Mich. Ct. App. 2002). The State
                                                                         Personnel Director administers these powers of the
                                                                         Commission through his position as head of the Department
                                                                         of Civil Service by issuing regulations and procedures to
    2
     As indicated above, the “Civil Service Defendants” include the      implement the Commission’s rules. The Department of Civil
Michigan Departm ent of C ivil Service, David Adamany, Rea Lee Chabot,   Service, however, is an entity that is separate and distinct
Robert P. Hun ter, Susan Grimes Munsell, all of whom are members of      from the Civil Service Commission. Id.
Michigan’s Civil Service Commission, Mary Pollack, the former Equal
Employment Op portunity and Affirmative Action O fficer for the Civil
Service Department, and John F. Lopez, the State Personnel Director.
No. 01-2052                       Sutherland, et al. v. Mich.       11     12    Sutherland, et al. v. Mich.                  No. 01-2052
                                   Dep’t of Treasury, et al.                     Dep’t of Treasury, et al.

   Individual state agencies, such as Treasury, possess the                appointing authority, only the Department of Treasury was
authority to create and abolish the civil service positions                their employer under Title VII.
within their own agencies. In addition, each agency, through
its director or the director’s agents, retains the sole authority            Therefore, we AFFIRM the district court’s order
to appoint, hire, fire, and promote eligible employees to                  dismissing the Civil Service Defendants as parties to this
positions within the agency in accordance with the rules                   matter on the ground that they were not Plaintiffs-Appellants’
promulgated by the Commission. Conlin v. Blanchard, 745                    employer.
F. Supp. 413, 415-16 (E.D. Mich. 1990), aff’d, 947 F.2d 944,
1991 WL 224081 (6th Cir. Oct. 31, 1991). Thus, although the                          B. Dismissal of the State of Michigan
Commission promulgates rules to identify and certify eligible
candidates for vacant positions in the state departments, the                The only claim brought against the State of Michigan was
decision-making authority with respect to selecting among                  a claim of employment discrimination in violation of Title
particular applicants certified as eligible under the                      VII. The district court dismissed the State of Michigan as a
Commission’s rules remains vested solely in the department                 party to this action based on its determination that the State of
itself. Id.                                                                Michigan was not the Plaintiffs-Appellants’ employer. We
                                                                           conclude that dismissal of the State of Michigan was proper
  The determination of whether a particular entity is an                   on that basis.
employer of a Title VII plaintiff involves an examination of
whether the alleged employer exercises control over the                                       1. Standard of Review
manner and means of the plaintiff’s work. See Nationwide
Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (discussing                Although not explicit in the district court’s opinion, the
the analysis employed to distinguish an independent                        parties agree that the district court dismissed the State of
contractor from an employee).3 In light of the distinct roles              Michigan as a Defendant pursuant to Federal Rule of Civil
of the various governmental entities set forth above, it is clear          Procedure 21, which provides, in pertinent part, that “[p]arties
that the Department of Treasury has the authority to make key              may be dropped or added by order of the court on motion of
employment decisions, and exercises control over the manner                any party or of its own initiative at any stage of the action and
and means of its employees’ work, while the Civil Service                  on such terms as are just.” This Court reviews a decision to
Commission does not. Thus, the Civil Service Defendants                    drop a misjoined party pursuant to Rule 21 for abuse of
could not have been held liable for any adverse employment                 discretion. Letherer v. Alger Group, L.L.C., 328 F.3d 262,
actions that Plaintiffs-Appellants allegedly suffered because              266 (6th Cir. 2003). “Therefore, we affirm the dismissal of
they are not Plaintiffs-Appellants’ employer. Rather, as the               a party for misjoinder ‘unless this court is left with a definite
                                                                           and firm conviction that the trial court committed a clear error
                                                                           of judgment.’” Id. at 266-67 (quoting Cincinnati Ins. Co. v.
                                                                           Byers, 151 F.3d 574, 578 (6th Cir. 1998)).
    3
      Although Darden was an ERISA case, this Court has applied the
holding in Darden to other statutes, including the ADA. See Johnson v.
City of Saline, 151 F.3d 564, 568 (6th C ir. 199 8). As we recognized in
Johnson, Darden sets forth a rule of general applicability, and applies
here.
No. 01-2052                   Sutherland, et al. v. Mich.    13    14    Sutherland, et al. v. Mich.                   No. 01-2052
                               Dep’t of Treasury, et al.                 Dep’t of Treasury, et al.

      2. Department of Treasury as Sole Employer                   Accordingly, on appeal, we apply the same standard of review
                                                                   as that applied by the district court.
   As we recognized above, the Department of Treasury
possesses the sole authority to appoint, hire, fire, and promote      Summary judgment is appropriate “[i]f the pleadings,
eligible employees to positions within that agency.                depositions, answers to interrogatories, and admissions on
Furthermore, it is the Department of Treasury that controls        file, together with the affidavits, if any, show there is no
the manner and means by which its employees’ work is               genuine issue as to any material fact and the moving party is
accomplished. The State of Michigan did not, separate and          entitled to judgment as a matter of law.” FED . R. CIV . P.
apart from its Department of Treasury, employ the Plaintiffs-      56(c). The movant has the burden of establishing that there
Appellants. Accordingly, it is the Department of Treasury          are no genuine issues of material fact, which may be
alone, and not the State of Michigan, that is the employer of      accomplished by demonstrating that the non-moving party
Plaintiffs-Appellants.                                             lacks evidence to support an essential element of its case.
