Farhat v. Michigan Department of Corrections et al
Filing
26
ORDER Granting 16 Defendants' Motion To Dismiss In Part And Holding Part Of It In Abeyance. Signed by District Judge Victoria A. Roberts. (LVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GWENEVERE FARHAT,
Plaintiff,
vs
Case No: 12-10864
Honorable Victoria A. Roberts
MICHIGAN DEPARTMENT OF CORRECTIONS,
WOMEN’S HURON VALLEY CORRECTIONAL FACILITY,
HURON VALLEY MEN’S FACILITY, CAROL VALLIE,
MILLICENT WARREN, SUSAN DAVIS, JERRY FRASKE,
PHILLIP JENNICHES,
in their individual and official capacities,
Defendants.
__________________________________/
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
IN PART AND HOLDING PART OF IT IN ABEYANCE
I.
INTRODUCTION
This matter is before the Court on Defendants’ Motion to Dismiss (Doc. #16).
Plaintiff sues various individuals, both in their official and individual capacities: Carol
Vallie, Millicent Warren, Susan Davis, Jerry Fraske, and Phillip Jenniches. Plaintiff also
sues the Michigan Department of Corrections (“MDOC”), Women’s Huron Valley
Correctional Facility, and Huron Valley Men’s Facility ( “State Defendants”).
Plaintiff says Defendants discriminated against her because of her bariatric
surgery and related disabilities, and retaliated against her for complaining about the
discrimination and an unrelated theft.
1
The matter is fully briefed. The legal arguments and factual allegations are
sufficiently set forth in motion papers; oral argument is unnecessary. The Court decides
Defendants’ motion on the briefs. See L.R. 7.1(f)(2).
The Court GRANTS Defendants’ motion to dismiss in part and holds part of it in
ABEYANCE.
II.
BACKGROUND
The parties supply no facts in their briefs. The background here is from Plaintiff’s
Complaint and “Right to Sue” letter.
Plaintiff was a corrections officer at Huron Valley Men’s Facility which closed and
later became Women’s Huron Valley Correctional Facility. Plaintiff had bariatric surgery
on February 15, 2008, and returned to work on April 14, 2008. On May 21, 2008, she
submitted her doctor’s request for accommodation on her behalf. Plaintiff alleges
Defendant Davis denied her request, Defendant Vallie refused to permit reasonable
accommodation, and Defendant Jenniches, her immediate supervisor, removed her
from the overtime schedule. On April 29, 2009, Plaintiff filed a charge of discrimination
with the Michigan Department of Civil Rights and the Equal Opportunity Employment
Commission (“EEOC”).
Plaintiff was on medical leave again from January 11, 2010, until May 1, 2010,
due to anxiety and depression. Her doctor informed Defendants in April that she would
need to avoid stairs and sit down at will when she returned to work due to knee
problems . Plaintiff alleges that before she returned, Defendants told her the restrictions
would be honored. However, when she returned to work on May 1, she alleges that she
2
was placed in a unit requiring physical demands she could not meet. She returned on
May 2nd but, on May 3, 2010, Plaintiff was sent home again. She asserts Defendants
Warren and Fraske terminated her.
On December 1, 2011, the Department of Justice issued Plaintiff a “Right to Sue”
letter. On February 27, 2012, Plaintiff filed her complaint in this Court based on 28
U.S.C. § 1331 and 28 U.S.C. § 1332 .
Throughout Plaintiff’s career, she filed internal grievances, made numerous
complaints with the EEOC, and made complaints about a corrections facility captain
stealing money from the “employee club.” Defendants were aware of the complaints.
Plaintiff asserts five claims against all Defendants: (1) Count 1- Violation of Title
I: Americans with Disabilities Act of 1990 (“ADA”); (2) Count II- Violation of Title VII; (3)
Count III- Violation of the Michigan Persons with Disabilities Civil Rights Act: Disability
Discrimination; (4) Count IV-Violation of the Michigan Persons with Disabilities Civil
Rights Act: Retaliation; (5) Count V- 42 U.S.C. § 1983: Violation of the First Amendment
of the United States Constitution.
