Moore v. Countryside Retirement Community et al
Filing
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ORDER granting 16 Motion to Dismiss. Signed by District Judge Marianne O. Battani. (KDoa)
UNTIED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEVE RAY MOORE,
Plaintiff,
CASE NO. 2:13-cv-15254
v.
HON. MARIANNE O. BATTANI
COUNTRYSIDE CARE CENTER, INC.,
and SECURE HOME SERVICES, LLC,
Defendants.
_______________________ __________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
I.
INTRODUCTION
This matter is before the Court on Defendants’ Motion to Dismiss pursuant to
FED. R. CIV. P. 12(b)(6). (Doc. 16.) Defendants argue that Plaintiff’s First Amended
Complaint fails to allege facts sufficient to make a prima facie showing of employment
discrimination, retaliation, and violation of the Workers’ Disability Compensation Act of
1969. Plaintiff contends that all elements of these claims have been pleaded. For the
following reasons, the Court GRANTS Defendants’ Motion to Dismiss.
II.
STATEMENT OF FACTS
Beginning February 28, 2011, Plaintiff was employed as a dietary aide by
Defendant Secure Home Services, LLC (“SHS”), an assisted living facility within the
Countryside Retirement Community. Plaintiff alleges that he began to encounter
difficulties with one of the residents at the facility. This resident, Jim, continually
directed offensive racial comments toward Plaintiff and harassed him as he attempted
to carry out his work duties. For example, Plaintiff alleges that Jim referenced finding a
“good strong rope” and a “tall tree” and that he intentionally spilled hot coffee on his
arm, which was reported to the police.
In spite of Plaintiff’s multiple complaints about Jim’s behavior to supervisor
Cheryl DeVaughn and to SHS Director Scott Claw, the harassment continued.
DeVaughn allegedly denied that anything could be done to correct the problem, later
issuing Plaintiff a written reprimand after an altercation with Jim. Plaintiff states that
DeVaughn also harassed him in an effort to make him quit; specifically, Plaintiff claims
that she assigned him additional duties not assigned to other dietary aides.
In October 2012, Plaintiff met with DeVaughn, the new SHS Director Sandra
Bailey, and Human Resources Director Casie Miller. All parties ultimately agreed that
Plaintiff would be transferred to a position performing the same duties at Countryside
Care Center, Inc. (“CCC”), a different, long-term facility within the community. Because
Plaintiff was transferred to a long-term facility, he was required to submit to a
fingerprinting background check in accordance with Michigan law. However, he was
allowed to start working at CCC right away on a conditional basis, pending the results of
the background check.
On October 31, 2012, Plaintiff alleges that he slipped and fell while at work,
fracturing his knee. Although not alleged in the Complaint, Defendants state that
Plaintiff has filed a claim for workers’ compensation benefits, which is being disputed
and is still pending.
On November 20, 2012, Miller was notified by the State of Michigan that Plaintiff
was ineligible to work in a long-term facility until March 29, 2016, because of a prior
felony conviction. As a result, Plaintiff’s employment was terminated. Plaintiff claims in
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his response brief that he had disclosed this felony conviction to SHS upon his initial
hiring in 2011. He further alleges in his response that Defendants, knowing that he
would be found ineligible, transferred him to CCC with the intention of terminating his
employment. On September 27, 2013, Plaintiff’s claim before the Equal Employment
Opportunities Commission (“EEOC”) was denied. (Doc. 1, Ex. 1.) In the present action,
filed December 26, 2013, Plaintiff has stated claims against Defendants for retaliation in
violation of Title VII of the Civil Rights Act of 1964 and the Elliot-Larsen Civil Rights Act
(“ELCRA”); unspecified violations of the ELCRA; and retaliation in violation of the
Workers’ Disability Compensation Act (“WDCA”).
