United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS
F. COX UNITED STATES DISTRICT JUDGE
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
Plaintiff's Complaint In This Action
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
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.
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 &
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
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
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).
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.
Standard Of Decision
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).
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 (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).
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.
Factual Background Concerning Plaintiff's Other Two
filing the instant case, Plaintiff filed two different
actions against the University and some of its
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.
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).
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.
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).
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
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,
PLAINTIFF GONG: Yes.
MR. WAHL: And you, Dr. Smith, and myself have had a chance to
go over the full and final release of all claims?
PLAINTIFF GONE: Yes.
MR. WAHL: And you've signed it?
PLAINTIFF GONG: Yes.
MR. WAHL: And you understand its terms?
PLAINTIFF GONG: Yeah.
MR. WAHL: And you've agreed to those terms, in signing
and initialing the various paragraphs in the release, is that
PLAINTIFF GONG: Yes.
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 ...