By Jennifer Placinto, The Brighton Argus
Wednesday, April 3, 1996
Ann Arbor attorney James Fett won one battle against the Michigan State Police, but the war is not over yet.
Fett represented Brighton post Trooper Thomas Cremonte in a case which alleged the state police discriminated against him on the basis of race, gender and age. A jury awarded Cremonte (a white male) $850,000 on the basis that he was unable to get promoted because of the discrimination.
Fett has filed suit in the Livingston County Circuit Court on behalf of Brighton post trooper David Keuhn for the same reasons. Fett, of Malley and Fett, also filed a case on behalf of retired trooper Daniel Yake in Mackinac County Circuit Court and plans to file a similar case in Ingham County Circuit Court on behalf of Michael Herendeen. Fett is also representing Owosso state trooper Barry Lewis in a case involving the same claims, which is schedule to begin June 25.
Cremonte, 43, claimed he was being passed over for promotions because of an "augmentation" policy which allowed minorities and women who scored in the second highest percentile (83-91) on a state standardized test to have their scores raised to the highest level for promotional consideration.
State police attorneys did not dispute the augmentation claims, but said their commanders were not furnished with the actual cores, just a list of those who qualified for promotion. This practice changed in mid-1994 when the highest score was lowered to include the second band scores following an attorney general's opinion.
In addition to the $850,000 award, Cremonte is seeking interest on the verdict and future damages totaling $141,199, costs totaling $7,034, attorney fees totaling $88,104, interest on attorney fees and court-related costs in the amount of $14,213. The grand total - $1,086,377.
The actual attorney fees were $44,052, however, Fett is seeking an enhancement of the attorney fee award under the Elliott-Larsen Civil Rights Act.
"Enhancement is necessary to attract competent counsel to handle non-discharge cases so the non-discharge victims of discrimination may avail themselves of the ELCRA," according to Fett's motion.
"In certain circumstances, the judge can give a multiple if the judge feels it's necessary to attract good counsel to handle these cases and if the attorney did a good job," Fett said.
On Monday, Livingston County Circuit Judge Daniel Burress ruled to award a portion of the costs. A ruling on attorney fees may be delayed by an evidentiary hearing, however, Fett said he believes the final judgment will be in excess of $1 million.
Keuhn has been employed with the state police since 1978 and has sought a promotion to the rank of sergeant, scoring in the top band of the promotional exam. The suit also claims Keuhn is "more qualified then other applicants that were promoted."
The lawsuit claims Keuhn is not being promoted since he testified against the state police on behalf of Cremonte; that minority and female status are positive considerations in the promotional process, noting that minorities and females with second band test scores on the sergeants' exam were eligible for promotion while white males with the same scores were not eligible; and that the state police policy of "discriminating against white males has a significant disparate impact on older employees."
The suit noted that the promotional practice violates the Elliott-Larsen Civil Rights Act and suggests a policy based on "merit rather then race or gender."
Keuhn is seeking a judgment not less then $10,000 in addition to an award of costs, interest and attorney's fees, a promotion, and other "equitable relief as the Court deem just."
Fett and Cremonte testified before a state House of Representatives subcommittee in favor of Rep. Michelle McManus' bill, which limits affirmative action in the workplace to cases where discrimination has been proven or there is a statistical under representation of a minority group.
"I'm not here saying strike affirmative action," Fett told the subcommittee. "I'm here to testify on behalf of the McManus bill, which I do no believe eliminates affirmative action."
"If there is anybody that should not be engaging in inappropriate employment practices, it's the State of Michigan." Fett added. "And right now the State of Michigan is engaging in widespread race-norming. They are violating the equal protection laws of the state and federal constitution."
Fett told the subcommittee that he believes the effect of the McManus bill passing would be a decrease in "government-sponsored discrimination."
"The reason I had problems is because I was an outspoken critic of affirmative action," Cremonte testified before the subcommittee. "That's not politically correct. And if you're outspoken about that, they basically stick you in a hole and leave you there."
In additional to the financial judgment, Judge Burress must also rule on whether Cremonte should be promoted and as to whether the state police promotions policy is unconstitutional.
"If they are in violation, they'll have to scrap their augmentation policy on race and gender," Fett said earlier.
Assistant attorney general Richard Gartner, representing the state police, said the attorney general's office is waiting for the judges' decision before deciding whether to appeal, ask the judge to reverse the verdict or ask the judge for a new trial.
