Badry v. Henry Ford Coll.

PETER BADRY, Plaintiff, v. HENRY FORD COLLEGE, Defendant.

Case No. 18-14064

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 30, 2021

SENIOR U. S. DISTRICT JUDGE ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE ANTHONY P. PATTI

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [21]

Plaintiff Peter Badry, a Muslim, Egyptian-American, is a part-time adjunct professor at Defendant Henry Ford College. Plaintiff claims that starting in the Summer 2017 semester, Defendant's seniority and class assignment system discriminated against him when he was passed over for class assignments in favor of white professors with less seniority. Plaintiff alleges the following claims: (1) discrimination on the basis on national origin and religion, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1991) ("Title VII") and Michigan's Elliot Larsen Civil Rights Act, MCL § 37.2101 et seq. (1992) ("ELCRA"), (2) retaliation in violation of Title VII and ELCRA, and (3) breach of contract.

Before the Court is Defendant's Motion for Summary Judgment [21] filed on February 4, 2020. Plaintiff filed a Response [22] on February 24, 2020. Defendant filed a Reply [23] on March 9, 2020. The Court held a hearing on the Motion [21] on September 16, 2020. For the reasons stated below, the Court DENIES in part and GRANTS in part Defendant's Motion for Summary Judgment [21].

FACTUAL BACKGROUND

Plaintiff Peter Badry is an adjunct professor at Defendant Henry Ford College. He has been teaching economics and business courses in Defendant's School of Business and Entrepreneurship and Professional Development since 2000. (ECF No. 21-2, PageID.208). Since 2002, Plaintiff has taught 145 classes, 9 of which were in person, the rest were taught online. (ECF No. 21-3). Plaintiff last taught an in-person class in 2016. (Id.). Although prior to 2016 Plaintiff preferred teaching online, he then stated in an email in March 2016 and again in an email and a teaching request form in February 2018 that he is willing and available to teach both in-person and online courses. (ECF No. 22-10); (ECF No. 22-12).

a) Seniority and Class Assignments

Under the controlling collective bargaining agreements ("CBAs") between the College and the Adjunct Faculty Organization ("Union"), classes are assigned in accordance with seniority. Seniority is calculated by awarding one service point perweekly contact hour. (ECF No. 21-8, PageID.337). Adjunct part-time faculty are given preference over probationary faculty. (Id. at 339). Probationary faculty are defined as professors who have taught for less than eight semesters. (ECF No. 21-9, PageID.416). Adjunct professors can teach a maximum of nine credit hours, which translates to three economics courses. (ECF No. 21-6, PageID.309); (ECF No. 21-7, PageID.316).

Under the 2011 and 2013 CBAs, full time faculty were assigned to classes first. (ECF No. 21-8, PageID.339). Then senior adjuncts, in order of seniority, were offered a similar number of contact hours as what they had taught in the corresponding semester of the previous academic year, if available. (Id.). Once all of a Department's senior adjunct had been offered classes, classes were then offered to qualified probationary employees. (Id.). If there are still unassigned classes after all qualified probationary employees had been offered classes, senior adjunct faculty were again offered unassigned classes based on seniority. (Id.). The CBAs state that "reasonable effort will be made to offer a similar schedule or to accommodate reasonable changes to the schedule taught previously." (Id.).

Under the 2011 and 2013 CBAs, seniority was calculated within each discipline. This changed under the 2017 CBA. The 2017 CBA instead calculated seniority based within each School in the College, each of which contained severaldisciplines. (ECF No. 21-10, PageID.439). In the Winter 2017 semester, Plaintiff was the most senior adjunct economics professor with 479 points. (ECF No. 22-2). In Fall 2018, Plaintiff was the eleventh most senior adjunct professor in the School of Business and Entrepreneurship and Professional Development ("BEPD") with 494 points. (ECF No. 22-3).

However, Plaintiff contests his latter ranking for two reasons. First, he claims that the most senior full-time economics professor and eighth senior professor in BEPD, Michael Trohimczyk, was not qualified to teach economics and therefore his seniority points from his economics courses should not have counted. See (ECF No. 22-3, PageID.492). Second, Plaintiff claims that the College did not include his seniority points from his business courses. Defendant claims that it did not include points from Plaintiff's business courses, because he has not taught a business class in the past five years and under the CBA, classes not taught within the last five years are not included in seniority points. (ECF No. 21-8, PageID.378). Defendant's assertion is incorrect though. A review of Plaintiff's course list history shows that he last taught a business class in the Winter 2017 semester, which should increase Plaintiff's point total, however, it is not clear that his ranking would succeed Trohimczyk's 627 points. (ECF No. 22-3, PageID.492).

