Cowell v. American Red Cross Genesee-Lapeer Chapter
Filing
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ORDER granting 6 Motion to Dismiss; denying 12 Motion to Remand. Signed by District Judge Julian Abele Cook. (KDoa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANNITA COWELL,
Plaintiff,
v.
AMERICAN RED CROSS GENESEE-LAPEER
CHAPTER, AMERICAN RED CROSS GREAT
LAKES REGION, CHELEANE CLERKLEY,
CATRICE HUMPHREY and SHERRY RIOS,
Case No. 12-15258
Honorable Julian Abele Cook, Jr.
Defendants.
ORDER
In this employment discrimination case, the Plaintiff, Annita Cowell, complains that the
Defendants, the American Red Cross Genesee-Lapeer Chapter (“Chapter”), the American Red
Cross Great Lakes Blood Service Region (“Region”),1 along with fellow employees, Cheleane
Clerkley, Catrice Humphrey, and Sherry Rios, acted to her detriment when they collectively
violated the Michigan Elliott-Larsen Civil Rights Act, Mich. Comp. Laws 37.2201, 37.2202, and
37.2701, and the Michigan Whistleblowers’ Protection Act, Mich. Comp. Laws 15.362.
Although this lawsuit was initially filed in a state court (i.e., Genesee County Circuit Court
of Michigan), the Defendants caused it to be removed to this Court on November 29, 2012 pursuant
to 36 U.S.C. § 300105. Currently pending before the Court are (1) Cowell’s motion to remand, and
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The American Red Cross, Great Lakes Blood Services Region has been improperly sued
under the name of American Red Cross Great Lakes Region.
(2) the Defendants’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
I.
The facts, as viewed from Cowell’s perspective, are as follows: She began her employment
with the Red Cross2 in September 2009. It is Cowell’s basic contention that she was repeatedly
subjected to insulting, embarrassing, and derogatory comments thereafter by fellow-workers about
her excessive weight. According to Cowell, she was also treated differently than her fellow-workers
who were similarly situated. More specifically, Cowell complains that she was (1) not given an
opportunity to acquire additional training for comparable new work assignments, (2) not recalled
from her layoff status, and (3) unfairly disciplined. Furthermore, Cowell maintains that, although
her management supervisors were fully aware of the extremely uncomfortable circumstances to
which she had been subjected, they did not promptly attempt to rectify the situation. After Cowell
complained to them about these uninvited acts of discrimination, her employer responded by
terminating her employment in late August of 2012.
II.
The Defendants removed the case to this Court on the basis of the Congressional Charter
of the American National Red Cross (“Charter”), 36 U.S.C. § 300105, which grants original
jurisdiction in every federal court for any action that this organization is defending. Cowell has now
moved for an order of remand to a state court, contending that the Charter does not grant original
federal jurisdiction.
The Charter states in relevant part that “[t]he [Red Cross] may sue and be sued in courts of
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Cowell has not specified whether she was employed by the American Red Cross, Great Lakes
Blood Services Region, or the American Red Cross Genesee-Lapeer Chapter during any of the times that
are referenced in her complaint.
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law and equity, State or Federal.” 36 U.S.C. § 300105. The meaning of this phrase was clarified by
the Supreme Court in Am. Nat’l Red Cross v. S.G., 505 U.S. 247, 257 (1992), wherein it held that
the “sue and be sued” provision within this document “extends beyond a mere grant of general
corporate capacity to sue, and suffices to confer federal jurisdiction.” The plain language of this
holding clearly demonstrates that the Charter grants original federal jurisdiction to the Red Cross.
This interpretation has been recognized by multiple courts of appeal. See, e.g. Schaefer v. Gulf Coast
Reg’l Blood Ctr., 10 F.3d 327, 329 (5th Cir. 1994) (“The case was removed to federal court pursuant
to the grant of federal jurisdiction conferred by the Red Cross’ federal charter, 36 U.S.C. § 2")
(citation omitted); Doe v. American Red Cross, 14 F.3d 196 (3d Cir. 1993) (“The [Supreme Court
gave] a specific and unequivocal direction that the Red Cross is ‘thereby authorized to removal from
state to federal court of any state-law action it is defending.’”) (citation omitted) (emphasis in
original); Watson v. Lowcountry Red Cross, 974 F.2d 482, 483 n.1 (4th Cir. 1992).
Cowell submits that S.G. is distinguishable because jurisdiction had been created
independently of the Charter by virtue of the diversity of the parties, whereas here, the parties are
not completely diverse. This argument is not persuasive. In S.G., the Supreme Court held that
jurisdiction rested specifically on the “sue and be sued” clause, and not because of the citizenship
of the parties. 505 U.S. at 254. Furthermore, she contends that federal jurisdiction is lacking in this
case because a plaintiff’s selection of a state court forum should be given deference. However, this
argument ignores the fact that 28 U.S.C. § 1441 permits a defendant to remove a case from state
court whenever federal courts have original jurisdiction. By enacting this removal statute, Congress
decided that in certain situations - including this one - a plaintiff’s choice of forum is not entitled
to deference. For these reasons, Cowell’s motion to remand is denied.