                                                                   Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Logan
  Therefore, we AFFIRM the district court’s dismissal of the       v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001). In
State of Michigan as a party on the ground that the State of       response, the non-moving party must present “significant
Michigan was not the Plaintiffs-Appellants’ employer under         probative evidence” to show that “there is [more than] some
Title VII.                                                         metaphysical doubt as to the material facts.” Moore v. Philip
                                                                   Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993).
    C. Treasury Defendants’ Motions for Summary                    “[S]ummary judgment will not lie if the dispute is about a
                     Judgment                                      material fact that is ‘genuine,’ that is, if the evidence is such
                                                                   that a reasonable jury could return a verdict for the non-
  In all, the Treasury Defendants filed three dispositive          moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
motions. Plaintiffs-Appellants challenge the district court’s      242, 248 (1986).
initial order granting summary judgment to Defendant
Murray, the district court’s second order granting summary            In evaluating a motion for summary judgment, the evidence
judgment to the Treasury Defendants with respect to                must be viewed in the light most favorable to the non-moving
Sutherland’s claims, and the district court’s third order          party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
granting summary judgment to the remaining Treasury                (1970). The non-moving party, however, “may not rest upon
Defendants with respect to Karim’s claims.                         its mere allegations . . . but . . . must set forth specific facts
                                                                   showing that there is a genuine issue for trial.” FED . R. CIV .
                   1. Standard of Review                           P. 56(e); see Celotex, 477 U.S. at 324; Searcy v. City of
                                                                   Dayton, 38 F.3d 282, 286 (6th Cir. 1994). The existence of
   The district court’s grant of summary judgment is subject       a mere scintilla of evidence in support of the non-moving
to de novo review by this Court. Peters v. Lincoln Elec. Co.,      party’s position will not be sufficient; there must be evidence
285 F.3d 456, 465 (6th Cir. 2002) (citing Darrah v. City of        on which the jury could reasonably find for the non-moving
Oak Park, 255 F.3d 301, 305 (6th Cir. 2001), and Perez v.          party. Anderson, 477 U.S. at 251; Copeland v. Machulis, 57
Aetna Life Ins. Co., 150 F.3d 550, 554 (6th Cir. 1998)).           F.3d 476, 479 (6th Cir. 1995).
No. 01-2052                   Sutherland, et al. v. Mich.    15    16       Sutherland, et al. v. Mich.                     No. 01-2052
                               Dep’t of Treasury, et al.                    Dep’t of Treasury, et al.

              2. Plaintiff Sutherland’s Claims                     omitted). Therefore, all of Sutherland’s claims shall be
                                                                   examined together.4
  Sutherland brought claims against the Treasury Defendants
for “reverse” race discrimination in violation of 42 U.S.C.           The analytical framework governing Title VII cases is well-
§ 1983, Title VII, and Michigan’s Elliott-Larsen Civil Rights      established. First, the plaintiff must set forth a prima facie
Act. Sutherland’s claims are based on his belief that the          case, which gives rise to an inference of discrimination. Tex.
interview panel judges intentionally scored him lower than         Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53
they scored Famuwera to conceal the fact that their decision       (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
with respect to the Traverse City promotion was based on           792 (1973)). To set forth a prima facie case of discrimination
race.                                                              based upon a failure to promote, a plaintiff must show: (1)
                                                                   that he is a member of a protected class; (2) that he applied
   To state a claim for violation of 42 U.S.C. § 1983, the         and was qualified for a promotion; (3) that he was considered
plaintiff must demonstrate that: (1) a person, (2) acting under    for and denied the promotion; and (4) other employees of
color of state law, (3) deprived him of a federal right. Sperle    similar qualifications who were not members of the protected
v. Mich. Dep’t of Corr., 297 F.3d 483, 490 (6th Cir. 2002)         class received promotions. Dews v. A.B. Dick Co., 231 F.3d
(citation omitted). Here, Sutherland claims that the Treasury      1016, 1020-21 (6th Cir. 2000). The Sixth Circuit has adapted
Defendants acted under color of state law to deprive him of        this four-prong test to cases of reverse discrimination, where
his right to be free from racial discrimination, in violation of   a member of the majority is claiming discrimination on the
the Equal Protection Clause of the Fourteenth Amendment to         basis of race. In such cases, to satisfy the first prong of the
the United States Constitution. To succeed on a § 1983 claim       prima facie case, the plaintiff must “demonstrate ‘background
of this kind, against a public employer for an equal protection    circumstances [to] support the suspicion that the defendant is
violation, the plaintiff must show that the employer made an       that unusual employer who discriminates against the
adverse employment decision “with a discriminatory intent          majority.’” Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249,
and purpose.” Boger v. Wayne County, 950 F.2d 316, 324-25          255 (6th Cir. 2002) (quoting Murray v. Thistledown Racing
(6th Cir. 1991) (citations omitted). In analyzing the              Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985) (quoting Parker v.