Class assignments also changed under the 2017 CBA. Instead of being offered classes, adjunct professors would be able to select classes from a list of remaining open classes after full time faculty schedules had been confirmed. (ECF No. 21-9, PageID.420). Selections are made in order of seniority. (Id.). The system also requires adjunct faculty to call the Associate Dean of their School at a specified time to confirm their class schedule. (Id.). The new class assignment system was implemented on a pilot basis for the Spring 2018 semester. (Id.).

b) Summer 2017 Semester

Despite being the most senior adjunct economics professor, Plaintiff was not assigned any courses for the Summer 2017 semester. (ECF No. 22-7). Defendant claims that this was due to the return on Dr. Paul Fisher to the full-time faculty. This meant that the College had three full-time economics professors who each had priority for class assignments over adjunct professors. (ECF No. 21-11). There was, however, an available in-person class that Defendant assigned to a probationary professor, Kurtis Hale, instead of Plaintiff. (ECF No. 22-7). At the time, Kurtis Hale had just over 21 points, while Plaintiff had at least 479 points. (ECF No. 22-2). Kurtis Hale is white. (ECF No. 22-5, PageID.507). Defendant claims that this course was given to Hale rather than Plaintiff, because Plaintiff preferred online courses.

c) Fall 2017 Semester

Plaintiff was assigned to three online courses during the Fall 2017 semester. (ECF No. 21-12). However, one of his courses was cancelled by Associate Dean Robert James before it began. (Id.). Defendant claims that this cancellation was an accident and that Plaintiff's class was only one of a group of fifty to sixty classes which were mistakenly cancelled prematurely due to lack of enrollment. (ECF No. 21-12); (ECF No. 21-5, PageID.296, 301-02). Defendant claims that they corrected the mistake by offering Plaintiff another class, but Plaintiff was only assigned to two courses that semester. (Id.); (ECF No. 22-7).

d) Winter 2018 Semester

Plaintiff states that he was assigned to one online class, while two white probationary professors, Kurtis Hale and William Wilson, had two and three classes, respectively. (ECF No. 22-11, PageID.560); (ECF No. 22-7); (ECF No. 22-5, PageID.507). Plaintiff then complained to the Assistant Director of Human Resources, Lynn Borczon. (ECF No. 22-11, PageID.560). She told Dean James about the issue, who then told Plaintiff that he would receive a new schedule. (Id.). Plaintiff claims that this never occurred, although the class list shows he taught two courses during the Winter 2018 semester. (ECF No. 21-12); (ECF No. 22-7). Defendant again claims that Plaintiff was originally passed over, because hepreferred to teach online courses and Hale and Wilson were assigned to in-person courses. (ECF No. 21-11).

e) Spring/Summer 2018 Semester

Plaintiff was not assigned any courses in for the Spring/Summer 2018 semester. (ECF No. 22-7). Under the new collective bargaining agreement, Plaintiff was required to call Dean Robert James at 9:50 a.m. on March 26, 2018 to select courses. (ECF No. 22-11, PageID.561); (ECF No. 22-12); (ECF No. 22-14, PageID.577). When Plaintiff called Dean James, he complained that Michael Trohimczyk was improperly assigned to an economics course. (ECF No. 22-11, PageID.555, 561-62). Plaintiff claims that James got "very hostile," "treated [him] like a second grader," and "disrespectful [him]." (Id.). Plaintiff then, without selecting any courses, ended the phone call to take his complaints to a "higher authority" (Id.). James, however, claims that although Plaintiff complained about the ranking system, Plaintiff also indicated that he would not be teaching in the Spring/Summer 2018 semester, which he relayed immediately in an email to Ms. Borczon. (ECF No. 22-13). Plaintiff alleges that he was not assigned any classes this semester in retaliation of his complaints.

f) Formal Complaint

On April 2, 2018, Plaintiff sent a memorandum to the College's Vice President of Academics, Dr. Michael Nealon, to detail his complaints regarding the course assignments. (ECF No. 21-12). Plaintiff claimed that since the Summer 2017 semester, the College had not assigned his courses in accordance with the CBAs and that its actions amounted to discrimination against him based on religion and national origin. (Id.). Lynn Borczon investigated Plaintiff's claims by speaking to College officials who assign courses. (ECF No. 21-11). She concluded there was not any merit and repeated Defendant's claims that he was passed over because of his online course preference. (Id.). Plaintiff is still employed at the...