UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

PATRICK MCNULTY and 

FRANK MAIORANA, 

 Plaintiffs, 

 Civil Case No. 15-11947 

v. Honorable Linda V. Parker 

CITY OF DETROIT FINANCE DEPARTMENT, 

d/b/a DETROIT FIRE DEPARTMENT, 

 Defendant. 

_________________________________________/ 

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR 

SUMMARY JUDGMENT

 In this lawsuit, filed May 29, 2015, Plaintiffs Patrick McNulty (“McNulty”) 

and Frank Maiorana (“Maiorana”) (collectively “Plaintiffs”) claim that Defendant 

City of Detroit Finance Department, doing business as the Detroit Fire Department, 

engaged in age and race discrimination when a new Chief of Arson was appointed 

in April 2014. In their Complaint, Plaintiffs assert one count of race discrimination 

in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and one count 

of race and age discrimination in violation of Michigan’s Elliott-Larsen Civil 

Rights Act (“ELCRA”).1

 Presently before the Court is Defendant’s motion for 

 

1 In their Complaint, Plaintiffs allege age discrimination in violation of Title VII; 

however, they now concede that this is not a viable claim. (See ECF No. 17 at Pg 

ID 290.) 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 1 of 18 Pg ID 476
2 

summary judgment, filed pursuant to Federal Rule of Civil Procedure 56 on 

February 5, 2016. (ECF No. 15.) The motion has been fully briefed (ECF No. 17, 

19), and the Court held a motion hearing on September 7, 2016. For the reasons 

that follow, the Court grants Defendant’s motion. 

I. Summary Judgment Standard

 Summary judgment pursuant to Federal Rule of Civil Procedure 56 is 

appropriate “if the movant shows that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). The central inquiry is “whether the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so one-sided that one 

party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56 

mandates summary judgment against a party who fails to establish the existence of 

an element essential to that party’s case and on which that party bears the burden 

of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

 The movant has the initial burden of showing “the absence of a genuine 

issue of material fact.” Id. at 323. Once the movant meets this burden, the 

“nonmoving party must come forward with specific facts showing that there is a 

genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 2 of 18 Pg ID 477
3 

demonstrate a genuine issue, the nonmoving party must present sufficient evidence 

upon which a jury could reasonably find for that party; a “scintilla of evidence” is 

insufficient. See Liberty Lobby, 477 U.S. at 252. 

 “A party asserting that a fact cannot be or is genuinely disputed” must 

designate specifically the materials in the record supporting the assertion, 

“including depositions, documents, electronically stored information, affidavits or 

declarations, stipulations, admissions, interrogatory answers, or other materials.” 

Fed. R. Civ. P. 56(c)(1). The court must accept as true the non-movant’s evidence 

and draw “all justifiable inferences” in the non-movant’s favor. See Liberty Lobby, 

477 U.S. at 255. 

II. Factual and Procedural Background

 In April 2014, Plaintiffs were Captains with the Detroit Fire Department’s 

Arson Division. They are both Caucasian males. McNulty, who was born in 

March 1961, was then fifty-three years old. (Def.’s Mot., Ex. 8 at 15.) Maiorana, 

who was born in February 1959, was fifty-five years old. (Id., Ex. 6 at 74.) 

 A collective bargaining agreement (“CBA”) between the Detroit Fire 

Department and the union representing its employees historically provided for 

promotions within the department based on seniority. (Def.’s Mot., Ex. 3 at 78.) 

In accordance with that provision, ElDon Parham was serving as the department’s 

Chief of Arson in 2013. However, when the City of Detroit filed for bankruptcy in 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 3 of 18 Pg ID 478
4 

July 2013, Kevyn Orr was appointed Emergency Manager and, pursuant to Section 

12 of Public Act 436, had the authority to unilaterally implement changes within 

the City’s departments, including the manner in which promotions were made, 

regardless of the terms of any CBA.2

 See Mich. Comp. Laws § 141.1552(1). 

Outside consulting firms such as Conway MacKenzie and Jones Day were retained 

to analyze the operations of the various City departments and advise Orr on ways 

to improve those departments. (Def.’s Mot., Ex. 3 at 77-78.) Throughout 2013, 

these consultants held reorganization meetings to address changes within the Fire 

Department, which usually were attended by Donald Austin and Edsel Jenkins, 

respectively the Executive Fire Commissioner and Deputy Fire Commissioner at 

the time. (Id., Ex. 2 at 15-16.) The department’s division heads sometimes were 

invited to participate in these meetings as well. (Id.) 