Defendants filed a previous motion to dismiss challenging the Court’s jurisdiction
over the workers’ compensation claim, as well as whether Plaintiff sufficiently stated a
claim under the WDCA. On April 25, 2014, this Court entered an order denying this
motion. (Doc. 11.) The Court also ordered Plaintiff to provide a more definite statement
of all claims and to join all relevant parties. Plaintiff has since filed an amended
complaint adding CCC in place of Countryside Retirement Community. The amended
complaint states that Plaintiff is charging both SHS and CCC as joint employers, as he
cannot presently determine the appropriate party to charge. The substance of the
claims, however, has not been amended or clarified whatsoever.
III.
STANDARD OF REVIEW
In order to survive a motion to dismiss pursuant to Rule 12(b), a complaint must
“contain sufficient factual matter, accepted as true, to state a claim to relief that is
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plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S., 544, 570 (2007)). A claim that is plausible “pleads factual
content that allows the court to draw the reasonable inference” and demonstrates “more
than a sheer possibility” that the plaintiff’s claim has merit. Id. A complaint that offers
“‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action
will not do.’” Id. While a court must accept as true all factual allegations set forth in a
plaintiff’s complaint, it is not bound to accept as true a legal conclusion or a legal
conclusion couched as a factual allegation. Id. All legal conclusions must be supported
by the factual allegations. Id. at 679.
In deciding a motion to dismiss, “courts must consider the complaint in its entirety,
as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions
to dismiss, in particular, documents incorporated into the complaint by reference, and
matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007). Further, the Sixth Circuit has found that courts
may consider documents not formally incorporated by reference but that are referred to
in the complaint and are central to the plaintiff’s claim. See Greenberg v. Life Ins. Co.,
177 F.3d 507, 514 (6th Cir. 1999).
IV.
DISCUSSION
A. Retaliation
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Courts construe claims arising under Title VII and ELCRA in the same manner. See,
e.g., McKinley v. Skyline Chili, Inc., 534 Fed. App’x 461, 467 (6th Cir. 2013); Pena v.
Ingham Cnty. Rd. Comm'n, 255 Mich. App. 299, 660 N.W.2d 351, 358 n.3 (Mich. Ct.
App. 2003). Title VII prohibits an employer from “discriminat[ing] against any individual .
. . because he has opposed any practice made an unlawful employment practice by
[Title VII].” 42 U.S.C. § 2000e-3(a). Although many courts have applied the McDonnell
Douglas framework when deciding motions to dismiss claims of employment
discrimination and retaliation, such application is inappropriate at this stage. See Keys
v. Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012). The Supreme Court has held that
the prima facie case under McDonnell Douglas is an evidentiary standard, not a
pleading requirement. Id. (citing Swierkiewicz v. Sorema, 534 U.S. 506, 510 (2002).
The subsequent decisions in Twombly and Iqbal have not altered this holding. Id.
Plaintiff’s First Amended Complaint (“Complaint”) details consistent racial
harassment by one of Defendants’ residents, as well as Defendants’ initial lack of
response to Plaintiff’s repeated complaints. The response brief clarifies that Plaintiff’s
complaints of harassment to management are the protected activity alleged.
Defendants have argued that insufficient detail was provided regarding the substance of
these complaints to determine their status as protected activity. However, the
Complaint does describe at some length the fact that Plaintiff reported altercations with
Jim to his supervisor and a director. Employee activity qualifying as protected activity,
according to the EEOC, includes “[c]omplaining to anyone about alleged discrimination
against oneself or others.” EEOC Compliance Manual, Vol. 2, Section 8-IIB, available
at http://www.eeoc.gov/policy/docs/retal.html.
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Despite the fact that the racial harassment was propogated by a resident/customer
and not the employer itself, the Defendants may be held liable if they knew or should
have known about the conduct and failed to take prompt and appropriate corrective
action. See EEOC Compliance Manual, Section 15-VII, (A)(3), Employer Liability,
available at http://www.eeoc.gov/policy/docs/race-color.html#VIIA3worker. In the
context of sexual harassment, employers have been held liable in other circuits for
harassment by non-employees, including customers, clients, and patrons. See, e.g.,
Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073 (10th Cir. 1998); Ligenza v. Genesis
Health Ventures of Mass., 995 F. Supp. 226, 230 (D. Mass. 1998) (finding that a nursing
home may be held liable for patient misconduct when the employer has the requisite
knowledge and control over the situation and fails to take remedial action). Therefore,
by reporting the racial harassment by Jim to management, Plaintiff was engaged in
activity protected by Title VII.
