Thomas E. Sutherland v. Michigan Department of Treasury

*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0334P (6th Cir.)
File Name: 03a0334p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
THOMAS E. SUTHERLAND, et
al.,
Plaintiffs-Appellants,
v.
MICHIGAN DEPARTMENT OF
TREASURY, et al.,
Defendants-Appellees.
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No. 01-2052
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 99-73571—Avern Cohn, Senior District Judge.
Argued: June 18, 2003
Decided and Filed: September 18, 2003
Before: BOGGS and GILMAN, Circuit Judges;
MARBLEY, District Judge.*
2 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
_________________
COUNSEL
ARGUED: Charles J. Porter, Clarkston, Michigan, for
Appellants. Joseph E. Potchen, Richard P. Gartner, OFFICE
OF THE ATTORNEY GENERAL, Lansing, Michigan, for
Appellees. ON BRIEF: Charles J. Porter, Clarkston,
Michigan, for Appellants. Joseph E. Potchen, James Erwin
Long, Susan Przekop-Shaw, OFFICE OF THE ATTORNEY
GENERAL, Lansing, Michigan, for Appellees.
_________________
OPINION
_________________
ALGENON L. MARBLEY, District Judge. This is a
“reverse” race discrimination case brought pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. (1991) (“Title VII”), 42 U.S.C. § 1983, and
the Michigan Elliott-Larsen Civil Rights Act, M.C.L. 37.2102
et seq. Plaintiffs-Appellants, Thomas E. Sutherland and
Nancy Karim, both Caucasian, brought suit alleging that they
were denied promotions over less qualified minorities. They
now appeal the district court’s orders granting summary
judgment to, and dismissing the claims against, Defendants-
Appellees, and denying Plaintiffs-Appellants’ motion for
partial summary judgment.
For the following reasons, we AFFIRM the rulings of the
district court.

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

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No. 01-2052 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
5
Appellee Anthony Taylor to chair the interview panel to fill
the various Auditor Manager 14 positions. Taylor, in turn,
contacted Defendants-Appellees Jane Osburn, Auditor
Manager 14 from the Grand Rapids office, and Larry Collar,
Department Specialist 14, Office of Quality Management, to
assist him in interviewing eligible candidates for the
positions. Husted approved Taylor’s selection of Osborn and
Collar to serve on the interview panel.
Once the interview panel was established, the panel
members developed written and oral interview questions and
model answers. The interview panel also created past
performance evaluation questions. Husted and Deputy Audit
Division Administrator Stan Borowski reviewed and
approved the panel’s oral and written questions, model
answers, and past performance questions.
In May 1998, Raymond Heriford, Administrator of
Treasury’s Human Resources Division, sent letters to eligible
Treasury employees notifying them that Treasury was filling
permanent Auditor Manager 14 positions in Detroit, Lansing,
and Traverse City. After the resolution of Karim’s grievance
as set forth above, employees were also notified of the
interviews to be held for the Auditor Manager 14 position in
Pontiac. The letters to employees set forth the minimum
requirements for eligibility for the Auditor Manager 14
positions. In particular, a candidate had to have a B.S. or
B.A. degree with a major in accounting, and two years of
professional experience in an Auditor 11 position or in a
position of equivalent responsibility. Interested candidates
were asked to submit a pre-employment application, pre-
employment authorization and certification, a written
exercise, and a detailed résumé.
Before scheduling interviews for the six vacant positions,
the interview panel members reviewed, scored, and ranked the
candidates’ written responses in accordance with the pre-
approved guidelines. Candidates with scores of seventy
6 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
percent or above were given oral interviews. In August 1998,
twenty-six candidates were interviewed for the six available
Auditor Manager 14 positions. Prior to the interviews, all
candidates were asked to specify the locations where they
were willing to work, and to rank their job preferences if they
sought more than one position.
Candidates were scored on their oral interviews based on
the pre-established model answers. Then, a background
check was performed by asking each candidate’s supervisor
questions regarding the candidate’s initiative, work habits,
technical auditing ability, and leadership skills. The panel
members then scored each candidate based on his or her past
performance evaluation. Finally, the scores given to each
candidate by each of the panel members were combined, and
the candidates were ranked for the available positions based
on their combined scores. After ranking the candidates, the
interview panel made hiring recommendations to Husted for
review and approval. Husted made one change in the
recommendations, based on one applicant’s employment
preference. Then, each of the candidates selected was offered
a position, and each accepted. Defendant-Appellee Alfinio
Olivarez, Treasury’s Equal Employment Opportunity Officer,
reviewed and approved the foregoing hiring process.
During the August 1998 interviews, Plaintiff-Appellant
Sutherland sought and interviewed for only the Traverse City
Auditor Manager 14 position. In addition to Sutherland,
Kimberly Knoll, a Caucasian female, and Braysley
Famuwera, a black male, also interviewed for that position.
Knoll was the highest scoring candidate for the Traverse City
position. Knoll was also the highest scoring candidate for
two other available positions, however, including the Lansing
Field Office position, which she had ranked higher in
preference than the Traverse City position. Knoll was offered
and accepted the Lansing Field Office position. Famuwera
was the second highest scoring candidate for the Traverse
City position. Therefore, as a result of the hiring process set