 McNulty testified during his deposition in this matter that in October 2013, 

he approached Fire Marshal Robin Eagon and asked why the Fire Department’s 

senior captains were not included in the meetings with the City’s consultants. 

(Def.’s Mot., Ex. 8 at 37-38.) McNulty had learned that Dennis Richardson, a less 

senior Fire Department employee, had attended meetings. (Id. at 37.) According 

 

2 As Plaintiffs point out, while the Emergency Manager had the authority to make 

changes to CBAs involving City workers, see Mich. Comp. Laws § 141.1552, the 

CBA for Detroit Fire Department employees was not modified to make promotions 

of certain positions based on appointment rather than seniority until November 6, 

2014. This fact would be significant if Plaintiffs were claiming a violation of the 

CBA, but they are not asserting that claim here. 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 4 of 18 Pg ID 479
5 

to McNulty, Eagon said that Richardson had been included because “they wanted 

young blood and they wanted fresher ideas[.]” (Id. at 38.) 

 One change suggested during the meetings with the City’s consultants was 

to make position decisions based on appointment rather than seniority. (Id., Ex. 3 

at 76-77.) Austin first raised this as a needed change. (Id. at 77-78.) Austin also 

precipitated the removal of Parham as Chief of Arson. (Id. at 75-78.) 

 In January 2014, Orr appointed Jonathan Jackson to serve as Austin’s 

replacement in the position of interim Executive Fire Commissioner. City of 

Detroit Mayor Mike Duggan subsequently approached Jackson and asked Jackson 

if there was a need for a change in who was heading the Fire Department’s Arson 

Section. (Id. at 92.) Jackson testified at his deposition that he told the mayor he 

believed someone else should be appointed Chief of Arson and that he 

recommended Gary Victor, the retired Chief of Arson. (Id.) Victor is Caucasian 

and in his late sixties. Jackson further testified that he then approached Victor 

concerning his interest in the position, but Victor declined the role. (Id. at 92-93.) 

 Plaintiffs submit Victor’s affidavit in response to Defendant’s motion, 

however, in which Victor states that in early December 2013, Jackson offered him 

the position of Second Deputy Fire Commissioner, not Chief of Arson. (Pls.’ 

Resp., Ex. 4.) According to Victor, Jackson never discussed or offered him the 

Chief of Arson position. (Id.) 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 5 of 18 Pg ID 480
6 

 In early January 2014, Mayor Duggan and Jackson appeared together on a 

local television show. (Def.’s Mot., Ex. 3 at 86.) During the show, Jackson 

expressed his opinion that improvements were needed in the Detroit Fire 

Department’s Arson Section. (Id.) The following day, Parham (who still served as 

Chief of Arson) approached Jackson and expressed his disagreement with 

Jackson’s assessment of the section. (Id. at 86-87.) Jackson responded that he 

disagreed as there was always room for improvement, and he invited anyone in the 

Arson Section to suggest ways to improve the section. (Id. at 87.) 

 A couple of days later, Charles Simms, a third ranking captain in the Arson 

Section, approached Jackson and said he heard Jackson was looking for ways to 

improve the section. (Id.) Simms told Jackson he had some suggestions to make. 

(Id.) At a subsequent meeting, Simms made-- according to Jackson-- a “very 

detailed and elaborate” presentation, which included a PowerPoint, brochure 

documents, and data, outlining a number of ways the section could be improved. 

(Id. at 87-88.) 

 Jackson was very impressed with Simms’ presentation and arranged for 

Simms to provide a “brief synopsis” of his ideas to Deputy Fire Commissioner 

Edsel Jenkins. (Id. at 90.) With Simms’ permission, Jackson then relayed Simms’ 

suggestions to Mayor Duggan, who asked to meet with Simms. (Id.) After his 

meeting with Simms, Mayor Duggan asked Jackson how he would feel about 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 6 of 18 Pg ID 481
7 

Simms being appointed the Chief of Arson or heading the Arson Section. (Id. at 

91.) Jackson told the mayor he had no objection. (Id.) 

 On January 22, 2014, Orr sent a letter to Jackson notifying Jackson of 

several appointments and reassignments within the Detroit Fire Department. 

