United States District Court, W.D. Michigan, Southern Division
J. QUIST UNITED STATES DISTRICT JUDGE
Tara Morton, filed this case pro se against her
former employer, the Grand River Hotel (the Hotel). In her
Complaint, Morton alleged a number of things against the
Hotel, including that she felt that she was “being
discriminated against because I am African-American Muslim,
” and that the manager of the housekeeping department
had engaged in nepotism by taking Morton's hours away and
“giving all the hours to the Spanish
employee[s].” (ECF No. 1.) Following a Joint Status
Report (ECF No. 9) and a Rule 16 scheduling conference before
Magistrate Judge Phillip Green, Magistrate Judge Green stayed
discovery and ordered the Hotel to file a motion to dismiss
and Morton to respond. (ECF No. 11.) Magistrate Judge Green
issued the order in light of questions arising at the Rule 16
conference regarding the Court's jurisdiction over the
Hotel filed the motion to dismiss, arguing that the Court
lacks jurisdiction under Federal Rule of Civil Procedure
12(b)(1), that the case should be dismissed under Rule
12(b)(6) due to Morton's failure to state a claim, and
that the case should be dismissed because Morton failed to
exhaust her administrative remedies. (ECF No. 13.) The matter
is fully briefed. For the reasons that follow, the Court will
grant the Hotel's motion on jurisdictional grounds.
the Hotel challenges jurisdiction under Rule 12(b)(1), Morton
bears the burden of establishing subject-matter jurisdiction.
Courtwright v. Garner, 751 F.3d 752, 760 (6th Cir.
2014) (citing DLX, Inc. v. Commonwealth of Ky., 381
F.3d 511, 516 (6th Cir. 2004)). A motion to dismiss under
Rule 12(b)(1) for lack of subject-matter jurisdiction may
take the form of a facial challenge, which tests the
sufficiency of the pleading, or a factual challenge, which
contests the factual predicate for jurisdiction. See DLX,
Inc., 381 F.3d at 516; Ohio Nat'l Life Ins. Co.
v. United States, 922 F.2d 320, 325 (6th Cir. 1990). In
a facial attack, the court accepts as true all the
allegations in the complaint, similar to the standard for a
Rule 12(b)(6) motion. Ohio Nat'l Life Ins. Co.,
922 F.2d at 325. In a factual attack, the allegations in the
complaint are not afforded a presumption of truthfulness and
the district court weighs competing evidence to determine
whether subject matter jurisdiction exists. Id. The
Hotel has made a facial attack on Morton's complaint,
arguing that the Court lacks both federal question
jurisdiction under 28 U.S.C. § 1331 and diversity
jurisdiction under 28 U.S.C. § 1332.
has not claimed any statutory or Constitutional basis to
confer jurisdiction on this Court. Although Morton stated in
her Complaint that she was discriminated against for being an
African-American Muslim, in the Joint Status Report, Morton
stated “that she is suing under ‘Nepotism.' .
. . I was not discriminated against, however, I was treated
unfairly because people who were family members, cousins, or
friends of the manager were treated more favorably and got
better and more hours.” (ECF No. 9 at PageID.39.) In
her response to the Hotel's motion, it appears that
Morton changed the basis of her Complaint again, stating that
her “complaint is based on false allegations that [the
Hotel and its employees] have against me for firing me and
their lying reasons . . . . My complaint is also based on Ms.
Martinez for calling another employee . . . and telling them
about her plans that she had for me far as my status as an
employee there.” (ECF No. 14 at PageID.68.) It appears
she now believes her case is one of wrongful termination:
“I feel that the Defendant owes me because they have no
real reason for terminating my employment.”
(Id. at PageID.69.) Morton admits that she
“may not have proof that [she] was discriminated
against as an African-American Muslim, ” but alleges
she has proof of discrimination based on facts connected to
her alleged wrongful termination. (Id.)
construing her pro se complaint liberally, Morton has not
shown that the Court has jurisdiction over her claim. She has
not invoked discrimination under Title VII and has apparently
abandoned any racial or religious discrimination allegations.
(ECF No. 9 at PageID.39 (“I was not discriminated
against, however, I was treated unfairly.”).) Further,
“it is clear that wrongful discharge is a state-law
cause of action.” Long v. Bando Mfg. of Am.,
Inc., 201 F.3d 754, 759 (6th Cir. 2000). The only
Federal law restricting nepotism is for public
employers-there is no federal law restricting nepotism for
private, at-will employers. See Clement v. Madigan,
820 F.Supp. 1039, 1046 (W.D. Mich. 1992) (citing 5 U.S.C.
§ 3110). Therefore, the Court lacks federal question
jurisdiction over Morton's claim.
Court also lacks diversity jurisdiction over the parties. It
is uncontested that both parties are citizens of Michigan,
and Morton has not alleged an amount in controversy exceeding
$75, 000. See, e.g., Schultz v. General R.V.
Ctr., 512 F.3d 754, 756 (6th Cir. 2008); Everett v.
Verizon Wireless Inc., 460 F.3d 818, 821 (6th Cir.
Court lacks jurisdiction over Morton's claims.
Accordingly, the Court need not reach the Hotel's
arguments that Morton failed to state a claim for which
relief can be granted and that Morton failed to exhaust her
the Court will dismiss Morton's Complaint ...