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No. 01-2052 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
7
forth above, Famuwera was offered and accepted the Auditor
Manager 14 position in Traverse City.
Twenty individuals interviewed for the Pontiac Auditor
Manager 14 position, including both Rosalind Robinson and
Plaintiff-Appellant Karim. Robinson and Karim sought only
the Pontiac position. Based on the combined scores of the
interview panel members, the top four candidates for the
Pontiac Auditor Manager 14 position were: (1) Rosalind
Robinson, (2) Charles Wright, (3) Bonnie McWilliams, and
(4) Nancy Karim, in that order. As the highest scoring
candidate, Robinson was offered and accepted the Pontiac
position.
B. Procedural History
Based on the foregoing hiring decisions, on July 19, 1999,
Sutherland and Karim brought suit under Title VII against the
Michigan Department of Treasury, Mark Murray, the State
Treasurer (collectively, “Treasury Defendants”), the Michigan
Department of Civil Service, David Adamany, Rea Lee
Chabot, Robert P. Hunter, Susan Grimes Munsell, all of
whom are members of Michigan’s Civil Service Commission,
Mary Pollack, the former Equal Employment Opportunity and
Affirmative Action Officer for the Civil Service Department,
John F. Lopez, the State Personnel Director (collectively,
“Civil Service Defendants”), and the State of Michigan.
Before the Defendants answered the complaint, they all filed
motions to dismiss, or alternatively, for summary judgment.
On March 21, 2000, the district court issued a memorandum
and order granting the Civil Service Defendants’ motion to
dismiss, as well as that of the State of Michigan. The district
court also granted the Treasury Defendants’ motion with
respect to Defendant Murray, but denied their motion with
respect to the Department of Treasury. Thus, the district
court allowed Plaintiffs-Appellants to proceed on their Title
VII claims against only the Department of Treasury.
8 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
On April 18, 2000, Plaintiffs-Appellants filed a one-count
amended complaint against the Department of Treasury,
alleging race discrimination in violation of Title VII.
Subsequently, they filed a separate two-count complaint
pursuant to 42 U.S.C. § 1983 and Michigan’s Elliott-Larsen
Civil Rights Act against Alfinio Olivarez, Treasury’s Equal
Employment Opportunity Officer, and Anthony Taylor, Jane
Osborn, and Larry Collar, the members of the interview panel
who determined the promotions at issue (collectively,
included within the group designated “Treasury Defendants”
above). On April 27, 2000, the second lawsuit was
consolidated with the case now on appeal.
On May 22, 2000, Plaintiffs-Appellants filed a motion for
partial summary judgment, through which they sought an
order declaring that the Treasury Defendants’ “past
affirmative action,” “racial and gender preferences in hiring
and promotions,” and “current ad hoc informal affirmative
action” violate the Fourteenth Amendment to the United
States Constitution, and Michigan’s Elliott-Larsen Civil
Rights Act. Subsequently, the Treasury Defendants filed a
motion for summary judgment, arguing that the Plaintiffs had
failed to demonstrate that race was considered in selecting
candidates to fill the Auditor Manager 14 positions for which
the Plaintiffs had applied.
On January 22, 2001, the district court issued a
memorandum and order denying the Plaintiffs’ motion for
partial summary judgment. In that same order, the district
court granted the Treasury Defendants’ motion for summary
judgment as to Sutherland, but denied the motion as to Karim.
In light of its decision to grant summary judgment to the
Treasury Defendants with respect to Sutherland, the district
court also dismissed Defendants Taylor, Osborn, and Collar,
the interview panel members, from the action. Thus, after the
court’s January 22, 2001 order, the only remaining issue in
the case was Karim’s race discrimination claim against
Defendants Treasury and Olivarez.

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No. 01-2052 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
9
2As indicated above, the “Civil Service Defendants” include the
Michigan Departm ent of C ivil Service, David Adamany, Rea Lee Chabot,
Robert P. Hun ter, Susan Grimes Munsell, all of whom are members of
Michigan’s Civil Service Commission, Mary Pollack, the former Equal
Employment Opportunity and Affirmative Action O fficer for the Civil
Service Department, and John F. Lopez, the State Personnel Director.
On February 12, 2001, Defendants Treasury and Olivarez
filed a motion for summary judgment as to Karim’s
remaining claim. On June 19, 2001, the district court entered
a memorandum and order granting that motion based on the
finding that, even if Robinson had not competed for the
position, Karim still would not have been promoted. The
district court issued an order of judgment that same day.
Plaintiffs-Appellants now appeal the district court’s various
orders dismissing, or granting summary judgment to, the
Treasury Defendants, the Civil Service Defendants, and the
State of Michigan, as well as the district court’s order denying
Plaintiffs-Appellants’ motion for partial summary judgment.
II. DISCUSSION
A. Dismissal of Civil Service Defendants2
Plaintiffs-Appellants brought claims against the Civil
Service Defendants for violation of Title VII and 42 U.S.C.
§ 1983 based on their assertion that the Civil Service
Defendants control all conditions of state employment, and,
therefore, must have been the source of the decision to
implement certain affirmative action devices. We conclude
that the district court properly dismissed the Civil Service
Defendants as parties to this matter based on the finding that
those Defendants are not Plaintiffs-Appellants’ employer
under Title VII.
10 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
1. Standard of Review
Prior to filing their answer, the Civil Service Defendants
filed a motion to dismiss or, in the alternative, for summary
judgment. The district court granted that motion, but it is
unclear whether the court granted it as a motion to dismiss or
as a motion for summary judgment. In either case, the district
court’s decision is subject to de novo review by this Court.
Peters v. Lincoln Elec. Co., 285 F.3d 456, 465 (6th Cir. 2002)
(holding that a decision granting summary judgment is
subject to de novo review by this Court); Stanek v. Greco, 323
F.3d 476, 478 (6th Cir. 2003) (stating that this Court reviews
de novo a decision of the district court granting a motion to
dismiss for failure to state a claim).
2. Department of Treasury as Sole Employer
Title VII applies only to “employers.” 42 U.S.C. § 2000e-
2. Plaintiffs-Appellants argue that the Civil Service
Defendants can be liable as their employers under Title VII
by virtue of the fact that they retain the authority to regulate
all conditions of state employment, including whether such
employment should be free from racial preferences.
The Michigan Civil Service Commission has plenary
authority to regulate all conditions of employment in the state
civil service, to make rules and regulations covering
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
implement the Commission’s rules. The Department of Civil
Service, however, is an entity that is separate and distinct
from the Civil Service Commission. Id.

