Lind v. City of Battle Creek

Michigan Supreme Court
Lansing, Michigan

Opinion
Chief Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED JUNE 11, 2004
MICHAEL LIND,

Plaintiff-Appellant

v No. 122054

CITY OF BATTLE CREEK,

Defendant-Appellee.
_______________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

Plaintiff, a white police officer, alleges that

defendant violated the Michigan Civil Rights Act, MCL

37.2202(1)(a), when it promoted a black officer, rather

than plaintiff, to the supervisory position of police

sergeant on the basis of race.1 The issue is whether such a

claim of "reverse discrimination" must satisfy standards

different from those required of other claims of

discrimination. Having granted leave to appeal and heard

argument, this Court concludes as follows:

1
On the basis of scores on written and oral
examinations and seniority, plaintiff was rated second
among the top five eligible officers and the black officer,
who was promoted, was rated fifth. Pursuant to a
collective bargaining agreement, the city was permitted to
select any one of the top five scoring candidates.
 (1) MCL 37.2202(1)(a) provides that “[a]n employer

shall not . . . discriminate against an individual with

respect to employment . . . because of . . . race . . . .”

(2) MCL 37.2202(1)(a) draws no distinctions between

"individual" plaintiffs on account of race.

(3) The Court of Appeals, in reliance on Allen v

Comprehensive Health Services, 222 Mich App 426, 429-433;

564 NW2d 914 (1997), held that a "majority" plaintiff in a

"reverse discrimination" case, in order to make a prima

facie showing, must, in addition to satisfying the

obligations of “minority” plaintiffs in discrimination

cases, also present "background circumstances supporting

the suspicion that the defendant is that unusual employer

who discriminates against the majority . . . ."2

(4) Allen draws a distinction between plaintiffs on

account of race under MCL 37.2202(1)(a), and is thus

inconsistent with our Civil Rights Act.3 Therefore, Allen

is overruled.4

2
Unpublished opinion per curiam, issued July 9, 2002,
p 2 (Docket No. 227874).
3
While Allen involved a gender discrimination, rather
than a race discrimination, claim, it held broadly that
"reverse discrimination" plaintiffs under the Civil Rights
Act must satisfy the "background circumstances" standard.
4
Because we overrule Allen, it is unnecessary to
address the additional question posed by this Court’s grant
order, i.e., whether Allen’s “background circumstances”
standard is consistent with the equal protection clauses of
2
 In response to Justice Cavanagh’s dissent, we observe

that this opinion is short, not because we disagree with

the dissent concerning the significance of this issue, but

because Allen is so clearly contrary to the language of

Michigan’s Civil Rights Act. We are uncertain how many

pages the dissent believes are required to explain that

“individual” means “individual.” Further, we note that in

its much longer opinion, the dissent, unlike the majority,

never actually bothers to decide the issue before this

Court—whether Allen’s “background circumstances” standard

is consistent with Michigan’s Civil Rights Act.

Accordingly, we reverse the judgment of the Court of

Appeals and remand this case to the circuit court for

further proceedings consistent with this opinion.5
Stephen J. Markman
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.

the Michigan Constitution, Const 1963, art 1, § 2 ("No
person shall be . . . discriminated against . . . because
of . . . race . . . .") and the United States Constitution,
Am XIV, § 1 ("[N]or shall any State . . . deny to any
person . . . the equal protection of the laws."). That is,
because we conclude that applying different standards to
different racial groups in order to determine whether
discrimination has been established violates the Michigan
Civil Rights Act, we need not determine whether applying
different racial standards also violates the equal
protection clauses.
5
In response to Justice Kelly’s dissent, we note that
we are not concluding that plaintiff did or did not
establish a prima facie case of discrimination; rather, we
are simply concluding that the trial court applied the
wrong standard in determining whether plaintiff established
a prima facie case of discrimination.

3
 S T A T E O F M I C H I G A N

SUPREME COURT

MICHAEL LIND,

Plaintiff-Appellant

v No. 122054

CITY OF BATTLE CREEK,

Defendant-Appellee.
_______________________________

YOUNG, J. (concurring).