plaintiff’s claim, the court is to rely on Title VII disparate     Baltimore and Ohio R.R. Co., 652 F.2d 1012, 1017 (D.C. Cir.
treatment cases for guidance. Weberg v. Franks, 229 F.3d           1981))). To satisfy the fourth prong in such cases, the
514, 522 (6th Cir. 2000) (“Because both Title VII and § 1983       plaintiff must show that the defendant treated differently
prohibit discriminatory employment practices by public
employers, this court looks to Title VII disparate treatment
cases for assistance in analyzing race discrimination in the
public employment context under § 1983.”) (citations



                                                                        4
                                                                        Claims under M ichigan’s Elliott-Larsen Civil Rights Act involve the
                                                                   same analysis as Title VII claims. Thomas v. Autumn Woods Residential
                                                                   Health C are F acility, 905 F. Supp. 414 , 419 (E.D. M ich. 1995).
No. 01-2052                       Sutherland, et al. v. Mich.        17     18   Sutherland, et al. v. Mich.                 No. 01-2052
                                   Dep’t of Treasury, et al.                     Dep’t of Treasury, et al.

employees who were similarly situated but were not members                  that support the suspicion that the Treasury Department is the
of the protected class. Id.5                                                unusual employer that discriminates against the majority.
   Once the plaintiff establishes a prima facie case, the burden               To satisfy the burden of demonstrating background
shifts to the defendant to offer a legitimate, non-                         circumstances that give rise to a suspicion of discrimination
discriminatory reason for the adverse employment action at                  against the majority in employment, the plaintiff may present
issue. Burdine, 450 U.S. at 253 (citing McDonnell Douglas,                  evidence of the defendants’ unlawful consideration of race in
411 U.S. at 802). If the defendant meets this burden, then the              employment decisions in the past. Zambetti, 314 F.3d at 256
burden of production shifts back to the plaintiff to                        (finding that such evidence “justifies a suspicion that
demonstrate that the proffered reason is a pretext. Id. (citing             incidents of capricious discrimination against whites because
McDonnell Douglas, 411 U.S. at 804). When the burden                        of their race may be likely”). Both at the trial level and on
shifts back to the plaintiff, although he must come forward                 appeal, Plaintiffs-Appellants present significant evidence in
with evidence that the defendant’s reason for the employment                the form of statistical data tending to show that in the years
action is false, he need not present independent evidence that              prior to the employment decisions at issue, the Treasury
the proffered reason is pretext for racial discrimination.                  Department considered race in making employment decisions.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,                    Reviewing that evidence, the district court stated: “Plaintiffs
148 (2000) (“[A] plaintiff’s prima facie case, combined with                include in their papers considerable statistical data regarding
sufficient evidence to find that the employer’s asserted                    the Treasury Department’s promotion and hiring patterns and
justification is false, may permit the trier of fact to conclude            vigorously assert that ‘illegal racial and gender preferences
that the employer unlawfully discriminated.”).                              have been rampant for years.’”
              a. Sutherland’s Prima Facie Case                                We agree with the district court’s view that Plaintiffs-
                                                                            Appellants provided a substantial amount of statistical data
  The district court found that Sutherland set forth all of the             relating to the Treasury Department’s promotion and hiring
elements necessary to establish a prima facie case of reverse               patterns over the past few decades as they relate to race. For
race discrimination. On appeal, the parties do not dispute that             example, Plaintiffs-Appellants point out that in 1983, blacks
Sutherland demonstrated that he was qualified for the                       held 11.5% of the auditor positions in Treasury, even though
Traverse City position, that he suffered an adverse                         blacks represented only 5.2% of the qualified labor force in
employment decision, and that the promotion was given to                    Michigan. In addition, they assert that, from 1980 through
someone outside Sutherland’s racial class. Defendants-                      July 1989, protected class members, including racial
Appellees assert, however, that Sutherland failed to present                minorities, females, and disabled people, represented seventy-
sufficient evidence to demonstrate background circumstances                 seven percent of all new hires in the Audit Division of
                                                                            Treasury. Furthermore, Plaintiffs-Appellants claim that as
                                                                            recently as March 2000, a roster of the Audit Division
    5                                                                       indicated that protected class members held seventy-one
      Michigan courts have adopted this form of the prim a facie case for   percent of the auditor positions in the Michigan offices of the
reverse discrim ination c laims brought under the E lliott-Larsen Civil
Rights Act. Allen v. Co mprehensive Hea lth Servs., 564 N.W.2d 914, 917
                                                                            Audit Division. Specifically, the March 2000 roster indicates
(Mich. Ct. App. 199 7).                                                     that black employees held twenty-nine percent of the Audit
No. 01-2052                         Sutherland, et al. v. Mich.         19     20   Sutherland, et al. v. Mich.                No. 01-2052
                                     Dep’t of Treasury, et al.                      Dep’t of Treasury, et al.

