United States District Court, E.D. Michigan, Southern Division
ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS [#11]
AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Page Hood Chief Judge, United States District Court
September 14, 2015, pursuant to a stipulation of the parties,
Plaintiff Scott Rhodes, proceeding in pro per, filed a
three-count complaint against Defendant City of Dearborn in
the Third Circuit Court of Michigan, which Defendants
received on September 28, 2015. On October 28, 2015,
Defendants removed Plaintiff's action to this Court.
Defendants moved for judgment on the pleadings pursuant to
Fed.R.Civ.P. 12(c). [Dkt. No. 11] Plaintiff did not file a
timely response. At a July 13, 2016 hearing, the Court gave
Plaintiff an opportunity to file a written response, and he
did so. Defendants filed a reply, and a hearing was held on
August 11, 2013.
September 13, 2016, Defendants filed a motion for summary
judgment [Dkt. No. 26] that, but for citations to
Plaintiff's deposition testimony rather than the
pleadings and some facts regarding an arbitration proceeding,
is essentially identical to their motion for judgment on the
pleadings. The motion for summary judgment was fully briefed.
The Court, having concluded that the decision process would
not be significantly aided by oral argument, ordered that the
motion for summary judgment be resolved on the motion and
briefs submitted by the parties. E.D. Mich. L.R. 7.1(f)(2).
The Court grants in part and denies in part Defendants'
Motion for Judgment on the Pleadings and denies
Defendants' Motion for Summary Judgment.
STATEMENT OF FACTS
is a former firefighter for the City of Dearborn. Plaintiff
initially began employment with the City of Dearborn's
Fire Department in March 2004, and Plaintiff was a member of
the Dearborn Police and Fire Retirement System
the Retirement System's Pension Ordinance, a member
“may be retired by the [Pension Board] upon written
application filed with the” Pension Board: (1) when the
member has 10 or more years of credited service but, as is
the case with Plaintiff, has not satisfied the general age
and service requirements, (2) if he “become[s] totally
and permanently incapacitated for his duty as an
employee” for reasons not attributable to the
performance of his duties as an employee. [Dkt. No. 11, Ex.
A, PgID 103-04 (Pension Ordinance, § 235.09(1))].
eligible for duty disability pension benefits under either
Section 235.09(1), (a) the member must undergo medical
evaluations by a medical committee of three physicians, one
of whom is selected by the member, one of whom is selected by
the Pension Board, and the third of whom is chosen by
agreement of the first two physicians; and (b) the majority
of this medical committee must find that the member is
totally and permanently incapacitated from the further
performance of duty. [See Dkt. No. 11, Ex. A, PgID
103-04 (Pension Ordinance, § 235.09(1))]
claims that, beginning in 2012, he began to have significant
family issues, including filing for divorce from his wife of
7½ years. Shortly thereafter, Plaintiff's wife
began contacting Dearborn officials and telling them that
Plaintiff was taking bribes and having sexual relations while
he was on duty. Plaintiff contends that such allegations
caused investigations and unpleasant interactions with his
supervisors, including “unwarranted” warnings to
Plaintiff. In February 2013, a consent judgment of divorce
was entered, along with mutual restraining orders for
Plaintiff and his ex-wife. Plaintiff contends this created a
great deal of stress in his life, and he took five weeks of
leave to treat his stress. He continued to have problems in
his personal and professional life through 2013 and into
early 2014. Plaintiff was hospitalized for suicidal
ideations, and beginning in or about March 2014, took a
12-week FMLA leave for depression, anxiety, and stress.
on FMLA leave, Plaintiff was seen by Dr. Shiener. According
to Plaintiff, Dr. Shiener concluded in an April 2014 letter
that Plaintiff was “unfit for the performance of any
sort of work on the basis of his anxiety and
depression.” In April or May 2014, relying on Dr.
Shiener's report, Plaintiff filed an application for duty
disability retirement from Defendant City of Dearborn due to
Post-Traumatic Stress Disorder. Dr. Shiener answered several
questions from Defendant City of Dearborn and reported that
Plaintiff's “capacity [inability to work] is likely
to be permanent.” The City of Dearborn's Pension
Board then voted to send Plaintiff to Dr. Elliot Wolf (a
psychiatrist chosen by Defendant) for evaluation. Dr. Wolf
concluded that Plaintiff was not suffering from any
incapacity whatsoever and that, in Dr. Wolf's opinion,
Plaintiff was “psychiatrically capable of returning to
work immediately.” [Dkt. No. 21, PgID 316]
to the Pension Ordinance, because Dr. Shiener and Dr. Wolf
did not agree on Plaintiff's disability status, a third
psychiatrist, Dr. Rosen, was chosen by agreement of Dr.
Shiener and Dr. Wolf. Dr. Rosen examined Plaintiff on or
about October 8, 2014. Dr. Rosen sent the Pension Board a
letter regarding his examination of Plaintiff. The letter
concluded with Dr. Rosen's responses to a set of
questions regarding possible incapacitation of Plaintiff, as
set forth below (verbatim):
1. Is the member mentally incapacitated from performance of
the position's duties?
2. If incapacitated, what is the nature of the incapacity?
Major Depressive Disorder(296.20)
3. If incapacitated is the condition treatable? Yes, with
antidepressant medication, psychotherapy, and job counseling
it is likely that he will recover. If so, can the member be
expected to recover and be employed as a fireman and/or in
other employment? I am unable to determine at this time if he
would be able to return to his prior employment as a fireman
with the City of Dearborn. However, once he recovers it is
likely he will be able to return to employment with another
employer or in another occupation. What is the expected time
for the member to recover to an employable level? Assuming he
remains in treatment, it is likely that there would be
significant recovery in 6 months. I recommend he be
re-evaluated at that time regarding his employability.