The Complaint alleges that Plaintiff was terminated from his employment with CCC
based on the results of his background check. It also alleges that he disclosed his past
felony conviction to Defendants upon his initial hire with SHS and that a fingerprint
background check was performed at this time. The response brief clarifies that the
specific retaliatory act taken by Defendants was “transferring him from a position where
he was qualified to a position where he was unqualified and could be terminated,” with
the knowledge and intention that he would be terminated. (Doc. 18, pp. 9-10.) No such
conspiracy allegation is set forth in the Complaint, and Defendants were not on notice of
this theory until they received Plaintiff’s response. Nevertheless, Defendants availed
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themselves of the opportunity to respond to this theory in their reply brief. Therefore,
the Court will address the merits.
In determining this motion to dismiss, the Court must accept the facts as alleged by
the Plaintiff. However, even assuming that Plaintiff disclosed his prior felony conviction
to Defendants and underwent a background check upon his initial hire, his allegation
that Defendants were aware that his transfer would result in a termination is not
plausible. As Defendants assert, eligibility to work in a long-term facility is contingent on
the precise felony committed. Depending on the type and categorization of the felony,
an employee may be prevented from working in a long-term care facility for ten years,
fifteen years, or permanently. See MICH. COMP. LAWS § 333.20173a. Without
knowledge of the date of Plaintiff’s discharge from probation or parole and the exact
type of felony committed, it would have been impossible for Defendants to know that he
would be disqualified from working at CCC. Plaintiff does not allege that he disclosed
these specific details upon his initial hire.
The Complaint asserts that nothing has changed on Plaintiff’s criminal record since
he began to work at SHS. Therefore, the disclosures made upon initial hire and upon
transfer to CCC must be the same. In the November 2012 disclosure statement
associated with Plaintiff’s background check, he indicated a previous felony conviction
on April 10, 1996, with a date of discharge in 1999. (Doc. 16, Ex. A.) This disclosure
does not indicate the exact type of felony. Inconsequentially, the discharge date of
1999 appears to be inaccurate, given the background check results declaring Plaintiff’s
ineligibility to work in a long-term care facility until 2016. Assuming that Plaintiff was
disqualified for fifteen years, the earliest date of discharge would have been in 2001.
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Based on the information Plaintiff disclosed, Defendants could not have known that
Plaintiff would be disqualified from employment. At best, Defendants would have been
aware only of a possibility that Plaintiff would be disqualified. Therefore, because
Plaintiff has not pleaded a plausible claim of retaliation, this claim is dismissed.
B. Racial Discrimination
Count II of the Complaint, entitled “Violations of the Elliot-Larsen Civil Rights
Act,” does not elucidate a more specific basis for liability, such as disparate treatment,
hostile work environment, or a restatement of the retaliation claim. The Complaint
merely asserts that Defendants, through their agents and representatives, “treated
Plaintiff differently from similarly situated non-black employees in the terms and
conditions of employment, based on unlawful consideration of race.” (Doc. 12, ¶ 54.)
Plaintiff’s response brief does not address Defendants’ contention that the Complaint is
unclear, nor does it advance any argument in support of a racial discrimination claim
distinct from retaliation. At hearing, Plaintiff averred that Count I was intended to
advance claims of both retaliation and racial discrimination pursuant to Title VII, while
Count II states a claim of retaliation pursuant to ELCRA. However, Plaintiff has
continued to fail to refute any of Defendants’ arguments in opposition to a racial
discrimination claim. Therefore, to the extent that Plaintiff alleged a racial discrimination
claim at the outset, the Court finds that this claim has been abandoned. See Brown v.