Division positions in Michigan, even though a 1990 census,                       The fact that Sutherland had worked with Treasury longer
the most recent census prior to the March 2000 roster,                         and at a higher level than Famuwera had does not negate the
demonstrated that blacks represented only 7.7% of the                          Defendants’ legitimate, non-discriminatory reason for their
qualified labor force in Michigan at that time. Based on this                  employment decision. Despite having less experience,
significant statistical evidence, we believe that Plaintiffs-                  Famuwera received a higher total score than Sutherland based
Appellants at least raised a genuine issue of material fact with               on the fact that he had more education than Sutherland and
respect to whether background circumstances tended to show                     performed better than Sutherland during the oral interview
that Treasury is the “unusual employer who discriminates                       process. During his deposition, even Sutherland conceded
against the majority.”6                                                        that “it was not one of [his] better interviews.” Thus,
                                                                               Famuwera’s higher total score is attributed, in part, to his
  Therefore, we conclude that Plaintiffs-Appellants raised a                   higher score on the oral interview portion of the promotional
genuine issue of material fact with respect to whether they                    process; Famuwera scored a 300, while Sutherland scored
established a prima facie case of discrimination.                              only 266.
          b. Legitimate, Non-Discriminatory Reason                               Based on the fact that Famuwera received a higher total
                                                                               score for his interview than Sutherland did, and the fact that
  Having concluded that Plaintiffs-Appellants raised a                         Famuwera was the highest scoring candidate for the Traverse
genuine issue of material fact with respect to their prima facie               City position other than Knoll, who was offered a position
case of discrimination, we now turn to the question of                         that she ranked more highly than the Traverse City position,
whether the Treasury Defendants established a legitimate,                      we conclude that the Treasury Defendants set forth a
non-discriminatory reason for their employment decision.                       legitimate, non-discriminatory reason for their decision to
                                                                               award the Traverse City position to Famuwera over
  We believe that the Treasury Defendants satisfied their                      Sutherland.
burden of establishing a legitimate, non-discriminatory reason
for their employment decision. Quite simply, the non-                                                   c. Pretext
discriminatory reason for the decision to offer the Traverse
City position to Famuwera was that he achieved an overall                        We now turn to the question of whether Sutherland raised
higher score than Sutherland on the interviews – 619.5, as                     a genuine issue of material fact with respect to whether the
compared to Sutherland’s score of 604. This proffered reason                   Defendants-Appellees’ proffered reason for their employment
is supported by Defendants-Appellees’ assertion that all                       decision was pretextual. If he did raise a genuine issue of
scoring for the interviews was valid, based on the pre-                        material fact with respect to pretext, then summary judgment
determined criteria.                                                           in favor of the Treasury Defendants was improper.
                                                                                 In support of his claim that the Defendants’ proffered
    6
                                                                               reason for their employment decision is pretextual, Sutherland
      We rely on the statistics provided by Plaintiffs-Appellants only for     asserts that he was objectively the better candidate for the
the narrow conclusion that they demonstrate background circumstances           promotion than Famuwera was. He points out, in particular,
sufficient to raise a genuine issue of material fact with respect to a prima   that he had sixteen years of experience as an Auditor 12
facie case o f discrimination a gainst the majo rity.
No. 01-2052                   Sutherland, et al. v. Mich.     21    22       Sutherland, et al. v. Mich.                       No. 01-2052
                               Dep’t of Treasury, et al.                     Dep’t of Treasury, et al.

before he was appointed to the position of acting Auditor           two years as an Auditor 12 to be ready to assume the duties of
Manager 14 in May 1996, and that he scored in the top group         an Auditor Manager 14.7
on a prior mid-management examination. Famuwera, on the
other hand, was an Auditor 11, had not yet achieved the level          Sutherland’s reference to the 1988 memorandum is
of Auditor 12, and scored only in the second group on a prior       likewise insufficient to raise a genuine issue of material fact
mid-management examination. Sutherland asserts that these           with respect to the Treasury Defendants’ non-discriminatory
differences indicate that the scores on the                         reason for their employment decision. Although the 1988
Education/Experience portion of the interviews – 11 for             memorandum may have called for two years of experience as
Sutherland and 10 for Famuwera – must have been                     an Auditor 12 before beginning work as an Auditor Manager
manipulated based on race.                                          14, the stated minimum requirements for the promotion in
                                                                    1998 called for only two years of professional experience or
  We do not believe this argument furthers Sutherland’s             the equivalent in responsibility to an Auditor 11, not an
position that the Treasury Defendants’ non-discriminatory           Auditor 12. That minimum requirement was clearly set forth
reason for their employment decision was pretextual. As             in the letters that were distributed to all candidates eligible for
discussed above, the Treasury Defendants acknowledged that          the promotions, and was established before any employees
Sutherland had greater experience than Famuwera, but                applied for the promotions. At the time of the interviews,
explained that Famuwera’s relatively high score was based on        Famuwera had two years of experience as an Auditor 11.
the fact that he had a more extensive educational background        Thus, he met the experience requirement for the position.
