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Kirby v. Fitzgerald Public Schools District

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

August 23, 2017

DARLENE KIRBY, Plaintiff,
v.
FITZGERALD PUBLIC SCHOOLS DISTRICT, Defendant.

          ORDER REGARDING VARIOUS MOTIONS

          DENISE PAGE HOOD, CHIEF, U.S. DISTRICT COURT

         I. BACKGROUND

         On October 31, 2016, Plaintiff Darlene Kirby (“Kirby”) filed a Complaint pro se against Defendant Fitzgerald Public Schools District (“Fitzgerald”). The Complaint is difficult to understand but seems to allege an ERISA claim, a procedural due process claim under 42 U.S.C. § 1983, and a gender discrimination claim under Title VII. (Doc # 1) Fitzgerald filed an Answer on December 15, 2016. (Doc # 12) On December 22, 2016, Fitzgerald filed a Motion for Judgment on the Pleadings. (Doc # 14) On January 9, 2017, Kirby filed a document titled “Motion for Judgment on the Pleading Pursuant to Fed.R.Civ.P. 12(4)(f)” (Doc # 17), though it does not contain any argument related to a motion for judgment on the pleadings. On February 13, 2017, Kirby filed a Motion for Judgment for Relief. (Doc # 19) On February 15, 2017, the Court held a hearing on the motions. On February 24, 2017, Kirby filed another Motion for Judgment Pleading of Relief. (Doc # 23) On June 22, 2017, Kirby filed another motion titled Motion Pleading. (Doc # 27) On June 23, 2017, Fitzgerald filed a Motion to Strike Kirby's Motion Pleading. (Doc # 28) On July 26, 2017, Kirby filed a Motion for Dispositive Order to Dismiss the Entirety of Defendant's Motion for Judgment on the Pleadings. (Doc # 34) On July 27, 2017, Fitzgerald filed a Response and Motion that Plaintiff be Prohibited from Filing Further Documents Without First Convening a Conference with the Court and Undersigned Counsel. (Doc # 36)

         Kirby began working for Fitzgerald as a bus driver on or about August 28, 2015. (Doc # 1, Pg ID 10) According to Fitzgerald, Kirby was hired as a substitute bus driver (Doc # 14-3, Pg ID 74; Doc # 14-4, Pg ID 83), and it is not clear from the Complaint whether Kirby disputes the substitute status. According to Fitzgerald, substitute bus drivers are not members of a union and are not able to bid on bus routes. Id. Substitute bus drivers are assigned based on the daily needs of the school district when a union member is not able to complete a route. Id. The Complaint does not allege that Kirby is a union member, and it alleges that Kirby never received a “Transportation 1305 contract.” (Doc # 1, Pg ID 6) Kirby alleges, however, that she requested union representation after a school bus accident, and that she is a member of the Michigan Public Schools Employee Retirement System. Id. at 4. It is unclear whether Kirby believes she is a union member.

         Kirby alleges that she was involuntarily enrolled in the Office of Retirement Service's pension plan and the personal health care plan, both requiring employee contributions without joint contributions from either the employer or the union. Id. at 9. According to Kirby, Melanie Rainwater (“Rainwater”), Director of Human Resources, Facilities, and Transportation, forced her to sign a New Hire Election Form on December 7, 2015 making the aforementioned benefit elections in order to prevent her from receiving the employee benefits available to union members. Id. at 9-10, 13; Doc # 14-3, Pg ID 75.

         Kirby alleges that Laura Victory (“Victory”), Transportation Supervisor, discriminated against her and harassed her because of her gender. (Doc # 1, Pg ID 7; Doc # 14-3, Pg Id. 75) Kirby alleges that Victory reassigned her bus route on December 8, 2015 to co-worker Jerome Lyle (“Lyle”), a male substitute bus driver who allegedly had “less seniority.” (Doc # 1, Pg ID 7; Doc # 14-4, Pg ID 83) Kirby alleges that she completed the Fitzgerald School Bus Training Program several weeks before Lyle. (Doc # 1, Pg ID 7-8) Kirby's new bus route had fewer stops, which resulted in less work hours per week. Id. at 8. According to the Complaint, Victory also harassed Kirby by requiring her to do tasks that were not a part of her job. Kirby alleges that Victory informed Kirby that she could work additional hours per week by cleaning and fueling the fleet of school buses. Id. at 8. According to MDCR investigation records, documentation showed that these extra tasks that were offered, but not required of Kirby, were indeed a part of Kirby's job description. (Doc # 14-4, Pg ID 80) Further, Kirby confirmed that she did not report any alleged harassment to Fitzgerald. Id.

