Scott v. Detroit, City of

Filing 18

OPINION and ORDER re 12 MOTION for Summary Judgment Signed by District Judge Sean F. Cox. (KJac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Shirley A. Scott,
Plaintiff,
v.

Case No. 15-10921

City of Detroit,

Sean F. Cox
United States District Court Judge

Defendant.
_______________________________/
OPINION & ORDER
Plaintiff previously worked for the City of Detroit. After she retired, she submitted job
applications for three positions but was not hired. She then filed this action against the City,
asserting federal-question jurisdiction. Plaintiff’s Amended Complaint is the operative
complaint and it asserts claims under Title VII of the Civil Rights Act of 1968, Section 3 of the
Housing and Urban Development Act of 1968 (“HUD”) and its implementing regulations, and
Michigan’s Whistleblower Protection Act. The matter is currently before the Court on the City’s
Motion for Summary Judgment. The parties briefed the issues and the Court heard oral
argument on June 2, 2016. For the reasons set forth below, the Court shall GRANT the City’s
motion as to Plaintiff’s Title VII and HUD claims. Having dismissed the only federal claims in
this action, this Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining
state-law whistleblower claims and shall dismiss those claims without prejudice.
BACKGROUND
Acting pro se, Plaintiff Shirley A. Scott (“Plaintiff” or “Scott”) filed this action on March
12, 2015. Plaintiff applied for, and was granted, permission to proceed in forma pauperis.
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Plaintiff’s original complaint (see Docket Entry No. 1) was eleven pages long and included a
claim for intentional infliction of emotional distress.
On July 13, 2015, Plaintiff filed an Amended Complaint, along with a motion seeking
leave to file that Amended Complaint. (Docket Entry Nos. 6 & 7). This Court granted her
motion for leave to file the Amended Complaint, via text-only order on August 12, 2015.
Accordingly, Plaintiff’s July 13, 2015 Amended Complaint superceded and replaced her original
complaint.
Plaintiff’s Amended Complaint is only three and a half pages long. Although Plaintiff’s
Amended Complaint lists “City of Detroit et al,” as the Defendant in the caption, the City of
Detroit is the only Defendant named and identified in the body of her Amended Complaint.1
Plaintiff alleges that she is a “Black/African American Female, 50 years of age.” (Pl.’s
Am. Complaint at ¶ 1). Plaintiff alleges that “on December 19th and 20th of 2014, Plaintiff
applied for three HUD-funded contractual positions – Compliance Associate and Grants
Specialist I and II positions with the City of Detroit Office of Grants Management.” (Id. at ¶ 5).
Plaintiff alleges that agents of the City denied her employment request to be rehired or
reinstated. (Id. at ¶ 6). Plaintiff alleges that an agent of the City “informed Plaintiff on March 3,
2015, that Plaintiff could not be rehired and that Plaintiff would have to apply for employment
opportunities on the Defendant’s website, and not Indeed.com.” (Id. at ¶ 7). Plaintiff alleges
that the “City of Detroit Office of Grants Management had excluded or limited Plaintiff’s
employment applications in violation of [42 USC 2000 E-2)A)(2)] 2, and [42 USC 2000E2(C)(1)](1) Griggs v. Duke Power Co., 401 U.S. 424 (1971).” (Id. at ¶ 8). Plaintiff also alleges