(Def.’s Mot., Ex. 4.) One of the changes was the appointment of Simms as Chief 

of Arson and Parham’s reassignment to Captain. (Id.) Service of the Chief of 

Arson position, along with other appointed positions made by Orr in the same 

letter, were at the pleasure of the Executive Fire Commissioner. (Id.) 

 Several additional appointments were made in the Detroit Fire Department 

under Orr’s direction. Doug Lyons was appointed Senior Chief and then Deputy 

Chief. (Id., Ex. 3 at 139.) Lyons is Caucasian and in his late fifties. (Id.) Craig 

Dougherty was appointed Second Deputy Commissioner. (Id.) Dougherty is 

Caucasian and was fifty-eight or fifty-nine when the appointment was made. (Id. 

at 139-40.) James Provost was reappointed Deputy Chief in the Firefighting 

Division. (Id. at 140.) Provost also is Caucasian and in his late fifties. (Id. at 

141.) 

 Plaintiffs filed charges with the Equal Employment Opportunity 

Commission (“EEOC”), claiming race and age discrimination in connection with 

Simms’ appointment as Chief of Arson. The EEOC issued Dismissals and Notices 

of Rights to Sue to Plaintiffs on April 22, 2015. As indicated, Plaintiffs filed this 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 7 of 18 Pg ID 482
8 

lawsuit on May 29, 2015. In the meantime, on April 29, 2014, Maiorana retired 

from the Detroit Fire Department, feeling “devastated” and that he had no other 

option after being passed over for the Chief of Arson position. (Def.’s Mot., Ex. 6 

at 18-19, 27.) McNulty remained with the Detroit Fire Department and was 

appointed to the Chief of Arson position effective March 3, 2016. (Def.’s Reply, 

Ex. 3.) 

III. Applicable Law and Analysis

 As indicated, Plaintiffs allege that Defendant’s selection of Simms as Chief 

of Arson in 2014 constituted race discrimination in violation of Title VII and 

ELCRA and age discrimination in violation of ELCRA. 

 An employee may establish a claim of discrimination under Title VII and 

ELCRA by offering either direct or circumstantial evidence of discrimination. 

White v. Columbus Metro. Hous. Auth., 424 F.3d 232, 238 (6th Cir. 2005) (Title 

VII); Sniecinski v. Blue Cross & Blue Shield of Mich., 666 N.W.2d 186, 192 

(Mich. 2003) (ELCRA). Plaintiffs do not appear to take the position that they have 

direct evidence to show that Defendant discriminated against them because of their 

race or age. 

 The burden-shifting framework set forth by the Supreme Court in McDonell 

Douglas Corp. v. Green, 411 U.S. 792 (1973), is applicable when a plaintiff must 

prove his case through circumstantial evidence. The plaintiff begins by 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 8 of 18 Pg ID 483
9 

establishing a prima facie case of discrimination. DiCarlo v. Potter, 358 F.3d 408, 

414 (6th Cir. 2004) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 

252-53 (1981)). To make this showing, the plaintiff generally must establish the 

following: “(1) he is a member of a protected class; (2) he was qualified for his 

job; (3) he suffered an adverse employment decision; and (4) he was replaced by a 

person outside the protected class or treated differently than similarly situated nonprotected employees.” White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th 

Cir. 2008) (citations omitted). Some of these prongs are modified for age and 

reverse race discrimination claims. 

 For purposes of an age discrimination claim, “the protected class includes 

workers at least 40 years old and the fourth element is modified to require 

replacement not by a person outside the protected class, but merely replacement by 

a significantly younger person.” Grosjean v. First Energy Corp., 349 F.3d 332, 

335 (6th Cir. 2003). In a reverse discrimination case, the first and fourth prongs 

are modified because the plaintiff must “demonstrate[e] that he was intentionally 

discriminated against ‘despite his majority status.’ ” Murray v. Thistledown 

Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985) (quoting Lanphear v. Prokop, 

703 F.2d 1311, 1315 (D.C. Cir. 1983)). 

 The first prong, as modified in a reverse discrimination case, requires the 

plaintiff to demonstrate “ ‘background circumstances to support the suspicion that 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 9 of 18 Pg ID 484
10 

the defendant is that unusual employer who discriminates against the majority.’ ” 

Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 255 (6th Cir. 2002) (brackets 

omitted) (quoting Murray, 770 F.2d at 67). The plaintiff can satisfy this 

requirement by showing the defendant’s “unlawful consideration of race as a factor 

in hiring in the past[,]” which the Sixth Circuit has found “justifies a suspicion that 

incidents of capricious discrimination against whites because of their race may be 

likely.” Id. at 256 (quoting Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012, 

1018 (D.C. Cir. 1981)) (additional quotation marks and citation omitted). The 

plaintiff also can show “background circumstances” by establishing that he was “a 

Caucasian employee in a workplace predominantly staffed and managed by 

African-Americans.” Weberg v. Franks, 229 F.3d 514, 523 n.9 (6th Cir. 2000). 

The fourth prong of the plaintiff’s prima facie case, as modified in a reverse 

discrimination claim, requires the plaintiff to demonstrate he “was treated 

differently than similarly situated employees of a different race.” Romans v. Mich. 

Dep’t of Human Servs., 668 F.3d 826, 837 (6th Cir. 2012). 

 If the plaintiff sets forth a prima facie case, an inference or rebuttable 

presumption of discrimination arises. DiCarlo, 358 F.3d at 414. 

 In order to rebut this inference, the employer must “articulate some 

legitimate, non-discriminatory reason” for its conduct. Id. If the employer has met 

this burden, the plaintiff then must “prove by a preponderance of the evidence that 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 10 of 18 Pg ID 485
11 

the legitimate reasons offered by the defendant were not its true reasons, but were a 

pretext for discrimination.’ ” Id. at 414-15 (quoting Burdine, 450 U.S. at 253). 

 Defendant first argues that Plaintiffs cannot establish a prima facie case of 

age or race discrimination because they cannot prove they were subjected to an 

adverse employment action. As Defendant explains, if promotions had continued 

to be made based on seniority, neither McNulty nor Maiorana would have been 

promoted to the position because Parham, the most senior member of the Arson 

Section, would have remained in the position. Defendant clarified its argument at 

the motion hearing, contending that this is not a failure to promote case because 

Plaintiffs had no expectation of ascending to the Chief of Arson position where 

discretion to make the appointment now was left in the sole discretion of the 

Executive Fire Commissioner. 

 Regardless of how the appointment was made, this Court believes this still is 

a failure to promote case. Plaintiffs are claiming that the appointment of Simms 

and failure to promote Plaintiffs violated Title VII and ELCRA because unlawful 

criteria (i.e., Plaintiffs’ race and age) were used in the promotion decision. The 

Supreme Court and Sixth Circuit have held that the failure to promote is an adverse 

employment action. See White v. Burlington N. & Santa Fe R. Co., 364 F.3d 789, 

798 (6th Cir. 2004) (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998) 

(“A tangible employment action constitutes a significant change in employment 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 11 of 18 Pg ID 486
12 

status, such as hiring, firing, failing to promote, reassignment with significantly 

different responsibilities, or a decision causing a significant change in benefits.”)). 

 Defendant alternatively argues that Plaintiffs cannot establish a prima facie 

claim of age discrimination because they cannot show they were replaced by a 

“significantly younger person.” According to Defendant, Simms was forty-eight 

years old at the time of his appointment to the Chief of Arson position. Thus, 

Simms is five years younger than McNulty and seven years younger than 

Maiorana. 

 Defendant does not cite any Michigan decision, and this Court could not find 

a case in its own research, defining “significantly younger” for purposes of an 

ELCRA age discrimination claim. Nevertheless, Michigan courts consider federal 

law when reviewing claims of age discrimination based on state law. See, e.g., 

Matras v. Amoco Oil Co., 385 N.W.2d 586, 589-90 (Mich. 1986); Featherly v. 

Teledyne Indus., Inc., 486 N.W.2d 361, 364 (Mich. Ct. App. 1992) (citing cases). 

As Defendant points out, most federal Circuits hold that age differences of less 

than ten years are not significant enough to satisfy the fourth prong of an age 

discrimination prima facie case. Grosjean, 349 F.3d at 338 (citing cases). In 

Grosjean, however, the Sixth Circuit adopted six years or less as the bright-line 

where the age difference between the plaintiff and his or her replacement is not 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 12 of 18 Pg ID 487
13 

significant enough to make out the fourth prong of the plaintiff’s prima facie case. 

