Collver v. Bay Regional Medical Center d/b/a McClaren Bay Region

Filing 11

ORDER Converting 6 MOTION for Judgment on the Pleadings into Motion for Summary Judgment and Establishing Supplemental Briefing Schedule. (Response due by 2/28/2017, Reply due by 3/8/2017, and Surreply due by 3/15/2017.) Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MAUREEN COLLVER,
Plaintiff,
v.

Case No. 16-cv-12968
Honorable Thomas L. Ludington

BAY REGIONAL MEDICAL CENTER
d/b/a McLAREN BAY REGION,
Defendant.
__________________________________________/
ORDER CONVERTING MOTION FOR JUDGMENT ON THE PLEADINGS
INTO MOTION FOR SUMMARY JUDGMENT AND
ESTABLISHING SUPPLEMENTAL BRIEFING SCHEDULE
Plaintiff Maureen Collver initiated the above-captioned matter by filing her complaint
against Defendant Bay Regional Medical Center, d/b/a/ McLaren Bay Region (“BRMC”), on
June 30, 2016 in Bay County Circuit Court. Plaintiff alleges that Defendant terminated her
employment after she received a false positive on a drug test. Plaintiff further alleges that
Defendant’s purported reason for terminating her employment was pretextual, and that
Defendant’s true reason for terminating her employment was her age. She therefore asserts the
following four counts: (1) Age discrimination in violation of the Elliott-Larsen Civil Rights Act
(“ELCRA”), M.C.L. 37.201; (2) Breach of a Last Chance Agreement; (3) Breach of an oral
contract; and (4) Promissory Estoppel.
On August 15, 2016 Defendant removed the action to this Court, arguing that this Court
has federal subject-matter jurisdiction because Plaintiff’s breach of contract and promissory
estoppel claims are completely preempted by Section 301 of the Labor Management Relations
Act (“LMRA”), 29 U.S.C. § 185(a). See ECF No. 1. Defendant filed an answer to Plaintiff’s

complaint on August 22, 2016. See ECF No. 2. Then, on October 25, 2016 Defendant filed a
motion for judgment on the pleadings, arguing that Counts II, III, and IV of Plaintiff’s complaint
are wholly preempted by the LMRA and that Plaintiff has failed to state a claim under the
LMRA. See ECF No. 6. For the reasons stated below, Defendant’s motion will be converted
into a motion for summary judgment, and a supplemental briefing schedule will be established.
I.
Plaintiff Maureen Collver, born on February 2, 1961, is a resident of Bay County,
Michigan. See Compl. ¶¶ 1, 4, ECF No. 1.

Defendant BRMC is a domestic nonprofit

corporation conducting business in Bay County, Michigan. Compl. ¶ 2. Defendant (or its
predecessor) hired Plaintiff Collver as a registered nurse on or around January 12, 1987, and
continued to employ Plaintiff over a 28 year period. Compl. ¶¶ 5-6.
A.
Plaintiff alleges that in June of 2012 her estranged husband filed a false report with the
Bay City Police Department that Plaintiff was stealing Vicodin from Defendant and hiding the
medication in her car. Compl. ¶ 7. The Bay City Police Department contacted Defendant’s
Human Resources Department regarding the allegations, and Plaintiff voluntarily consented to a
search of her car, which did not reveal any stolen Vicodin. Compl. ¶¶ 8-9. Defendant also
required Plaintiff to submit to a mandatory drug screening, which returned negative. Compl. ¶
10.
Almost one year later, in May of 2013, Defendant accused Plaintiff of failing to
administer Vicodin to two patients in a six month period of time. Compl. ¶ 12. As a consequence
Defendant, through Greg Purtell, required Plaintiff to enroll in the State’s Health Professional

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Recovery Program (“HPRP”) or face termination. Compl. ¶ 13. Plaintiff was also required to
sign a Last Chance Agreement. Compl. ¶ 14.
The Last Chance Agreement is attached to Plaintiff’s complaint as Exhibit A. See Last
Chance Agreement, ECF No. 1. It is an agreement between Plaintiff, Defendant, and Plaintiff’s
Union, the “Professional Registered Nurses Staff Council of McLaren Bay Region, Represented
by Service Employees International Union Healthcare of Michigan” (the “Union”).

