ROBERT J ARCINIEGA V MICHIGAN STATE POLICE
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT J. ARCINIEGA,
UNPUBLISHED
December 11, 2003
Plaintiff-Appellant,
v
No. 241706
Ingham Circuit Court
LC No. 01-093499-NO
MICHIGAN STATE POLICE,
Defendant-Appellee.
Before: Whitbeck, C.J., and Hoekstra and Donofrio, JJ.
PER CURIAM.
Plaintiff Robert Arciniega appeals as of right from the trial court’s order granting the
motion of defendant Michigan State Police (MSP) for summary disposition under MCR
2.116(C)(10). Arciniega, an Hispanic-American, claims the MSP discriminated against him in
violation of the Michigan Civil Rights Act1 (CRA), and the Civil Rights Act of 19642 (Title VII),
by not promoting him from trooper to uniform desk sergeant. Arciniega asserts he was more
qualified than the successful candidate and that the MSP’s conduct during the selection process
evidenced discrimination. Because Arciniega failed to produce a genuine issue of material fact
that discrimination was a motivating factor in the MSP’s decision, we affirm.
I. Basic Facts And Procedural History
Arciniega was a state trooper with the MSP since 1986. During that time, he served in
various units including narcotics and the Drug Abuse Resistance Education program. Arciniega
previously served in the military and received professional commendations both there and during
his employment with the MSP. Arciniega also performed well on performance evaluations.
In late June 2000, the MSP posted a vacancy announcement for a uniform desk sergeant
at its Traverse City post. Arciniega was among ten applicants for the position. Mark Harris, a
Caucasian officer, ultimately received the promotion.
According to Colonel Michael Robinson, the MSP represents a diverse community and
strives to be representative of that community while filling vacancies with the most qualified
1
MCL 37.2101 et seq.
2
42 USC 2000e et seq.
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applicants. To accomplish that goal, the MSP uses a promotion procedure called the Target
Selection Process (TSP), which was designed to ensure that everyone has a fair opportunity to be
considered for the position and that the process is fair and competency based.
TSP is a multi-step process. Candidates must submit a résumé, cover letter, and
recommendation, and take a written test. The post commander identifies the desired
qualifications and characteristics through a series of predetermined “dimensions” and
“priorities.” After the candidates undergo an interview with a “batch interview panel” of three
officers of various ranks, they are ranked on a “comparison grid.” The post commander then
conducts reference checks on the top three candidates and may re-rank the candidates to reflect
the reference-check results. The post commander selects his top choice from the top three
candidates and recommends that person to the district commander and bureau, who have the
final say.
In accordance with the TSP, Arciniega submitted a recommendation form completed by
Captain Tim Rod, who indicated that he “strongly” and “highly” recommended Arciniega. The
interview panel consisted of Captain Rod, Lieutenant Russell Smith, and Lieutenant Terry
Rouse. Lieutenant Stewart devised the screening criteria and dimension priorities to be used for
the selection process. His criteria included building trust, job and motivational fitness,
communication, work standard, coaching, decision-making, and technical and professional
knowledge and skills.
During the TSP interview, each applicant is asked the same series of questions. Under
the TSP, the candidates’ scores are not totaled together for one final score; only the scores for
each individual dimension are summed. (In other words, if a candidate received a 3, 4, and 5 on
“building trust,” and a 3, 3, and 5 on “motivation,” the candidate would score a twelve on
building trust and an eleven on motivation, but the twelve and eleven would not be added
together to produce one final score. Each dimension score is considered separately.)