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No. 01-2052 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
11
3Although 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 Cir. 199 8). As we recognized in
Johnson, Darden sets forth a rule of general applicability, and applies
here.
Individual state agencies, such as Treasury, possess the
authority to create and abolish the civil service positions
within their own agencies. In addition, each agency, through
its director or the director’s agents, retains the sole authority
to appoint, hire, fire, and promote eligible employees to
positions within the agency in accordance with the rules
promulgated by the Commission. Conlin v. Blanchard, 745
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
Commission promulgates rules to identify and certify eligible
candidates for vacant positions in the state departments, the
decision-making authority with respect to selecting among
particular applicants certified as eligible under the
Commission’s rules remains vested solely in the department
itself. Id.
The determination of whether a particular entity is an
employer of a Title VII plaintiff involves an examination of
whether the alleged employer exercises control over the
manner and means of the plaintiff’s work. See Nationwide
Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (discussing
the analysis employed to distinguish an independent
contractor from an employee).3 In light of the distinct roles
of the various governmental entities set forth above, it is clear
that the Department of Treasury has the authority to make key
employment decisions, and exercises control over the manner
and means of its employees’ work, while the Civil Service
Commission does not. Thus, the Civil Service Defendants
could not have been held liable for any adverse employment
actions that Plaintiffs-Appellants allegedly suffered because
they are not Plaintiffs-Appellants’ employer. Rather, as the
12 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
appointing authority, only the Department of Treasury was
their employer under Title VII.
Therefore, we AFFIRM the district court’s order
dismissing the Civil Service Defendants as parties to this
matter on the ground that they were not Plaintiffs-Appellants’
employer.
B. Dismissal of the State of Michigan
The only claim brought against the State of Michigan was
a claim of employment discrimination in violation of Title
VII. The district court dismissed the State of Michigan as a
party to this action based on its determination that the State of
Michigan was not the Plaintiffs-Appellants’ employer. We
conclude that dismissal of the State of Michigan was proper
on that basis.
1. Standard of Review
Although not explicit in the district court’s opinion, the
parties agree that the district court dismissed the State of
Michigan as a Defendant pursuant to Federal Rule of Civil
Procedure 21, which provides, in pertinent part, that “[p]arties
may be dropped or added by order of the court on motion of
any party or of its own initiative at any stage of the action and
on such terms as are just.” This Court reviews a decision to
drop a misjoined party pursuant to Rule 21 for abuse of
discretion. Letherer v. Alger Group, L.L.C., 328 F.3d 262,
266 (6th Cir. 2003). “Therefore, we affirm the dismissal of
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)).

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No. 01-2052 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
13
2. Department of Treasury as Sole Employer
As we recognized above, the Department of Treasury
possesses the sole authority to appoint, hire, fire, and promote
eligible employees to positions within that agency.
Furthermore, it is the Department of Treasury that controls
the manner and means by which its employees’ work is
accomplished. The State of Michigan did not, separate and
apart from its Department of Treasury, employ the Plaintiffs-
Appellants. Accordingly, it is the Department of Treasury
alone, and not the State of Michigan, that is the employer of
Plaintiffs-Appellants.
Therefore, we AFFIRM the district court’s dismissal of the
State of Michigan as a party on the ground that the State of
Michigan was not the Plaintiffs-Appellants’ employer under
Title VII.
C. Treasury Defendants’ Motions for Summary
Judgment
In all, the Treasury Defendants filed three dispositive
motions. Plaintiffs-Appellants challenge the district court’s
initial order granting summary judgment to Defendant
Murray, the district court’s second order granting summary
judgment to the Treasury Defendants with respect to
Sutherland’s claims, and the district court’s third order
granting summary judgment to the remaining Treasury
Defendants with respect to Karim’s claims.
1. Standard of Review
The district court’s grant of summary judgment is subject
to de novo review by this Court. Peters v. Lincoln Elec. Co.,
285 F.3d 456, 465 (6th Cir. 2002) (citing Darrah v. City of
Oak Park, 255 F.3d 301, 305 (6th Cir. 2001), and Perez v.
Aetna Life Ins. Co., 150 F.3d 550, 554 (6th Cir. 1998)).
14 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
Accordingly, on appeal, we apply the same standard of review
as that applied by the district court.
Summary judgment is appropriate “[i]f the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” FED. R. CIV. P.
56(c). The movant has the burden of establishing that there
are no genuine issues of material fact, which may be
accomplished by demonstrating that the non-moving party
lacks evidence to support an essential element of its case.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Logan
v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001). In
response, the non-moving party must present “significant
probative evidence” to show that “there is [more than] some
metaphysical doubt as to the material facts.” Moore v. Philip
Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993).
“[S]ummary judgment will not lie if the dispute is about a
material fact that is ‘genuine,’ that is, if the evidence is such
that a reasonable jury could return a verdict for the non-
moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
In evaluating a motion for summary judgment, the evidence
must be viewed in the light most favorable to the non-moving
party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970). The non-moving party, however, “may not rest upon
its mere allegations . . . but . . . must set forth specific facts
showing that there is a genuine issue for trial.” FED. R. CIV.
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
a mere scintilla of evidence in support of the non-moving
party’s position will not be sufficient; there must be evidence
on which the jury could reasonably find for the non-moving
party. Anderson, 477 U.S. at 251; Copeland v. Machulis, 57
F.3d 476, 479 (6th Cir. 1995).

