After years of providing professional civil engineering services to the Michigan Department of Transportation (MDOT), (including being DBE of the year in 2008) my company started encountering numerous instances of discriminatory treatment. After making many attempts to bring the issues to the attention of MDOT’s management and to come to an amicable resolution, I received correspondence from an MDOT manager notifying me of my rights under Title VI of the Civil Rights Act of 1964. After meeting with the Michigan Federal Highway Administration investigator, I compiled the documentation resulting in the submittal of 11 complaints of discrimination based upon race and/or sex to the FWHA office in Washington, D.C. Initially, 7 of the complaints were forwarded to the local Michigan FHWA office for investigation. The remaining 4 complaints remained in Washington, D.C. and subsequently two additional complaints were accepted for investigation. The Michigan Department of Transportation has retaliated against me personally and professionally in numerous ways since the initial filing of the complaints in July, 2010. The instances of retaliation have been documented and provided to the local investigator, including a bogus audit of my firm dating back to 1999 and blacklisting my company from obtaining prime contracts.
Response_Brief-BBF_vs_MDOT
BBF-Stamped-Supplemental_Brief (reference pages 2-3).
After engaging in a thorough internal investigation, within the 7 page report completed by the FHWA and MDOT investigators the following recommendations were made:
FHWA Recommendations:
a. It is our belief that MDOT should set up a process improvement team aimed at strengthening MDOT’s monitoring of the consulting/service contract award process.
b. It is our belief that MDOT should meet with Ms. Foster in regards to these issues and reaching a settlement agreement that would be acceptable to both parties.
The Michigan FWHA Division Administrator also provided correspondence to the MDOT Director, Kirk Steudle, where he encouraged MDOT to “work with Ms. Foster on settlement of her claims.”
None of these recommendations were followed by MDOT.
A lawsuit was filed in The US District Court Eastern District of Michigan in November, 2011.
In short, the Court acknowledges that Plaintiffs offer evidence to refute each of Defendants’ argument. However, this Court appears to conclude that without a demonstration that the Defendants said that this “N-Word” “B-Word” should not get paid, Plaintiffs have no case. Reading this opinion, even statements such as those alluded to above, would likely be deemed as only indirect evidence of discrimination. Without ever defining direct evidence or admitting the improbabilities of finding it, the Court has authored a new and potentially insurmountable barrier in the face of the findings of Defendants’ own investigators (FHWA and MDOT). The guilty party must admit its guilt or the victim does not even get her day in court! What then does Defendants’ Title VI system mean—nothing?
Based on the research of my attorney staff, I am the first female in the first Federal Case to bring a challenge under Title VI of the Civil Rights Act of 1964 that has resulted in a written opinion. The Federal Judge has stated in her previous opinion dated 2/2012 that Title VI does NOT protect against discrimination based upon “sex and gender”. Her recent opinion filed 8/12/2013 continues with this sentiment.
While the Opinion is too long to offer every example of this type of conduct, some of the more glaring examples include the following:
1. The Court held that Title VI does not address discrimination based on sex, though the Federal Highway Administration (“FHWA”) is subject to another statute (23 U.S.C. §324) that prohibits discrimination based upon sex and gender for projects funded by the FHWA.
MDOT’s website states the following: Title VI of the Civil Rights Act of 1964 (42 U.S.C. 200d), related statutes and regulations provide that no person shall on the ground of race, color, national origin, gender, or disabilities be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal funds.
2. The Court’s conclusion that Mark Steucher’s decision to change the scores was a gender and race neutral decision because he used a pronoun ‘her’ which referred to Bellandra Foster when he said, “oh no, I hate her” prior to changing the scores in a proposal evaluation where Dr. Foster’s company was reduced from the number one slot to near the bottom on a stimulus fund project. In this Court’s Opinion, this statement and the decision to take an adverse action as a result of it were race and gender neutral. (I have been reduced to only a pronoun, not even a person).
3. In this Court’s Opinion, Victor Judnic’s statement, “no woman should be making this kind of money”, is also a race and gender neutral statement even though the decision substantiates that he was referring to, and could have only been referring to, Bellandra Foster. Mr. Judnic would proceed to act upon this sentiment toward Bellandra Foster and BBF Engineering Services in numerous ways.
4. Despite the findings of the Federal Highway Administration and MDOT in investigating this matter in accordance with its own policies and procedures, the Court dismisses the findings of the FHWA and MDOT as untrustworthy and almost lacking in credibility. The Court gives no deference to the Agency’s findings.
I am continuing to be a trailblazer with this very difficult case that has resulted in significant sacrifices to me and my family physically, emotionally and professionally. It is my desire that no other person will have to encounter discrimination on Federally funded highway projects without knowledge of the laws that govern against these actions. I am continuing with this case at the Federal court level to bring to issue of enforcement of Title VI to the forefront for the rights of women on Federally funded transportation projects.