than Sutherland. Sutherland does not present evidence that
refutes the truth of this explanation. Rather, he simply              Furthermore, Plaintiffs-Appellants have presented no
reiterates the fact that he had greater experience than             evidence that the memorandum written by Tomczyk
Famuwera. In light of the Treasury Defendants’ explanation,         represented an official policy within Treasury. To the
however, this is insufficient to raise a genuine issue of           contrary, it appears to embody nothing more than his personal
material fact with respect to whether the proffered reason was      opinion as to what he believed constituted important work
a pretext for a decision based on race.                             experience. Tomczyk, however, played no role in the 1998

   Sutherland also claims that the decision to award the
Traverse City position to Famuwera must have been based on               7
                                                                          The memorandum , created in 1988, actually refers to the work
a racial preference because, irrespective of the fact that he had   necessary as a senior auditor VII to be ready to assume the duties of a IX
less experience than Sutherland, Famuwera simply did not            level crew chief position. In the interim between the drafting of the
have enough experience for the Auditor Manager 14 position.         memorand um and the promotions at issue, the positions within the
                                                                    Treasury Department were redesignated with new numbers. The district
Sutherland bases this argument on a memorandum that was             court apparently based one of its rulings on its finding that Plaintiffs-
written by Audit Division Administrator Joseph Tomczyk in           Appellants had not demonstrated that the positions referred to in the 1988
1988, which states that an individual must work for at least        memorand um were, in fact, equivalent to the positions at issue in this
                                                                    matter. We do not address this issue, as we base our decision on
                                                                    Sutherland’s failure to raise a genuine issue of material fact with respect
                                                                    to pretext. We assume that the positions referred to in the 1988
                                                                    memorand um are, in fact, equivalent to the Auditor 12 and Auditor
                                                                    Manager 14 positions now at issue.
No. 01-2052                        Sutherland, et al. v. Mich.        23     24   Sutherland, et al. v. Mich.                  No. 01-2052
                                    Dep’t of Treasury, et al.                     Dep’t of Treasury, et al.

promotions. Therefore, his personal opinion regarding the                    his deposition that he would have scored Sutherland at least
type of experience that is important for the promotions at                   as highly as Famuwera.
issue is irrelevant. Finally, even if the 1988 memorandum
had stated an official policy for promotions to Auditor                        Sutherland also showed his answer to the first written
Manager 14, Plaintiffs-Appellants have failed to present any                 question to Brenda Brougham, another Auditor Manager 15.
evidence that the policy remained unchanged during the ten                   Brougham formulated what she believed to be the proper
years between the time the memorandum was written and the                    criteria for evaluating the question, and then reviewed
time of the promotions at issue. Indeed, the written minimum                 Sutherland’s answer. She concluded that Sutherland’s answer
requirements for the 1998 promotions indicate that, if it had                was entitled to a score of 80 to 91, as compared to
been an official policy in 1988, it was no longer in effect.                 Famuwera’s 88. Subsequently, after reviewing the additional
                                                                             answers that were reviewed by Steinman, Brougham
  Third, Sutherland contends that the scores on the answers                  conducted another analysis, and determined that Sutherland’s
to the first written question must have been manipulated                     score of 56 was extremely low. Sutherland asserts that,
based on Famuwera’s race. For the first written question,                    together, Steinman’s and Brougham’s analyses demonstrate
Sutherland received a combined score of 56 while Famuwera                    that, in actuality, his answer was as good as Famuwera’s, and
received a combined score of 88. Sutherland’s total score for                should have been scored accordingly, which would have
that question resulted from scores of 16 out of 32 from two of               resulted in a higher total interview score for Sutherland over
the interview panel members, Defendants Taylor and Osborn,                   Famuwera.
and a score of 24 from Defendant Collar. Famuwera’s total
score for that question resulted from scores of 32 from                        Like Sutherland’s other arguments, we conclude that this
Defendants Taylor and Osborn, and a score of 24 from                         argument fails to raise a genuine issue of material fact with
Defendant Collar.8 Sutherland asserts that his scores from                   respect to whether the Defendants’ legitimate, non-
Taylor and Osborn were objectively unreasonable, and                         discriminatory reason for their employment decision was
demonstrate that the Treasury Defendants’ proffered reason                   pretext. Plaintiffs-Appellants are correct that, at first blush,
for the employment decision was pretext for a decision based                 the fact that two panel members gave Sutherland a score that
on race.                                                                     was half of the score they gave to Famuwera appears
                                                                             suspicious. But this suspicion is eliminated when we recall
  In support of this assertion, Sutherland explains that he                  that Famuwera was awarded his promotion based not on the
showed his answer to the first written question to Michael                   score he received for one question, but based on his total
Steinman, an Auditor Manager 15, who was Sutherland’s                        score. Although Famuwera did, indeed, score significantly
direct supervisor in Traverse City. Steinman also reviewed                   higher than Sutherland on the first question, Sutherland
the answers of the four top scorers for that question, including             scored higher than Famuwera did on other questions. For
Famuwera. Based on his review, Steinman testified during                     example, although Sutherland scored lower on question one,
                                                                             his overall score on the written portion of the interview
                                                                             process was 8.5 points higher than Famuwera’s score. This
    8                                                                        fact indicates that both Famuwera and Sutherland were
     On appeal, Sutherland does not challenge the dismissal of Defendant
Collar in light of the fact that he gave the same score to both Sutherland
                                                                             simply scored by the judges as they saw appropriate, and then
and Famuwera.                                                                ranked based on their overall scores.