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No. 01-2052 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
15
2. Plaintiff Sutherland’s Claims
Sutherland brought claims against the Treasury Defendants
for “reverse” race discrimination in violation of 42 U.S.C.
§ 1983, Title VII, and Michigan’s Elliott-Larsen Civil Rights
Act. Sutherland’s claims are based on his belief that the
interview panel judges intentionally scored him lower than
they scored Famuwera to conceal the fact that their decision
with respect to the Traverse City promotion was based on
race.
To state a claim for violation of 42 U.S.C. § 1983, the
plaintiff must demonstrate that: (1) a person, (2) acting under
color of state law, (3) deprived him of a federal right. Sperle
v. Mich. Dep’t of Corr., 297 F.3d 483, 490 (6th Cir. 2002)
(citation omitted). Here, Sutherland claims that the Treasury
Defendants acted under color of state law to deprive him of
his right to be free from racial discrimination, in violation of
the Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution. To succeed on a § 1983 claim
of this kind, against a public employer for an equal protection
violation, the plaintiff must show that the employer made an
adverse employment decision “with a discriminatory intent
and purpose.” Boger v. Wayne County, 950 F.2d 316, 324-25
(6th Cir. 1991) (citations omitted). In analyzing the
plaintiff’s claim, the court is to rely on Title VII disparate
treatment cases for guidance. Weberg v. Franks, 229 F.3d
514, 522 (6th Cir. 2000) (“Because both Title VII and § 1983
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
16 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
4Claims under Michigan’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).
omitted). Therefore, all of Sutherland’s claims shall be
examined together.4
The analytical framework governing Title VII cases is well-
established. First, the plaintiff must set forth a prima facie
case, which gives rise to an inference of discrimination. Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53
(1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973)). To set forth a prima facie case of discrimination
based upon a failure to promote, a plaintiff must show: (1)
that he is a member of a protected class; (2) that he applied
and was qualified for a promotion; (3) that he was considered
for and denied the promotion; and (4) other employees of
similar qualifications who were not members of the protected
class received promotions. Dews v. A.B. Dick Co., 231 F.3d
1016, 1020-21 (6th Cir. 2000). The Sixth Circuit has adapted
this four-prong test to cases of reverse discrimination, where
a member of the majority is claiming discrimination on the
basis of race. In such cases, to satisfy the first prong of the
prima facie case, the plaintiff must “demonstrate ‘background
circumstances [to] support the suspicion that the defendant is
that unusual employer who discriminates against the
majority.’” Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249,
255 (6th Cir. 2002) (quoting Murray v. Thistledown Racing
Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985) (quoting Parker v.
Baltimore and Ohio R.R. Co., 652 F.2d 1012, 1017 (D.C. Cir.
1981))). To satisfy the fourth prong in such cases, the
plaintiff must show that the defendant treated differently

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No. 01-2052 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
17
5Michigan courts have adopted this form of the prim a facie case for
reverse discrim ination claims brought under the E lliott-Larsen Civil
Rights Act. Allen v. Co mprehensive Hea lth Servs., 564 N.W.2d 914, 917
(Mich. Ct. App. 199 7).
employees who were similarly situated but were not members
of the protected class. Id.5
Once the plaintiff establishes a prima facie case, the burden
shifts to the defendant to offer a legitimate, non-
discriminatory reason for the adverse employment action at
issue. Burdine, 450 U.S. at 253 (citing McDonnell Douglas,
411 U.S. at 802). If the defendant meets this burden, then the
burden of production shifts back to the plaintiff to
demonstrate that the proffered reason is a pretext. Id. (citing
McDonnell Douglas, 411 U.S. at 804). When the burden
shifts back to the plaintiff, although he must come forward
with evidence that the defendant’s reason for the employment
action is false, he need not present independent evidence that
the proffered reason is pretext for racial discrimination.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
148 (2000) (“[A] plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated.”).
a. Sutherland’s Prima Facie Case
The district court found that Sutherland set forth all of the
elements necessary to establish a prima facie case of reverse
race discrimination. On appeal, the parties do not dispute that
Sutherland demonstrated that he was qualified for the
Traverse City position, that he suffered an adverse
employment decision, and that the promotion was given to
someone outside Sutherland’s racial class. Defendants-
Appellees assert, however, that Sutherland failed to present
sufficient evidence to demonstrate background circumstances
18 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
that support the suspicion that the Treasury Department is the
unusual employer that discriminates against the majority.
To satisfy the burden of demonstrating background
circumstances that give rise to a suspicion of discrimination
against the majority in employment, the plaintiff may present
evidence of the defendants’ unlawful consideration of race in
employment decisions in the past. Zambetti, 314 F.3d at 256
(finding that such evidence “justifies a suspicion that
incidents of capricious discrimination against whites because
of their race may be likely”). Both at the trial level and on
appeal, Plaintiffs-Appellants present significant evidence in
the form of statistical data tending to show that in the years
prior to the employment decisions at issue, the Treasury
Department considered race in making employment decisions.
Reviewing that evidence, the district court stated: “Plaintiffs
include in their papers considerable statistical data regarding
the Treasury Department’s promotion and hiring patterns and
vigorously assert that ‘illegal racial and gender preferences
have been rampant for years.’”
We agree with the district court’s view that Plaintiffs-
Appellants provided a substantial amount of statistical data
relating to the Treasury Department’s promotion and hiring
patterns over the past few decades as they relate to race. For
example, Plaintiffs-Appellants point out that in 1983, blacks
held 11.5% of the auditor positions in Treasury, even though
blacks represented only 5.2% of the qualified labor force in
Michigan. In addition, they assert that, from 1980 through
July 1989, protected class members, including racial
minorities, females, and disabled people, represented seventy-
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
indicated that protected class members held seventy-one
percent of the auditor positions in the Michigan offices of the
Audit Division. Specifically, the March 2000 roster indicates
that black employees held twenty-nine percent of the Audit