Id. at 340. 

 It is not evident to this Court whether the Michigan courts would adopt the 

Sixth Circuit’s six-year bright-line rule or the ten-year rule adopted by the majority 

of Circuits. Nevertheless, under either cut-off, the age difference between 

McNulty and Simms is not significant enough to enable McNulty to establish a 

prima facie case of age discrimination. The Court finds it unnecessary to decide 

which cut-off to follow in evaluating Maiorana’s prima facie case because-- as 

discussed below-- even if he establishes a prima facie case, his age discrimination 

claim fails. 

 Defendant contends that Plaintiffs cannot demonstrate a prima facie case of 

race discrimination because they cannot establish that the Detroit Fire Department 

is the “unusual employer that discriminates against the majority.” Plaintiffs 

respond to this argument, stating: “Plaintiffs were definitely in the minority within 

the predominantly African American Detroit Fire Department, and all of the 

decision makers in this matter were African American.” (Pl.’s Resp. Br. at Pg ID 

288.) Plaintiffs offer no evidence to support this assertion, however. 

 Plaintiffs also contend in response that “Jackson has exhibited a propensity 

for passing up Caucasian candidates in favor of promoting African American 

individuals . . ..” (Id. at Pg ID 293.) Plaintiffs, however, identify only one other 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 13 of 18 Pg ID 488
14 

instance where they believe Jackson wrongfully appointed an African American 

employee over a Caucasian employee. (Id.) This single incident does not support 

“a suspicion that incidents of capricious discrimination against whites because of 

their race may be likely.” Zambetti, supra. It also ignores Defendant’s evidence 

that in the same time-frame as Simms’ appointment, several Caucasian employees 

were appointed to high-ranking positions within the Detroit Fire Department. For 

these reasons, the Court finds that Plaintiffs fail to present evidence to demonstrate 

a prima facie case of race discrimination. 

 Nevertheless, even if Plaintiffs prevailed in establishing a prima facie case 

of age or race discrimination, Defendant argues that it had a legitimate, nondiscriminatory reason for promoting Simms and that Plaintiffs cannot establish that 

this reason was a pretext for discrimination. 

 As Defendant explains, Orr was granted the authority to unilaterally 

implement changes within the City of Detroit’s departments and the Detroit Fire 

Department was one department where many changes were made. One change 

was with how promotions were facilitated for certain division head positions, in 

that seniority no longer was the basis for deciding who to promote and the 

positions became appointed positions to be served at the pleasure of the Executive 

Fire Commissioner. Another change was the removal of Parham as Chief of 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 14 of 18 Pg ID 489
15 

Arson, who the Executive Fire Commissioner at the time, Austin, believed was not 

capable of handling the position’s responsibilities. 

 Orr selected Simms to replace Parham after Simms came forward and made 

an “elaborate” and “very impressive” presentation suggesting ways to improve the 

Arson Section. Simms had met with and presented his ideas to Mayor Duggan 

who, after the meeting, asked Jackson how he would feel about Simms being 

appointed to the Chief of Arson position. Plaintiffs fail to demonstrate that this 

explanation for Simms’ selection was a pretext for age or race discrimination. 

 Plaintiffs contend that they had more experience, training, and seniority than 

Simms. Orr, however, was not required to select the most experienced, welltrained, or senior individual to fill City of Detroit positions.3

 Plaintiffs also attempt 

to demonstrate pretext by presenting evidence refuting Defendant’s claim that 

 

3 In its recitation of the facts, Defendant does include an excerpt from Jackson’s 

deposition testimony, where Jackson relates that during the reorganization 

meetings, Austin expressed that positions should be changed to appointed positions 

because it was important in high-level, critical positions to have a person capable 

of handling the responsibility. (Def.’s Br. in Supp. of Mot. at Pg ID 70, citing Ex. 