The ten candidates were interviewed between July of 1999 and March of 2000. The
following chart shows how Arciniega fared compared to the other nine candidates:
Skills: from most
important to least
important
Building trust
Job/motivational
fitness
Communication
Work standards
Coaching
Decision making
Technical and
professional
knowledge and skill
Arciniega’s
scores (from
1 [low] to 5
[high])
4 weak
Number of
candidates who
outscored
Arciniega
4
Number of
candidates who
tied Arciniega
2
Number of
candidates
whom Arciniega
outscored
3
4
2
3
4
3
3
3
3
7
7
5
8
2
2
4
1
0
0
0
0
3 weak
9
0
0
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Following the batch interview and the completion of the comparison grid, the post
commander, Lieutenant Mark Stewart, ranked the candidates in the following position:
(1) Charles Hockanson, (2) Arciniega/John Beam, (3) Dan Hiltz/Mark Harris. According to the
TSP procedure, Lieutenant Stewart was to conduct reference checks on the top three candidates,
after which he was free to alter their order. However, Lieutentant Stewart did not conduct the
required checks, although he proceeded as though he had. Lieutentant Stewart then chose
Arciniega as the top finalist. Lieutenant Stewart was a personal friend of Arciniega and, while
attending Arciniega’s birthday party in late July 2000, Stewart presented him with a birthday
card containing sergeant’s stripes in front of Arciniega’s family, friends, and colleagues.
When Captain Rod discovered that Lieutentant Stewart did not conduct the reference
checks, he ordered him to do so and in early October 2000, Lieutenant Stewart completed a
second, revised tracking form. This time, he listed the top three candidates as: (1) Charles
Hockanson, (2) Russell Ammon, and (3) Ellen Laskowski. Lieutentant Stewart indicated that
after the reference checks, he re-ranked the candidates as: (1) Arciniega, (2) John Beam, and (3)
Mark Harris/Ellen Laskowski. And Lieutentant Stewart again chose Arciniega as the finalist.
Thus, despite the fact Arciniega was not among the top three candidates eligible for a reference
check, Lieutentant Stewart recommended him for the position.
After reviewing Lieutenant Stewart’s second attempt and speaking to Stewart at length
about his methodology, Captain Rod determined that the TSP was again not followed.
Lieutenant Stewart indicated that he considered several factors that were outside the dimension
criteria and Captain Rod stated that because Lieutentant Stewart’s evaluation was not limited to
the predetermined guided dimension criteria, he would not support Lieutentant Stewart’s
recommendation.
In mid-October 2000, Captain Rod called a meeting with Lieutenant Stewart in which
they collectively completed a third tracking form.
The results were:
(1) Charles
Hockanson/Russell Ammon, (2) Roger Bloom/Ellen Laskowski, and (3) Mark Harris. After
considering the reference check results, they reordered the candidates as follows: (1) Russell
Ammon, (2) Mark Harris, and (3) Ellen Laskowski.
Around the time the results were being determined, Ammon accepted a different position
and withdrew from consideration. Thus, Harris was offered the job and accepted. Thereafter,
Arciniega filed a grievance with EEOC alleging employment discrimination on the basis that he
was more qualified than the successful candidate. Arciniega then filed a complaint in circuit
court, claiming that the MSP violated the CRA by discriminating against him based on his race
or national origin. He claimed that he was more qualified than Harris, that he was highly
recommended for the position, that Captain Rod previously singled him out for discipline in an
attempt to sully his work record and hinder future promotions, and that the MSP had no
legitimate, nondiscriminatory reason for its action. After receiving a right-to-sue letter from the
EEOC Arciniega amended his complaint to add a discrimination claim in violation of Title VII,
42 USC 2000e et seq.
The MSP moved for summary disposition under MCR 2.116(C)(10) and the trial court
granted that motion. The trial court held that Arciniega did not present a genuine issue of
material fact that the MSP’s actions created an inference of discrimination, so he failed to
establish a genuine issue of material fact regarding the fourth element of a prima facie case. The
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trial court also held that even if Arciniega presented a genuine issue of material fact relating to a
prima facie case, no reasonable jury could find from his evidence that discrimination was a
motivating factor in the face of the MSP’s proffered reasons for not promoting him.
After the trial court entered its order, Arciniega moved for reconsideration, restating his
allegations pertaining to the MSP withholding evidence regarding other promotions and
destroying evidence favorable to him. The trial court denied this motion.