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And the docket reflects that the City was the only defendant served.
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that “it is violation of the State of Michigan’s Whistleblower Protection Act 469 of 1980 to deny
Plaintiff to be rehired for a HUD-funded contractual position, and Plaintiff could file a Section 3
Complaint against the agents of the Defendant based on Plaintiff’s low-income status.” (Id. at ¶
9). Plaintiff’s Amended Complaint seeks the following relief:
WHEREFORE, Plaintiff demands:
a) A three (3) year HUD-funded contract in the amount of $100,000 annually
b) Permanent injunction against the Defendant’s from performing certain acts in
the future – layoff, suspension, and termination of HUD-funded contractual
position; and
c) Any further relief which the Court may deem appropriate.
(Am. Compl. at 4).
On August 18, 2015, this Court issued the Scheduling Order in this action. (Docket
Entry No. 11). Plaintiff’s Response to Defendant’s Motion for Summary Judgment states that
“Plaintiff did not participate in the discovery process” because Plaintiff was diagnosed with
diabetes. (Pl.’s Br. at 12). It appears that while the City deposed Plaintiff, Plaintiff did not seek
any discovery from the City.
In any event, on January 25, 2016, the City filed a Motion for Summary Judgment. This
Court’s practice guidelines, which are expressly included in the Scheduling Order issued in this
case, provide, consistent with Fed. R. Civ. P. 56 (c) and (e), that:
a. The moving party’s papers shall include a separate document entitled
Statement of Material Facts Not in Dispute. The statement shall list in separately
numbered paragraphs concise statements of each undisputed material fact,
supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate document entitled
Counter-Statement of Disputed Facts. The counter-statement shall list in
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separately numbered paragraphs following the order or the movant’s statement,
whether each of the facts asserted by the moving party is admitted or denied and
shall also be supported by appropriate citations to the record. The CounterStatement shall also include, in a separate section, a list of each issue of material
fact as to which it is contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute
shall be deemed admitted unless controverted in the Counter-Statement of
Disputed Facts.
(Docket Entry No. 11 at 2-3).
In compliance with this Court’s guidelines, in support of its Motions for Summary
Judgment, the City filed a “Statement of Material Facts Not In Dispute” (Docket Entry No. 13)
(“Def.’s Stmt.). In response to that submission, Plaintiff filed a “Counter-Statement of Disputed
Facts” (D.E. No. 15) (Pl.’s Stmt.”).
The following material facts are gleaned from the evidence submitted by the parties,
viewed in the light most favorable to Plaintiff, the non-moving party.
Plaintiff was employed by the City from September 1985 until April 11, 2013, the
effective date of her retirement. (Def.’s Stmt. at ¶ 1; Pl.’s Stmt. at ¶ 1).
In December of 2014, over a year after her retirement, Plaintiff submitted her interest in
three positions within the Office of Grants Management through a jobs website, Indeed.com.
(Def.’s Stmt. at ¶ 4; Pl.’s Stmt. at ¶ 4).
On February 5, 2015, Plaintiff sought either reinstatement or rehire through the Mayor’s
office, but was informed that she must follow City’s protocol in applying for open positions.
(Def.’s Stmt. at ¶ 5; Pl.’s Stmt. at ¶ 5; Exs. to Am. Compl., Docket Entry No. 6 at Pg Id 56 &
57).
After Plaintiff filed her original complaint in this action on March 12, 2015, Plaintiff
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sought information from the City’s Human Resources Director relating to the status of her
applications. (Def.’s Stmt. at ¶ 6; Pl.’s Stmt. at ¶ 6). Plaintiff was informed that the recruitment
was not handled by the City’s Human Resources Department. (Def.’s Stmt. at ¶ 8; Pl.’s Stmt. at
¶ 8; Exs. to Am. Compl., Docket Entry No. 6 at Pg Id 58 & 59). Plaintiff was directed to the
Office of Grants Management. (Id.).
Plaintiff made inquiry with the Office of Grants Management on or about May 26, 2015,
asking about the status of her applications, and claims that she did not receive a response.
(Def.’s Stmt. at ¶ 10; Pl.’s Stmt. at ¶ 10; Exs. to Am. Compl., Docket Entry No. 6 at Pg Id 60).
Plaintiff did not receive any of the three positions that she applied for. (Def.’s Stmt. at ¶
11; Pl.’s Stmt. at ¶ 11).
STANDARD OF DECISION
Summary judgment will be granted where there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact
exists where “the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party.” Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252.
The Court “must view the evidence, all facts, and any inferences that may be drawn from
the facts in the light most favorable to the non-moving party.” Skousen v. Brighton High Sch.,
305 F.3d 520, 526 (6th Cir. 2002). “The court’s duty to view the facts in the light most
favorable to the nonmovant does not require or permit the court to accept mere allegations that

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are not supported by factual evidence.” Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th
Cir. 2009). “This is so because the nonmovant, in response to a properly made and supported
motion for summary judgment, cannot rely merely on allegations but must set out specific facts
showing a genuine issue for trial.” Id.
ANALYSIS
In its Motion for Summary Judgment, the City challenges all three of the claims asserted
in Plaintiff’s Amended Complaint.
I.

