BBF Engineering Services, PC v. State of Mich., 573 F. App'x 377

Background

BBF Engineering (BBF) and its owner Bellandra Foster (Black woman) performed consulting work for MDOT and were DBE-certified; they alleged discrimination and retaliation by MDOT project engineers Victor Judnic and Mark Stuecher and sought relief against state officials and MDOT.
Key contested events include: (1) an alleged 2006 comment by Judnic (“no woman should be making that kind of money”); (2) MDOT’s 2006 unbundling/reduction of a contract for which BBF was the top-scoring consultant; (3) mid-range evaluation scores given to BBF on a 2006 project; (4) a 2009 ARRA selection meeting where Stuecher allegedly lowered BBF’s scores; and (5) an FHWA inquiry that found some evidence of sex-based action by an MDOT employee and recommended process improvements.
Appellants filed federal claims (Title VI, 42 U.S.C. §§ 1981, 1983, and Michigan WPA) in 2011. The district court dismissed many claims on 12(b)(6) grounds and entered summary judgment for remaining individual defendants; Appellants appealed.
The district court treated most state-entity claims as barred by Eleventh Amendment immunity and held Title VI does not cover sex discrimination; it also required timely, non-conclusory allegations for Title VI race claims and for §1983 equal protection claims.
On summary judgment the district court found Appellants failed to show materially adverse actions caused by race/gender-based intent, failed to identify similarly situated comparators for §1983 claims, and lacked timely/present facts for WPA and due-process theories.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Title VI covers sex-based claims and whether Title VI race claims were plausibly pled	Foster/BBF argued Title VI claims for race and sex discrimination and retaliation arising from MDOT contracting practices	Defendants argued Title VI applies only to race/color/national origin, plaintiffs pled only conclusory allegations and lacked the required deliberate-intent allegations	Court: Title VI does not cover sex; race-based Title VI claims dismissed for failure to plead intentional discrimination or municipal deliberate indifference
Whether State of Michigan/MDOT are liable under §1983 or whether Eleventh Amendment bars claims	Plaintiffs sought §1983 relief against state/MDOT and official-capacity injunctive relief against Snyder/Steudle	Defendants argued sovereign immunity bars damages claims and §1983 does not abrogate Eleventh Amendment; official-capacity relief inappropriate without ongoing violation or proper service	Court: Eleventh Amendment bars §1983 damages against state/MDOT; summary judgment for officials in official capacity (no ongoing violation, lack of redressability/service)
Whether Judnic’s actions constitute §1983 equal protection (direct or circumstantial evidence)	Plaintiffs relied on the 2006 remark, contract unbundling, mid-range evaluations, FOIA delays, and other events as direct/circumstantial evidence of discriminatory intent	Defendants argued statement was ambiguous/isolated/timely remote, evaluations were mid-range/de minimis or non-causative, and no evidence linking actions to protected status or adverse contractual consequences	Court: No direct evidence; circumstantial claims fail because many actions are not materially adverse or not causally connected; summary judgment for Judnic
Whether Stuecher’s alleged unilateral score change (2009 ARRA process) supports §1983 equal protection	Plaintiffs asserted Stuecher lowered BBF’s score to exclude it from further consideration, showing discriminatory intent	Defendants argued plaintiffs failed to identify similarly situated comparators and offered insufficient evidence of discriminatory motive	Court: Assuming score change, that was a materially adverse action, but plaintiffs failed to identify appropriate similarly situated comparators; summary judgment for Stuecher
Whether plaintiffs’ proposed due-process amendment (property/liberty interest in contracts/evaluations) was permissible	Plaintiffs sought leave to add due-process claim based on evaluations/contract loss	Defendants argued no protected property or liberty interest in proposed-but-not-finalized contracts or evaluations; claim untimely	Court: Denial of leave affirmed as amendment would be futile (no protected interest; statute of limitations issues)
Whether Michigan Whistleblower Protection Act (WPA) claims against individual defendants survive	Plaintiffs argued FHWA complaints and related actions constituted protected activity and subsequent adverse acts were retaliatory	Defendants contended WPA inapplicable (plaintiffs not MDOT employees for WPA), WPA timely-barred (90-day limit), and no causal link after protected activity	Court: Summary judgment for defendants — plaintiffs failed to show WPA elements (employment status, timely adverse act, causal connection); Eleventh Amendment bars WPA claims against state in federal court

Key Cases Cited

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (plausibility standard for Rule 12(b)(6))
Ashcroft v. Iqbal, 556 U.S. 662 (conclusory allegations insufficient at pleading stage)
Will v. Michigan Dep’t of State Police, 491 U.S. 58 (states and state agencies are not "persons" under § 1983)
Ex parte Young, 209 U.S. 123 (official-capacity suits for prospective injunctive relief against state officials)
Burlington N. & S.F. Ry. Co. v. White, 548 U.S. 53 (reasonable-worker standard for retaliation adverse-action analysis)
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (limits on vicarious liability in federal anti-discrimination statutes)
Alexander v. Sandoval, 532 U.S. 275 (interpretation of statutory coverage and private rights of action)
Primes v. Reno, 190 F.3d 765 (6th Cir.) (mid-range performance evaluation not necessarily adverse)
Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673 (6th Cir. 2011) (equal protection discrimination framework)