II. The McDonnell-Douglas Framework
A. Standard Of Review
We review de novo a trial court’s ruling on a summary disposition motion.3 Where the
motion was granted under MCR 2.116(C)(10), we “‘must consider the available pleadings,
affidavits, depositions, and other documentary evidence in a light most favorable to the
nonmoving party and determine whether the moving party was entitled to judgment as a matter
of law.’”4
B. Burden Shifting
To succeed on an employment discrimination claim – be it based on race, sex, or age – a
plaintiff must bring forth some evidence of bias.5 Where a plaintiff has no direct evidence, as
plaintiff concedes he does not here, the McDonnell-Douglas6 framework is employed.7 As
applied to failure to promote claims, the framework requires the plaintiff to show a prima facie
case of discrimination composed of four elements: “(1) she belongs 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.”8 Despite slightly different wording, there is no difference between the analysis
of a discrimination claim under the CRA and the analysis under Title VII.9 In fact, the Michigan
3
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
4
Michigan Ed Employees Mut Ins Co v Turow, 242 Mich App 112, 114; 617 NW2d 725 (2000),
quoting Unisys Corp v Comm’r of Ins, 236 Mich App 686, 689; 601 NW2d 155 (1999).
5
Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001).
6
McDonnell Douglas v Green, 411 US 792, 802; 36 L Ed 2d 668; 93 S Ct 1817 (1973).
7
Hazle, supra at 462.
8
Id. at 463, citing Lytle v Malady (On Rehearing), 458 Mich 153, 172-173; 579 NW2d 906
(1998), Texas Dep’t of Community Affairs v Burdine, 450 US 248, 254, n 6; 101 S Ct 1089; 67 L
Ed 2d 207 (1981), and McDonnell Douglas, supra at 802.
9
Kresnak v City of Muskegon Heights, 956 F Supp 1327, 1334 (WD Mich 1997), citing Boutros
v Canton Regional Transit Authority, 997 F2d 198, 202 (CA 6 1993), Mitchell v Toledo Hosp,
964 F2d 577, 582 (CA 6 1992), Rabidue v Osceola Refining Co, 805 F2d 611, 617 (CA 6 1986),
and Daniels v Board of Ed, 805 F2d 203, 207 (CA 6 1986).
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Supreme Court has cautioned that “a prima facie case of unlawful discrimination can[not] be
established merely by providing evidence that a qualified minority candidate was rejected in
favor of a qualified nonminority candidate.”10
If the plaintiff succeeds in showing a prima facie case, a presumption of discrimination
arises.11
The defendant must then rebut the presumption by showing a legitimate,
nondiscriminatory reason for the promotion decision.12 If the employer does so, the burden
shifts back to the plaintiff to “demonstrate that the evidence in the case, when construed in the
plaintiff’s favor, is ‘sufficient to permit a reasonable trier of fact to conclude that discrimination
was a motivating factor for the adverse action taken by the employer toward the plaintiff.’”13
C. The Fourth Element Of A Prima Facie Case
Only the fourth element is at issue here. To survive summary disposition, Arciniega
needed to present a genuine issue of material fact that there was evidence “from which a jury, if
unaware of defendants’ reasons, could infer unlawful discrimination.”14 A plaintiff may raise an
inference of discrimination by pointing to facts that – if unexplained – “‘are more likely than not
based on consideration of impermissible factors.’”15 As a matter of law, an inference of
unlawful discrimination does not arise merely because an employer has chosen between two
qualified candidates.16 “Under such a scenario, an equally – if not more – reasonable inference
would be that the employer simply selected the candidate that it believed to be most qualified for
the position.”17 In fact, an employer is entitled to discretion in making business decisions in the
hiring process.18
As stated above, the MSP employs the TSP process. As we have noted, the post
commander in charge of the hiring process, a personal friend of Arciniega, chose Arciniega as
the top candidate, but this choice was rejected by the division commander. The record clearly
demonstrates that not only did the post commander openly suggest that Arciniega would be
promoted before the selection process began, he did not follow the TSP procedure and ranked
Arciniega in the top three despite his inferior interview scores.
10
Hazle, supra at 471 n 14.
11
Id., citing Lytle, supra at 173.