Plaintiff’s Title VII Claim
Under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (“Title VII”), it is an

unlawful employment practice for an employer: “(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of such
individual’s race, color, religion, sex, or national origin.”
In her Amended Complaint, Plaintiff alleges that the City “excluded or limited [her]
employment applications” in violation of Title VII. (Am. Compl. at ¶ 8). The Amended
Complaint also notes that Plaintiff is a black female. (Id. at ¶ 1). But her Amended Complaint
does not include any factual allegations that support a Title VII claim. Even a pro se plaintiff’s
claim fails where the plaintiff’s complaint simply alludes to his or her race or gender and offers
no factual allegations to support a bare legal conclusion that race or gender discrimination

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occurred. See, e.g., Alexander v. Rosen, 804 F.3d 1203, 1208 (6th Cir. 2015). This Court will
dismiss Plaintiff’s Title VII claim because her Amended Complaint fails to state a Title VII
claim. This is especially so given that Plaintiff is proceeding in forma pauperis, and the
applicable statute requires this Court to dismiss this case, at any time, if it fails to state a claim
upon which relief may be granted. See 28 U.S.C. § 1915(b)(2) (“the court shall dismiss the case
at any time if the court determines that” the action “fails to state a claim on which relief may be
granted.”)
Moreover, in seeking summary judgment, the City focuses on Plaintiff’s deposition
testimony as to her Title VII claim, and challenges her ability to proceed with such a claim
because there is no genuine issue of material fact for trial. (See Def.’s Br. at 14-15).
Although no such allegation is included in her Amended Complaint, Plaintiff believes
that because of her sex (female),2 she did not get the cooperation that she should have gotten
from executive level leaders of the City when she was submitting applications for jobs. (Pl.’s
Dep. at 31; Pl.’s Br. at 16-17). In particular, she asserts that executives did not meet with her
about her application. Plaintiff appears to assert that she was treated differently from a male
who applied for a Section 3 Coordinator position. But Plaintiff then testified during her
deposition that was a position with the State of Michigan – not the City of Detroit. (Pl.’s Dep. at
31-32). Accordingly, such alleged differential treatment by the State cannot support a claim
against the City.

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During her deposition, Plaintiff also discussed that she has, at various times, asserted age
discrimination and retaliation claims against the City. But no age discrimination or retaliation
claims were included in her Amended Complaint. And although Plaintiff’s Amended Complaint
makes note of Plaintiff’s race, Plaintiff’s brief does not indicate that Plaintiff believes she was
discriminated against on the basis of her race.
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Although no such allegation is included in her Amended Complaint, Plaintiff also
testified that she believes that her applications for jobs were somehow segregated from other
persons who applied for those positions. (Pl.’s Dep. at 38-39). Plaintiff testified that she
believes that occurred simply because Mayor Bing’s office had provided an acknowledgment of
a job application Plaintiff submitted at some point in the past and “[t]his Office of Grants
Management never acknowledged receipt” of her job applications for the positions she applied
for with that office. (Id.). In her brief, Plaintiff asserts that her application must have been
segregated because Plaintiff was not given an interview and because the Mayor did not respond
to her letters. (Pl.’s Br. at 16).
The Court agrees with Defendant that Plaintiff has not established that a genuine issue of
material fact exists as to her claim that the City violated Title VII by not hiring her.
II.

