NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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).
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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.
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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
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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.
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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).
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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
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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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