No. 01-2052                        Sutherland, et al. v. Mich.        25     26   Sutherland, et al. v. Mich.                No. 01-2052
                                    Dep’t of Treasury, et al.                     Dep’t of Treasury, et al.

  The fact that the interview panel members awarded                          than the Traverse City position. To conclude that the
different scores – even significantly different scores, at least             interview panel members manipulated the scores to conceal
with respect to question one – does not undermine the                        the fact that they awarded the promotion to Famuwera based
conclusion that the applicants were simply scored by the                     on his race would be to believe that the panel members
panel members as each saw appropriate based on the pre-                      determined how to achieve their desired result while still
determined criteria. Although they established model                         scoring Sutherland higher than Famuwera on some questions,
answers, the panel members were nonetheless asked to                         and awarding the highest total score to Knoll. While we do
evaluate fairly subjective criteria for much of the promotion                not doubt the intelligence of the panel members, we find it
process. The fact that one interviewer might have disagreed                  difficult to believe that they possessed the mathematical
with the evaluation of an answer accorded by another                         sophistication, let alone the time, necessary to plan such an
interviewer is not evidence that either based his or her                     elaborately deceitful manner of scoring the candidates for the
evaluation on anything other than his or her honest                          Auditor 14 positions.
assessment of the answer. Rather, it simply indicates that the
two individuals disagree as to subjective factors, which one                   Additionally, Sutherland’s purported evidence in support of
would expect might happen from time to time. Indeed, it is                   his position that the scores were skewed is to no avail.
because we expect individuals to disagree with respect to                    Broughan’s notes were not submitted under oath, nor was her
subjective factors that we frequently employ more than one                   deposition ever taken. As such, her notes setting forth her
individual to evaluate subjective criteria, as the Treasury                  opinion regarding Sutherland’s answer amount to nothing
Defendants did here.9                                                        more than inadmissible hearsay, which cannot be considered
                                                                             on a motion for summary judgment. Jacklyn v. Schering
  Moreover, the fact that it was Knoll, a Caucasian woman,                   Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927
not Famuwera, who actually received the highest total score                  (6th Cir. 1999) (holding that the court may not consider
for the Traverse City position demonstrates that all candidates              hearsay on a motion for summary judgment).
were simply scored based on the individual panel members’
perceptions of the merits of the applicants’ answers to each                   Furthermore, neither Steinman nor Broughan was involved
portion of the interview process. The position was ultimately                in the 1998 Auditor Manager 14 decision-making process.
offered to Famuwera simply because Knoll also received the                   During his deposition, Steinman admitted that he never spoke
highest score for another position, which she ranked higher                  with any of the interview panel members about the
                                                                             interviews, he did not know the criteria used to grade the
                                                                             written questions, and he did not see the model answers. As
    9                                                                        such, he had no sound basis for evaluating the validity of
      Comp are this situation to that which might arise during a figure
skating competition judged by a panel of figure skating experts. If one
                                                                             Sutherland’s score. Finally, Plaintiffs-Appellants have
judge were to award a particular skater a low score on presentation, which   presented no evidence that either Steinman or Broughan had
includes consideration of such subjective factors as choreography, flow,     any first-hand information that Sutherland’s score was
and musical interpretation, and all the other judges were to award higher    deliberately lowered, or that race was a factor in scoring the
scores, we would not presume that the lower scoring judge based his score    candidates. Therefore, their opinions regarding Sutherland’s
on improper factors. R ather, we would rec ognize that jud ges evaluate
subjective factors differently, and rely on the fact that the lower score
                                                                             score on his answer to the first question are insufficient to
would be balanced out by the higher scores awarded b y the other judges.     raise a genuine issue of material fact with respect to the
No. 01-2052                   Sutherland, et al. v. Mich.     27    28     Sutherland, et al. v. Mich.                          No. 01-2052
                               Dep’t of Treasury, et al.                   Dep’t of Treasury, et al.