Plaintiff’s Claim Based Upon HUD Regulation
24 C.F.R. § 135.1 provides that “[t]he purpose of section 3 of the Housing and Urban

Development Act of 1968 (12 U.S.C. 1701u) (section 3) is to ensure that employment and other
economic opportunities generated by certain HUD financial assistance shall, to the greatest
extent feasible, and consistent with existing Federal, State and local laws and regulations, be
directed to low- and very low-income persons, particularly those who are recipients of
government assistance for housing, and to business concerns which provide economic
opportunities to low- and very low-income persons. 24 C.F.R. § 135.1(a) (emphasis added).
During her deposition, Plaintiff testified as to the nature of her claim based upon that
regulation:
Q.
A.

We are not talking about the HUD claim that you filed previously?
Yes.
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Q.
A.

We are talking about the current one. What is the basis for your claim?
My income level, I am low-income now. Currently, I am a low-income
Section 3 resident and I am in need of an economic opportunity, a job.
With the federal grants, I have the skill sets and the experience to work in the
Compliance Unit.
....
Q.
So the City being a recipient of the Section 3 funding –
A.
Yes.
Q.
Has certain responsibilities?
A.
Yes.
Q.
And you’re saying that mandates us to hire you?
A.
Yes.
(Pl.’s Dep. at 44-45).
In its motion, the City asks the Court to dismiss this claim with prejudice because Section
3 of the HUD Act, and its implementing regulations, does not confer a private right of action.
The City directs the Court to a case that is directly on point, Marcel v. Donovan, 2012 WL
868977 (E.D. N.Y. 2012). The plaintiff in that case alleged that he was entitled to preferential
employment under Section 3 of the HUD Act. The defendant filed a motion to dismiss, asserting
that there is no private right of action under Section 3 of the HUD Act. The district court
engaged in a thorough analysis of that issue, and agreed with all the other federal courts that
have addressed the issue, in concluding that there is no private right of action:
Our sister courts have addressed the same argument plaintiff advances in the case
at bar—that Section 3 of the HUD Act creates a private right of action—and all
have found no such private right of action. See, e.g., Williams v. U.S. Dep’t of
Hous. and Urban Dev., 2006 WL 2546536, at *2–10 (E.D.N.Y. Sept.1, 2006);
Price v. Housing Auth. Of New Orleans, 2010 WL 1930076, at *4 (E.D.La. May
10, 2010); Pleasant v. Zais, 2008 WL 4621761, at *4 (E.D.Wa. Oct.17, 2008);
Nails Construction Co. v. City of St. Paul, 2007 WL 423187, at *5 (D.Minn.
Feb.6, 2007). This Court joins those courts in so holding. As one court aptly
noted, “it is [ ] axiomatic that ‘the plaintiff must demonstrate that’ the statute
creates an individual right,” Williams, 2006 WL 2546536, at *8–9 (quoting City
of Rancho Palos Verdes v. Abramson, 544 U.S. 113, 120, 125 S.Ct. 1453, 161
L.Ed.2d 316 (2005)) (emphasis in original), further finding that plaintiff had
“failed to provide ... any persuasive authority indicating that [Section 3] confers
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an individual right to sue for hiring preference.” Id. Here too, plaintiff has failed
to meet his burden in this regard. Moreover, this court joins those that have
plainly held that no such right of action may be read in to Section 3. See, e.g.,
Pleasant, 2008 WL 4621761 at *4; Nails Construction Co., 2007 WL 423187 at
*5.
Also compelling is the fact that HUD has enacted federal regulations providing
for administrative, not private enforcement of Section 3. See 24 C.F.R.
135.76(a)(1). HUD’s regulations require that any person who seeks to complain
of noncompliance with Section 3 must file an administrative complaint, in writing
with HUD. See 24 C.F.R. 135.76(c), (d). Plaintiff has failed to make any such
filing.
Marcel, supra, at * 5.
This Court shall dismiss Plaintiff’s HUD claim because Section 3 of the HUD Act, and
its implementing regulations, does not confer a private right of action. Marcel, supra; see also
Price v. Housing Auth. of New Orleans, 453 F. App’x 446, 449-50 (5th Cir. 2011)(affirming
district court’s grant of summary judgment as to the plaintiff’s claim, based on 24 C.F.R. §
135.1, that defendants failed to give him employment opportunities); Bardney v. Chicago
Housing Auth., 2013 WL 1278526 (N.D. Ill. 2013)(dismissing claim that defendants failed to
provide priority employment opportunities for plaintiffs because there is no private right of
action under the HUD Act); Watkins v. Chicago Housing Auth., 527 F. App’x 505, 507 (7th Cir.
2013) (Noting that the Seventh Circuit has not found a private right of action to exist under
Section 3 of the HUD Act and collecting cases wherein other courts have found no such right to
exist).