I fully concur in the majority opinion, but write

separately to note, on this fiftieth anniversary of the

decision in Brown v Bd of Education,1 how singular and

troubling is the dissenting view of my two colleagues.

It is hard to reconcile the logic of the dissenters'

position when juxtaposed to the language of our Michigan

Civil Rights Act and our state constitution without recalling

Orwell's chilling refrain: “all [citizens] are equal, but

some [citizens] are more equal than others.”2

Fifty years after the United States Supreme Court

declared in Brown that the government could no longer use

1
Brown v Bd of Education, 347 US 483; 74 S Ct 686; 98 L
Ed 873 (1954).
2
Orwell, Animal Farm (New York: New American Library,
1996), ch 10, p 133.
consideration of race to disadvantage any of its citizens,

our two dissenting colleagues have announced precisely the

contrary position. Our dissenting colleagues have advocated

that the judicial branch of government require persons of one

race to bear a higher burden of maintaining an employment

discrimination case than persons born of another race.

This is a concept worth repeating for emphasis, for no

citizen of this state should miss the import of the dissents’

view. Our dissenting colleagues maintain that, under a

statute that explicitly prohibits employment discrimination

"because of" race, some Michigan citizens must bear a higher

burden to maintain such a lawsuit precisely because of their

race.

Not only does the dissents' position constitute an

offense against the very protections our Civil Rights Act

provides, our dissenting colleagues are conspicuously silent

about the constitutional implications of a governmental

policy that places higher burdens on one set of citizens

because of their race. The Michigan Equal Protection Clause,

Const 1963, art 1, § 2, unlike the federal counterpart

contained in the Fourteenth Amendment, explicitly prohibits

discrimination on the basis of race:

"No person shall be denied the equal
protection of the laws . . . because of . . . race
. . . ."

2

 I do not challenge the good intentions of my dissenting
colleagues; I do challenge their Orwellian racial policy
preferences.
Robert P. Young, Jr.

3

 S T A T E O F M I C H I G A N

SUPREME COURT

MICHAEL LIND,

Plaintiff-Appellant,

v No. 122054

CITY OF BATTLE CREEK,

Defendant-Appellee.

_______________________________

CAVANAGH, J. (dissenting).

I must dissent, not only from the majority’s holding,

but also from Justice Young’s assertion that we should turn

a blind eye to racism. How I wish we all could live in

Justice Young’s utopian society where all races are treated

equally, but I cannot ignore reality. I urge the reader to

look beyond the surface appeal of Justice Young’s

simplistic argument and examine not only the text, but also

the context of the Civil Rights Act. It is with regret

that I acknowledge the relevance today of Clarence Darrow’s

closing argument at the 1926 trial of Detroiter Henry

Sweet.1 In discussing the tragedy, injustice, and

1
Mr. Sweet was on trial for firing a fatal shot into a
crowd of white people who were attempting to drive African-
Americans from their homes in “white neighborhoods.” He
was acquitted.
oppression faced by African-Americans, he stated: “’The

law has made him equal, but man has not. And, after all,

the last analysis is what has man done?—and not what has

the law done?’” Peterson, ed, A Treasury of the World’s

Great Speeches (New York: Simon and Schuster, Inc, 1965), p

740. This still rings true today.

Without any discussion of the relevant case law, this

Court today overrules Allen v Comprehensive Health

Services, 222 Mich App 426; 564 NW2d 914 (1997). The

cursory nature of the majority opinion shows a complete

lack of respect for the importance of today’s decision and

the impact it will have on civil rights.

The majority overrules Allen because that case draws a

distinction between plaintiffs on the basis of a minority

class characteristic or trait, while the text of Michigan’s

Civil Rights Act does not. Because today’s decision

perverts the purpose of the Civil Rights Act and ignores

precedent from this Court and the United States Supreme

Court, I must respectfully dissent.

