United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) GRANTING DEFENDANTS' MOTION
TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS (ECF NO. 19) AND
(2) GRANTING PLAINTIFFS' MOTION TO STRIKE DEFENDANTS'
REPLY BRIEF (ECF NO. 29)
V. PARKER U.S. DISTRICT JUDGE
lawsuit arises from the termination of Plaintiffs'
positions with University of Michigan Health System
(“UMHS”) in July 2013. In an Amended Complaint
filed August 1, 2016, Plaintiffs assert: (I) a claim under 42
U.S.C. § 1983 for Defendants' alleged violation of
Plaintiffs' Fourteenth Amendment due process right to a
neutral decision-maker at their post-termination hearing, and
(II) an age discrimination claim under Michigan's
Elliott-Larsen Civil Rights Act (“ELCRA”).
Presently before the Court is Defendants' “Motion
to Dismiss and for Judgment on the Pleadings, ” filed
October 17, 2016. (ECF No. 19.) Plaintiffs filed a response
to the motion on November 7, 2016. (ECF No. 23.) Defendants
filed a reply brief on February 2, 2017, which Plaintiffs
move to strike because it was untimely. (ECF Nos. 28,
their motion, Defendants first argue that Eleventh Amendment
immunity bars Plaintiffs' § 1983 claim against the
University of Michigan (“Uof M”), UMHS, and the
individual defendants to the extent they are sued in their
official capacities for monetary relief. Thus, Defendants
seek dismissal of this claim pursuant to Federal Rule of
Civil Procedure 12(b)(1). Next, Defendants cite Federal Rules
of Civil Procedure 12(b)(6), (c), and 56 in support of their
request to dismiss Plaintiffs' § 1983 claim against
the individual defendants, to the extent they are sued in
their individual capacities. Specifically, Defendants contend
that the individual defendants are entitled to qualified
immunity because Plaintiffs cannot establish a violation of
their Fourteenth Amendment rights. Finally, Defendants argue
that the Court lacks subject matter jurisdiction to
adjudicate Plaintiffs' pendent state-law claim and thus
this claim also must be dismissed pursuant to Rule 12(b)(1).
motion to dismiss on the ground that sovereign immunity bars
the plaintiff's claims is properly treated as a motion to
dismiss for lack of subject matter jurisdiction under Rule
12(b)(1). See Lee Testing & Eng'g, Inc. v. Ohio
Dep't of Transp., 855 F.Supp.2d 722, 725 (S.D. Ohio
2012); see also Nair v. Oakland Cty. Cmty. Health
Auth., 443 F.3d 474, 476 (6th Cir. 2006). When a
defendant raises the issue of subject matter jurisdiction,
the plaintiff generally bears the burden of establishing
jurisdiction. Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 104 (1998). However, “
‘the entity asserting Eleventh Amendment immunity has
the burden to show that it is entitled to immunity.'
” Nair, 443 F.3d at 474 (quoting Gragg v.
Ky. Cabinet for Workforce Dev., 289 F.3d 958, 963 (6th
motion to dismiss pursuant to Rule 12(b)(6) tests the legal
sufficiency of the complaint. RMI Titanium Co. v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.
1996). A Rule 12(c) motion for judgment on the pleadings is
subject to the same standard of review as a Rule 12(b)(6)
motion. Grindstaff v. Green, 133 F.3d 416, 421 (6th
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). To survive motion
brought under Rule 12(b)(6) or (c), a complaint need not
contain “detailed factual allegations, ” but it
must contain more than “labels and conclusions”
or “a formulaic recitation of the elements of a cause
of action . . ..” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A complaint does not
“suffice if it tenders ‘naked assertions'
devoid of ‘further factual enhancement.' ”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 557).
Supreme Court provided in Iqbal and
Twombly, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.' ” Id. (quoting
Twombly, 550 U.S. at 570). “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 the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). The
plausibility standard “does not impose a probability
requirement at the pleading stage; it simply calls for enough
facts to raise a reasonable expectation that discovery will
reveal evidence of illegal [conduct].”
Twombly, 550 U.S. at 556.
deciding whether the plaintiff has set forth a
“plausible” claim, the court must accept the
factual allegations in the complaint as true. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). This presumption,
however, is not applicable to legal conclusions.