Treasury Defendants’ assertion that they assigned scores            Division’s prior practice was never to re-post positions for
based on the pre-determined criteria and awarded the                transfer if the deadline passed without any eligible candidates
promotion based on those scores.                                    seeking the transfer. Rather, if the deadline passed, the
                                                                    position was opened up for promotional interviews. Second,
  Viewed in its entirety, Sutherland’s purported evidence that      the Audit Division’s prior practice also prohibited auditors
the scoring of the interviews for the Traverse City position        from interviewing for the same level position at a different
was manipulated to disguise a decision based on affirmative         location. Auditors were permitted to transfer if they had at
action amounts to nothing more than unsupported speculation.        least two years of experience and a transfer position was
His argument that the Treasury Defendants’ decision was             available, but they were not permitted to interview
based on the employees’ race appears to be grounded not in          competitively against those seeking a promotion. Plaintiffs-
evidence, but in the outcome itself: the simple fact that he did    Appellants assert that both of these policies were violated
not receive a promotion to which he felt entitled. This is not      with respect to Robinson’s receipt of the Pontiac position:
sufficient to raise a genuine issue of material fact with respect   first, when the position was re-posted for transfer, and second,
to the legitimate, non-discriminatory reason offered by the         when Robinson was permitted to compete for the position
Treasury Defendants to explain their employment decision.           against those seeking promotions.10 They note in this regard
                                                                    that, although Robinson was eligible for transfer at the time
  Accordingly, we AFFIRM the district court’s ruling                of the second posting of the Pontiac position, at the time of
granting summary judgment to the Treasury Defendants with           the first posting, which they argue should have been the only
respect to Sutherland’s claims of discrimination.                   posting, Robinson was not eligible for transfer because she
                                                                    had not yet worked two years in her position.
                3. Plaintiff Karim’s Claims
                                                                       Reviewing Karim’s contentions regarding these alleged
                   a. Merits of the Claims                          violations of Audit Division policy, the district court
                                                                    concluded that Karim had raised a genuine issue of material
   Unlike Sutherland’s claims, Karim’s claim of racial              fact with respect to whether the Treasury Defendants
discrimination is not based on the scoring of the candidates        selectively enforced their policy regarding re-posting
during the interviews for the promotions. Rather, her claim         positions for transfer in an effort to invite Robinson to seek
is based on her assertion that Rosalind Robinson should not         transfer based upon her race.11 We conclude, however, that
have been able to interview for the Pontiac position, and that      the district court erred, and a de novo review indicates that
the only reason she was permitted to do so was because of an        Karim failed to raise a genuine issue of material fact with
illegal racial preference. Plaintiffs-Appellants concede,
however, that Robinson received the highest score of all the
candidates who interviewed for the Pontiac position, and that
                                                                         10
the scoring was valid.                                                     As indicated above, K arim d id not file an internal appeal regarding
                                                                    the resolution of her grievance.
  Plaintiffs-Appellants assert that allowing Robinson to
                                                                         11
interview for the Pontiac position violated two prior practices            The district co urt noted that the decision to allow R obinson to
of the Treasury Department’s Audit Division. First, the Audit       interview for the position was legitimately explained as a reasonable
                                                                    resolution to K arim’s grievanc e.
No. 01-2052                         Sutherland, et al. v. Mich.          29     30   Sutherland, et al. v. Mich.                 No. 01-2052
                                     Dep’t of Treasury, et al.                       Dep’t of Treasury, et al.

respect to whether the Defendants’ legitimate, non-                             lapsed since the first opening, and he anticipated a number of
discriminatory reasons for these employment decisions were                      job openings arising from the promotion of certain employees
a pretext for decisions based on race.12                                        who had held Auditor Manager 14 positions. In light of these
                                                                                employment realities, he re-posted the position for transfer
                        1. Prima Facie Case                                     because he believed that doing so was permissible under the
                                                                                Treasury’s written transfer policy, which contained no
   The parties do not dispute that Karim has met some                           explicit language prohibiting the Audit Division from re-
elements of her prima facie case, in that she was qualified for                 posting a position for transfer.
the position she was seeking, that, despite her qualifications,
she suffered an adverse employment decision, and that the                          Micheal Davis made the decision to allow Robinson to
position was given to a person outside her racial class. As                     interview for the Pontiac position after he rescinded the
they do with respect to Sutherland’s claim, however, the                        transfer as part of the resolution to Karim’s grievance. In his
parties dispute whether Karim has satisfied the first prong of                  affidavit, he states that he resolved Karim’s grievance as he
her prima facie case by setting forth the background                            did, rescinding the transfer but allowing Robinson to
circumstances necessary to establish that the Treasury                          interview for the position, because, as a labor relations
Defendants are the unusual employers who discriminate                           officer, he believed that to be the “most reasonable and
against the majority. For the reasons set forth above in our                    practical resolution of the matter.” In addition, he explains
discussion of Sutherland’s claim, we believe that Karim has                     that the Audit Division had
raised a genuine issue of material fact with respect to this
issue.                                                                            [an] existing practice of allowing employees to interview
                                                                                  for vacancies if they had made themselves eligible as
          2. Legitimate, Non-Discriminatory Reason                                candidates on the employment list from which the
                                                                                  position was being filled. Employees interested in
  The Defendants set forth legitimate, non-discriminatory                         transferring could circumvent the “24 month in position”
reasons for both the decision to re-post the Pontiac position                     requirement and become a candidate for the vacant
for transfer and the decision to allow Robinson to interview                      position. . . . Thus, Ms. Robinson could have been
for the position. Husted alone made the decision to re-post                       considered as a transfer “appointment” for the Pontiac
the position for transfer. In his affidavit, he asserts that he                   position by simply calling Civil Service to have her name
made that decision based on the fact that three months had                        placed on the Oakland County employment list.