The

agreement was to be effective three years from the date of its execution. In relevant part, the
Last Chance Agreement provides as follows:
2. The Employer, Union and the Employee agree that if the employee violates
the terms of this Last Chance Agreement, the terms of any policy, work rule,
and/or any terms of the collective bargaining agreement, or fails to comply
with all requirements and conditions outlined in the [HPRP] Recovery
Monitoring Agreement, during the three (3) years, Employee’s employment
shall terminate and such termination shall be considered to be for just cause.
…
7. Employer, at its expense, may require Employee to undergo an alcohol and/or
drug screen analysis on occasions randomly selected by Employer. Any
refusal by Employee to submit to any such alcohol and/or drug screen analysis
shall be deemed a voluntary quit and the voluntary quit shall be effective
immediately upon such refusal. In the event that any such alcohol and/or drug
screen analysis results in a confirmed positive reading, Employee shall be
deemed to have voluntarily quit, and such voluntary quit shall be effective
immediately upon such positive reading.
…
9. The Employer, the Union and the Employee shall understand and intend this
document to constitute a last chance and agree that the Employee may be
terminated under the terms of this Agreement without regard to progressive
discipline, and regardless of the type, nature, or severity of such incident.
Any termination of employment under this Agreement shall occur only after
the incident in question is fully investigated by the Employer and a violation
is found. The Employee will be entitled to Union representation during any
such investigation. However, the termination shall not be subject to the
Grievance Procedure.

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See Last Chance Agreement ¶¶ 2, 7, 9. Plaintiff, Defendant, and the Union signed the agreement
on July 10, 2013. Id.
B.
Shortly after the parties entered into the Last Chance Agreement, in July of 2013
Defendant required Plaintiff to submit to a drug screening test. Compl. ¶ 15. The test returned
positive, however Plaintiff alleges that the positive result was caused by a labeling error by
RediMed in Bay City, Michigan, and alleges that RediMed admitted to the labeling error.
Plaintiff’s employment was not terminated as a result of the positive test result. Compl. ¶ 17.
On December 30, 2013 the parties extended the Last Change Agreement an additional six
months, or until January 10, 2017. See Last Chance Agreement.
On May 7, 2014 Plaintiff underwent another drug screen test that returned positive.
Compl. ¶ 21. Plaintiff alleges that the positive result occurred due to an injection of medication
to her knee that she had received the previous day from Doctor Mark Stewart, M.D. for a knee
problem. Compl. ¶ 20. Dr. Steward allegedly wrote Defendant a letter stating that the injection
of medication caused the false positive result. Compl. ¶ 23. Defendant again did not terminate
Plaintiff’s employment.
Plaintiff underwent yet another drug screening on or around June 18, 2014. Compl. ¶ 25.
Plaintiff alleges that while the doctor administering the test hired by HPRP, William Marrone,
D.O., determined that the result was negative, subsequent tests revealed a positive result for
Serax (Oxazepam), a benzodiazepine used to control symptoms of alcohol withdrawal. Compl. ¶
27. On July 8, 2014 Dr. Marrone wrote a letter to Defendant stating that “the lab used for
confirmation testing does not follow the same chain of custody as HPRP lab. [Plaintiff’s] HPRP
urine testing from 6/19/14 was negative.” Compl. Ex. B. Dr. Marrone therefore recommended

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that Plaintiff be allowed to “continue to work both at her job and at her recovery program
without issue.” Id.
C.
Nonetheless, on July 24, 2014 Human Resources Director Kath Roberts informed
Plaintiff that her employment was terminated. Compl. ¶ 31. Plaintiff alleges that Ms. Roberts
promised Plaintiff that she would be able to retain her position and benefits if she proved that the
May and June drug test results were incorrect. Compl. ¶ 32. Union officials were allegedly
present at the time Ms. Roberts made this promise. Compl. ¶ 33. As a result, Plaintiff underwent
a hair follicle test from HPRP representative, which returned negative. Compl. ¶ 34. Plaintiff
supplied the hair follicle test result to Ms. Roberts, but Defendant refused to acknowledge the
test and denied that Ms. Roberts had made any promise to Plaintiff. Compl. ¶¶ 34-35.
Plaintiff alleges that at the time of her termination she was one of the highest paid
registered nurses working for Defendant due to her years of experience. Compl. ¶ 36. Plaintiff
further alleges that Defendant replaced her with a substantially younger nurse at a lower pay rate.
Compl. ¶ 37. As a result of her termination, Plaintiff alleges that she has suffered severe
economic damages, including lost wages, back pay, front pay, raises, promotion, and benefits.
She also alleges that she has suffered non-economic damages including emotional distress,
anxiety, and depression.
II.
On October 25, 2016 Defendant filed the pending motion for judgment on the pleadings.
See ECF No. 6. Motions for judgment on the pleadings under Federal Rule of Civil Procedure
12(c) are analyzed under the same standard as motions to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6). As set forth in Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010), a

