Order Michigan Supreme Court
Lansing, Michigan
January 29, 2010 Marilyn Kelly,
Chief Justice
139335 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
RODNEY DUSKIN, SYLVESTER BERRY, JR., Diane M. Hathaway,
WILLIAM C. BRUCE, LEON L. COLEMAN, Justices
RICARDO H. CUMMINGS, JOHN
DANDRIDGE, DARREN FORD, KENNETH D.
FRANKLIN, DARRYL GARNER, SR., DAMON
S. MOON, MIAN M. RASHID, JEFFREY D.
ROBINSON, CRAIG E. SMITH, BILLY
STARKS, DEMETRIOUS STARLING, and
ERIC L. TAYLOR,
Plaintiffs-Appellants,
v SC: 139335
COA: 279151
Ingham CC: 06-001459-CD
DEPARTMENT OF HUMAN SERVICES,
Defendant-Appellee.
_________________________________________/
On order of the Court, the application for leave to appeal the June 11, 2009
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals and
we REMAND this case to the Ingham Circuit Court for reconsideration in light of Henry
v Dow Chemical, 484 Mich 483 (2009), which was issued after the Court of Appeals
decided this case.
We do not retain jurisdiction.
CORRIGAN, J. (dissenting).
I dissent from the Court’s unnecessary order of remand, which will result in a
costly waste of scarce state resources—as well as a waste of plaintiffs’ resources—in this
clearly meritless class action. The Court of Appeals correctly reversed the erroneous
order of former Ingham Circuit Court Judge Beverley Nettles-Nickerson granting class
certification. The reasoning of the Court of Appeals is consistent with this Court’s
opinion in Henry v Dow Chemical Co, 484 Mich 483 (2009), which was issued after the
Court of Appeals decided this case.
2
Plaintiffs are males employed by defendant, the Department of Human Services
(DHS). They alleged that they were each discriminated against on the basis of race,
ethnicity and gender in promotions to supervisory and management positions, in violation
of Michigan’s Civil Rights Act, MCL 37.2101 et seq. To prove unlawful discrimination,
a member of a protected class must show either direct evidence of bias against the
protected class of which he is a member or that he was not appointed to a position for
which he was qualified and the position was given to another person under circumstances
giving rise to an inference of unlawful discrimination. Hazle v Ford Motor Co, 464 Mich
456, 463 (2001).
Plaintiffs clearly did not allege facts showing that defendant engaged in a
common, discriminatory practice affecting each class member as would be necessary to
support class certification. Certification is appropriate only if enumerated prerequisites
listed in MCR 3.501(A)(1) are met. Henry, supra at 496, 500. The prerequisites are
generally described as numerosity, commonality, typicality, adequacy and superiority.
See MCR 3.501(A)(1). As we held in Henry, supra at 500, the “party seeking class
certification must meet the burden of establishing each prerequisite before a suit may
proceed as a class action.” That party “is required to provide the certifying court with
information sufficient to establish that each prerequisite . . . is in fact satisfied.” Id. at
502. As is most relevant here, the commonality, typicality and superiority prerequisites
require that common questions subject to generalized proof predominate over issues
subject to individualized proof and that the representative plaintiffs’ claims are typical of
those of the class. See MCR 3.501(A)(1)(b), (c) and (e); Tinman v Blue Cross and Blue
Shield of Mich, 264 Mich App 546, 563 (2004).
The Court of Appeals correctly concluded that plaintiffs have presented “no
challenged policy or practice that affects all class members that, if discriminatory, and if
remedied, could satisfactorily address plaintiffs’ generalized complaints.” Duskin v
Dep’t of Human Services, 284 Mich App 400, 426. Nor did they “identify an across-the-
board practice or policy that negatively affects male racial and ethnic minorities, for
example, in favor of female racial or ethnic minorities.” Id. Rather, plaintiffs merely
presented a memo prepared by defendant showing that a “disparity exists in minority
males being promoted into upper management positions” and suggesting various ways to
increase the likelihood of their promotion. But the memo did not establish that minority
males were the subjects of a discriminatory policy.1 Nor did plaintiffs allege facts
1
As explained by the Court of Appeals:
[N]othing in the memo suggests that the promotional procedures,
even if imperfect, were racially biased, gender-biased, or were applied in a
biased manner. Any number of nonminority or female employees might
agree, for example, that job postings should be more prominent, that
managers should not hire acquaintances, or that the DHS should provide
3
showing how many individual class members applied for and were denied management
positions which were awarded to less qualified female or nonminority male candidates, as
would be necessary to give rise to an inference of discrimination.2 Plaintiffs largely
relied on the subjective statements of minority male focus group members, who were
quoted by the memo as expressing frustration and discouragement “with some of
[defendant’s] supervisory and management employees’ discriminatory attitudes and
practices involving racial and gender bias directed against minority males.”
Accordingly, it appears that even the individual plaintiffs have not alleged facts
showing either direct bias or that particular plaintiffs were denied positions under
circumstances establishing an inference of discrimination. In any event, at a minimum
there is no evidence that any discrimination by defendant is subject to generalized proof
as the result of an organization-wide policy that in fact affected the individual class
members. Rather, plaintiffs’ claims, if any, are highly individualized. As the Court of
Appeals noted:
[T]he composition of the proposed class itself draws attention to the
prospective factual and legal disparities among the individual claims.
Plaintiffs’ claims include allegations by male job applicants about
promotions given to female candidates of the same race or ethnicity or
another minority race or ethnicity, and claims by male job applicants about
promotions given to Caucasian males, thus raising factual and legal issues
relating to allegations of gender discrimination but not racial discrimination
or racial discrimination but not gender discrimination, or both. Clearly, the
proofs and law necessary to establish that the DHS discriminated against an
additional interview training and encouragement. And, the alleged
“perception” of a bias against minority males simply does not constitute a
predominant, common question, particularly because proving such an
assertion would require individualized proofs to connect that perception
with particular employment decisions. [Duskin, supra at 418.]
2
See Duskin, supra at 419:
While plaintiffs assert that the class representatives applied for or
were available for promotions, but were not chosen for discriminatory
reasons, plaintiffs offer no information about the representatives’ eligibility
and qualifications, what positions they sought, what qualifications the
positions required, and whether a less qualified, nonminority, or female
candidate was promoted instead. And, importantly, plaintiffs fail to explain
how the claims of the representative plaintiffs present a question common
to the entire class of every minority male employee of the DHS.
4
Hispanic male candidate in favor of African-American female
candidate would differ from those necessary to show that the DHS
discriminated against an African-American male candidate in favor of an
Arab female candidate. And the proofs and law necessary to establish that
the DHS discriminated against an Asian male candidate in favor of a
Caucasian male candidate would differ from those necessary to establish
that the DHS discriminated against a male of Arab descent in favor of a
Caucasian female. Simply stated, the law and the evidence necessary to
prove and defend the myriad claims at issue differ significantly, making
class treatment unsound. [Duskin, supra at 421-422.]
Because plaintiffs’ allegations are insufficient to support class certification as a
matter of law, I cannot join this Court’s decision to order a futile remand that will simply
drain resources and ultimately result in the same outcome as that reached by the Court of
Appeals. Because I conclude that the Court of Appeals analysis was correct, I would
deny leave to appeal.
YOUNG, J., joins the statement of CORRIGAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 29, 2010 _________________________________________
s0126 Clerk