United States District Court, E.D. Michigan, Southern Division
ROBERT C. TAYLOR, Plaintiff,
UNIVERSITY OF MICHIGAN, Defendant.
G. Edmunds United States District Judge
REPORT AND RECOMMENDATION DEFENDANT'S MOTION TO
DISMISS (Dkt. 9) and PLAINTIFF'S MOTION FOR LEAVE TO
AMEND THE COMPLAINT (Dkt. 15)
Stephanie Dawkins Davis United States Magistrate Judge
brought this action pro se under Title I of the
Americans with Disabilities Act, 42 U.S.C. § 12111
et seq. (Dkt. 1). District Judge Nancy G. Edmunds
referred pretrial matters in this case to the undersigned on
June 28, 2017. (Dkt. 10). On June 28, 2017, defendant
University of Michigan filed its motion to dismiss. (Dkt. 9).
Plaintiff responded, (Dkt. 13), and defendant replied. (Dkt.
14). On December 1, 2017, plaintiff filed a motion for leave
to file an amended complaint. (Dkt. 15). Defendant responded.
FACTUAL BACKGROUND AND PARTIES' ARGUMENTS
filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) on June 6, 2016, alleging
that his employer, defendant University, discriminated
against him in violation of the Americans with Disabilities
Act (“ADA”). (Dkt. 1, Complaint, at ¶ 7). On
February 7, 2017, the EEOC closed the file indicating that it
could not conclude there was a statutory violation, but it
did not certify that defendant had complied with the
statutes. (Id. at ¶¶ 8-9). Plaintiff
alleges that he is an individual with a disability within the
meaning of 42 U.S.C. § 12101 and 29 C.F.R. § 1630.2
that limits his ability to bend, lift, stoop, and repeat
movements. (Id. at ¶ 10).
August 2013, plaintiff sustained an injury while performing
his job duties as an employee at the University of Michigan
in the Custodian II position; specifically, he injured
himself while running a buffer machine. (Id. at
¶ 14). Plaintiff immediately sought medical attention on
behalf of defendant. (Id. at ¶ 15). Due to his
injuries, plaintiff had surgery to repair a torn rotator
cuff. (Id. at ¶ 16). After this surgery, he was
advised that he could perform some work with restrictions on
lifting and overhead reaching. (Id. at ¶ 18).
Plaintiff requested this accommodation but alleges that
defendant did not offer any reasonable accommodation within
his current role or any other role for which plaintiff was
qualified. Instead, defendant recommended that plaintiff stay
home on medical leave under the Worker's Compensation
provisions. (Id.). On July 11, 2014, plaintiff
returned to work after his shoulder surgery, but injured his
neck a week later while working. (Id. at ¶ 20).
Plaintiff requested accommodation based on the recommendation
of his treating physician, which included no use of the right
arm or hand, but defendant refused to accommodate plaintiff.
(Id. at ¶ 21). In early 2015, plaintiff's
doctor advised that he should have surgery to repair his neck
injury. (Id. at ¶ 23). Plaintiff made multiple
requests for accommodation within his restrictions, by
notifying his direct supervisor, who he believes directed
these requests to her Area Manager, who refused to
accommodate plaintiff in his current role or another role for
which he was qualified. (Id. at ¶ 24). An
independent medical examiner hired by defendant provided a
summary that contradicted the recommendation of several of
plaintiff's treating physicians. (Id. at ¶
26). Plaintiff was told to return to work in June 2015 and
was advised that he would lose his job if he failed to do so.
(Id. at ¶ 27). Defendant was aware that
plaintiff was scheduled for neck surgery in August 2015.
(Id. at ¶ 28).
returned to work on June 24, 2015 in the role of “Light
Duty Specialist.” (Id. at ¶ 29). This job
is within the OS1 cleaning model adopted by defendant's
Department of Building Services. Part of the job description
includes removing trash, which involves lifting and moving
bags up to 50 pounds, and vacuuming floors and stairwells
using a backpack vacuum cleaner. (Id. at ¶ 29).
Plaintiff again requested an accommodation based on work
restrictions advised by his treating doctors, but defendant
provided no accommodation. (Id. at ¶ 30). After
removing trash bags plaintiff told his supervisor he was
experiencing severe pain. His supervisor instructed him to
see a doctor. The doctor suggested that the lifting
aggravated his existing injuries and advised that he remain
off work on medical leave for several days. (Id. at
¶ 31). Plaintiff's supervisor and Area Manager
called him and told him he must return to work or he would
lose his job. (Id. at ¶ 32). On July 1, 2015,
plaintiff returned to work and again requested and was denied
an accommodation to limit strain and impact on his neck.