In their motion to dismiss, Defendants assert that: (1) the State Defendants and
those individuals sued in their official capacities have Eleventh Amendment immunity
against ADA claims brought in federal court. They also contend there is no individual
liability for ADA claims brought against Defendants in their individual capacity (Count I);
(2) Disability discrimination is not a cognizable claim under Title VII (Count II); (3) The
State Defendants and Defendants sued in the their official capacity have Eleventh
Amendment immunity against the Michigan Persons with Disabilities Civil Rights Act in
federal court (Count III and IV); (4) The State Defendants and Defendants sued in their
3
official capacity have Eleventh Amendment immunity against 42 U.S.C. §1983 claims in
federal court, and Plaintiff fails to state a claim under 42 U.S.C. § 1983 against
Defendants sued in their individual capacity (Count V).
III.
ANALYSIS
A.
Standard of Review
1.
Standard of Review under Fed. R. Civ. P. 12(b)(1)
If a court lacks subject matter jurisdiction, dismissal is appropriate. Fed. R. Civ.
P. 12(b)(1). A motion under Fed. R. Civ. P. 12(b)(1) questioning subject matter
jurisdiction must be considered before other challenges. Gould, Inc. v. Pechiney Ugine
Kuhlmann, 853 F.2d 445, 450 (6th Cir. 1988).
2.
Standard of Review under Fed. R. Civ. P. 12(b)(6)
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests
the sufficiency of a complaint. The Court will grant a motion to dismiss under 12(b)(6) if
the complaint fails to state a claim upon which relief can be granted. G.M. Eng’rs and
Assocs, Inc. v. West Bloomfield Twp., 922 F.2d 328, 330 (6th Cir. 1990). To overcome a
Rule 12(b)(6) motion, “factual allegations must be enough to raise a right to relief above
the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[O]nly a
complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009). Although “a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,” a plaintiff must do more
than state conclusions or recite the elements of a cause of action. Bell Atl. Corp., 550
U.S. at 555.
4
In ruling on this motion to dismiss, the Court considers the Complaint as well as
documents referenced in the pleadings and central to Plaintiff’s claims. Tellabs, Inc.v.
Makor Issues & Rights Ltd., 551 U.S. 308, 322-23 (2007). These include Plaintiff’s
“Right to Sue” letter.
B.
Count I- Title I: Americans with Disabilities Act of 1990 (“the ADA”);
Counts III and IV: Violation of the Michigan Persons with Disabilities
Civil Rights Act (“PWDCRA”): Disability Discrimination (Count III)
and Retaliation (Count IV)
Counts I, III, and IV are barred by the Eleventh Amendment against
State Defendants and Defendants sued in their official capacity.
Count I, III, and IV against Defendants sued in their individual
capacity are dismissed because there is no individual liability for
these claims.
Defendants assert that the Eleventh Amendment bars suit for ADA and
PWDCRA claims against the State Defendants and those sued in their official capacity
without Michigan’s consent. And, Defendants say there is no individual liability for ADA
claims. Plaintiff’s only response is that her “Right to Sue” letter from the United States
Department of Justice authorized her to sue and waived Michigan’s Eleventh
Amendment immunity.
The Eleventh Amendment states that “[t]he [j]udicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” U.S. Const. amend. XI. Although the language of the Eleventh
Amendment “applies only to suits against a State by citizens of another State,” the
Supreme Court “extended the Amendment's applicability to suits by citizens against
their own States.” Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 363
5
(2001). Private individuals may not sue states in federal court without consent. Id. The
Eleventh Amendment bars lawsuits against states and their agencies unless the state
consents to be sued or Congress abrogates immunity. Alabama v. Pugh, 438 U.S. 78182 (1978); see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984).
The state must unequivocally express its consent. Pennhurst, 465 U.S. 89, 99 (1984).
The State of Michigan has not consented to be sued under the ADA in federal
court, nor has Congress abrogated its immunity. Because Michigan has not waived its
sovereign immunity by legislation or declaration, See Abick v. State of Mich., 803 F.2d
874, 876-77 (6th Cir. 1986); In re C.J. Rogers, Inc., 212 B.R. 265, 273 (E.D. Mich.
1997), Plaintiff cannot sue it.
Similarly, an official-capacity suit against a state official is against the state and is
also barred by the Eleventh Amendment without waiver. Cady v. Arenac County, 574
F.3d 334, 344 (6th Cir. 2009). Accordingly, Counts I, III, and IV fail against State
Defendants and Defendants sued in their official capacity.