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The Defendants seek an award of attorney fees that they incurred as a result of the need to
respond to Cowell’s motion to remand, contending that this pleading is an example of “bad faith,
vexatious conduct, and/or wantonly reckless and ignorant practice.” (Def. Resp. 5). The Supreme
Court has determined that a court may indeed exercise its inherent authority to impose attorney fees
where “a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Chambers
v. NASCO, Inc., 501 U.S. 32, 44-46 (1991). For example, sanctions are appropriate if “a court finds
that fraud has been practiced upon it, or that the very temple of justice has been defiled” or in cases
where “a party shows bad faith by delaying or disrupting the litigation or by hampering enforcement
of a court order.” Id. at 46 (internal quotation marks and citations omitted). However, in this case,
the Defendants have not shown that such sanctions are warranted. Although it is now wellestablished that the “sue and be sued” provision within the Charter permits the removal of an action
such as this, the evidence in this record does not suggest that Cowell filed her motion in bad faith
or with the intent of disrupting the litigation. See id. Thus, the Defendants’ request for attorney fees
for responding to the motion for remand is denied.
III.
Having determined that jurisdiction is proper, the Court now turns to the Defendants’ motion
to dismiss. When considering a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the Court accepts the Plaintiff’s well-pleaded allegations as being true and construes each
of them in a light that is most favorable to its position in this case. Bennett v. MIS Corp., 607 F.3d
1076, 1091 (6th Cir. 2010). However, this assumption of truth does not extend to the Plaintiff’s legal
conclusions because “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint,
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which is the object of the currently pending motion to dismiss, “must contain either direct or
inferential allegations respecting all material elements to sustain a recovery under some viable legal
theory.” Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008) (citation and internal
quotation marks omitted).
In order to survive an application for dismissal, the complaint must allege “enough facts to
state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). To meet this standard, the “plaintiff [must] plead[ ] factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129
S. Ct. at 1949. In essence, “[a] pleading that states a claim for relief must contain . . . a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
In considering a 12(b)(6) motion, “documents attached to the pleadings become part of the
pleading and may be considered.” Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327,
335 (6th Cir. 2007) (citing Fed. R. Civ. P. 10(c)). “In determining whether to grant a Rule 12(b)(6)
motion, the court primarily considers the allegations in the complaint, although matters of public
record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also
may be taken into account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001) (emphasis
omitted)). Moreover, “documents that a defendant attaches to a motion to dismiss are considered
part of the pleadings if they are referred to in the . . . complaint and are central to [the plaintiff’s]
claim.” Weiner, D.P.M. v. Klais & Co., 108 F.3d 86, 88 n.3 (6th Cir. 1997); see also Bassett v.
NCAA, 528 F.3d 426, 430 (6th Cir. 2008). Supplemental documents attached to the motion to
dismiss do not convert the pleading into one for summary judgment where the documents do not
“rebut, challenge, or contradict anything in the plaintiff’s complaint.” Song v. City of Elyria, 985
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F.2d 840, 842 (6th Cir. 1993) (citing Watters v. Pelican Int’l, Inc., 706 F. Supp. 1452, 1457 n.1 (D.
Colo. 1989)).
IV.
Cowell alleges that she (1) was terminated in violation of the Michigan Whistleblower
Protection Act, and (2) suffered from weight discrimination, weight harassment, and retaliation
under the Michigan Elliott-Larsen Civil Rights Act. The Defendants have moved to dismiss these
claims because, in their collective point of view, the complaint does not (1) allege a sufficient
factual basis upon which to state a plausible claim or (2) make any significant distinction between
the five Defendants.
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading “must contain a short and
plain statement showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “It is
significant that Rule 8(a)(2) requires a ‘showing’ of entitlement to relief, rather than merely a
‘blanket assertion.’ Langford v. Caruso, 11-CV-10219, 2011 WL 3348060 *2 (E.D. Mich. Aug. 3,
2011) (citing Twombly, 550 U.S. at 556). The statement required by this Rule 8 must not only give
the Defendants fair notice of the claims but also of “the grounds upon which it rests.” Twombly, 550
U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). “[A] plaintiff’s obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Hensley Mfg. v. ProPride, Inc.,
579 F.3d 603, 609 (6th Cir. 2009) (citing Iqbal, 556 U.S. at 678). “To state a valid claim, a
complaint must contain either direct or inferential allegations respecting all the material elements
to sustain recovery under some viable legal theory.” League of United Latin Am. Citizens v.
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Bredesen, 500 F.3d 523, 527 (6th Cir. 2007).