         According to MDCR investigation records, Victory and Rainwater, both women, are the same supervisors who hired Kirby in September 2015. (Doc # 14-4, Pg ID 79) Fitzgerald's transportation department includes 11 female employees and 6 male employees. Id.

         According to the Complaint, Fitzgerald has not terminated Kirby's employment, though the Complaint also alleges that her last date of work was January 5, 2016. Id. at 2, 15. On January 5, 2016, Kirby admittedly drove a school bus into collision with a tree, which was captured on video. Id. at 2-3. According to the Complaint, Kirby has been unable to obtain an answer from Fitzgerald regarding whether she has been terminated. Id. at 10.

         On January 22, 2016, Kirby filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) / MDCR alleging race[1] and gender discrimination. (Doc # 14-2) Kirby alleges that EEOC/MDCR handled its investigation in an improper manner. According to the Complaint, MDCR failed to give Kirby an opportunity to provide evidence to substantiate her claims and failed to investigate her allegations regarding being forced to make certain employment benefit elections. (Doc # 1, Pg ID 12) Kirby's Charge of Discrimination alleges that her bus route was reassigned to a male co-worker who had less seniority. (Doc # 14-2, Pg ID 72) It further alleges that Kirby was subjected to harassment that created a hostile work environment when her Caucasian supervisor asked her to perform tasks that were not a part of her job description. Id. Kirby's Charge was dismissed, and a Notice of Rights letter issued on July 28, 2016. (Doc # 14-5)

         II. ANALYSIS

         A. Standard of Review

         Federal Rule of Civil Procedure 12(c) authorizes parties to move for judgment on the pleadings “[a]fter the pleadings are closed-but early enough not to delay trial.” Fed.R.Civ.P. 12(c). Motions for judgment on the pleadings are analyzed under the same standard as motions to dismiss under Rule 12(b)(6). Warrior Sports, Inc. v. Nat'l Collegiate Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010) (internal citation and quotation marks omitted). “For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” Id.

         In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court explained that “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . . .” Id. at 555. A plaintiff's factual allegations, while “assumed to be true, must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.” LULAC v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (emphasis in original) (citing Twombly, 550 U.S. at 555). “To state a valid claim, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain recovery under some viable legal theory.” Bredesen, 500 F.3d at 527 (citing Twombly, 550 U.S. at 562).

         When deciding a 12(c) motion for judgment on the pleadings, as a general rule, matters outside the pleadings may not be considered unless the motion is converted to one for summary judgment under Fed.R.Civ.P. 56. See Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997). The Court may, however, consider “the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case, and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Id. at 89.

         Federal courts hold pro se complaints to “less stringent standards” than those drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, pro se litigants are not excused from failing to follow basic procedural requirements. Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991); Brock v. Hendershott, 840 F.2d 339, 343 (6th Cir. 1988). A pro se litigant “must conduct enough investigation to draft pleadings that meet the requirements of the federal rules.” Burnett v. Grattan, 468 U.S. 42, 50 (1984).

         B. ERISA Claim

         Fitzgerald argues that any ERISA claim should be dismissed because ERISA does not apply to governmental plans maintained by the government of any state. Kirby does not respond to this argument.

         Under the plain language of the statute, ERISA “shall not apply to any employee benefit plan if . . . such a plan is a governmental plan.” 29 U.S.C. § 1003(b)(1). “The term ‘governmental plan' means a plan established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing.” Id. at § 1002(32).

         Kirby alleges that she is a member of the Michigan Public Schools Employee Retirement System, which is maintained by the State of Michigan. As such, it is a governmental plan, and ERISA's provisions do not apply to it. The Court dismisses any ERISA claim.

         C. Due ...


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