I. FACTS AND PROCEEDINGS

Because the majority opinion omits the relevant facts

and circumstances, I provide them here. Plaintiff, a white

male, filed this discrimination complaint following the

promotion of a minority male to the position of sergeant at

2

the Battle Creek Police Department. The procedure for

promotions requires candidates to score at least seventy

percent on a written examination and to successfully

complete an oral examination. Candidates are ranked on the

basis of their performance on these examinations and,

pursuant to a collective bargaining agreement, defendant

may choose any of the five top candidates from the list.

Plaintiff and the minority candidate who was awarded the

sergeant’s position in question were both in the top five

on the eligibility list; plaintiff was ranked second at the

time of the promotion and the minority candidate was ranked

fifth.

At the close of discovery, defendant filed a motion

for summary disposition pursuant to MCR 2.116(C)(10). The

trial court applied the background circumstances test from

Allen and granted defendant’s motion. Plaintiff filed a

motion for reconsideration after learning of the city’s

affirmative action plan. The trial court denied

plaintiff’s motion for reconsideration, finding the

affirmative action plan was never implemented by the city,

and, even if it had been in place, it was not applicable to

decisions pertaining to promotions.

3

 Plaintiff appealed and the Court of Appeals affirmed

the trial court’s grant of summary disposition.2 The Court

of Appeals applied the test from Allen and agreed with the

trial court that plaintiff failed to provide sufficient

evidence to create an issue of fact regarding whether

defendant was the unusual employer who discriminates

against the majority.

Plaintiff appealed to this Court and we granted leave,

directing the parties to address whether the Allen

“background circumstances” test is consistent with

Michigan’s Civil Rights Act (CRA), MCL 37.2101 et seq.,

and, if so, whether it violates the Equal Protection Clause

of the Michigan Constitution or the United States

Constitution. 468 Mich 869 (2003).

II. STANDARD OF REVIEW

This Court stated the applicable standard of review in

Hazle v Ford Motor Co, 464 Mich 456, 461; 628 NW2d 515

(2001), in which we applied the test from McDonnell Douglas

Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668

(1973), to a racial discrimination claim:

We review de novo a trial court’s decision
on a motion for summary disposition. A motion
for summary disposition brought under MCR
2.116(C)(10) tests the factual support of a

2
Unpublished opinion per curiam, issued July 9, 2002
(Docket No. 227874).

4

 claim. After reviewing the evidence in a light
most favorable to the nonmoving party, a trial
court may grant summary disposition under MCR
2.116(C)(10) if there is no genuine issue
concerning any material fact and the moving party
is entitled to judgment as a matter of law.
Smith v Globe Life Ins Co, 460 Mich 446, 453; 597
NW2d 28 (1999).
III. ANALYSIS

Michigan’s CRA, at MCL 37.2202(1), provides that “[a]n

employer shall not . . . (a) discriminate against an

individual with respect to employment . . . because of

. . . race . . . .” This language mirrors Title VII of the

federal Civil Rights Act of 1964, which reads in pertinent

part:

It shall be unlawful employment practices
for an employer . . . (1) . . . to discriminate
against any individual with respect to his
compensation, terms, conditions or privileges of
employment, because of such individual’s race
. . . . [42 USC 2000e-2(a).]
In some discrimination cases, there is direct evidence

of racial bias. But in most discrimination cases, there is

no direct evidence. Recognizing this, the United States

Supreme Court developed the McDonnell Douglas framework for

examining discrimination claims where direct evidence of

racial bias is lacking. McDonnell Douglas, supra.

Under the McDonnell Douglas test, a plaintiff must

first offer a prima facie case of discrimination. To

create a presumption of discrimination a plaintiff must

present evidence “(i) that he belongs to a racial minority;

5

(ii) that he applied and was qualified for a job for which

the employer was seeking applicants; (iii) that, despite

his qualifications, he was rejected; and (iv) that, after

his rejection, the position remained open and the employer

continued to seek applicants from persons of complainant’s

qualifications.” McDonnell Douglas, supra at 802. Once

the plaintiff has created a presumption of discrimination,

the burden then shifts to the defendant to rebut that

presumption by showing that there was a legitimate,

nondiscriminatory reason for the employment action.