As an initial matter, all claims against the named Red Cross Chapter and the Region will be
dismissed. The only factual allegation in the complaint which purports to link these entities to the
violations alleged in the complaint is that Cowell was employed by the “Defendant Corporation.”
This use of the singular “Defendant” ignores the obvious; namely, that two corporations have been
named as Defendants in this matter. Cowell does not specify (1) which of the two corporate
Defendants was her employer during those times that are relevant to this litigation or (2) her theory
of liability against the “other”corporate entity. In order to state a plausible claim against these
Defendants, she must allege sufficient facts to establish that each of them is individually responsible
for the alleged violations.
In addition, Count I is dismissed against all Defendants. In order to establish a claim under
Section 2 of the Michigan Whistleblower’s Protection Act (“WPA”), Mich. Comp. Laws § 15.362,
a plaintiff must show that she (1) was engaged in a protected activity during those times that have
been referenced in the complaint, (2) was subjected to the claimed act of discrimination or discharge,
and (3) the protected activity caused the discharge or adverse employment action. Whitman v. City
of Burton, 831 N.W.2d 223, 229 (Mich. 2013). Cowell does not identify suspected illegal acts about
which she complains with any reasonable clarity. In their current form, Cowell’s complaints
constitute a “formulaic recitation of the elements of [the] cause of action,” and are “legal
conclusion[s] couched as a factual allegation.” Twombly, 550 U.S. at 556. She must plead sufficient
facts to allow the Court to draw a reasonable inference that the Defendants are liable for the alleged
statutory violation. Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009).
The remaining claims suffer from the same lack of specificity as to which Defendants are
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alleged to have committed the acts at issue. See, e.g., Robbins v. Oklahoma, 519 F.3d 1242, 1248
(10th Cir. 2008) (dismissing claims in part for failing “to differentiate among individual defendants
and specify which defendants are alleged to have taken which particular actions”). Cowell uses the
generic term “Defendant” throughout the report without differentiating among the various
tortfeasors. In some instances, Cowell appears to refer to one or both corporate Defendants (e.g.,
“Defendants’ employees,” Compl. ¶ 30; “Defendant’s management employees,” Compl. ¶ 45). In
some instances, she refers to some or all of the individual Defendants (e.g., “Plaintiff complained
to Defendants,” Compl. ¶ 31), and in some other instances, she appears to refer to both the corporate
and individual Defendants (e.g., “Based on Defendants’ wrongful acts,” Compl. ¶ 46). The
Defendants are not required to guess as to whom Cowell’s allegations are made. A second example
of the complaint’s lack of clarity is found in Paragraph 28, which states that Cowell was subjected
to “hostile and demeaning comments and confrontations” by “her supervisor.” Yet, according to
Cowell, she had multiple supervisors, including Humphrey and Rios. (Compl. ¶ ¶ 16, 17). Again,
it is impossible to determine from this sentence which Defendant is alleged to have committed these
acts of discrimination.
For the reasons stated, Cowell’s complaint will be dismissed without prejudice.
V.
The Defendants request attorney fees pursuant to Local Rule 7.1(a)(3), which states that the
Court may tax costs for the unreasonable withholding of consent. E.D. Mich. L.R. 7.1(a)(3). Prior
to the filing of the motion to dismiss, the Defendants had asked Cowell to clarify the allegations
within her complaint by providing them with additional factual support. This request was denied.
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On the one hand, the Defendants requested that Cowell provide some factual allegations to
support her claim of a violation of the Michigan Whistleblower’s Protection Act and to differentiate
among the Defendants, which would have addressed the deficiencies within the complaint and
obviated the need for this motion. The Defendants also requested Cowell to provide them with
specific dates for the alleged adverse actions in order to determine whether a statute of limitations
issue exists. (See Pl. Resp. Ex. 2). It is not clear to this Court that such detailed factual allegations
are necessary. Certainly, a plaintiff is not required to plead the lack of a limitations violation in order
to state a valid claim. Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012) (motion under
12(b)(6) generally inappropriate vehicle for dismissing claim based on statute of limitations). Thus,
it appears that the Defendants requested detailed factual information which Cowell is not obligated
to allege in her complaint, and her refusal was therefore partially justified. While the Court has
determined that the complaint lacks the particularity required by the Federal Rules of Civil
Procedure, it will not, in its discretion, tax costs for the withholding of consent. Thus, the
Defendants’ request for costs pursuant to Local Rule 7.1(a)(3) is denied.
VI.
For the reasons that have been set forth above, the Court denies Cowells’ motion for remand
(ECF No. 12) and grants the Defendants’ motion to dismiss (ECF No. 6).
IT IS SO ORDERED.
Date: September25, 2013
s/Julian Abele Cook, Jr.
JULIAN ABELE COOK, JR.
U.S. District Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective
email addresses or First Class U.S. mail to the non-ECF participants on September 25, 2013.
s/ Kay Doaks
Case Manager
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