VHS of Mich., 545 Fed. App’x 368, 372 (6th Cir. 2013) (“a plaintiff is deemed to have
abandoned a claim when a plaintiff fails to address it in response to a motion for
summary judgment”); Bazinski v. JPMorgan Chase Bank, N.A., No. 13-14337, 2014
U.S. Dist. LEXIS 50238 at * 5, (E.D. Mich. April 11, 2014) (“claims left to stand
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undefended against a motion to dismiss are deemed abandoned”). Accordingly, any
claim for racial discrimination is dismissed.
C. Workers’ Disability Compensation Act
The WDCA provides that, “[a] person shall not discharge an employee or in any
manner discriminate against an employee because the employee filed a complaint or
instituted or caused to be instituted a proceeding under this act . . . .” MICH. COMP.
LAWS § 418.301(13) (2011). The analysis of WDCA claims has been guided by that for
ELCRA retaliation claims. See Chiles v. Machine Shop, Inc., 238 Mich. App. 462, 470
(1999) (applying the ELCRA burden-shifting framework to a WDCA claim).
Consequently, courts have found that plaintiffs need not establish a prima facie case of
retaliation at the motion to dismiss stage. See Beaudin v. Wal-Mart Stores, Inc., No. 1012072, 2010 U.S. Dist. LEXIS 71529 at *8-9 (E.D. Mich. July 15, 2010).
While Defendants correctly observe that Plaintiff failed to allege in the Complaint
that he filed a workers’ compensation claim, they admit that he did file a claim and that it
is currently pending. (See Doc. 16, p. 10.) The Complaint asserts that “Defendants
were pre-disposed [sic] to discriminate against workers who they deemed as costing too
much in medical costs to the company.” (Doc. 12, ¶ 58.) Plaintiff specifically alleges
that Defendants’ “discriminatory behavior has caused Plaintiff to be terminated from his
position due to his injury on the job,” and that they “began to harass and eventually
terminated Plaintiff shortly after his injuries.” (Doc. 12, ¶¶ 59-60.) Plaintiff fell on
Defendants’ premises on October 31, 2012, and on this date filed a report of injury with
his employer. He thereafter submitted to a fingerprinting background check on
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November 8, 2012. (Doc. 16, Ex. A.) On November 20, 2012, he was notified that his
employment was terminated based on the results of this background check.
The facts alleged do not support Plaintiff’s claim that his termination was a direct
result of his filing a workers’ compensation claim. Plaintiff has shown a temporal
proximity between his filing of the injury report on October 31, the fingerprinting
performed on November 8, and the termination on November 20. See Gullett v.
Autoform, No. 281933, 2009 Mich. App. LEXIS 1165 at *3 (Mich. Ct. App. January 20,
2009) (considering temporal proximity as a factor tending to support a WDCA retaliation
case). However, Plaintiff does not refute that Defendants were legally required to
perform a background check. See MICH. COMP. LAWS § 333.20173a. Plaintiff does not
allege that the results of this background check were incorrect; in fact, he admits to
having been convicted of a felony. (See Doc. 18, p. 13.) Further, Plaintiff does not
respond to Defendants’ contention that they were required by law to terminate Plaintiff
from his position based on the results of his background check. See MICH. COMP. LAWS
§ 333.20173a. As such, even accepting as true the facts alleged by Plaintiff, his
termination was mandated by state law based on the results of his legally required
background check. Therefore, he has not plausibly pleaded a retaliation claim
associated with his workers’ disability claim.
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V. CONCLUSION
For the reasons discussed above, the Court GRANTS Defendants’ Motion to
Dismiss and DISMISSES the present case.
IT IS SO ORDERED.
Date:
August 19, 2014
s/Marianne O. Battani
MARIANNE O. BATTANI
United States District Judge
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 August 19, 2014.
s/ Kay Doaks
Case Manager
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