HARVILLE v. STATE PLUMBING AND HEATING, INC
Case Details
- Citation
- 218 Mich. App. 302
- Judge(s)
- Before: Bandstra, P.J., and Markman and M. D. Schwartz JJ.
- Procedural Posture — the stage the case had reached
- appeal
- State
- Michigan
- Circuit
- 6th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Michigan Court of Appeals affirmed judgment for the employer, rejecting the plaintiff's race discrimination claims regarding both the underlying employment termination and the jury composition at trial.
Excerpt
HARVILLE v STATE PLUMBING AND HEATING, INC Docket No. 175256. Submitted March 19, 1996, at Detroit. Decided August 16, 1996, at 9:10 A.M. Leave to appeal sought. Darren L. and Rena Harville brought an action in the Wayne Circuit Court against State Plumbing and Heating, Inc., alleging that the defendant, Mr. Harville’s employer, had discriminated against him on the basis of race in imposing disciplinary punishment and eventually terminating his employment. The court, Susan Bielke Neil-son, J., entered a judgment on a jury verdict in favor of the defendant. The plaintiffs appealed. The Court of Appeals held: 1. In claiming discriminatory effect, but not discriminatory intent, with respect to an alleged jury selection process in the trial court that systematically and substantially results in jury panels on which blacks number proportionally less than they do in the general population of Wayne County, the plaintiffs have failed to show a violation of equal protection, Const 1963, art 1, § 2. The state Equal Protection Clause and the federal Equal Protection Clause, US Const, Am XIV, § 1, are coextensive even though the state provision, in addition to language it shares with the federal provision to the effect that no person shall be denied the equal protection of the laws, also provides that no person shall be denied the enjoyment of civil or political rights or be discriminated against in the exercise thereof because of religion, race, color, or national origin. Because proof of discriminatory intent or purpose behind state action is required to show a violation of the federal Equal Protection Clause, similar proof is required to show a violation of the state Equal Protection Clause. 2. The trial court did not abuse its discretion in ruling that counsel for the defendant did not improperly use peremptory challenges to remove all the black jurors from the panel. A race-neutral rationale for excusing the black jurors was articulated, and the plaintiffs failed to carry the burden of proving purposeful discrimination. 3. The trial court did not abuse its discretion in refusing to disqualify for cause a juror that the defense claimed was biased. A review of the record does not indicate that the juror was biased or that the defendant demonstrated a desire to excuse another, subsequently summoned juror who was objectionable. 4. The trial court did not abuse its discretion in allowing evidence relating to the resolution of a grievance by Mr. Harville against the defendant after it had granted the plaintiffs’ motion in limine to preclude evidence relating to the grievance. The plaintiffs cannot now complain because it was their counsel who introduced evidence indicative of a grievance when cross-examining a witness and the plaintiffs’ counsel agreed with the trial court that the jury needed to be told of the outcome of the grievance. Affirmed. 1. Constitutional Law — Equal Protection — Discriminatory Intent. The Equal Protection Clauses of the federal constitution and the state constitution are coextensive; proof of discriminatory intent or purpose behind state action is required to show a violation of either provision; proof of discriminatory effect, alone, is insufficient to establish a violation of either provision (US Const, Am XIV, § 1; Const 1963, art 1, § 2). 2. Constitutional Law — Equal Protection — Discriminatory Purpose. Discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one group than another. 3. Constitutional Law — Equal Protection — Discriminatory Purpose. Discriminatory purpose implies more than intent as volition or intent as awareness of consequences; it implies that a decisionmaker selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. 4. Jury — Peremptory Challenges — Race-Based Exclusions — Appeal. Evaluation by a trial court of a claim by a civil litigant that the opposing party improperly used its peremptory challenges to remove prospective jurors on the basis of race involves a three-step process: the complaining litigant must make a prima facie showing of discrimination; the party exercising the peremptory challenges must articulate a race-neutral rationale for striking the jurors; and the court must determine whether the complaining litigant carried the burden of proving purposeful discrimination; an appellate court reviews a trial court’s ruling with regard to this issue for abuse of discretion, giving great deference to the trial court’s findings. 5. Jury — Challenges for Cause — Appeal. A trial court commits error requiring reversal in failing to exclude a juror challenged for cause where the record reveals that the court improperly denied a challenge for cause, the aggrieved party had exhausted all peremptory challenges, the party demonstrated a desire to excuse another, subsequently summoned juror, and the juror whom the party wished later to excuse was objectionable. Kelman, Loria, Downing, Schneider & Simpson (by Janet M. Tooley), for the plaintiffs. Thomas E. Marshall and Andrew J. Bean, for the defendant. Before: Bandstra, P.J., and Markman and M. D. Schwartz JJ. Circuit judge, sitting on the Court of Appeals by assignment. Markman, J. Plaintiffs appeal as of right an order of judgment for defendant in this race discrimination action. We affirm. In their complaint, plaintiffs alleged that defendant discriminated against plaintiff Darren L. Harville, a black employee of defendant, on the basis of race by punishing him for conduct for which white employees were not punished, and by terminating his employment. After a four-day trial, the jury found that defendant did not discriminate against plaintiff on the basis of his race in