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Rhodes v. City of Dearborn Pension Ordinance & City of Dearborn Police

United States District Court, E.D. Michigan, Southern Division

March 22, 2017

SCOTT RHODES, Plaintiff,


          Denise Page Hood Chief Judge, United States District Court


         On 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.

         On 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.


         Plaintiff 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 (“Retirement System”).

         Under 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))].

         To be 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))]

         Plaintiff 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.

         While 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]

         Pursuant 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][1]

         On 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.

         Plaintiff 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.

         Plaintiff 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 relief.
After carefully analyzing the record, I have no alternative but to deny the grievance.

[Dkt. No. 26-15, Ex. N. at PgID 608].

         On 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) unbridled discretion.


         A. Standard of Review

         1.Rule 12(c)

         In 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).

         2. Rule 12(b)(6)

         A Rule 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).

         3. Rule 56

         Rule 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.

         4.42 U.S.C §1983

         In 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 ...

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