12
Id. at 463-464, citing Lytle, supra at 173.
13
Id. at 465, quoting Lytle, supra at 176.
14
Hazle, supra at 471.
15
Id. at 463, quoting Furnco Construction Corp v Waters, 438 US 567; 98 S Ct 2943; 57 L Ed
2d 957 (1978).
16
Id.; see also Burdine, supra at 259.
17
Id., citing Teamsters v United States, 431 US 324, 358 n 44; 97 S Ct 1843; 52 L Ed 2d 396
(1977).
18
Burdine, supra at 259.
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Arciniega contends he was more qualified because of his military background and
because he had “twice as much experience and more breadth of experience” than the Caucasian
person promoted. But according to the MSP job posting and defined criteria, military experience
was neither a necessary qualification nor a stated consideration. Thus, Arciniega failed to
produce a genuine issue of material fact that his military experience made him more qualified for
the position. With regard to Arciniega’s claim that he was more experienced, he fails to account
for his poor interview scores and the fact that the promoted person performed better during the
interviews and in the reference-check phase. Thus, Arciniega failed to produce a genuine issue
of material fact regarding his claimed superior qualifications.
Arciniega also argues that the following actions supported an inference of unlawful
discrimination: The division commander took the unprecedented action of vetoing the post
commander’s recommendation; the division commander conducted a reference check by
contacting someone who was not Arciniega’s supervisor; and the division commander
recommended Arciniega, then failed to promote him and treated him differently with regard to
disciplinary matters. But these actions, on their face, do not unequivocally suggest
discrimination because they are not “‘more likely than not based on consideration of
impermissible factors.’”19
However, even if the division commander’s actions did evince discrimination, the burden
shifted to the MSP to articulate “a legitimate, nondiscriminatory reason” for its promotion
decision.20
When determining whether defendant’s reason was legitimate and
nondiscriminatory, the trial court was not permitted to “analyze the ‘soundness’ of that decision.
In other words, courts must not second guess whether the employment decision was ‘wise,
shrewd, prudent, or competent.’”21 Rather, “the focus is on whether the decision was ‘lawful,’
that is, one that is not motivated by a ‘discriminatory animus.’”22
Here, the MSP claimed that based on his interview scores, Arciniega should not have
been given a rank in the top three positions and was thus ineligible to advance any further in the
process. The MSP also claimed that its ultimate promotion decision was based on the successful
candidate’s high interview scores. The MSP’s contentions are supported by the record, as is its
contention that the post commander flatly failed to follow the TSP procedure. For example, in
the interviews, other candidates in every category outscored Arciniega. Despite that fact, he was
ranked number two out of ten. Then, without conducting the required reference checks, the post
commander elevated Arciniega to the number one position. Thus, the MSP’s reasons were
legitimate, and the burden shifted back to Arciniega to “demonstrate that the evidence in the
case, when construed in his favor, was ‘sufficient to permit a reasonable trier of fact to conclude
19
Hazle, supra at 463, quoting Furnco, supra at 567.
20
Id. at 464.
21
Id. at 465, quoting Town, supra at 704.
22
Id., quoting Burdine, supra at 257.
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that discrimination was a motivating factor for the adverse action taken by the employer toward
the plaintiff.’”23
Arciniega also claims that pretext should be found because the MSP offered various and
false reasons for not promoting him. We conclude that the MSP’s reasons were both consistent
and supported by the record. Contrary to the cases on which Arciniega relies, this case does not
pose a contradiction between the record and the reasoning for not promoting Arciniega. Rather,
the MSP offered only different examples to support its central contention that the TSP was not
followed properly and that Arciniega was not a proper finalist for promotion. Because the record
supports the MSP’s reasons, a reasonable jury could not have found that the MSP’s reasons were
pretextual and the trial court’s dismissal of Arciniega’s claims was correct.
Affirmed.
/s/ William C. Whitbeck
/s/ Joel P. Hoekstra
/s/ Pat M. Donofrio
23
Id. at 465, quoting Lytle, supra at 176.
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