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No. 01-2052 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
19
6We rely on the statistics provided by Plaintiffs-Appellants only for
the narrow conclusion that they demonstrate background circumstances
sufficient to raise a genuine issue of material fact with respect to a prima
facie case o f discrimination against the majo rity.
Division positions in Michigan, even though a 1990 census,
the most recent census prior to the March 2000 roster,
demonstrated that blacks represented only 7.7% of the
qualified labor force in Michigan at that time. Based on this
significant statistical evidence, we believe that Plaintiffs-
Appellants at least raised a genuine issue of material fact with
respect to whether background circumstances tended to show
that Treasury is the “unusual employer who discriminates
against the majority.”6
Therefore, we conclude that Plaintiffs-Appellants raised a
genuine issue of material fact with respect to whether they
established a prima facie case of discrimination.
b. Legitimate, Non-Discriminatory Reason
Having concluded that Plaintiffs-Appellants raised a
genuine issue of material fact with respect to their prima facie
case of discrimination, we now turn to the question of
whether the Treasury Defendants established a legitimate,
non-discriminatory reason for their employment decision.
We believe that the Treasury Defendants satisfied their
burden of establishing a legitimate, non-discriminatory reason
for their employment decision. Quite simply, the non-
discriminatory reason for the decision to offer the Traverse
City position to Famuwera was that he achieved an overall
higher score than Sutherland on the interviews – 619.5, as
compared to Sutherland’s score of 604. This proffered reason
is supported by Defendants-Appellees’ assertion that all
scoring for the interviews was valid, based on the pre-
determined criteria.
20 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
The fact that Sutherland had worked with Treasury longer
and at a higher level than Famuwera had does not negate the
Defendants’ legitimate, non-discriminatory reason for their
employment decision. Despite having less experience,
Famuwera received a higher total score than Sutherland based
on the fact that he had more education than Sutherland and
performed better than Sutherland during the oral interview
process. During his deposition, even Sutherland conceded
that “it was not one of [his] better interviews.” Thus,
Famuwera’s higher total score is attributed, in part, to his
higher score on the oral interview portion of the promotional
process; Famuwera scored a 300, while Sutherland scored
only 266.
Based on the fact that Famuwera received a higher total
score for his interview than Sutherland did, and the fact that
Famuwera was the highest scoring candidate for the Traverse
City position other than Knoll, who was offered a position
that she ranked more highly than the Traverse City position,
we conclude that the Treasury Defendants set forth a
legitimate, non-discriminatory reason for their decision to
award the Traverse City position to Famuwera over
Sutherland.
c. Pretext
We now turn to the question of whether Sutherland raised
a genuine issue of material fact with respect to whether the
Defendants-Appellees’ proffered reason for their employment
decision was pretextual. If he did raise a genuine issue of
material fact with respect to pretext, then summary judgment
in favor of the Treasury Defendants was improper.
In support of his claim that the Defendants’ proffered
reason for their employment decision is pretextual, Sutherland
asserts that he was objectively the better candidate for the
promotion than Famuwera was. He points out, in particular,
that he had sixteen years of experience as an Auditor 12

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No. 01-2052 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
21
before he was appointed to the position of acting Auditor
Manager 14 in May 1996, and that he scored in the top group
on a prior mid-management examination. Famuwera, on the
other hand, was an Auditor 11, had not yet achieved the level
of Auditor 12, and scored only in the second group on a prior
mid-management examination. Sutherland asserts that these
differences indicate that the scores on the
Education/Experience portion of the interviews – 11 for
Sutherland and 10 for Famuwera – must have been
manipulated based on race.
We do not believe this argument furthers Sutherland’s
position that the Treasury Defendants’ non-discriminatory
reason for their employment decision was pretextual. As
discussed above, the Treasury Defendants acknowledged that
Sutherland had greater experience than Famuwera, but
explained that Famuwera’s relatively high score was based on
the fact that he had a more extensive educational background
than Sutherland. Sutherland does not present evidence that
refutes the truth of this explanation. Rather, he simply
reiterates the fact that he had greater experience than
Famuwera. In light of the Treasury Defendants’ explanation,
however, this is insufficient to raise a genuine issue of
material fact with respect to whether the proffered reason was
a pretext for a decision based on race.
Sutherland also claims that the decision to award the
Traverse City position to Famuwera must have been based on
a racial preference because, irrespective of the fact that he had
less experience than Sutherland, Famuwera simply did not
have enough experience for the Auditor Manager 14 position.
Sutherland bases this argument on a memorandum that was
written by Audit Division Administrator Joseph Tomczyk in
1988, which states that an individual must work for at least
22 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
7The memorandum , created in 1988, actually refers to the work
necessary as a senior auditor VII to be ready to assume the duties of a IX
level crew chief position. In the interim between the drafting of the
memorand um and the promotions at issue, the positions within the
Treasury Department were redesignated with new numbers. The district
court apparently based one of its rulings on its finding that Plaintiffs-
Appellants had not demonstrated that the positions referred to in the 1988
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.
two years as an Auditor 12 to be ready to assume the duties of
an Auditor Manager 14.7
Sutherland’s reference to the 1988 memorandum is
likewise insufficient to raise a genuine issue of material fact
with respect to the Treasury Defendants’ non-discriminatory
reason for their employment decision. Although the 1988
memorandum may have called for two years of experience as
an Auditor 12 before beginning work as an Auditor Manager
14, the stated minimum requirements for the promotion in
1998 called for only two years of professional experience or
the equivalent in responsibility to an Auditor 11, not an
Auditor 12. That minimum requirement was clearly set forth
in the letters that were distributed to all candidates eligible for
the promotions, and was established before any employees
applied for the promotions. At the time of the interviews,
Famuwera had two years of experience as an Auditor 11.
Thus, he met the experience requirement for the position.
Furthermore, Plaintiffs-Appellants have presented no
evidence that the memorandum written by Tomczyk
represented an official policy within Treasury. To the
contrary, it appears to embody nothing more than his personal
opinion as to what he believed constituted important work
experience. Tomczyk, however, played no role in the 1998