discharging him or laying him off. The trial court entered judgment in accordance with this verdict. Plaintiffs’ claims on appeal relate to the composition of the jury. Their first claim is that the jury was the product of a jury selection process that systematically and substantially underrepresented the black population of Wayne County. Specifically, they claim that the process resulted in juries that underrepresented black Wayne County residents because (1) Detroit residents who serve on city-wide juries are excused from serving on another jury panel for one year, (2) persons who were sent a 1993 jury questionnaire were not sent a 1994 questionnaire, and a lower percentage of Detroit residents than non-Detroit residents return jury questionnaires, and (3) a lower percentage of Detroit residents than non-Detroit residents appear for jury duty. They claim that the allegedly disparate effect of the jury selection process on black Wayne County residents violated Const 1963, art 1, § 2, Michigan’s equal protection provision. Because plaintiffs do not contend that the process was intentionally discriminatory, this appeal squarely raises the issue whether discriminatory effect alone violates art 1, § 2. Plaintiffs raised this issue during the impaneling of the jury and again in posttrial motions. The trial court had a jury administrator, Gary Wolfe, testify regarding the jury selection process on both occasions. The court, although not deciding whether disparate effect alone could constitute a violation of art 1, § 2, concluded that the jury at issue was selected pursuant to a “random selection process” that was not “constitutionally violative.” We begin our analysis by considering cases interpreting the federal Equal Protection Clause, US Const, Am XTV, § 1. As discussed more fully below, the Michigan Supreme Court has held that art 1, § 2 is coextensive with the federal Equal Protection Clause and, thus, understanding the latter is instructive in understanding the former. United States Supreme Court precedents consistently indicate that the United States Constitution’s Equal Protection Clause reaches only intentional or purposeful discrimination. Washington v Davis, 426 US 229; 96 S Ct 2040; 48 L Ed 2d 597 (1976), involved the alleged racially discriminatory effect of a written personnel test used by a police department. The Court of Appeals had focused on the disparate effect of the test rather than a possible discriminatory purpose. Id. at 238. The Washington Court held at 239: The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups. But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact. [Citation omitted; emphasis in original.] It further discussed adherence to “the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.” Id. at 240. The Washington Court continued at 242: Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. . . . Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule . . . that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations. [Citation omitted.] In Village of Arlington Heights v Metropolitan Housing Development Corp, 429 US 252, 265; 97 S Ct 555; 50 L Ed 2d 450 (1977), which involved a race discrimination claim arising out of the denial of a rezoning application, the Court held that “[pjroof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Later, in City of Mobile, Alabama v Bolden, 446 US 55; 100 S Ct 1490; 64 L Ed 2d 47 (1980), involving a challenge to the city’s at-large electoral system for city commissioners as racially discriminatory, a majority of the Court confirmed the necessity of demonstrating discriminatory intent to establish an equal protection violation. The four-justice plurality opinion stated: A plaintiff must prove that the disputed plan was “conceived or operated as [a] purposeful devic[e] to further racial. . . discrimination.” This burden of proof is simply one aspect of the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment. [Citations omitted.] The ultimate question remains whether a discriminatory intent has been proved in a given case. [Id. at 66, 74.] In an opinion dissenting on other grounds, Justice White stated at 94-95 that the Court recognized in Washington, supra (in which he wrote the opinion of the Court), that “the Equal Protection Clause forbids only purposeful discrimination.” Recently, in Purkett v Elem, 514 US_; 115 S Ct 1769; 131 L Ed 2d 834 (1995), involving the allegedly racially discriminatory use of a peremptory challenge, the Court reiterated that the relevant inquiry under the Equal Protection Clause was whether there had been “discriminatory intent” or “purposeful” discrimination. 131 L Ed 2d 839. The Court has defined “discriminatory purpose” and articulated the role of disparate effect evidence in equal protection cases. In Personnel Administrator of Massachusetts v Feeney, 442 US 256; 99 S Ct 2282; 60 L Ed 2d 870 (1979), the Court considered a claim that a veterans preference in state employment resulted in sex discrimination. It stated that Washington and Arlington Heights “signaled no departure from the settled rule that the Fourteenth Amendment guarantees equal laws, not equal results.” 442 US 273. It held at 279: “Discriminatory purpose,” however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group. Hernandez v New York, 500 US 352; 111 S Ct 1859; 114 L Ed 2d 395 (1991), involved a claim that a prosecutor used peremptory challenges to exclude Latino jurors because of uncertainty whether they would accept an interpreter’s translation of Spanish-speaking witnesses. A majority of the Court reiterated that disparate effect, alone, is insufficient to establish an equal protection violation. The four-justice plurality opinion stated at 362: [Disparate impact should be given appropriate weight in determining whether the prosecutor acted with a forbidden intent, but it will not be conclusive in the preliminary race-neutrality step of the Batson [v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986)] inquiry. An argument relating to the impact of a classification does not alone show its purpose. Equal protection analysis turns on the intended consequences of government