Neither “pendent jurisdiction[,] nor any other basis of jurisdiction, may override
the Eleventh Amendment.” Pennhurst, 465 U.S. at 121. Plaintiff’s PWDCRA state law
claims against State Defendants and Defendants sued in their official capacity fail for
the same reason. See Florida Dept. of Health & Rehabilitative Services v. Florida
Nursing Home Ass'n, 450 U.S. 147, 150 (1981); see also Jones v. Michigan Dept. of
Corr., 1:09-CV-508, 2010 WL 3609384 (W.D. Mich. Sept. 10, 2010), at *4.
Finally with respect to these counts, Plaintiff contends that while the Eleventh
Amendment may arguably bar suit against State Defendants and those sued in their
official capacity, it does not bar suit for damages against Defendants in their individual
6
capacity. This argument is unavailing.
The ADA does not impose individual liability. Lee v. Michigan Parole Bd., 104 F.
App'x 490, 493 (6th Cir. 2004). “Individual supervisors who do not independently qualify
under the statutory definition of employers may not be held personally liable in ADA
cases.” Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 808 n.1 (6th Cir. 1999).
Supervisors are not liable as employers. Platt v. Univ. of Mich., 2:09-CV-10886, 2010
WL 1286487 (E.D. Mich. Mar. 3, 2010), at *8, report and recommendation adopted, 0910886, 2010 WL 1286479 (E.D. Mich. Mar. 31, 2010).
Defendants sued under the ADA in their individual capacity are not employers
and have no individual liability. Instead, they are employees defined under the ADA as
“individuals employed by an employer.” See 42 U.S.C. § 12111.
The PWDCRA states that “an employer shall not ‘discharge or otherwise
discriminate against an individual because of disability.” Mich. Comp. Laws § 37.1202.
“[The Michigan Court of Appeals] and Michigan Supreme Court note that the [ADA] and
the PWDCRA share the same purpose and use similar definitions and analyses.” Chiles
v. Mach. Shop, Inc., 238 Mich. App. 462, 472 (1999). “[B]oth courts have relied on the
ADA in interpreting the PWDCRA.” Id. A court may look to the ADA to interpret the
PWDCRA. Chiles, 238 Mich. App. at 472-73 (1999). “The Sixth Circuit held that
supervisors are not ‘employers’” liable under the ADA. Dillon-Barber v. Regents of Univ.
of Michigan, 51 F. App'x 946, 948 (6th Cir. 2002). The ADA does not impose individual
liability. Lee, 104 F. App'x at 493.
Count I, III, and IV fail in their entirety.
7
C.
Count II- Violation of Title VII of the Civil Rights Act of 1964
The Court dismisses Count II under Fed. R. Civ. P. 12(b)(6):
“Disability discrimination” is not a protected category under Title VII
of the Civil Rights Act of 1964.
Title VII prohibits employment discrimination due to an individual’s race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e-2. It does not cover disabilities. In
McDonnell Douglas Corp. v. Green, the Supreme Court set forth the framework for
analyzing cases alleging workplace discrimination based on indirect evidence. Hoskins
v. Oakland County Sheriff's Dept., 227 F.3d 719, 731 (6th Cir. 2000); McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). First and foremost, the plaintiff must
demonstrate membership in the protected class. Hoskins, 227 F.3d at 731.
Plaintiff fails to claim membership in one of the protected classes according to
the McDonnell framework. Because disability discrimination is not protected under Title
VII, Count II fails.
D.
Count V- Violation of 42 U.S.C. § 1983: First Amendment of the
United States Constitution
Plaintiff voluntarily dismisses her claim against State and
Defendants sued in their official capacity. The Court dismisses claim
against Defendants sued in their individual capacity because Plaintiff
failed to allege sufficient facts that she was involved in
constitutionally protected conduct.
In her response, Plaintiff agrees to dismiss Count V against State Defendants
and those sued in their official capacity.
However, Plaintiff says her Complaint against the Defendants in their individual
capacity survives a Fed. R. Civ. P. 12(b)(6) motion. She alleges Defendants’ retaliated
against her because she filed a disability discrimination claim with the EEOC and
8
reported theft by a facilities captain from the “employee fund.”
“To survive a motion to dismiss a claim under 42 U.S.C. § 1983, the plaintiff must
allege facts sufficient to support two elements: 1) the defendant acted under color of
state law; and 2) the defendant's conduct deprived the plaintiff of rights secured under
federal law.” Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 539 (6th Cir. 2012).
