Dewandeler v. Macomb, County of, et al
OPINION AND ORDER granting 10 Motion to Dismiss. Signed by District Judge Sean F. Cox. (JHer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No.: 11-12112
Honorable Sean F. Cox
County of Macomb, Ted Wahby, and
OPINION & ORDER GRANTING
DEFENDANTS’ MOTION TO DISMISS
Plaintiff Patricia Dewandeler brought this § 1983 action against her former employer,
Defendant County of Macomb and two County officers. Plaintiff alleges violations of her
Fourteenth and Fifth Amendment rights, breach of a settlement agreement, and other state law
tort claims. The matter is currently before the Court on Defendants’ Motion to Dismiss and/or
Summary Judgment. The parties have briefed the issues and the Court heard oral argument on
Defendants’ motion to dismiss on May 3, 2012. Because Plaintiff’s Complaint fails to state a
claim upon which relief can be granted, and because Plaintiff has failed to amend her Complaint
(See D.E. No. 21), the Court shall GRANT Defendants’ motion to dismiss.
Plaintiff began working as an account clerk at the Macomb County (the “County”)
Treasurer’s Office in 2000. (D.E. No. 14, Plf’s Resp. at 2). After a brief stint with a different
county treasurer’s office, Plaintiff returned to the Macomb County Treasurer’s Office in
November of 2003. (Id.). Plaintiff’s ultimate supervisor was the County Treasurer, Defendant
Ted Wahby (“Wahby”).
During the course of her employment with the County, Plaintiff filed a number of
grievances against Wahby in response to certain disciplinary actions taken against her. (Id. at 3).
The parties have not revealed the circumstances surrounding the disciplinary actions taken by the
County or the grievances filed by Plaintiff.
In 2007, the County terminated Plaintiff’s employment and Plaintiff filed another
grievance. (Id. at 3). On October 30, 2008, the County and Plaintiff executed a settlement
agreement with regard to Plaintiff’s grievance. The agreement, titled “Settlement and Release of
All Claims,” (the “Settlement Agreement”) is attached as Exhibit B to Defendants’ Motion.
(D.E. No. Def’s Br., Ex. B). The Settlement Agreement includes the following clause:
DEWANDELER further agrees that she will not in the future seek
employment with the EMPLOYER [the County of Macomb].
DEWANDELER also acknowledges that based on the consideration
set forth herein and pursuant to the terms and conditions of the
Settlement and Release of All Claims, she is not now and will not
ever in the future be eligible for such employment or recall to
employment based on any rights to recall, length of service or
seniority she might otherwise have been entitled to because of her
employment with EMPLOYER.
(Settlement Agreement at ¶ 9).
In April of 2009, Plaintiff applied for a position as Summer Youth Program Facilitator
with the Michigan Works! program. (Plf’s Resp. at 4). Michigan Works! is a “public-private
department administered by the Macomb/St. Clair Work Force Development Board.”
(Apczynski Affidavit at ¶ 1). After two interviews, Plaintiff was hired by the Employment
Service Coordinator assigned to Michigan Works!, Robert Apczynski. (Plf’s Resp. at 4).
Plaintiff began training for her new position on April 20, 2009. (Id.).
Three weeks into Plaintiff’s employment, Mr. Apczynski was notified by Macomb
County Corporate Counsel, Defendant James Meyerand (“Meyerand”), that Plaintiff’s
employment with Michigan Works! violated the terms of the Settlement Agreement. On May 7,
2009, Mr. Apczynski terminated Plaintiff’s employment with Michigan Works! because of the
Settlement Agreement violation.
On May 12, 2011, Plaintiff filed her Complaint. (D.E. No. 1). Plaintiff’s allegations are
paraphrased as follows: Count I – Fourteenth Amendment Due Process Violation (Property
Interest); Count II – Fourteenth Amendment Due Process Violation (Liberty Interest); Counts III
and IV1 – Violation of substantive due process under the Fifth Amendment; Count V –
Constitutional violations by the County; Count VI – Breach of Settlement Agreement; Count VII
– Intentional Infliction of Emotional Distress; Count VIII – Intentional Interference with
Expectation of Employment; and Count IX – Intentional Interference with Contractual
On July 18, 2011, the Court entered a Scheduling Order stating that discovery in this case
must be completed by April 12, 2012. (D.E. No. 9).
On November 14, 2011, Defendants’ filed the instant Motion to Dismiss and/or Motion
for Summary Judgment. (D.E. No. 10). Plaintiff filed a response brief on January 30, 2012.
(D.E. No. 14). The Court held a hearing on Defendants’ motion on May 3, 2012.
Counts III and IV of Plaintiff’s Complaint are identical.
