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Gong v. The University of Michigan

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

February 13, 2018

Yusong Gong, Plaintiff,
The University of Michigan, et al., Defendants.



         Acting pro se, Plaintiff Yusong Gong filed this action on December 28, 2016 against the University of Michigan and three of its employees, asserting Title VII and ADA claims. The matter is currently before the Court on Defendants' Motion to Dismiss, brought under Fed.R.Civ.P. 12(b)(1) and (b)(6). The parties have briefed the issues and the Court concludes that oral argument will not aid the decisional process. See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. The Court therefore orders that the motion will be decided without a hearing. As explained below, the Court shall GRANT THE MOTION IN PART AND DENY IT IN PART. More specifically, the Court: 1) shall deny without prejudice Defendants' challenge based on the Release in a prior federal case filed by Plaintiff because, while Defendants may prevail on that challenge in the context of a motion for summary judgment, they have not established that they can prevail on that challenge in connection with a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6); 2) rules that any ADA claims for monetary damages in this action are barred by Eleventh Amendment immunity, but that to the extent Plaintiff's complaint seeks reinstatement under the ADA, that limited claim is not barred by Eleventh Amendment Immunity; 3) shall dismiss with prejudice Plaintiff's claims against the three individual Defendants because an individual employee/supervisor, who does not otherwise qualify as an “employer” under the statute, may not be personally liable under Title VII or the ADA.


         A. Plaintiff's Complaint In This Action

         On December 28, 2016, acting pro se, Plaintiff Yusong Gong (“Plaintiff”) filed this action against the following four Defendants: 1) the University of Michigan; 2) Richard Simon; 3) Michelle Henderson; and 4) Timorthy [sic] Lynch. Her complaint includes the following claims: “Count 1 - Retaliation - Title VII of the Civil Rights Act of 1964, ” “Count II - Title I of the Americans with Disabilities Act, ” and “Count III - Title I of the Americans with Disabilities Act (Pattern or Practice Claim).” Plaintiff's Complaint notes that her employment with the University ended years ago and that, beginning in 2012, she began working for the Cleveland Clinic. (Compl. at ¶¶ 20 & 42). Plaintiff's Complaint seeks declaratory relief and monetary damages, including back and front pay, and pain and suffering. (Compl. at 8-9). Plaintiff's complaint broadly requests injunctive relief and also seeks “other appropriate relief.” (Id.).

         The case was originally assigned to Judge Mark Goldsmith, who denied Plaintiff's motion seeking to proceed in forma pauperis. Plaintiff later paid the required filing fee for this case. This case was reassigned to this Court on August 29, 2017, as a companion case to Case Number 13-10469.

         Plaintiff's Complaint in this third action includes allegations as to a prior action she filed against the University in Washtenaw County Circuit Court and a prior federal case before this Court. (See, e.g., Compl. at ¶¶ 10 & 12).

         For example, Plaintiff alleges that “Defendant bribed Mr. Wahl $4000 and gained his cooperation. They teamed together and tried to force Ms. Gong to lie and promise that she would never report any scientific misconduct to any government agency. Ms. Gong rejected their unlawful request, and insisted to have her cases trialed [sic] in the court with juries.” (Id. at 44). Plaintiff further alleges:

46. On June 21, 2013, Mr. Wahl filed his withdraw motion to federal court. He told Ms. Gong he would not take her case to trail [sic] in the court because he had already promised defendant.
47. From June 26 to July 5, 2013, Ms. Gong was hospitalized because of much worsening depression.
48. On July 8, 2013, during the court time for his withdrawing motion, Mr. Wahl threatened to kick Ms. Gong's leg if she told the Judge anything differently than what he wanted her to say: He fooled her to sign an old draft of the settlement agreement. Later, he entered this draft as “The Final.”
49. On July 9, 2013, Ms. Gong received the new/final version of “the settlement agreement” which allowed her to have 14 days to consider if she wanted to accept or not. Ms. Gong has never returned this formal settlement document back to Mr. Wahl or defendant: she has never accepted any settlement money from defendant.
50. After almost 4 months long trying, defendant realized that they would never receive any [signed] settlement from Ms. Gong; Ms. Gong would never agree to settle without having her employment reinstated.
51. On September 25, 2013, Defendant teamed with Dr. Wahl lied to Judge David Swartz at Washtenaw County Circuit Court and had Ms. Gong's whistleblower protection/civil right case reinstated and dismissed at the same time. The dismissal of the law suit was based on the “he said” “A full resolution / settlement has been reached at the federal court since July 8, 2013”.

(Id. at ¶¶ 46-51).