If the plaintiff claims a violation of the First Amendment right of free speech, she
must plead that “(1) [she] engaged in constitutionally protected conduct; (2) an adverse
action was taken against [her] that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) the adverse action was motivated at least
in part by [her] protected conduct.” Id.
1.
Plaintiff failed to allege facts sufficient to establish that she was
involved in constitutionally protected conduct.
“When a citizen enters government service, the citizen by necessity must accept
certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418
(2006). “However, public employees do not forfeit all their First Amendment rights
simply because they are employed by a state or municipality.” Handy-Clay v. City of
Memphis, Tenn., 695 F.3d 531, 540 (6th Cir. 2012). The Supreme Court requires that a
plaintiff allege “(1) that her speech was made as a private citizen, rather than pursuant
to her official duties; (2) that her speech involved a matter of public concern; and (3) that
her interest as a citizen in speaking on the matter outweighed the state’s interest, as an
employer.” Id.
In Count V, Plaintiff fails to allege activities of constitutionally protected speech.
9
Drawing all inferences in favor of the plaintiff, Directv Inc. v. Treesh, 487 F.3d 471, 476
(6th Cir. 2007),there are four paragraphs in the Complaint which suggest potential
speech:
“21.
Due to the Plaintiff’s bariatric surgery, she asked for the reasonable
accommodation of being permitted to bring in necessary food to her job
site so she could eat as directed by her physician.”
“27.
Plaintiff filed a Charge of Discrimination with the Michigan Department
of Civil Rights (“MDCR”) and the Equal Employment Opportunity
Commission (“EEOC”) on or about April 29, 2009 alleging discrimination
based on disability. (See Charge as Exhibit A). Plaintiff was issued a
Right to Sue Letter on December 1, 2011, and timely filed this Complaint.
(See Right to Sue Letter as Exhibit B).”
“42.
Also, prior to Plaintiff’s termination in 2010, she had made complaints
about a corrections facility captain stealing money from the “employee
club” of which Defendants were aware.”
“43. In fact, throughout Plaintiff’s career, she made numerous complaints
with the EEOC and internal grievances, of which Defendants knew.”
a.
Plaintiff did not allege facts sufficient to establish that
she spoke as a “citizen.”
“[W]hen public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes.” Garcetti, 547
U.S. at 421. Relevant factors in considering whether the public employee is speaking as
a “citizen” are “the setting of her speech, the speech’s audience, and its general subject
10
matter.” Handy-Clay, 695 F.3d at 540 (citing Weisbarth v. Geauga Park Dist., 499 F.3d
538, 546 (6th Cir.2007).
While Plaintiff alleges that she asked for reasonable accommodations, filed a
charge of discrimination, and made complaints, she does not allege that she spoke as a
citizen. She fails to state that her speech was not part of her official duty as a
corrections officer.
b.
Plaintiff failed to plead facts sufficient to establish that
her speech was a matter of public concern.
“Whether or not a plaintiff’s speech touches on a matter of public concern is a
question of law. In making this determination, we look to the ‘content[,] form, and
context of a given statement, as revealed by the whole record.’” Handy-Clay, 695 F.3d
at 531 (internal citations omitted). “Speech touching on public concern includes speech
on ‘any matter of political, social, or other concern to the community.’” Id.; Connick, 461
U.S. at 146. The mere fact that public monies are related to the public employee’s
speech does not make it a matter of public concern. Barnes v. McDowell, 848 F.2d 725,
734 (6th Cir. 1988).
In considering whether Plaintiff’s claim of disability discrimination is a matter of
public concern, the Court must determine whether Plaintiff’s EEOC filing and
accommodation requests were made to make a statement in general about
discrimination or if her career was the primary concern. Cox v. Shelby State Cmty.
Coll., 48 F. App'x 500, 508-09 (6th Cir. 2002). The relevant question is whether Plaintiff
filed the action to promote her career or cause. See id. at 508 (“litigation to eliminate
school segregation, clearly constitutes speech on a matter of public concern ... but the
11
legal action commenced by the plaintiff ... had been instituted ‘to promote her career,
not promote a cause’”) Here, Plaintiff has not pled a set of facts that would allow the
Court to determine whether Plaintiff was promoting her career or a cause. Id. at 508.