In Hazle, this Court applied the above framework to a

racial discrimination claim filed pursuant to the CRA. The

plaintiff in Hazle was required to present evidence that

(1) she belong[ed] to a protected class, (2) she
suffered an adverse employment action, (3) she
was qualified for the position, and (4) the job
was given to another person under circumstances
giving rise to an inference of unlawful
discrimination. [Hazle, supra at 463.]

In applying the McDonnell Douglas framework, this Court

recognized that varying facts in discrimination cases

require courts to tailor the McDonnell Douglas framework to

“fit the factual situation at hand.” Hazle, supra at 463 n

6.

Strict application of the McDonnell Douglas framework

would preclude all reverse discrimination claims without

6

direct evidence of discriminatory bias. Because a

majority plaintiff cannot prove that he belongs to a

protected minority and because the United States Supreme

Court has recognized that the federal civil rights act is

not limited to minorities,3 courts have adapted the first

prong of the McDonnell Douglas test for reverse

discrimination claims. However, the United States Supreme

Court has not addressed the test to be used for reverse

discrimination claims and there is no consensus among the

federal circuit courts of appeals regarding how the

McDonnell Douglas test should be adapted for reverse

discrimination claims.

There are three general approaches followed by the

federal circuits. The approach followed by a majority of

the circuits is the “background circumstances” test, which

requires a majority plaintiff to show background

circumstances that support the suspicion that the defendant

is the unusual employer who discriminates against the

majority. This approach is followed by the United States

Courts of Appeals for the District of Columbia, and the

Sixth, Seventh, and Eighth circuits. Parker v Baltimore &

Ohio R Co, 209 App DC 215; 652 F2d 1012 (1981); Murray v

3
McDonald v Santa Fe Transp Co, 427 US 273, 278-279;
96 S Ct 2574; 49 L Ed 2d 493 (1976).

7

Thistledown Racing Club, Inc, 770 F2d 63, 66-68 (CA 6,

1985); Pierce v Commonwealth Life Ins Co, 40 F3d 796, 801

(CA 6, 1994); Mills v Health Care Service Corp, 171 F3d

450, 457 (CA 7, 1999); Duff v Wolle, 123 F3d 1026, 1036-

1037 (CA 8, 1997). The second approach only requires a

majority plaintiff to prove that he is a member of “a

class.” This approach is followed by the Third and

Eleventh circuits. Iadimarco v Runyon, 190 F3d 151, 163

(CA 3, 1999); Wilson v Bailey, 934 F2d 301, 304 (CA 11,

1991). The third approach allows a majority plaintiff to

state a prima facie case in one of two ways, by using the

“background circumstances” test or by showing “indirect

evidence sufficient to support a reasonable probability,

that but for the plaintiff’s status [as a member of the

majority] the challenged action would have favored the

plaintiff . . . .” Notari v Denver Water Dep’t, 971 F2d

585, 589 (CA 10, 1992). This test was developed by the

Fourth Circuit in a traditional discrimination case and

applied by the Tenth Circuit in the reverse discrimination

context. Holmes v Bevilacqua, 794 F2d 142, 146 (CA 4,

1986); Notari, supra.

A. THE “BACKGROUND CIRCUMSTANCES” TEST

The “background circumstances” test was created by the

Court of Appeals for the District of Columbia Circuit

8

because the United States Supreme Court noted that the

McDonnell Douglas factors have to be adjusted to fit

varying factual scenarios and because strict application of

the framework would eliminate all reverse discrimination

claims. Parker, 652 F2d 1017. Under the “background

circumstances” test a majority plaintiff claiming reverse

discrimination can meet the first prong of establishing a

prima facie case “when background circumstances support the

suspicion that the defendant is that unusual employer who

discriminates against the majority.” Id. at 220.

Generally, “background circumstances” can be shown by

evidence indicating that the employer has some reason or

inclination to discriminate against the majority or by

evidence indicating that there is something suspect about

the particular case, which raises an inference of

discrimination. See Harding v Gray, 9 F3d 150 (DC Cir,

1993).