Iqbal, 556 U.S. at 668. Therefore,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555).
judgment pursuant to Federal Rule of Civil Procedure 56 is
appropriate “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 central inquiry is “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986).
movant has the initial burden of showing “the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once the movant
meets this burden, the “nonmoving party must come
forward with specific facts showing that there is a genuine
issue for trial.” Matsushita Electric Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal
quotation marks and citation omitted). To demonstrate a
genuine issue, the nonmoving party must present sufficient
evidence upon which a jury could reasonably find for that
party; a “scintilla of evidence” is insufficient.
See Liberty Lobby, 477 U.S. at 252.
party asserting that a fact cannot be or is genuinely
disputed” must designate specifically the materials in
the record supporting the assertion, “including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1). The court must accept as true the
non-movant's evidence and draw “all justifiable
inferences” in the non-movant's favor. See
Liberty Lobby, 477 U.S. at 255.
owns and operates UMHS. (Am. Compl. ¶ 4, ECF No. 4.)
Defendant Russ Laurin was employed in UMHS' Human
Resources Department at all times relevant to this lawsuit.
(Id. ¶ 5.) Defendant Kathy Jordan-Sedgeman was
employed as the Director of Labor Relations for UMHS during
the relevant period. (Id. ¶ 6.)
about August 9, 2005, Plaintiff Joanne Odom (“Ms.
Odom”) began working for UMHS as a linen distribution
supervisor. (Id. ¶ 10; Pls.' Resp. Br., Ex.
A ¶ 2, ECF No. 23-2.) Ms. Odom subsequently was
transferred to the position of Patient Transportation
Supervisor. (Am. Compl. ¶ 10, ECF No. 4.) On or about
January 15, 2008, Plaintiff Reginald Whitlow (“Mr.
Whitlow”) began working for UMHS as a Multifunctional
Material Management Intermediate Supervisor. (Id.
¶ 13.) LaKita Pogue supervised Ms. Odom and Mr. Whitlow
(collectively “Plaintiffs”) during their
employment. (Id. ¶ 17.)
affidavit submitted in response to Defendants' motion,
Ms. Odom asserts that when she was hired, she met with
Deborah Cobbs, the manager of patient transportation, and
Rolando Crooks, the director of the linen department.
(Pls.' Resp. Br., Ex. A ¶ 3, ECF No. 23-2.) Ms. Odom
attests that during this meeting, Ms. Cobbs “promised
me that I can continue working at the University until I
voluntarily retired, which would be in 2022.”
(Id. ¶ 4.) Ms. Odom further states that Ms.
Cobbs also “promised … that as long as I am
following the employment policies and procedures of the
University of Michigan, I am guaranteed to keep my
job.” Ms. Odom claims that Ms. Cobbs was the person
responsible for terminating her employment, if necessary, and
“[t]hus, she spoke with authority when making the
Odom also asserts in her affidavit that supervisors in the
patient transportation department trained with human
resources at least once a year and “[t]he human
resources department trainers would repeatedly say that as
long as we follow the Uof M employment policies and
procedures, we can continue to be employed and be promoted up
the employment ladder.” (Id. ¶ 6.) Ms.
Odom claims that she heard this statement from the time she
began working at Uof M, until the year she was discharged.
about July 30, 2013, Plaintiffs learned that there had been
an investigation concerning whether they had committed time
sheet fraud by falsely reporting hours worked. (Am. Compl.
¶ 22.) The investigation concluded that Plaintiffs were
not working for numerous hours they reported on their time
sheets. (Id. ¶ 23.) Plaintiffs dispute this
finding. Nevertheless, their employment was terminated in
late July 2013, and they were placed on a list precluding
their employment with any Uof M entity. (Id.
¶¶ 29, 31.)
to Plaintiffs, “Defendants have a policy of treating
employees fairly and equitably.” (Id. ¶
32.) Managers are advised to suspend, discipline, and
discharge employees only as needed. (Id.) Defendants
utilize progressive discipline and provide for a Disciplinary
Review Committee prior to terminating an employee for
misconduct. (Id. ¶¶ 33, 37.) Defendants
afford an employee “the opportunity to file a grievance
on matters associated with their employment relationship with
Defendants or enter into a dispute resolution process to
facilitate resolving misunderstandings and maintain ...