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Mathes also asserted a claim for race discrimination under the Elliot Larsen Civil

Rights Act, M.C.L. § 37,2301. The Court, however, declined to exercise supplemental

jurisdiction over the state law claim and dismissed it without prejudice. See Doc. 10. 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

OLIVER MATHES, III,

Plaintiff, Case No. 09-10582

DAVID GORCYCA, individually and HON. AVERN COHN

in his official capacity as an officer in

Oakland County, MARY LARKIN, 

individually and in her official capacity

as an officer in Oakland County, and

DEBRA CARLEY, individually and in her

official capacity as an officer of 

Oakland County,

Defendants.

___________________________________/

MEMORANDUM AND ORDER GRANTING DEFENDANTS’S MOTION FOR

SUMMARY JUDGMENT OR DISMISSAL (Doc. 23)

AND DISMISSING CASE

I. Introduction

This is an employment discrimination case under Tile VII and 42 U.S.C. § 1983. 

Plaintiff Oliver Mathes III (Mathes) is suing defendants David Gorcyca, Mary Larkin and

Debra Carley, individually and in their official capacities, claiming that he was wrongfully

demoted from his position at the Oakland County Prosecutors Office and forced to

accept a new position. He claims (1) race discrimination under Title VII, and (2) a

violation of his right to Equal Protection under § 1983, and (3) race discrimination under

Elliot Larsen Civil Rights Act, M.C.L. § 327.2301.1

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As will be explained, Mathes also sued Oakland County in state court, claiming

race discrimination under state and federal law. The Michigan Court of Appeals

recently affirmed summary disposition in favor of Oakland County. Before the Court is

defendant’s motion for summary judgment or dismissal based on res judicata. For the

reasons that follow, the motion is GRANTED. This case is DISMISSED.

II. Background

A.

In 2006, the Oakland County Prosecutors Office began a reorganization

apparently prompted by a problem with insufficient resources in the Juvenile Division,

particularly the Juvenile Sexual Abuse Department. Part of the reorganization was a

reduction in force. Prior to the reorganization, Mathes worked as an Investigator in the

Family Support Unit where he interviewed parents in child custody matters. At that

time, there were four investigative units, the Family Support Unit, the Economic

Recovery Unit, the Domestic Violence Unit and the Child Sexual Assault Unit. The

reorganization required a reduction in the number of investigators from seven to six. 

In April 2006, as part of the reorganization, Mathes and another investigator,

Terry Healy, who is Caucasian and had three years less seniority, were asked to submit

a list of their experience and training relative to child sexual assault and domestic

violence in order to fill a new position. They both did so. On May 16, 2006, defendant

Mary Larkin asked Mathes to provide further details of his experience. Mathes did not. 

Healy was given the new position of Investigator in the Child Sexual Assault Unit. 

Mathes was offered a new position as a Court Service Officer II, a position which was

non-union and paid $15,000.00 less per year than Mathes’ investigator position. 

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Mathes accepted the offer but resigned about a year later. He then took a position as

Chief Court Services Officer in the 50th District Court in Pontiac.

B.

On August 16, 2006, Mathes filed a complaint with the Michigan Department of

Civil Rights and on October 18, 2006, Mathes’ labor unit filed a complaint with the

Michigan Employment Relations Commission. 

On October 20, 2008, Mathes filed a complaint in Oakland County Circuit Court,

naming Oakland County as the sole defendant, Mathes v. Oakland County, No. 08-

095417-NO (‘the Oakland County case”). Mathes claimed that the County’s actions

violated Elliot Larsen and Title VII on the basis of race. He specifically claimed that he,

not Healy, should have gotten the position. 

On September 22, 2009, a judge in Oakland County Circuit Court granted

Oakland County’s motion for summary disposition. Mathes appealed. 

Meanwhile, on February 17, 2009, Mathes filed this action in federal court in

which he again challenged the fact he did not get the investigator position. The

defendants are all employees of Oakland County, working in the Prosecutor’s Office. 

Specifically, David Gorcyca was the Chief Prosecutor, Debra Carley was the Chief

Deputy Prosecutor, and Mary Larkin was the Chief Attorney in Charge of Administration. 