(Id. at ¶ 34). While using the vacuum
equipment, plaintiff's foot got caught in the cord and he
fell, hitting his head on a cement wall and falling down a
portion of a flight of stairs. Plaintiff exacerbated his
existing injuries and sustained an additional injury to his
lower back. (Id. at ¶ 35). Plaintiff went to
the emergency room and was advised to stay home from work and
see a specialist. (Id. at ¶ 36). On August 31,
2015, plaintiff underwent surgery on his neck. Defendant was
advised of this surgery. However, defendant terminated
plaintiff's employment prior to the surgery on the
grounds that plaintiff failed to provide sufficient
information regarding his injuries. (Id. at
¶¶ 38-39). Plaintiff alleges he was not given
timely notice of his termination, and was instead notified by
representatives from the AFSME trade union. (Id. at
of plaintiff's complaint is a claim under Title I of the
ADA. It alleges that defendant failed to provide plaintiff a
reasonable accommodation for his physical restrictions which
constitutes discrimination on the basis of disability. As a
result of defendant's conduct, plaintiff claims he
suffered and continues to suffer damages. (Id. at
¶¶ 50-56). Count II, also brought under Title I of
the ADA, alleges that defendant has a pattern or practice of
placing employees back to work as Light Duty Specialist,
which does not meet the definition of “reasonable
accommodation.” Defendant's representation that
Light Duty Specialist is an accommodation constitutes an
ongoing pattern or practice of discrimination on the basis of
disability, and plaintiff states that unless this Court
restrains further action, defendant will continue this
practice of discrimination. Plaintiff also points out that on
July 22, 2015, defendant entered a Consent Decree with the
United States related to this pattern or practice of
discriminatory activity. (Id. at ¶¶
Defendant's Motion to Dismiss
Defendant seeks dismissal of plaintiff's complaint under
Fed.R.Civ.P. 12(b)(1). Defendant argues that it is immune
from plaintiff's Title I ADA claims under the doctrine of
sovereign immunity granted by the Eleventh Amendment. (Dkt.
9, at p. 1). Under the doctrine of sovereign immunity, a
state entity may not be forced to stand suit in federal court
in law or equity unless Congress abrogates that immunity via
federal law or unless the state consents to suit.
(Id. at p. 2).
argues that the University is a state entity protected by
sovereign immunity. The Regents of the University of Michigan
is a constitutional body corporate established and existing
pursuant to the Michigan Constitution of 1963, Article VIII,
§ 5. (Id.). The Michigan Supreme Court has
expressly stated that “[t]he Legislature has included
‘public university[ies] in its definition of
‘State' for purposes of immunity.”
(Id.) (citing Vargo v. Saucer, 457 Mich. 49
(1998). Courts in the Sixth Circuit have also held that the
Regents of the University of Michigan is an arm of the state
protected by sovereign immunity. (Id. at p. 3)
(citing Ewing v. Board of Regents of the University of
Michigan, 552 F.Supp. 881 (E.D. Mich. 1982); Estate
of Ritter by Ritter v. University of Michigan, 851 F.2d
846, 850-51 (6th Cir. 1988).
to defendant, the Eleventh Amendment bars claims under Title
I of the ADA for monetary or injunctive relief. (Id.
at 3). Defendant also argues that the Eleventh Amendment bars
all claims against the University for money damages and
injunctive relief under Pennhurst St. School & Hosp.
v. Halderman, 465 U.S. 89, 100-01 (1984). (Id.
at p. 4). Finally, defendant states that the University has
not waived its sovereign immunity and that it does not
consent to this suit. (Id.).
response, plaintiff argues that Title II of the ADA extends
the obligations of Title I to the States. (Dkt. 13, at p. 8).
Specifically, § 35.178 states that a State is not immune
from suit under the Eleventh Amendment for a violation of
this Act. (Id.). Even if such abrogation of immunity
is not to be extended in this matter, the immunity would not
limit injunctive relief. (Id.). Plaintiff asserts
that even if this Court dismissed his complaint for lack of
jurisdiction, the Department of Justice would not be barred
from bringing an action against defendant related to the
factual matters alleged in plaintiff's complaint.
(Id.). Plaintiff also asserts that a dismissal here
would not limit a state cause of action related to the facts
underlying this matter. (Id.).
reply, defendant argues that plaintiff has not alleged a
claim under Title II of the ADA, but only under Title I.
(Dkt. 14, at p. 1-2). Further, the Sixth Circuit has held
that an employment discrimination claim may only be filed
under Title I of the ADA. (Id. at p. 2) (citing
Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th
Cir. 1997). Defendant is immune from suit under Title I.
(Id. at p. 1).
Plaintiff's Motion ...