Case 38: Flint, Michigan Fire Dept. Sued for Anti-White Bias

Racial Preferences = Racial Discrimination
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Update 02-14-05:  Flint City Council awards $150,000 to white firefighter John Linker in his reverse discrimination claim.

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1. Introduction and Overview
Web Posted Nov. 25, 2003

          John Linker is white, and just before his recent retirement from the Flint, Michigan Fire Department he achieved the rank of Assistant Chief.

          Unfortunately, in order to get his promotion Linker had to sue the fire department and the city for reverse discrimination.

          Linker's Fire Chief, Theron Wiggins, was a black man who expressed his open distaste for white firefighters by using racial slurs and by singling whites out for disciplinary action.

         Key witnesses in the lawsuit testified that Chief Wiggins was fond of referring to white firefighters as "honky" and "white boy", and that he disciplined white firefighters more harshly than blacks.

Flint is located in Genesee County.
Flint is located in the center of Genesee County, Michigan

         2001 John Linker filed his lawsuit against the City of Flint and Chief Theron Wiggins (Linker v. Flint, Genesee Circuit Court 00-069235-CL), Judge Archie L. Hayman presiding.

          On Nov. 21, 2001 Circuit Judge Hayman dismissed Linker's lawsuit, ruling that Linker did not have a valid claim of reverse discrimination.  Judge Hayman ruled that Linker had neither presented direct evidence of discrimination nor sufficient circumstantial evidence to meet appropriate legal tests.

          Linker appealed Judge Hayman's decision to the State of Michigan Court of Appeals. On Nov. 25, 2003 the appeals court found that Circuit Judge Hayman had erred and that John Linker had, in fact, presented sufficient evidence supporting his claim of discrimination.

          The appeals court ruled in part: "...the chief [Wiggins] used racial epithets daily for a prolonged period of time and in the context of employment decisions. Accordingly, although the substantial qualifications of the minority candidates makes this a very close case, the undisputed unfortunate comments of the chief regarding non-minorities in the workplace and regarding workplace decisions leaves us with little choice but to reverse [Judge Hayman's decision] and remand to allow the [lower court] jury to assess all the evidence. ... [W]e conclude that plaintiff [Linker] presented genuine issues of material fact regarding direct evidence of discrimination... We reverse and remand [to Judge Hayman's court] for further proceedings in accordance with this opinion." [Linker v. City of Flint, State of Michigan Court of Appeals case no. 238342 11/25/03.]


Flint is 38 miles northwest of Detroit           Flint is a "majority black" city, with blacks representing 53.3% of the city population (vs. only 14.2% of the general Michigan State population).
  City of Flint County of Genesee State of Michigan
White 41.4% 75.3% 80.2%
Black 53.3% 20.4% 14.2%

          23.2% of the employed Flint population works in manufacturing and 23.5% work in education, health and social services.

          Flint, Michigan is about 58 miles northwest of Detroit.  While Detroit is the "auto capital of the world", the local Flint economy was devastated by massive layoffs in the 1980's at the local General Motors facility.  The Flint economy has never quite completely recovered.

2. Liberal Black Power Elite

          The lower court judge who initially rejected Linker's claim of reverse discrimination is part of the liberal, black power elite in Flint. Judge Hayman is black. He has political and personal ties to the black, former Mayor of Flint, Woodrow Stanley. It was Mayor Stanley and his administration that appointed black fire chief Theron Wiggins who, as the court found, just plain didn't care for white firefighters.

          Judge Hayman is also a politically liberal, activist jurist. He was a member of the liberal, pro-quota Michigan Civil Rights Commission from 1991 to 1995, and served for a year as Vice Chair of the commission. He is a member of the NAACP which is strongly supportive of racial quotas. Hayman also has a history of liberal rulings on such matters as "environmental justice".



          Since 1997 hundreds of Flint officials and employees, including black Chief Wiggins and black Mayor Woodrow Stanley, have attended an intensive workshop titled "Undoing Racism" funded in part by the liberal Charles Stewart Mott Foundation.

          These workshops strongly endorse the notion that only blacks and other designated minorities are victims of racism, and that whites, in particular white males, are the exclusive purveyors of racism.  The workshops are mute on the subject of black racism toward whites.