3 at 78-79.) According to Jenkins, Austin was a proponent of a merit based 

promotion system that would include considering an individual’s education, 

training, evaluations, and seniority. (Id., citing Ex. 2 at 17-20.) As Plaintiffs point 

out, the evidence reflects that Jackson never investigated Simms’ experience and 

qualifications before suggesting that Simms present his ideas to Mayor Duggan or 

before Simms was promoted to the Chief of Arson position. (Pl.’s Resp., Ex. 3 at 

117.) Nevertheless, Defendant does not claim that Orr selected Simms based on 

the criteria identified by Austin. For that reason, the failure to investigate Simms’ 

qualifications and/or experience does not demonstrate that Defendant’s legitimate 

reason for promoting him was a pretext for discrimination. 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 15 of 18 Pg ID 490
16 

Jackson first offered the Chief of Arson position to Gery Victor, a sixty-six year 

old Caucasian who declined the offer. (See Def.’s Mot., Ex. 3 at 92-93; Pl.’s 

Resp., Ex. 4 ¶ 6.) According to Victor, the position he actually was offered was 

the Second Deputy Chief position. (Pl.’s Resp. Ex. 4 ¶¶ 4-5.) This evidence does 

not demonstrate that the stated reasons for choosing Simms were false, however. 

If anything, this evidence of an older Caucasian being offered a high-level position 

within the Detroit Fire Department undermines Plaintiffs’ claim of age and race 

discrimination within the department. 

 Plaintiffs rely on two statements to suggest that Defendant’s stated reason 

for choosing Simms was not the real reason for his promotion and that race and/or 

age was the true reason. The first statement, according to Maiorana, was made at a 

retirement party for Hester Wheeler, an African American colleague in the fire 

department.4

 (Pl.’s Mot., Ex. 1 at 108.) Maiorana testified that Wheeler gave a 

speech during the party, where he told the attendees (all of whom were African 

American besides Maiorana) that it is their responsibility upon their retirement to 

fill their positions with . . .” and then Wheeler gestured to his skin, which Maiorana 

 

4 The Court notes that there is no indication in the record of when this retirement 

party occurred in relation to Simms’ appointment as the Chief of Arson. 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 16 of 18 Pg ID 491
17 

interpreted to mean African Americans. (Id.) Maiorana testified that the other 

attendees then stood up and cheered. 5 (Id. at 108-09.) 

 The second statement on which Plaintiffs rely is Eagon’s purported 

statement to McNulty that Plaintiffs were not included in the reorganization 

meetings in 2013 because “they wanted young blood[.]” (Def.’s Mot., Ex. 8 at 37-

38.) There is no evidence identifying who Eagon meant when he said “they,” 

however. According to Jackson, these meetings were attended by some 

department representatives, but also the city’s outside consultants. (Id., Ex. 3 at 

64.) 

 The Sixth Circuit has held that “[u]nless the statements or conduct of 

nondecision makers can be imputed to the ultimate decisionmaker, such statements 

or conduct can not suffice to satisfy the plaintiff’s burden of demonstrating 

animus.” Noble v. Brinker Int’l, Inc., 391 F.3d 715, 724 (6th Cir. 2004) (internal 

quotations marks and citations omitted). The Sixth Circuit has further instructed 

that “ ‘[a]n isolated discriminatory remark made by one with no managerial 

authority over the challenged personnel decisions is not considered indicative of ... 

discrimination.’ ” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354 

(6th Cir. 1998) (quoting McDonald v. Union Camp Corp., 898 F.2d 1155, 1161 

 

5 Particularly because there is no evidence that Wheeler ever made employment 

decisions within the Detroit Fire Department, this evidence also does not show that 

Defendant is that “unusual employer who discriminates against the majority.” 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 17 of 18 Pg ID 492
18 

(6th Cir. 1990) (“[S]tatement by an intermediate level management official is not 

indicative of discrimination when the ultimate decision to discharge is made by an 

upper level official.”)). Because there is no evidence as to who expressed a 

preference for “young blood” and no evidence that Wheeler was involved in the 

decision to promote Simms or influenced that decision, Plaintiffs’ evidence does 

not suggest a discriminatory basis for the decision. 

 In short, Defendant presents a legitimate, non-discriminatory reason for the 

selection of Simms as Chief of Arson over Plaintiffs. Plaintiffs fail to demonstrate 

that Defendant’s reason was a pretext and that the real reason for the decision was 

race or age discrimination. 

 Accordingly, 

IT IS ORDERED that Defendant’s motion for summary judgment is 

GRANTED. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: September 21, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, September 21, 2016, by electronic and/or 

U.S. First Class mail. 

 s/ Richard Loury 

 Case Manager 

4:15-cv-11947-LVP-MJH Doc # 21 Filed 09/21/16 Pg 18 of 18 Pg ID 493