Like the Oakland County case, Mathes makes claims under Title VII and Elliot Larsen. 

In this case, Mathes has added a claim under § 1983 for violation of Equal Protection.

Defendants then filed a motion to stay based on the abstention doctrine in

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). The

Court granted the motion. See Order filed April 7, 2010 (Doc. 20).

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Meanwhile, on March 17, 2011, the Michigan Court of Appeals affirmed summary

disposition in favor of Oakland County. Mathes v. Oakland County, No. 294513 (Mich.

Ct. App. Mar. 17, 2011) (unpublished). Mathes did not seek leave to appeal in the

Michigan Supreme Court.

Defendants then filed the instant motion.

III. Analysis

The issue is whether the Michigan Court of Appeals’ decision bars Mathes from

litigating this case. State law determines whether the first-issued state court decision

will have preclusive effect on this forum. See United States v. Dominguez, 359 F.3d

839, 841 (6th Cir. 2004). 

The doctrine of res judicata is employed to prevent multiple suits litigating the

same cause of action. The doctrine bars a second, subsequent action when (1) the

prior action was decided on the merits, (2) both actions involve the same parties or their

privies, and (3) the matter in the second case was, or could have been, resolved in the

first. Sewell v. Clean Cut Mgt., Inc., 463 Mich. 569, 575 (2001). The Michigan Supreme

Court “has taken a broad approach to the doctrine of res judicata, holding that it bars

not only claims already litigated, but also every claim arising from the same transaction

that the parties, exercising reasonable diligence, could have raised but did not.” Adair

v. State of Michigan, 470 Mich. 105, 120 (2004) (citing Dart v. Dart, 460 Mich. 573, 586,

597 N.W.2d 82 (1999)). 

Examining the Sewell factors results in a finding of res judicata. First, the

Oakland County case was clearly decided on the merits – the Michigan Court of

Appeals affirmed summary disposition in favor of Oakland County on all of Mathes’

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discrimination claims, a dispositive motion. See Sherrell v. Bugaski, 169 Mich. App. 10,

17 (1988) (“[a] dismissal on motion by the defendants, after judicial consideration, as

opposed to a ministerial procedural dismissal, is an adjudication on the merits”).

Second, both cases involve the same parties or their privies. Although Mathes

named individual defendants in this case and Oakland County in the prior action, they

are in privity for res judicata purposes. See Engle v. City Livonia, No. 272618, 2007 WL

1206833 (Mich. App. Apr. 24, 2011) (recognizing generally that for purposes of res

judicata governmental employees are in privity with their agency). See also Schied v.

Davis, No. 08-10005, 2008 WL 2610229 (E.D. Mich. July 1, 2008)(finding that

superintendent of public school was in privity with the school district for purposes of res

judicata). 

It is the third element–whether his claims could have been resolved in the

Oakland County case–that Mathes disputes. Mathes argues that he could not have

brought his § 1983 equal protection claim in state court because it is a federal claim. 

He is mistaken. A § 1983 action against state officers or employees may be maintained

in either federal court or in state court. Federal courts do not have exclusive jurisdiction

over § 1983 actions; rather, federal and state courts have concurrent jurisdiction over §

1983 actions. See Felder v. Casey, 487 U.S. 131, 139 (1988); Dep't of Treasury v.

Campbell, 161 Mich. App. 526, 529 (1987) (recognizing that Michigan state courts have

concurrent jurisdiction over federal § 1983 claims). Thus, nothing in the circumstances

here required Mathes to split his claims between state and federal court. Rather,

Mathes could have presented his § 1983 claim in the state court. The origin of the two

actions is the same: both concern alleged violations of Mathes’ rights stemming from

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his employment with the Oakland County Prosecutor’s Office. There is nothing unfair or

manifestly unjust in making Mathes bear the consequences of his decision to bring

claims separately in state and federal court. This is precisely the reason for the doctrine

of res judicata: to avoid piecemeal litigation and direct a party to present all of their

claims in a single forum. 

SO ORDERED.

 S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: September 1, 2011

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

record on this date, September 1, 2011, by electronic and/or ordinary mail.

 S/Julie Owens 

Case Manager, (313) 234-5160

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