B. THE “MEMBER OF A CLASS” APPROACH

Some courts have criticized the “background

circumstances” test and have applied their own adaptations

of the McDonnell Douglas framework. The adaptation

followed by the Third Circuit and the Eleventh Circuit

essentially eliminates the first prong of the McDonnell

Douglas framework. This adaptation was first applied by

9

the Eleventh Circuit in Wilson, in which the court altered

the first prong of the McDonnell Douglas test by requiring

the plaintiff to prove that he belonged to “a class,” not a

protected class or a minority class, simply a class. The

same standard was applied by the Third Circuit in

Iadimarco. The Third Circuit, held that

a plaintiff who brings a “reverse discrimination”
suit under Title VII should be able to establish
a prima facie case in the absence of direct
evidence of discrimination by presenting
sufficient evidence to allow a reasonable fact
finder to conclude . . . that the defendant
treated plaintiff “less favorably than others
because of [his] race, color, religion, sex, or
national origin.” Furnco [Constr Co v Waters,
438 US 567, 577; 98 S Ct 2943; 57 L Ed 2d 957
(1978)]. [Iadimarco, supra at 163.]
C. THE NOTARI ALTERNATIVE

The Fourth Circuit and the Tenth Circuit apply yet

another variation of the McDonnell Douglas framework to

reverse discrimination claims. See Holmes, supra at 146;

Notari, supra at 589. This test acknowledges the

presumption of discrimination implicit in McDonnell

Douglas, but allows a reverse discrimination plaintiff to

prove either background circumstances or specific facts

that support a reasonable inference that, but for

plaintiff’s status as a member of the majority, the

challenged decision would not have been made.

10

 IV. CONCLUSION

The diversity of opinion among the federal circuits is

evidence of the difficulty and complexity of this issue,

yet the majority feels compelled by the text of Michigan’s

Civil Rights Act to dismiss this issue with no analysis of

the relevant case law. The text of the act also compels

Justice Young to assert that viewing things as they

actually are is tantamount to discrimination. Today’s

majority and Justice Young both fail to acknowledge the

historical context in which the Civil Rights Act was

passed, as well as the pervasive and continuing

discrimination rooted in that historical context. The

majority remands this case to the circuit court with no

guidance other than the fact that the “background

circumstances” test should not be used. I respectfully

dissent.

Michael F. Cavanagh

11

 S T A T E O F M I C H I G A N

SUPREME COURT

MICHAEL LIND,

Plaintiff-Appellant,

v No. 122054

CITY OF BATTLE CREEK,

Defendant-Appellee.
_______________________________

KELLY, J. (dissenting).

I agree fully with Justice Cavanagh’s dissent. I

write separately to state my additional reasons for

supporting an affirmance of summary disposition for

defendant.

Plaintiff Failed to Establish a Prima Facie Case

Under any employment discrimination test, plaintiff

failed to establish a prima facie case. Defendant had

discretion to choose one of the candidates on the promotion

list and had an established practice of not necessarily

promoting people in the order they appeared on the list.

Defendant was not required to consider those

attributes that plaintiff alleges made him a superior

candidate to the employee who was in fact promoted.

Plaintiff did not rebut defendant’s asserted reliance on
the promoted employee’s maturity and sense of service.

Defendant was not required to forgo subjective criteria in

making the employment decision, especially considering the

critical role that police officers fill in society.

Plaintiff failed to rebut defendant’s race-neutral reasons

for its employment decision. Plaintiff’s failure to

sustain his burden entitled defendant to summary

disposition.

I disagree with the majority’s rejection of the

background circumstances test of Allen. Allen v

Comprehensive Health Services, 222 Mich App 426; 564 NW2d

914 (1997). In addition, I note that, even absent Allen,

plaintiff’s claim must fall because plaintiff failed to

refute defendant’s legitimate nondiscriminatory basis for

promoting another candidate.

The Background Circumstances Test
Should Not Be Discarded

The fact that Michigan’s Civil Rights Act1 creates no

distinction based on a person's status as a member of the

"majority" or the "minority" does not justify discarding

the background circumstances test. Because it is entirely

consistent with the purpose of the act, it should be

retained.