          Flint's "Undoing Racism" workshop is so ultra-liberal in it's orientation to racial discrimination that ex-president Bill Clinton openly praised the workshop in his Pathways to One America in the 21st Century: Promising Practices for Racial Reconciliation.  Clinton's Pathways to One America had very little to do with equal treatment under the law and had very much to do with enforcing racial quotas. <<Last known link to "Pathways" reference:

          With Mr. Linker's former, black chief, Theron Wiggins, attending and endorsing workshops such as this it is small wonder the former chief was found guilty of anti-white racial discrimination.



          Judge Hayman has invoked the liberal doctrine of "environmental justice" in a 1997 ruling in which he ruled against the operation of a wood-burning incinerator in a predominantly black Michigan community. In his ruling against Michigan and for the NAACP, Hayman said "... there was no testimony presented in this court that would indicate that any minorities were hired to construct this plant; that any monies were paid to any minorities in the building of this plant, and that any minorities were, in fact, working at this plant. And it's an eighty million dollar facility. It's going to be polluting an African-American community for the next 30 years or so.

          "And as best as I can tell, the owners all live in Dearborn or somewhere where they're not going to be polluted and they're going to be reaping the benefits, and I found that to be appalling and I think [it] ought to be a statement that this society ought to take into consideration when we're permitting these plants and we're polluting communities and at the same time the people that live in those communities get no benefit at all from those facilities in terms of employment." <<Last known link to this reference:

3. News Stories

On Nov. 30, 2003 the Flint Journal summarized John Linker's case as follows:

Headline: City of Flint still putting out fires from racial woes

          "Testimony stemming from a discrimination lawsuit suggests a climate of racial prejudice was fostered at the highest levels in the Flint Fire Department during the [black mayor] Stanley administration, the consequences of which continue to cost the city.

          "What has been revealed from the lawsuit puts former Fire Chief Theron Wiggins in the worst possible light. According to a current firefighter and former deputy fire chief, Wiggins disciplined white firefighters more harshly than black members of the force, and frequently used racial epithets, such as 'honky' and 'white boy'.

          "John Linker, who is white, used such evidence in his attempt to prove he was discriminated against when blacks were promoted to assistant chief over him. He later attained that rank before retiring.

          "Linker lost his case initially when it was dismissed by Genesee Circuit Judge Archie L. Hayman two years ago, but a state appeals court panel last week reversed Hayman, citing the damning testimony about Wiggins' alleged conduct from firefighter Rico Phillips, a former union vice president, and former Deputy Fire Chief Willie Miller, both of whom are black.

          "Linker's case is far from over, as the city may appeal to the state Supreme Court. If he eventually collects, however, it would not be the first time the city has paid off in a discrimination suit that accused [black fire chief] Wiggins, who retired in September 2001."

No link is available to the original story.

4. Appeals Court Ruling






November 25, 2003

No. 238342
Genesee Circuit Court
LC No. 00-069235-CL

Before: Markey, P.J., and Saad and Wilder, JJ.


          In this reverse discrimination claim, plaintiff John Linker appeals by right the trial court's judgment granting defendants' motion for summary disposition under MCR 2.116(C)(10). We reverse.

          Plaintiff, a Caucasian battalion chief in the City of Flint Fire Department, filed suit against the City of Flint and Fire Chief Theron Wiggins after Wiggins promoted two purportedly less qualified African-Americans to the position of Assistant Fire Chief over plaintiff. Plaintiff claimed that his civil rights were violated under 42 USC 1983 and under the Michigan Civil Rights Act (MCRA), MCL 37.2101 et seq. The trial court dismissed plaintiff's claims after finding that plaintiff had presented no direct evidence of discrimination and had not presented circumstantial evidence sufficient to survive the McDonnell-Douglas test. <<Footnote 1: McDonnell Douglas v Green, 411 US 792, 802, 804; 36 L Ed 2d 668; 93 S Ct 1817 (1973).>>

          Plaintiff claims that he presented both direct and circumstantial evidence that Wiggins's reasons for not promoting him were based on racial bias. We agree.