         Plaintiff's Complaint also includes allegations as to communications she had with representatives of the University, such as Donna Varner and Timothy Lynch, regarding those prior cases.

         B. Standard Of Decision

         Defendants' Motion to Dismiss indicates that it is brought under Fed.R.Civ.P. 12(b)(1) (lack of jurisdiction) and Fed.R.Civ.P. 12(b)(6) (failure to state a claim). (See Defs.' Br. at 1 & 5).

         A 12(b)(6) motion evaluates the sufficiency of the complaint. However, as explained in Greenberg, a court evaluating a 12(b)(6) motion may consider certain matters outside of the pleadings, without converting the motion into a summary judgment motion, in some circumstances:

Rule 12(b) of the Federal Rules of Civil Procedure provides that if “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Under certain circumstances, however, a document that is not formally incorporated by reference or attached to a complaint may still be considered part of the pleadings. See 11 james Wm. Moore et al., Moore's Federal Practice § 56.30[4] (3d ed.1998). This occurs when “a document is referred to in the complaint and is central to the plaintiff's claim....” Id. In such event, “the defendant may submit an authentic copy to the court to be considered on a motion to dismiss, and the court's consideration of the document does not require conversion of the motion to one for summary judgment.” Id.; see, e.g., Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997) (considering pension plan documents that defendant attached to the motion to dismiss part of the pleadings because the documents were referred to in the complaint and were central to plaintiff's claim for benefits under the plan).

Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999).

         As a result, in deciding the pending Motion to Dismiss, this Court may consider public records from Plaintiff's two prior cases, and documents and emails referenced in Plaintiff's Complaint and central to her claims, such as the settlement agreement in Plaintiff's prior federal case, and emails with University officials.

         C. Factual Background Concerning Plaintiff's Other Two Cases

         Before filing the instant case, Plaintiff filed two different actions against the University and some of its employees/officers.

         First, in 2012, Plaintiff filed suit against the University and Martin G. Myers, Jr., M.D., Ph.D, in state court. That lawsuit was filed in Washtenaw County Circuit Court and was assigned to Judge David S. Swartz (“the Washtenaw County Case”) Plaintiff was represented by attorney Gerald Wahl in the Washtenaw County Case.

         On February 6, 2013, Plaintiff filed Case Number 13-10469, in federal court, through Mr. Wahl. Plaintiff named the University of Michigan and Martin Meyers as Defendants and Plaintiff asserted two counts: “Discrimination/Rehabilitation Act” (Count I); and “Retaliation/Rehabilitation Act” (Count II).

         A stipulated order dismissing Defendant Myers from Case Number 13-10469 was issued on April 18, 2013. On June 20, 2013, Mr. Wahl filed a motion seeking to withdraw as counsel for Plaintiff in Case Number 13-10469.

         The docket reflects that this Court held a motion hearing and status conference on July 8, 2013. On that date, an Order Dismissing Case with Prejudice was ultimately filed and it states: “The parties having placed a settlement of this action on the record on this date, IT IS ORDERED that this action is hereby DISMISSED WITH PREJUDICE and without costs or fees.” (D.E. No. 14).

         The transcript of the proceedings held on July 8, 2013 reflects the following. Plaintiff appeared at the hearing accompanied by a man named Douglas Smith, who is a physician. Wahl, Plaintiff's attorney, described Smith as “an advocate of sorts” for Plaintiff. (7/8/13 Hrg. Tr. at 3). When Wahl stated that he wished to withdraw from representing Plaintiff, Plaintiff responded that she was not understanding what he was saying, said she needed Smith's help (Id. at 4), and at one point appears to have asked for language translator. (Id. at 5). The Court went off the record after Plaintiff made statements indicating that she did not understand Wahl's motion to withdraw.

         When the parties went back on the record later that same day, Wahl advised the Court that his Motion to Withdraw was now moot because the parties had reached a resolution of the case. (Id. at 8). Wahl stated that he “would like to put the resolution of - my client's assent to the terms on the record, without going through the terms. It's a five-page release document which she signed.” (Id.). The Court then swore Plaintiff in and the following was placed on the record:

MR. WAHL: I only have a few questions, Ms. Gong. You and I, along with Dr. Douglas Smith, have had a chance to - he has assisted you in understanding some of this legal process, correct?
MR. WAHL: And you, Dr. Smith, and myself have had a chance to go over the full and final release of all claims?
MR. WAHL: And you've signed it?
MR. WAHL: And you understand its terms?
MR. WAHL: And you've agreed to those terms, in signing and initialing the various paragraphs in the release, is that right?
MR. WAHL: And this is something that you want to do, you haven't been coerced in some way that would suggest you're going to change your mind, based ...

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