1
MCL 37.2101 et seq.

2

 The majority's analysis suggests that this case

involves a simple issue of the proper interpretation of §

202 of the civil rights act.2 However, the language of the

act does not address the question presented here: what

evidence must be presented to establish a prima facie case

of discrimination.

This Court grappled with the question in earlier

decisions. See, e.g., Lytle v Malady (On Rehearing), 458

Mich 153, 172-178; 579 NW2d 906 (1998) (opinion by Weaver,

J.); Matras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d

586 (1986). It determined that, where there is no direct

evidence of impermissible bias, a prima facie case of

employment discrimination can be established through the

burden-shifting framework in McDonnell Douglas Corp v

Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).

The background circumstances test is a modification of

the McDonnell Douglas test. The rationale for the test was

2
That section, MCL 37.2202, provides in relevant part:

(1) An employer shall not do any of the
following:

(a) Fail or refuse to hire or recruit,
discharge, or otherwise discriminate against an
individual with respect to employment,
compensation, or a term, condition, or privilege
of employment, because of religion, race, color,
national origin, age, sex, height, weight, or
marital status.

3

first articulated by the District of Columbia Circuit Court

of Appeals in Parker v Baltimore & Ohio R Co, 209 US App DC

215; 652 F2d 1012 (1981). The Allen Court adopted it as

its own, concluding that it was an appropriate modification

of the McDonnell Douglas test.

The background circumstances test acknowledges that

reverse discrimination cases involve different factual

situations and different underlying prejudices than do

traditional discrimination cases. The test recognizes at

its base that the hostile discrimination present in

McDonnell Douglas is not typically directed at members of

the majority. Allen, supra at 431-432. I agree with the

following reasoning from Allen that quotes Parker, supra:

“The original McDonnell Douglas standard
required the plaintiff to show ‘that he belongs
to a racial minority.’ Membership in a socially
disfavored group was the assumption on which the
entire McDonnell Douglas analysis was predicated,
for only in that context can it be stated as a
general rule that the ‘light of common
experience’ would lead a factfinder to infer
discriminatory motive from the unexplained hiring
of an outsider rather than a group member.
Whites are also a protected group under Title
VII, but it defies common sense to suggest that
the promotion of a black employee justifies an
inference of prejudice against white co-workers
in our present society.” [Allen, supra at 431-
432, quoting Parker, supra at 220.]

The majority's rationale in overruling the background

circumstances test is not in keeping with the progeny of

4

McDonnell Douglas. In mechanically applying the plain

language doctrine of statutory interpretation, the majority

subverts the purpose of the act and the Legislature's

intent in writing it. They were to prevent discrimination

against a person because of that person's membership in a

certain class and “to eliminate the effects of offensive or

demeaning stereotypes, prejudices, and biases.” Radtke v

Everett, 442 Mich 368, 379; 501 NW2d 155 (1993), quoting

Miller v CA Muer Corp, 420 Mich 355, 363; 362 NW2d 650

(1984).

In our society, demeaning acts of prejudice directed

against whites because of their race are uncommon.

Historically, whites have not suffered from pervasive

racial oppression, discrimination, and stigmatization as

have members of minority races. A national survey

conducted in 1990 found that prejudice against whites

continues to be relatively rare. Only seven percent of

whites interviewed claimed to have experienced any form of

racial discrimination. Schuck, Affirmative action: Past,

present, and future, 20 Yale L & Pol'y R 1, 67 (2002).

Conversely, with respect to racial minorities, “race

unfortunately still matters.” Grutter v Bollinger, 539 US

306; 123 S Ct 2325, 2341; 156 L Ed 2d 304 (2003).

5

 The existence of this crucial distinction between the

treatment of the majority and of the minority supported the

Allen Court's adoption of the background circumstances

test. Common experience in Michigan does not lead to the

conclusion that, when an adverse employment decision is

made regarding a white employee, it is based on race.

As a consequence, I would uphold the background

circumstances test adopted in Allen and affirm the decision

of the lower courts.

Marilyn Kelly

6