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district court must construe the complaint in the light most favorable to the plaintiff, accept all
well-pleaded factual allegations as true, and determine whether the complaint states a plausible
claim for relief. “However, the plaintiff must provide the grounds for its entitlement to relief”
and that “requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A
plaintiff must ‘plead[] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662,
664 (2009)).
A.
In its motion for judgment on the pleadings, Defendant argues that Plaintiff’s breach of
contract and promissory estoppel claims are completely preempted by the Section 301 of the
LMRA. Relevantly, 29 U.S.C. § 185(a) provides:
“[s]uits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce as defined in this Act,
orr between any such labor organizations, may be brought in any district of the
United Estates having jurisdiction of the parties, without respect to the amount in
controversy or without regard to the citizenship of the parties.
Id. The Supreme Court has interpreted this statute as a complete preemption statute, holding that
“when the heart of the state-law complaint is a clause in the collective bargaining agreement, that
complaint arises under federal law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987)
(quotations, citations, and alterations omitted). In other words, “[t]he pre-emptive force of § 301
is so powerful as to displace entirely any state cause of action ‘for violation of contracts between
an employer and a labor organization.’” Id. (quoting Franchise Tax Board of Cal. v.
Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1 (1983)).

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“Section 301 governs claims founded directly on rights created by collective-bargaining
agreements, and also claims substantially dependent on analysis of a collective-bargaining
agreement.” Caterpillar, 482 U.S. at 394 (quotations and citations omitted). The parties agree
that, in determining whether complete preemption applies, this Court must determine (1) whether
proof of Plaintiff’s claims requires interpretation of the collective bargaining agreement’s terms,
and (2) whether the right claimed by Plaintiff is created by the collective bargaining agreement.
See DeCoe v. General Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994). “If a state-law claim fails
either of these two requirements, it is preempted by § 301.” Mattis v. Massman, 355 F.3d 902,
906 (6th Cir. 2004).
B.
As an initial matter, Defendant has attached and referred to documents outside of the
pleadings. Specifically, Defendant has presented documents suggesting that the Union filed a
grievance on behalf of Plaintiff on July 29, 2014 in which the Union disputed Plaintiff’s
termination, and that McLaren denied the grievance on September 8, 2014.

Defendant’s

documents further suggest that on October 31, 2014 the Union denied her appeal of the Union’s
decision not to submit her grievance to arbitration.
Federal Rule of Civil Procedure 12(c) requires a court to convert a motion for judgment
on the pleadings to a motion for summary judgment where “matters outside the pleadings are
presented to and not excluded by the court.” Fed. R. Civ. P. 12(c). Documents attached to a Rule
12 motion are considered part of the pleadings if they are referred to in the complaint and are
central to the plaintiff’s claim. See Weiner v. Klais & Co., 108 F.3d 86, 88-89 (6th Cir. 1997). If
the Court chooses to treat a Rule 12(c) motion as a motion for summary judgment under Rule 56,

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“[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to
the motion.” Id.
While Plaintiff’s Collective Bargaining Agreement is referenced in the exhibits attached
to Plaintiff’s complaint,1 the complaint makes no mention of the remedies Plaintiff sought
through her Union. Because the question of LMRA preemption requires consideration of
Plaintiff’s relationship with the Union, Defendant’s motion for judgment on the pleadings will be
converted into a motion for summary judgment. The parties will be granted a reasonable
opportunity to present any additional relevant materials pertinent to the motion.
III.
Accordingly it is ORDERED that Defendant’s motion for judgment on the pleadings is
CONVERTED into a motion for summary judgment pursuant to Rule 56.
It is further ORDERED that the parties are DIRECTED to submit supplemental briefs
to Defendant’s motion for summary judgment as follows:
Plaintiff’s 15-page Response Brief:

February 28, 2017

Defendant’s 7-page Reply Brief:

March 8, 2017

Plaintiff’s 7-page Surreply Brief:

March 15, 2017

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: January 20, 2017

1

At this stage, neither party has presented the Court with a copy of the relevant collective bargaining agreement,
despite Defendant’s arguments that the Last Chance Agreement was arrived at by virtue of the collective bargaining
agreement and requires interpretation of the collective bargaining agreement, and that Plaintiff’s state law claims are
preempted by the collective bargaining agreement

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 20, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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