1. Introduction and Overview
Web Posted Nov. 25, 2003
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.
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
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
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 the center of Genesee County, Michigan
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 DEMOGRAPHICS AND FACTS:
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).
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".
CLINTONESQUE CIVIL RIGHTS WORKSHOP:
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
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
JUDGE HAYMAN'S ENVIRONMENTAL JUSTICE:
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:
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
"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
No link is available to the
4. Appeals Court Ruling
STATE OF MICHIGAN
COURT OF APPEALS
Markey, P.J., and Saad and Wilder, JJ.
CITY OF FLINT and THERON WIGGINS,
November 25, 2003
Genesee Circuit Court
LC No. 00-069235-CL
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
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
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
/s/ Jane E. Markey
/s/ Henry William Saad
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
Glen N. Lenhoff
328 Saginaw Street
8th Floor, North Building
Flint, Michigan 48502
Phone: (810) 235-5660
Fax: (810) 235-5641
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.
END Case 38: (A) Introduction and Overview
Flint Fire Department Reverse Discrimination