Although the discovery cut-off date was scheduled for April 12, 2012, the parties
indicated to the Court at the May 3rd hearing that discovery had not been completed in this case.
Furthermore, Defendants filed their motion for summary judgment well before the discovery cutoff date. As a result, the Court ordered supplemental briefing, pursuant to Fed. R. Civ. P.
56(c)(1), regarding Defendants’ motion for summary judgment, in order to provide Plaintiff the
opportunity rebut the assertions in Defendants’ motion. (5/7/12 Order, D. E. No. 21).
The Court indicated to Plaintiff’s counsel that Plaintiff’s Complaint lacked the factual
allegations necessary to comply with the Supreme Court’s pleading standards in Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
Court, however, permitted Plaintiff to file a motion for leave to amend her Complaint, no later
than May 10, 2012, in order to correct the deficiencies in her Complaint identified by Defendants
in their motion to dismiss. (See 5/7/12 Order).2
The time permitted by the Court for Plaintiff to file a motion for leave to amend her
complaint has passed, and Plaintiff has not filed such a motion.
In the Court’s May 7, 2012 Order Regarding Supplemental Briefing, the Court provided
Plaintiff the opportunity to respond to Defendants’ supplemental brief and provide the Court
with evidence that Plaintiff’s employment with Michigan Works! did not constitute employment
with the City of Macomb – a central issue in this case. Although Plaintiff has yet to submit her
response to Defendants’ supplemental brief, Defendants have submitted to the Court the
following evidence that strongly indicates that Plaintiff’s employment with Michigan Works! is
considered employment with the County: (1) an agreement between St. Clair County and
Macomb County regarding the administration of the Michigan Works! program, (2) Plaintiff’s
pay stubs from her employment of Michigan Works!, (3) a Human Resources Information Sheet
signed by Plaintiff, and (3) the affidavit of the Employment Service Coordinator of the
Macomb/St. Clair Work Force Development Board. Each of these documents indicate that
Michigan Works! is a County program and that the County was Plaintiff’s employer during her
time with Michigan Works!. This evidence undermines the allegations in Plaintiff’s Complaint.
When ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must
construe the complaint in a light most favorable to the plaintiff and accept all the well-pleaded
factual allegations as true. Evans-Marshall v. Board of Educ., 428 F.3d 223, 228 (6th Cir. 2005).
However, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. The Court need not
accept a complaint's allegations as true if the allegations consist of “threadbare recitals of a cause
of action's elements, supported by mere conclusory statements.” Id. at 663. Although a
heightened fact pleading of specifics is not required, the plaintiff must bring forth “enough facts
to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “While legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 664. In practice, a complaint must contain either direct or
inferential allegations respecting all the material elements to sustain a recovery under some
viable legal theory. Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996).
Defendants assert that Plaintiff’s Complaint should be dismissed for failure to state a
claim under Fed. R. Civ. P. 12(b)(6) because Plaintiff’s Complaint does not meet the pleadings
standards set forth in Twombly and Iqbal. This Court agrees.
As the Supreme Court stated in Iqbal, “the tenet that a court must accept a complaint's
allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported
by mere conclusory statements.” Iqbal, 556 U.S. at 663. In this case, each of Plaintiff’s causes
of actions simply state a conclusory remark that Defendants have violated Constitutional
Amendments or have engaged in a particular tortious conduct. Plaintiff, however, fails to allege
the liberty interest of which she has been deprived, the property interest of which she has been
deprived, how Defendants have violated the Settlement Agreement, how Defendants have
interfered with Plaintiff’s employment opportunities or contractual rights, or any facts that may
lead to a plausible cause of action for intentional infliction of emotional distress. In fact,
Plaintiff’s threadbare allegations do not even go as far as to recite the elements of Plaintiff’s
causes of action. The only facts alleged in Plaintiff’s Complaint are those facts that led to the
Settlement Agreement, which are irrelevant to any of Plaintiff’s claims.
After Defendants filed and served their Rule 12(b)(6) motion, Plaintiff failed to amend
her Complaint once as a matter of course under Fed. R. Civ. P. 15(a)(1). The Court permitted
Plaintiff to file a motion for leave to amend her Complaint. Plaintiff, however, failed to take
advantage of that opportunity to correct the deficiencies of her Complaint. The Court finds that
Plaintiff’s current Complaint fails to allege “enough facts to state a claim to relief that is
plausible on its face,” and therefore does not meet the pleading requirements of Fed. R. Civ. P. 8.
See Twombly, 550 U.S. at 570.
For the reasons stated above, IT IS HEREBY ORDERED that Defendants’ motion to
dismiss (D.E. No. 10) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Complaint is DISMISSED WITH
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: May 16, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of record on
May 16, 2012, by electronic and/or ordinary mail.
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