With respect to Plaintiff’s speech concerning the employee funds, although the
Court assumes the money that Plaintiff alleges the facilities captain stole from the
“employee fund” came from more than one employee, Plaintiff did not allege it
concerned any matter relevant to the community. Compare Chappel v. Montgomery
County Fire Prot. Dist. No. 1, 131 F.3d 564, 579 (6th Cir. 1997) (county fire protection
employee’s complaint of alleged misappropriation of district funds was a matter of public
concern), with Connick, 461 U.S. at 142 (majority of questionnaire prepared by
employee to solicit views of fellow staff concerning transfer policy was only considered
internal employee grievance and not public concern).
Plaintiff does not allege the money was taxpayer dollars or used for community
services. See e.g. Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563,
571-72 (1968) (teacher’s criticism of Board of Education’s allocation of school funds and
method of informing taxpayers was of public concern because it was needed for
electorate to make informed decisions). Even if the money is considered public, its
designation as public money alone does not make it matter of public interest. Barnes,
848 F.2d at 734.
Plaintiff failed to state a 42 U.S.C. § 1983 for violation of First Amendment Free
Speech against Defendants sued in their individual capacity. Count V fails.
E.
Leave to Amend
Plaintiff requests leave to amend Count V against the Defendants sued in their
12
individual capacity, and to add a claim under the Rehabilitation Act under 29 U.S.C. §
794.
Fed. R. Civ. P. 15 “declares that leave to amend ‘shall be freely given when
justice so requires.’” Foman v. Davis, 371 U.S. 178, 182 (1962). The court may deny
leave to amend if an amendment is futile. Id. Local Rule 15.1 requires a motion to
amend, along with a copy of the proposed amendment. L.R. 15.1.
1.
An added claim under the Rehabilitation Act Against
Defendants sued in their individual capacity is futile.
Under 29 U.S.C. § 794(a), the Rehabilitation Act prohibits any program or activity
receiving federal assistance to discriminate against a qualified individual because of
disability. 29 U.S.C.A. § 794. The statute defines a program or activity as
(1)(A) a department, agency, special purpose district, or other instrumentality of a
State or of a local government; or
(B) the entity of such State or local government that distributes such assistance
and each such department or agency;
(2)(A) a college, university, or other postsecondary institution, or a public system
of higher education; or
(B) a local educational agency (as defined in section 7801 of Title 20), system of
vocational education, or other school system;
(3)(A) an entire corporation, partnership, or other private organization, or an
entire sole proprietorship-(B) the entire plant or other comparable, geographically separate facility to which
Federal financial assistance is extended, in the case of any other corporation,
13
partnership, private organization, or sole proprietorship; or
(4) any other entity which is established by two or more of the entities described
in paragraph (1), (2), or (3)[.]
29 U.S.C. § 794.
Individuals are not included and do not qualify as a program or activity under the
statute. Kaufman v. Wolfenbarger, 08-13762, 2008 WL 5244432 (E.D. Mich. Dec. 16,
2008), at *2.
Because there is no liability for individuals under the statute, leave to amend
would be futile against Defendants sued in their individual capacity under the
Rehabilitation Act. Plaintiff may have a claim against State Defendants and Defendants
sued in their official capacity.
2.
Plaintiff must submit a motion and proposed complaint for the
Court determine leave to amend.
The Court will not decide whether Plaintiff may amend her First Amendment
claim under 42 U.S.C. § 1983 against Defendants sued in their individual capacity or, if
she can sufficiently state a claim against State Defendants and Defendants sued in their
official capacity, until she files her motion and proposed complaint. Plaintiff must file her
motion by December 20, 2012, and be mindful that Fed. R. Civ. P. 11 applies.
Defendant has 21 days to file any opposition to Plaintiff’s proposed amendment.
IV.
CONCLUSION
The Court dismisses Plaintiff’s Complaint, but will allow Plaintiff to file a motion to
amend Count V and to add a Rehabilitation Act claim against the State Defendants and
Defendants sued in their official capacity.
14
Defendant’s motion to dismiss is GRANTED in part and held in ABEYANCE in
part.
IT IS ORDERED.
/s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: November 20, 2012
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
November 20, 2012.
S/Linda Vertriest
Deputy Clerk
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?