classification. Unless the government actor adopted a criterion with the intent of causing the impact asserted, that impact itself does not violate the principle of race neutrality. [Citation omitted.] Justices O’Connor and Scalia concurred in a separate opinion, in which they stated at 372-373: An unwavering line of cases from this Court holds that a violation of the Equal Protection Clause requires state action motivated by discriminatory intent; the disproportionate effects of state action are not sufficient to establish such a violation. This clear precedent indicates that plaintiffs’ present claim, alleging only disparate effect, not discriminatory intent, would fail to state a violation had it been raised under the federal Equal Protection Clause. Plaintiffs nonetheless assert that their disparate effect claim states a violation of the Michigan Constitution’s equal protection provision, Const 1963, art 1, § 2. Michigan’s equal protection provision includes language not contained in the federal Equal Protection Clause. The federal provision states, “nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.” In contrast, Const 1963, art 1, § 2 states: No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. Despite the differences in their language, the Michigan Supreme Court has found Michigan’s equal protection provision coextensive with the federal constitution’s Equal Protection Clause. Most recently, in Frame v Nehls, 452 Mich 171; 550 NW2d 739 (1996), a grandparent visitation action, the Court stated that “[t]he Michigan and federal Equal Protection Clauses offer similar protection.” Id. at 183. In Doe v Dep’t of Social Services, 439 Mich 650; 487 NW2d 166 (1992), the Court considered art 1, § 2 in the context of a challenge to legislation that prohibited the use of public funds for abortions. The Court found that “a review of the jurisprudence and constitutional history of this state suggests . . . that our equal protection clause was intended to duplicate the federal clause and to offer similar protection.” Doe at 670-671. It stated that the language of our Equal Protection Clause is “essentially the same” as that in the Fourteenth Amendment. Id. at 671-672. It noted that the Michigan Constitution has a second clause unlike the federal constitution, but stated at 672: [T]hat a separate clause to provide explicit protection for civil rights was adopted in the midst of the civil rights movement, does not, in and of itself, suggest any purpose on the part of the delegates to broaden the scope of the preceding Equal Protection Clause. The Court further stated at 673-674: Rather, we draw from a reading of the convention record the firm conclusion that the delegates intended to affirm and incorporate the basic notions of equal protection that prevailed at the time. Under these cases, plaintiffs are held to the same burden under art 1, § 2 as under the Fourteenth Amendment; i.e., they must demonstrate intentional or purposeful discrimination. Because plaintiffs do not allege any intentional discrimination in the jury selection procedure, their equal protection claim must fail. Further, the Michigan Supreme Court specifically addressed the issue of disparate effect evidence in equal protection cases in People v Ford, 417 Mich 66; 331 NW2d 878 (1982). In Ford, the defendant challenged his being charged with the felony of larceny in a building when the evidence also supported a misdemeanor general larceny charge. The defendant provided the court with statistical information comparing the racial breakdown of arrests for larceny-theft (twice as many whites as blacks) and the racial breakdown of Michigan’s prison composition (over fifty percent black). Id. at 102. The Ford Court stated that the defendant asked it “to take a quantum leap in equal protection analysis based on unproven assumptions and non-sequitur statistical inferences.” Id. at 103. It held at 103: In the absence of a purpose to cause racial discrimination, governmental action that has a disproportionate effect on a racial minority is not unconstitutional. Such an effect may permit an inference of an unlawful purpose, but, standing alone, it is not conclusive on the question whether governmental activity is racially discriminatory. [Emphasis in original.] The Court concluded that the prosecutor’s exercise of discretion in the cases before it did not per se violate the Equal Protection Clause under either the federal or the Michigan Constitution. Id. at 105. Ford, accordingly, also indicates that plaintiffs’ equal protection claim fails. Contrary to these precedents, a panel of this Court found that the disparate effect of an ordinance restricting use of city parks to city residents, without reference to discriminatory intent, was sufficient to constitute a violation of art 1, § 2 in Detroit Branch, NAACP v Dearborn, 173 Mich App 602; 434 NW2d 444 (1988). The NAACP Court almost exclusively relied on Berry v Benton Harbor School Dist, 467 F Supp 721 (WD Mich, 1978), for its conclusion that art 1, § 2 was intended to provide greater protection than that afforded by the Fourteenth Amendment and that discriminatory intent or purpose need not be proved in cases under art 1, § 2. NAACP at 615. Berry was a school desegregation action. The Berry Court held at 730: It is plainly evident that Article I, section 2, and Article VIII, section 2 [requiring provision for education without discrimination with regard to religion, creed, race, color or national origin] of the Michigan Constitution go beyond the limits of the Fourteenth Amendment by prohibiting all racial segregation, without regard to whether it was caused by a segregative purpose. The Berry Court stated that its holding was based on the plain wording of the provisions at issue, which prohibited “discrimination” — a word not found in the Fourteenth Amendment. Id. It noted that art 1, § 2 tracks the Fourteenth Amendment in part but adds an antidiscrimination clause. Id. It concluded at 730-731: This clearly indicates that discrimination and equal protection of the laws are two different concepts under the Mi
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