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No. 01-2052 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
23
8On appeal, Sutherland does not challenge the dismissal of Defendant
Collar in light of the fact that he gave the same score to both Sutherland
and Famuwera.
promotions. Therefore, his personal opinion regarding the
type of experience that is important for the promotions at
issue is irrelevant. Finally, even if the 1988 memorandum
had stated an official policy for promotions to Auditor
Manager 14, Plaintiffs-Appellants have failed to present any
evidence that the policy remained unchanged during the ten
years between the time the memorandum was written and the
time of the promotions at issue. Indeed, the written minimum
requirements for the 1998 promotions indicate that, if it had
been an official policy in 1988, it was no longer in effect.
Third, Sutherland contends that the scores on the answers
to the first written question must have been manipulated
based on Famuwera’s race. For the first written question,
Sutherland received a combined score of 56 while Famuwera
received a combined score of 88. Sutherland’s total score for
that question resulted from scores of 16 out of 32 from two of
the interview panel members, Defendants Taylor and Osborn,
and a score of 24 from Defendant Collar. Famuwera’s total
score for that question resulted from scores of 32 from
Defendants Taylor and Osborn, and a score of 24 from
Defendant Collar.8 Sutherland asserts that his scores from
Taylor and Osborn were objectively unreasonable, and
demonstrate that the Treasury Defendants’ proffered reason
for the employment decision was pretext for a decision based
on race.
In support of this assertion, Sutherland explains that he
showed his answer to the first written question to Michael
Steinman, an Auditor Manager 15, who was Sutherland’s
direct supervisor in Traverse City. Steinman also reviewed
the answers of the four top scorers for that question, including
Famuwera. Based on his review, Steinman testified during
24 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
his deposition that he would have scored Sutherland at least
as highly as Famuwera.
Sutherland also showed his answer to the first written
question to Brenda Brougham, another Auditor Manager 15.
Brougham formulated what she believed to be the proper
criteria for evaluating the question, and then reviewed
Sutherland’s answer. She concluded that Sutherland’s answer
was entitled to a score of 80 to 91, as compared to
Famuwera’s 88. Subsequently, after reviewing the additional
answers that were reviewed by Steinman, Brougham
conducted another analysis, and determined that Sutherland’s
score of 56 was extremely low. Sutherland asserts that,
together, Steinman’s and Brougham’s analyses demonstrate
that, in actuality, his answer was as good as Famuwera’s, and
should have been scored accordingly, which would have
resulted in a higher total interview score for Sutherland over
Famuwera.
Like Sutherland’s other arguments, we conclude that this
argument fails to raise a genuine issue of material fact with
respect to whether the Defendants’ legitimate, non-
discriminatory reason for their employment decision was
pretext. Plaintiffs-Appellants are correct that, at first blush,
the fact that two panel members gave Sutherland a score that
was half of the score they gave to Famuwera appears
suspicious. But this suspicion is eliminated when we recall
that Famuwera was awarded his promotion based not on the
score he received for one question, but based on his total
score. Although Famuwera did, indeed, score significantly
higher than Sutherland on the first question, Sutherland
scored higher than Famuwera did on other questions. For
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
fact indicates that both Famuwera and Sutherland were
simply scored by the judges as they saw appropriate, and then
ranked based on their overall scores.