          This Court reviews a trial court's ruling on a summary disposition motion de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Where the motion was granted under MCR 2.116(C)(10), this Court 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. Id. at 120; Unisys Corp v Comm'r of Ins, 236 Mich App 686, 689; 601 NW2d 155 (1999).

          Generally, when deciding a motion for summary disposition under MCR 2.116(C)(10), a court cannot make findings of fact. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). The court's job is merely to review the record evidence and all reasonable inferences therefrom and decide whether a genuine issue of any material fact exists to warrant a trial. Id. The moving party has the burden of supporting its position with evidence showing that there are no disputed facts. Smith v Globe Life Ins Co, 460 Mich 446, 455; 597 NW2d 28 (1999). "The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists."  Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). All reasonable inferences are to be drawn in favor of the nonmoving party. Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347, 358; 597 NW2d 250 (1999).

          A court must be liberal in finding a genuine issue of material fact. Marlo Beauty v Farmers Ins, 227 Mich App 309, 320; 575 NW2d 324 (1998). Only where the nonmoving party fails to support its position with evidence showing that disputed facts exist should the motion be granted. Maiden, supra at 120; Smith, supra at 455 n 2. Where a case involves questions of credibility, intent or state of mind, summary judgment is hardly ever appropriate. Harrison v Olde Financial Corp, 225 Mich App 601, 606 n 5; 572 NW2d 679 (1997); Michigan National Bank-Oakland v Wheeling, 165 Mich App 738, 744-745; 419 NW2d 746 (1988). The court may not make findings of fact or weigh credibility in deciding a summary disposition motion. Skinner, supra at 161; Nesbitt v American Community Mutual Ins Co, 236 Mich App 215, 225; 600 NW2d 427 (1999). Thus, where the truth of a material factual assertion of a moving party's affidavit depends on the affiant's credibility, there exists a genuine issue to be decided at a trial by the trier of fact, and a motion for summary judgment cannot be granted. Metropolitan Life Ins Co v Reist, 167 Mich App 112, 121; 421 NW2d 592 (1988).

          For a successful employment discrimination claim – be it based on race, sex, or age – a plaintiff must produce some evidence of bias. Hazle v Ford Motor Co, 464 Mich 456, 462-463; 628 NW2d 515 (2001). If the plaintiff has direct evidence of bias, then he will proceed "in the same manner as a plaintiff would prove any other civil case." Id. at 462, citing DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 537-539; 620 NW2d 836 (2001), and Matras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986). In the civil rights context, direct evidence is "‘evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.'" Hazle, supra, at 462, quoting Jacklyn v Schering-Plough Healthcare Products Sales Corp, 176 F3d 921, 926 (CA6 1999). See also Downey v Charlevoix Road Comm'rs, 227 Mich App 621, 633; 576 NW2d 712 (1998), and Harrison, supra at 610.

          Statements that are made outside the immediate adverse action context – so-called "stray remarks" – and which plaintiff alleges to be direct evidence, must be examined for relevancy using the following four factors: "(1) Were the disputed remarks made by the decisionmaker or by an agent of the employer uninvolved in the challenged decision? (2) Were the disputed remarks isolated or part of a pattern of biased comments? (3) Were the disputed remarks made close in time or remote from the challenged decision? (4) Were the disputed remarks ambiguous or clearly reflective of discriminatory bias?" Krohn v Sedgwick James, Inc, 244 Mich App 289, 292; 624 NW2d 212 (2001).

          In this case, Rico Phillips, a former union vice-president, testified that on several occasions, Wiggins disciplined Caucasian firefighters more harshly than African-Americans and that he thought Wiggins was racist. Plaintiff also presented testimony of former deputy fire chief Willie Miller that Wiggins on a daily basis used terms such as "honky" and "white boy." Miller also testified that Wiggins, in a different promotion context, stated that "honkies" did not have anything coming to them from him. It was also alleged that Wiggins referred to the Caucasian union president as "Massa Joe" and to have said that he would have no problem firing a Caucasian firefighter.

