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Barr v. Hss, Inc.

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

July 24, 2018

MARY BARR, Plaintiff,
HSS, INC. Defendant.



         Plaintiff Mary Barr filed a pro se complaint against her former employer, alleging that the defendant violated the Americans with Disabilities Act by discriminating against her based on a physical condition, and retaliating against her when she complained about it. The Court referred this case to Magistrate Judge Mona K. Majzoub for pretrial management. Thereafter, the defendant filed a motion styled as a motion to dismiss, asserting that the plaintiff signed an employment agreement that required all employment-related disputes to be resolved through a mediation and binding arbitration process. The defendant also asked that the complaint be dismissed because the plaintiff did not assert an arbitration demand within the one-year limitation contained in the employment agreement. Judge Majzoub filed a report on May 10, 2018 recommending that the motion to dismiss be converted to a motion for summary judgment, that the Court grant the motion in part by dismissing the complaint and compelling arbitration, and that the request to deny the claims as untimely be referred to the arbitrator. The plaintiff filed timely objections, and the matter is before the Court for de novo review.


         As the magistrate judge explained, the defendant is a security services contractor, and provided that service at the Detroit Metropolitan Airport. The defendant employed the plaintiff as a security officer there from June 2014 to June 2017, when its contract expired. According to the complaint, the defendant disciplined the plaintiff on various occasions, and at least once told her that she could not return to work because she had a medical device in her body and she would only be permitted to return to work once she filled out a ‘Fit for Duty' form. The plaintiff describes other disciplinary incidents in her complaint, some of which stemmed from complications with security screening because of her medical device, and the defendant's failure to accommodate the plaintiff's reasonable requests.

         The plaintiff complained about this treatment to the defendant's human resources representatives, but apparently found no sympathetic ear. She also apparently filed a complaint with the Equal Employment Opportunity Commission (EEOC).

         Attached to the defendant's motion to dismiss as “Exhibit 1” is an agreement titled “Responsive Resolution Program: Alternative Dispute Resolution, ” which the plaintiff signed on June 2, 2014. The parties and the magistrate judge refer to this document as “the RRP.” The magistrate judge described the pertinent details of that agreement in her report, and neither party takes issue with her summary. Of note is the requirement that all employment related disputes must be submitted to a mediation process, and then mandatory, binding arbitration conducted by the American Arbitration Association (AAA); arbitration demands must be made within one year “after the alleged unlawful conduct occurred”; the employee has thirty days to opt out of the mandatory arbitration provisions in the RRP; and the agreement and disputes arising under it are to be governed by Colorado law.

         The magistrate judge stated in her report that the RRP was not mentioned in the complaint and could not be included within the scope of documents that otherwise might be considered when deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). But she concluded that each side had sufficient notice and the opportunity to submit extrinsic materials, so conversion of the motion to one for summary judgment under Rule 12(d) was appropriate. See Id. (“If, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”).

         With the RRP in play, the magistrate judge determined that the RRP covered the dispute raised in the complaint, it was not procedurally or substantively unconscionable under Colorado law, and the agreement required the dispute raised in the complaint to be resolved in arbitration. Judge Majzoub also found that the RRP governed all the claims raised by the plaintiff, and therefore arbitration could be compelled and the case could be dismissed rather than stayed. Finally, the magistrate judge determined that because of the confusing description of the pro se plaintiff's grievances, it would be imprudent to address the defendant's untimeliness arguments without some factual development, which could occur in the arbitral forum.

         The plaintiff filed timely objections. The defendant filed a response to the plaintiff's objections, and the plaintiff filed a reply.


         The filing of timely objections to a report and recommendation requires the court to “make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to determine whether the recommendation should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1).

         “The filing of objections provides the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately, ” Walters, 638 F.2d at 950, enabling the court “to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute, ” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.'” McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).

         The defendant did not object to the recommendation to deny its request for dismissal based on untimeliness, and that question is not preserved. The Court agrees with the magistrate judge's reasoning on that issue and will adopt that part of the recommendation.

         The Court has reviewed the pleadings, the report and recommendation, and the plaintiff's three objections, and has made a de novo review of the ...

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