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No. 01-2052 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
25
9Comp are this situation to that which might arise during a figure
skating competition judged by a panel of figure skating experts. If one
judge were to award a particular skater a low score on presentation, which
includes consideration of such subjective factors as choreography, flow,
and musical interpretation, and all the other judges were to award higher
scores, we would not presume that the lower scoring judge based his score
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
would be balanced out by the higher scores awarded b y the other judges.
The fact that the interview panel members awarded
different scores – even significantly different scores, at least
with respect to question one – does not undermine the
conclusion that the applicants were simply scored by the
panel members as each saw appropriate based on the pre-
determined criteria. Although they established model
answers, the panel members were nonetheless asked to
evaluate fairly subjective criteria for much of the promotion
process. The fact that one interviewer might have disagreed
with the evaluation of an answer accorded by another
interviewer is not evidence that either based his or her
evaluation on anything other than his or her honest
assessment of the answer. Rather, it simply indicates that the
two individuals disagree as to subjective factors, which one
would expect might happen from time to time. Indeed, it is
because we expect individuals to disagree with respect to
subjective factors that we frequently employ more than one
individual to evaluate subjective criteria, as the Treasury
Defendants did here.9
Moreover, the fact that it was Knoll, a Caucasian woman,
not Famuwera, who actually received the highest total score
for the Traverse City position demonstrates that all candidates
were simply scored based on the individual panel members’
perceptions of the merits of the applicants’ answers to each
portion of the interview process. The position was ultimately
offered to Famuwera simply because Knoll also received the
highest score for another position, which she ranked higher
26 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
than the Traverse City position. To conclude that the
interview panel members manipulated the scores to conceal
the fact that they awarded the promotion to Famuwera based
on his race would be to believe that the panel members
determined how to achieve their desired result while still
scoring Sutherland higher than Famuwera on some questions,
and awarding the highest total score to Knoll. While we do
not doubt the intelligence of the panel members, we find it
difficult to believe that they possessed the mathematical
sophistication, let alone the time, necessary to plan such an
elaborately deceitful manner of scoring the candidates for the
Auditor 14 positions.
Additionally, Sutherland’s purported evidence in support of
his position that the scores were skewed is to no avail.
Broughan’s notes were not submitted under oath, nor was her
deposition ever taken. As such, her notes setting forth her
opinion regarding Sutherland’s answer amount to nothing
more than inadmissible hearsay, which cannot be considered
on a motion for summary judgment. Jacklyn v. Schering
Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927
(6th Cir. 1999) (holding that the court may not consider
hearsay on a motion for summary judgment).
Furthermore, neither Steinman nor Broughan was involved
in the 1998 Auditor Manager 14 decision-making process.
During his deposition, Steinman admitted that he never spoke
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
such, he had no sound basis for evaluating the validity of
Sutherland’s score. Finally, Plaintiffs-Appellants have
presented no evidence that either Steinman or Broughan had
any first-hand information that Sutherland’s score was
deliberately lowered, or that race was a factor in scoring the
candidates. Therefore, their opinions regarding Sutherland’s
score on his answer to the first question are insufficient to
raise a genuine issue of material fact with respect to the

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No. 01-2052 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
27
Treasury Defendants’ assertion that they assigned scores
based on the pre-determined criteria and awarded the
promotion based on those scores.
Viewed in its entirety, Sutherland’s purported evidence that
the scoring of the interviews for the Traverse City position
was manipulated to disguise a decision based on affirmative
action amounts to nothing more than unsupported speculation.
His argument that the Treasury Defendants’ decision was
based on the employees’ race appears to be grounded not in
evidence, but in the outcome itself: the simple fact that he did
not receive a promotion to which he felt entitled. This is not
sufficient to raise a genuine issue of material fact with respect
to the legitimate, non-discriminatory reason offered by the
Treasury Defendants to explain their employment decision.
Accordingly, we AFFIRM the district court’s ruling
granting summary judgment to the Treasury Defendants with
respect to Sutherland’s claims of discrimination.
3. Plaintiff Karim’s Claims
a. Merits of the Claims
Unlike Sutherland’s claims, Karim’s claim of racial
discrimination is not based on the scoring of the candidates
during the interviews for the promotions. Rather, her claim
is based on her assertion that Rosalind Robinson should not
have been able to interview for the Pontiac position, and that
the only reason she was permitted to do so was because of an
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
the scoring was valid.
Plaintiffs-Appellants assert that allowing Robinson to
interview for the Pontiac position violated two prior practices
of the Treasury Department’s Audit Division. First, the Audit
28 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
10As indicated above, Karim d id not file an internal appeal regarding
the resolution of her grievance.
11The district co urt noted that the decision to allow R obinson to
interview for the position was legitimately explained as a reasonable
resolution to K arim’s grievanc e.
Division’s prior practice was never to re-post positions for
transfer if the deadline passed without any eligible candidates
seeking the transfer. Rather, if the deadline passed, the
position was opened up for promotional interviews. Second,
the Audit Division’s prior practice also prohibited auditors
from interviewing for the same level position at a different
location. Auditors were permitted to transfer if they had at
least two years of experience and a transfer position was
available, but they were not permitted to interview
competitively against those seeking a promotion. Plaintiffs-
Appellants assert that both of these policies were violated
with respect to Robinson’s receipt of the Pontiac position:
first, when the position was re-posted for transfer, and second,
when Robinson was permitted to compete for the position
against those seeking promotions.10 They note in this regard
that, although Robinson was eligible for transfer at the time
of the second posting of the Pontiac position, at the time of
the first posting, which they argue should have been the only
posting, Robinson was not eligible for transfer because she
had not yet worked two years in her position.
Reviewing Karim’s contentions regarding these alleged
violations of Audit Division policy, the district court
concluded that Karim had raised a genuine issue of material
fact with respect to whether the Treasury Defendants
selectively enforced their policy regarding re-posting
positions for transfer in an effort to invite Robinson to seek
transfer based upon her race.11 We conclude, however, that
the district court erred, and a de novo review indicates that
Karim failed to raise a genuine issue of material fact with