4. If incapacitated, in the capacity permanent? No
[Dkt. No. 26, Ex. J, at PgID 581]
October 20, 2014, the Pension Board notified Plaintiff that
it would address his duty disability application at a
regularly-scheduled meeting on October 23, 2014. At the
October 23, 2014 meeting, which Plaintiff did not attend, the
Pension Board met and reviewed Plaintiff's duty
disability application. Based on the opinions of Dr. Wolf and
Dr. Rosen, the Pension Board concluded that: (a) “a
majority of the three-physician medical committee did not
find Plaintiff to be totally and permanently incapacitated
from the performance of his duty;” [Dkt. No. 11, PgID
64] and (b) “Plaintiff did not satisfy the elements of
the Pension Ordinance” to qualify for duty disability
pension. Id. The Pension Board denied
Plaintiff's application for duty disability pension.
asked the City of Dearborn if he could appeal the Pension
Board's decision, but he was advised that there was no
appeal procedure for the Pension Board's decision.
Plaintiff submitted a second duty disability application but,
as he was no longer an employee of the City of Dearborn, the
application was refused because he was ineligible to apply
for a duty disability pension. Id.
filed a grievance regarding the denial of his duty disability
application (and his termination). He was represented by
counsel during that process, which culminated in arbitration.
[Dkt. No. 26, Ex. N (Arbitration Opinion)]. After a complete
hearing, where all parties were given the opportunity to
present evidence, and the filing of post-hearing briefing (as
set forth below), the arbitrator denied Plaintiff's duty
disability application, stating:
I do not believe, and thus cannot conclude, that the Pension
Board acted arbitrarily and capriciously. I do not find that
statements contained in Dr. Rosen's report are so clearly
ambiguous that the Pension Board cannot utilize Dr.
Rosen's responses to add support to its conclusion that
the grievant was not totally and permanently incapacitated
from performing the duties of his position as outlined in the
pension language. Dr. Rosen stated in his report that the
grievant's incapacity was not permanent. He went on to
indicate that he was unable, at the time of the exam, to
determine if the grievant could return to his prior
employment. A fair reading of the report suggests there is
the possibility the grievant could return to the City in the
capacity he held when he was terminated. Further, I am not
persuaded that the Pension Board applied the incorrect
standard in determining that the grievant was not eligible
for a duty disability pension. Lastly, this Opinion and
Award, unless the contract states otherwise, is not intended
to preclude the grievant from applying to another forum for
After carefully analyzing the record, I have no alternative
but to deny the grievance.
[Dkt. No. 26-15, Ex. N. at PgID 608].
October 28, 2015, Plaintiff filed a three-count Complaint in
this Court, wherein he alleged: (1) a due process violation
of the United States Constitution; (2) vagueness; and (3)
APPLICABLE LAW & ANALYSIS
Standard of Review
deciding a motion brought pursuant to Rule 12(c), the
standard is the same as that used in evaluating a motion
brought under Fed.Civ.P. 12(b)(6). See, e.g.,
Stein v U.S. Bancorp, et. al, 2011 U.S. Dist. LEXIS
18357, at *9 (E.D. Mich. February 24, 2011). As such, the
Court must construe the complaint in the light most favorable
to the plaintiff and accept all well-pleaded factual
allegations as true. Kottmyer v. Maas, 436 F.3d 684,
688 (6th Cir. 2006).
12(b)(6) motion to dismiss tests the legal sufficiency of the
plaintiff's complaint. Accepting all factual allegations
as true, the court will review the complaint in the light
most favorable to the plaintiff. Eidson v. Tennessee
Dep't of Children's Servs., 510 F.3d 631, 634
(6th Cir. 2007). As a general rule, to survive a
motion to dismiss, the complaint must state sufficient
“facts to state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v Twombly, 550
U.S. 544, 570 (2007). The complaint must demonstrate more
than a sheer possibility that the defendant's conduct was
unlawful. Id. at 556. Claims comprised of
“labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Id. at 555. Rather, “[a] claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for misconduct alleged.”
Ashcroft v Iqbal, 556 U.S. 662, 678 (2009).
56(a) of the Rules of Civil Procedures provides that the
court “shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The presence of factual disputes will
preclude granting of summary judgment only if the disputes
are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). A dispute
about a material fact is “genuine” only if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
Although the Court must view the motion in light most
favorable to the nonmoving party, where “the moving
party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is metaphysical
doubt as to the material facts.” Matsushita
Electric Industrial Co. v. Zenth Radio Corp., 475 U.S.
574, 586 (1986); Celotex Corp. v. Caterett, 477 U.S.
317, 323-24 (1986). Summary judgment must be entered against
a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial. In such a situation, there can be “no genuine
issue as to any material face, ” since a complete
failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other
facts immaterial. Celotex Corp., 477 U.S. at 322-23.
A court must look at the substantive law to identify which
facts are material. Anderson, 477 U.S. at 248.
order to successfully pursue an 1983 claim against a public
official defendant, Plaintiff must establish: (1) a
deprivation or violation of a federally-protected right,
privilege, or immunity by the defendant; and (2) that the
action of the defendant that violated the federally-protected
right was caused by a person acting under the scope of state
law. McQueen v Beecher Cmty. Sch., 433 F.3d 460, 463
(6th Cir. 2006). “To have a property interest in a
benefit, a person clearly must have more than an abstract
need or desire for it. He must have more than a unilateral
expectation of it. He instead must have a legitimate claim of
entitlement to ...