United States District Court, E.D. Michigan, Southern Division
ORDER REGARDING VARIOUS MOTIONS
PAGE HOOD, CHIEF, U.S. DISTRICT COURT
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)
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.
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.
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.
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.
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.
January 22, 2016, Kirby filed a Charge of Discrimination with
the Equal Employment Opportunity Commission
(“EEOC”) / MDCR alleging race 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)
Standard of Review
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.”
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).
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.
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).
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
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).
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.