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No. 01-2052 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
29
12As set forth above, the district court denied the Treasury
Defend ants’ second motion for summary judgm ent with respect to
Karim’s claims. The district court subsequently granted the Treasury
Defend ants’ third motion for summary judgment based on their assertion
of the “same decisio n” defense. W e do not ad dress the validity of that
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.
respect to whether the Defendants’ legitimate, non-
discriminatory reasons for these employment decisions were
a pretext for decisions based on race.12
1. Prima Facie Case
The parties do not dispute that Karim has met some
elements of her prima facie case, in that she was qualified for
the position she was seeking, that, despite her qualifications,
she suffered an adverse employment decision, and that the
position was given to a person outside her racial class. As
they do with respect to Sutherland’s claim, however, the
parties dispute whether Karim has satisfied the first prong of
her prima facie case by setting forth the background
circumstances necessary to establish that the Treasury
Defendants are the unusual employers who discriminate
against the majority. For the reasons set forth above in our
discussion of Sutherland’s claim, we believe that Karim has
raised a genuine issue of material fact with respect to this
issue.
2. Legitimate, Non-Discriminatory Reason
The Defendants set forth legitimate, non-discriminatory
reasons for both the decision to re-post the Pontiac position
for transfer and the decision to allow Robinson to interview
for the position. Husted alone made the decision to re-post
the position for transfer. In his affidavit, he asserts that he
made that decision based on the fact that three months had
30 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
lapsed since the first opening, and he anticipated a number of
job openings arising from the promotion of certain employees
who had held Auditor Manager 14 positions. In light of these
employment realities, he re-posted the position for transfer
because he believed that doing so was permissible under the
Treasury’s written transfer policy, which contained no
explicit language prohibiting the Audit Division from re-
posting a position for transfer.
Micheal Davis made the decision to allow Robinson to
interview for the Pontiac position after he rescinded the
transfer as part of the resolution to Karim’s grievance. In his
affidavit, he states that he resolved Karim’s grievance as he
did, rescinding the transfer but allowing Robinson to
interview for the position, because, as a labor relations
officer, he believed that to be the “most reasonable and
practical resolution of the matter.” In addition, he explains
that the Audit Division had
[an] existing practice of allowing employees to interview
for vacancies if they had made themselves eligible as
candidates on the employment list from which the
position was being filled. Employees interested in
transferring could circumvent the “24 month in position”
requirement and become a candidate for the vacant
position. . . . Thus, Ms. Robinson could have been
considered as a transfer “appointment” for the Pontiac
position by simply calling Civil Service to have her name
placed on the Oakland County employment list.
Thus, the decision to allow Robinson to interview for the
position was not only reasonable from a managerial
perspective, it was also in line with the Audit Division’s
transfer policy, even though Robinson had held her Auditor
Manager 14 position for less than two full years at the time
the transfer position was initially posted.

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Dep’t of Treasury, et al.
31
Based on the foregoing reasoning set forth by Husted and
Davis for their employment decisions, we believe that the
district court correctly concluded that the Treasury
Defendants met their burden of establishing legitimate, non-
discriminatory reasons for both employment decisions
challenged by Karim.
3. Pretext
Karim contends that the Defendants’ non-discriminatory
reasons for the employment decisions at issue are a pretext for
discrimination, and that the decisions were made to favor
Robinson based on her race. In support of this position,
however, she offers little evidence, but simply restates the fact
that both decisions violated prior practice of the Audit
Division.
The only purported evidence upon which Karim relies in
support of her claim of pretext is a situation that occurred
within the Audit Division a number of years ago. Apparently,
two female auditors who had been Auditor 12s for less than
two years requested to interview for Auditor 12 vacancies in
another location so that they could relocate. The two females
were told that, although they were eligible to compete for the
vacancies under Civil Service guidelines, the interview panel
would not award them the positions because they felt that to
do so would be to circumvent the transfer policy, which
required the women to hold their positions for at least twenty-
four months before being eligible for transfer. Karim asserts
that this prior situation demonstrates that the decision to allow
Robinson to interview for the Pontiac position was contrary
to prior practice, and intended to favor Robinson based on her
race.
Karim’s reference to this prior situation does not raise a
genuine issue of material fact with respect to pretext.
Although the prior situation indicates that the decision to
allow Robinson to interview was in derogation of prior
32 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
No. 01-2052
practice, the Defendants admitted as much in their resolution
of Karim’s grievance. Indeed, the failure to adhere to prior
practice was the basis for the decision to rescind Robinson’s
transfer. The decision to allow her to participate in the
competitive interviews for the position was simply the most
fair and logical way to resolve the situation that had been
created by the re-posting of the position. Karim’s reference
to the prior situation does nothing to demonstrate that the
reasoning set forth in Davis’s affidavit, explaining his
resolution of Karim’s grievance, was a pretext for
discrimination.
Moreover, Plaintiffs-Appellants have offered no evidence,
other than the fact of the re-posting itself, that Husted’s
decision to re-post the Pontiac position for transfer was based
on Robinson’s race. They have presented no evidence to
refute Husted’s assertion that he re-posted the position
because he did not believe that doing so violated the Audit
Division’s transfer policy, as no written provision of the
policy prohibited such a re-posting, and because he believed
that opening the position for transfer would help fill the
Division’s employment needs at the time.
Karim’s arguments with respect to any alleged pretext are
based on unsupported speculation. Therefore, we AFFIRM
the district court’s ruling granting summary judgment to the
Treasury Defendants with respect to Karim’s claims, but on
the ground that Plaintiffs-Appellants failed to raise a genuine
issue of material fact with respect to whether the Treasury
Defendants’ proffered reason for their employment decision
was pretext.
D. Remaining Issues
In addition to challenging the dismissal of, or grant of
summary judgment to, all of the Defendants-Appellees,
Plaintiffs-Appellants challenge the following rulings of the
district court: (1) dismissal of the Plaintiffs’ claims for

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No. 01-2052 Sutherland, et al. v. Mich.
Dep’t of Treasury, et al.
33
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.

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