III.

Plaintiff’s Claim Under Michigan’s Whistleblower Protection Act
Given the above rulings, this Court is dismissing the only federal claims asserted in this

action, which are the basis for this Court exercising jurisdiction over this action.
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This Court must therefore consider whether it should exercise supplemental jurisdiction
over Plaintiff’s remaining state-law claim, her claim under Michigan’s Whistleblower Protection
Act.
The applicable statute regarding supplemental jurisdiction, 28 U.S.C. § 1367, provides, in
pertinent part, that district courts may decline to exercise supplemental jurisdiction over a claim
when:
1) the claim raises a novel or complex issue of State law;
2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction;
3) the district court has dismissed all claims over which it has original
jurisdiction, or
4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
28 U.S.C. § 1367(c).
The Sixth Circuit has stated that a federal court that has disposed of a plaintiff’s
federal-law claims “should not ordinarily reach the plaintiff’s state-law claims.” Moon v.
Harrison Piping Supply, et al., 465 F.3d 719 (6th Cir.2006). “Residual jurisdiction should be
exercised only in cases where the ‘interests of judicial economy and the avoidance of
multiplicity of litigation’ outweigh” concerns “over needlessly deciding state law issues.’ ” Id.
(quoting Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir.1993)).
Under the circumstances presented here, this Court does not believe that this is an
exceptional case where the Court should go on to rule upon a state-law claim after dismissing all
federal claims. This Court declines to exercise supplemental jurisdiction and shall dismiss this
Count without prejudice.
IV.

Plaintiff’s Former Claim For Intentional Infliction Of Emotional Distress

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Plaintiff’s original complaint included a state-law claim for intentional infliction of
emotional distress. (Docket Entry No. 1 at Pg ID 3). On July 13, 2015, however, Plaintiff filed
an Amended Complaint, along with a motion seeking leave to file that Amended Complaint.
(Docket Entry Nos. 6 & 7). This Court granted her motion for leave to file the Amended
Complaint. Accordingly, Plaintiff’s July 13, 2015 Amended Complaint superceded and replaced
her original complaint. See, e.g. Drake v. City of Detroit, 266 F. App’x 444,448 (6th Cir. 2008)
(“an amended complaint supercedes all prior complaints”). Plaintiff’s Amended Complaint does
not include a claim for intentional infliction of emotional distress.
Nevertheless, in responding to the City’s motion, Plaintiff appears to believe that she still
has a claim for intentional infliction of emotional distress in this action. (See Pl.’s Br. at 20-22).
Plaintiff is mistaken. Plaintiff dropped her claim for intentional infliction of emotional
distress claim when she filed her Amended Complaint.3
CONCLUSION & ORDER
For the reasons set forth above, IT IS ORDERED that Defendant’s Motion is GRANTED
to the extent that the Court DISMISSES WITH PREJUDICE Plaintiff’s federal claims (her Title
VII claims and her HUD claims).
Having dismissed Plaintiff’s only federal claims, the Court DECLINES TO EXERCISE
SUPPLEMENTAL JURISDICTION over Plaintiff’s remaining state-law claims (the

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Moreover, even if that was not the case, this Court would not exercise supplemental
jurisdiction over that state-law claim having dismissed Plaintiff’s federal claims.
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whistleblower claims) and therefore DISMISSES those claims without prejudice.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: June 14, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of record on
June 14, 2016, by electronic and/or ordinary mail.
S/Keisha Jackson
Case Manager

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