                                                                                Thus, the decision to allow Robinson to interview for the
    12                                                                          position was not only reasonable from a managerial
       As set forth above, the district court denied the Treasury
Defend ants’ second motion for sum mary judgm ent with respect to               perspective, it was also in line with the Audit Division’s
Karim’s claims. The district court subsequently granted the Treasury            transfer policy, even though Robinson had held her Auditor
Defend ants’ third motion for summary judgment based on their assertion         Manager 14 position for less than two full years at the time
of the “same decisio n” de fense. W e do not ad dress the validity of that      the transfer position was initially posted.
defense in light of the fact that we affirm the district court’s ruling based
on Karim’s failure to raise a genuine issue of m aterial fact with respect to
pretext.
No. 01-2052                   Sutherland, et al. v. Mich.     31    32   Sutherland, et al. v. Mich.                 No. 01-2052
                               Dep’t of Treasury, et al.                 Dep’t of Treasury, et al.

  Based on the foregoing reasoning set forth by Husted and          practice, the Defendants admitted as much in their resolution
Davis for their employment decisions, we believe that the           of Karim’s grievance. Indeed, the failure to adhere to prior
district court correctly concluded that the Treasury                practice was the basis for the decision to rescind Robinson’s
Defendants met their burden of establishing legitimate, non-        transfer. The decision to allow her to participate in the
discriminatory reasons for both employment decisions                competitive interviews for the position was simply the most
challenged by Karim.                                                fair and logical way to resolve the situation that had been
                                                                    created by the re-posting of the position. Karim’s reference
                          3. Pretext                                to the prior situation does nothing to demonstrate that the
                                                                    reasoning set forth in Davis’s affidavit, explaining his
  Karim contends that the Defendants’ non-discriminatory            resolution of Karim’s grievance, was a pretext for
reasons for the employment decisions at issue are a pretext for     discrimination.
discrimination, and that the decisions were made to favor
Robinson based on her race. In support of this position,              Moreover, Plaintiffs-Appellants have offered no evidence,
however, she offers little evidence, but simply restates the fact   other than the fact of the re-posting itself, that Husted’s
that both decisions violated prior practice of the Audit            decision to re-post the Pontiac position for transfer was based
Division.                                                           on Robinson’s race. They have presented no evidence to
                                                                    refute Husted’s assertion that he re-posted the position
   The only purported evidence upon which Karim relies in           because he did not believe that doing so violated the Audit
support of her claim of pretext is a situation that occurred        Division’s transfer policy, as no written provision of the
within the Audit Division a number of years ago. Apparently,        policy prohibited such a re-posting, and because he believed
two female auditors who had been Auditor 12s for less than          that opening the position for transfer would help fill the
two years requested to interview for Auditor 12 vacancies in        Division’s employment needs at the time.
another location so that they could relocate. The two females
were told that, although they were eligible to compete for the         Karim’s arguments with respect to any alleged pretext are
vacancies under Civil Service guidelines, the interview panel       based on unsupported speculation. Therefore, we AFFIRM
would not award them the positions because they felt that to        the district court’s ruling granting summary judgment to the
do so would be to circumvent the transfer policy, which             Treasury Defendants with respect to Karim’s claims, but on
required the women to hold their positions for at least twenty-     the ground that Plaintiffs-Appellants failed to raise a genuine
four months before being eligible for transfer. Karim asserts       issue of material fact with respect to whether the Treasury
that this prior situation demonstrates that the decision to allow   Defendants’ proffered reason for their employment decision
Robinson to interview for the Pontiac position was contrary         was pretext.
to prior practice, and intended to favor Robinson based on her
race.                                                                                  D. Remaining Issues
   Karim’s reference to this prior situation does not raise a         In addition to challenging the dismissal of, or grant of
genuine issue of material fact with respect to pretext.             summary judgment to, all of the Defendants-Appellees,
Although the prior situation indicates that the decision to         Plaintiffs-Appellants challenge the following rulings of the
allow Robinson to interview was in derogation of prior              district court: (1) dismissal of the Plaintiffs’ claims for
No. 01-2052                   Sutherland, et al. v. Mich.     33
                               Dep’t of Treasury, et al.

prospective, injunctive relief; and (2) denial of the Plaintiffs’
motion for partial summary judgment. In light of our
conclusion that all Defendants-Appellees were entitled to
summary judgment on, or dismissal of, the claims brought
against them based on the Plaintiffs-Appellants’ failure to
raise a genuine issue of material fact with respect to pretext,
as well as Plaintiffs-Appellants’ failure to demonstrate that
any governmental entity other than the Department of
Treasury was their employer, we need not reach these issues.
The foregoing conclusions preclude the possibility that
Plaintiffs-Appellants could have been entitled either to
summary judgment or any form of relief, injunctive or
otherwise.
  Therefore, we AFFIRM the district court’s rulings
dismissing the Plaintiffs-Appellants’ claims for prospective,
injunctive relief and denying the Plaintiffs-Appellants’
motion for partial summary judgment.
                    III. CONCLUSION
  For all of the foregoing reasons, we AFFIRM the district
court’s rulings granting Defendants-Appellees’ motions for
summary judgment and motions to dismiss, and denying
Plaintiffs-Appellants’ motion for partial summary judgment.