          We must review the evidence in this case with the Krohn factors in mind. These statements came directly from the decision-maker, seem to form a pattern of biased comments, and were clearly reflective of discriminatory bias. See Krohn, supra at 292. The time frame of the comments is not clear. But Miller was in the department at least through 1999, so presumably the daily racist remarks were heard up until then. At the very least, plaintiff raised a genuine issue of material fact regarding Wiggins's remarks. When a plaintiff produces evidence that raises a genuine issue of material fact regarding possibly discriminatory remarks, whether those remarks give rise to liability "is an argument for the finder of fact to consider" and summary disposition is not appropriate. DeBrow, supra at 541.

          Thus, although defendant produced evidence of legitimate, non-discriminatory reasons for the challenged promotions, and although nothing in the record suggests that the two African-American applicants were not highly qualified, we nonetheless reverse because the substantial and continuous use of racial epithets by the fire chief raises a material issue of fact for the jury's consideration. Were the racial epithets isolated and far removed in time from the challenged event, this would be another matter. But according to former deputy fire chief Miller, the chief used racial epithets daily for a prolonged period of time and in the context of employment decisions. Accordingly, although the substantial qualifications of the minority candidates makes this a very close case, the undisputed unfortunate comments of the chief regarding non-minorities in the workplace and regarding workplace decisions leaves us with little choice but to reverse and remand to allow the jury to assess all the evidence.

          Because we conclude that plaintiff presented genuine issues of material fact regarding direct evidence of discrimination, we need not reach the issue of whether the same is true under the McDonnell-Douglas framework.

          We reverse and remand for further proceedings in accordance with this opinion. We do not retain jurisdiction.

/s/ Jane E. Markey
/s/ Henry William Saad

Download the Appeals Court opinion (Adobe Acrobat Reader required):
http://www.adversity.net/FlintFD/Linker v. City of Flint_11-25-03_Appellate-Ruling.PDF
Download the Dissenting Opinion (Adobe Acrobat Reader required):
http://www.adversity.net/FlintFD/Linker v. City of Flint_11-25-03.dissenting.PDF


5. Lawyer for the Plaintiff

          Attorney Glen N. Lenhoff litigated this case on behalf of firefighter John Linker.  As a result of Attorney Lenhoff's efforts, on Nov. 25, 2003 the Appeals Court ordered the Genesee Circuit Court to accept firefighter John Linker's evidence of reverse discrimination and to rehear his case.

Attorney Contact Info:
Updated 12-21-03

Glen N. Lenhoff
328 Saginaw Street
8th Floor, North Building
Flint, Michigan  48502

          Phone: (810) 235-5660
          Fax: (810) 235-5641
          Email: Lenhofflaw@usol.com

6. Related Reading

          Much of modern "civil rights" law is founded upon the Constitutionally dubious doctrines of proportional representation and disparate impact.  These doctrines have resulted in a particularly adverse impact upon white employees of police, fire and municipal agencies all across the U.S. 

          The table below contains recommended reading relating to a small fraction of the reverse discrimination which is inflicted upon our police, fire, EMS, and municipal employees under the guise of affirmative action. Top
Top of page.
Police, Fire, Municipal Cases: Adversity.Net Link Location:
Milwaukee Police WIN $2.2 Million in Reverse Discrimination Lawsuit
(posted 06-09-05)
Case 43
Boston Fire Dept. Racial Quotas Ended (posted 11-24-03) Case 37
Philadelphia Fire Dept. Racial Quotas Continue (updated 10-17-03) Case 34
Suffolk County, NY Police Dept. (updated 12-16-03) Case 21
White Orange County, FL Firefighters WIN! (updated 10-23-98) Case 11
Illinois State Police Guilty of Reverse Discrimination (updated 8-22-98) Case 10
Black Fulton County, GA Sheriff Discriminates Against White Officers (1998) Case 8
Seattle FD Attempts to Squash White Firefighter for Making Fun of Quotas (9-21-98) Case 6
Police, Fire and Municipal News Clips adversity.net/0_PoliceFireMuni/PFM_frame.htm

END Case 38: (A) Introduction and Overview
Flint Fire Department Reverse Discrimination


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*  We use the term reverse discrimination reluctantly and only because it is so widely understood.  In our opinion there really is only one kind of discrimination.