Gong v. The University of Michigan et al

Filing 41

MEMORANDUM OPINION and ORDER Granting in Part and Denying in Part Defendant's 26 MOTION to Dismiss Plaintiff's Complaint (Moot - 30 ). Signed by District Judge Sean F. Cox. (TMcg) Modified on 2/13/2018 (TMcg).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Yusong Gong,
Plaintiff,
v.

Case No. 16-14516

The University of Michigan, et al.,

Sean F. Cox
United States District Court Judge

Defendants.
_______________________________/
OPINION & ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS
Acting pro se, Plaintiff Yusong Gong filed this action on December 28, 2016 against the
University of Michigan and three of its employees, asserting Title VII and ADA claims. The
matter is currently before the Court on Defendants’ Motion to Dismiss, brought under Fed. R.
Civ. P. 12(b)(1) and (b)(6). The parties have briefed the issues and the Court concludes that oral
argument will not aid the decisional process. See Local Rule 7.1(f)(2), U.S. District Court,
Eastern District of Michigan. The Court therefore orders that the motion will be decided without
a hearing. As explained below, the Court shall GRANT THE MOTION IN PART AND DENY
IT IN PART. More specifically, the Court: 1) shall deny without prejudice Defendants’
challenge based on the Release in a prior federal case filed by Plaintiff because, while
Defendants may prevail on that challenge in the context of a motion for summary judgment, they
have not established that they can prevail on that challenge in connection with a motion to
dismiss brought under Fed. R. Civ. P. 12(b)(6); 2) rules that any ADA claims for monetary
damages in this action are barred by Eleventh Amendment immunity, but that to the extent
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Plaintiff’s complaint seeks reinstatement under the ADA, that limited claim is not barred by
Eleventh Amendment Immunity; 3) shall dismiss with prejudice Plaintiff’s claims against the
three individual Defendants because an individual employee/supervisor, who does not otherwise
qualify as an “employer” under the statute, may not be personally liable under Title VII or the
ADA.
BACKGROUND
A.

Plaintiff’s Complaint In This Action
On December 28, 2016, acting pro se, Plaintiff Yusong Gong (“Plaintiff”) filed this

action against the following four Defendants: 1) the University of Michigan; 2) Richard Simon;
3) Michelle Henderson; and 4) Timorthy [sic] Lynch. Her complaint includes the following
claims: “Count 1 – Retaliation – Title VII of the Civil Rights Act of 1964,” “Count II – Title I of
the Americans with Disabilities Act,” and “Count III – Title I of the Americans with Disabilities
Act (Pattern or Practice Claim).” Plaintiff’s Complaint notes that her employment with the
University ended years ago and that, beginning in 2012, she began working for the Cleveland
Clinic. (Compl. at ¶¶ 20 & 42). Plaintiff’s Complaint seeks declaratory relief and monetary
damages, including back and front pay, and pain and suffering. (Compl. at 8-9). Plaintiff’s
complaint broadly requests injunctive relief and also seeks “other appropriate relief.” (Id.).
The case was originally assigned to Judge Mark Goldsmith, who denied Plaintiff’s
motion seeking to proceed in forma pauperis. Plaintiff later paid the required filing fee for this
case. This case was reassigned to this Court on August 29, 2017, as a companion case to Case
Number 13-10469.
Plaintiff’s Complaint in this third action includes allegations as to a prior action she filed

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against the University in Washtenaw County Circuit Court and a prior federal case before this
Court. (See, e.g., Compl. at ¶¶ 10 & 12).
For example, Plaintiff alleges that “Defendant bribed Mr. Wahl $4000 and gained his cooperation. They teamed together and tried to force Ms. Gong to lie and promise that she would
never report any scientific misconduct to any government agency. Ms. Gong rejected their
unlawful request, and insisted to have her cases trialed [sic] in the court with juries.” (Id. at 44).
Plaintiff further alleges:
46.

47.
48.

49.

50.

51.

On June 21, 2013, Mr. Wahl filed his withdraw motion to federal court.
He told Ms. Gong he would not take her case to trail [sic] in the court
because he had already promised defendant.
From June 26 to July 5, 2013, Ms. Gong was hospitalized because of
much worsening depression.
On July 8, 2013, during the court time for his withdrawing motion, Mr.
Wahl threatened to kick Ms. Gong’s leg if she told the Judge anything
differently than what he wanted her to say: He fooled her to sign an old
draft of the settlement agreement. Later, he entered this draft as “The
Final.”
On July 9, 2013, Ms. Gong received the new/final version of “the
settlement agreement” which allowed her to have 14 days to consider if
she wanted to accept or not. Ms. Gong has never returned this formal
settlement document back to Mr. Wahl or defendant: she has never
accepted any settlement money from defendant.
After almost 4 months long trying, defendant realized that they would
never receive any [signed] settlement from Ms. Gong; Ms. Gong would
never agree to settle without having her employment reinstated.
On September 25, 2013, Defendant teamed with Dr. Wahl lied to Judge
David Swartz at Washtenaw County Circuit Court and had Ms. Gong’s
whistleblower protection/civil right case reinstated and dismissed at the
same time. The dismissal of the law suit was based on the “he said” “A
full resolution / settlement has been reached at the federal court since July
8, 2013”.

(Id. at ¶¶ 46-51).
Plaintiff’s Complaint also includes allegations as to communications she had with
representatives of the University, such as Donna Varner and Timothy Lynch, regarding those
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prior cases.
B.

Standard Of Decision
Defendants’ Motion to Dismiss indicates that it is brought under Fed. R. Civ. P. 12(b)(1)

(lack of jurisdiction) and Fed. R. Civ. P. 12(b)(6) (failure to state a claim). (See Defs.’ Br. at 1 &
5).
A 12(b)(6) motion evaluates the sufficiency of the complaint. However, as explained in
Greenberg, a court evaluating a 12(b)(6) motion may consider certain matters outside of the
pleadings, without converting the motion into a summary judgment motion, in some
circumstances:
Rule 12(b) of the Federal Rules of Civil Procedure provides that if “matters
outside the pleadings are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment and disposed of as provided in Rule
56, and all parties shall be given reasonable opportunity to present all material
made pertinent to such a motion by Rule 56.” Under certain circumstances,
however, a document that is not formally incorporated by reference or attached to
a complaint may still be considered part of the pleadings. See 11 james Wm.
Moore et al., Moore’s Federal Practice § 56.30[4] (3d ed.1998). This occurs when
“a document is referred to in the complaint and is central to the plaintiff’s
claim....” Id. In such event, “the defendant may submit an authentic copy to the
court to be considered on a motion to dismiss, and the court’s consideration of the
document does not require conversion of the motion to one for summary
judgment.” Id.; see, e.g., Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997)
(considering pension plan documents that defendant attached to the motion to
dismiss part of the pleadings because the documents were referred to in the
complaint and were central to plaintiff’s claim for benefits under the plan).
Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999).
As a result, in deciding the pending Motion to Dismiss, this Court may consider public
records from Plaintiff’s two prior cases, and documents and emails referenced in Plaintiff’s
Complaint and central to her claims, such as the settlement agreement in Plaintiff’s prior federal
case, and emails with University officials.
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C.

Factual Background Concerning Plaintiff’s Other Two Cases
Before filing the instant case, Plaintiff filed two different actions against the University

and some of its employees/officers.
First, in 2012, Plaintiff filed suit against the University and Martin G. Myers, Jr., M.D.,
Ph.D, in state court. That lawsuit was filed in Washtenaw County Circuit Court and was
assigned to Judge David S. Swartz (“the Washtenaw County Case”) Plaintiff was represented by
attorney Gerald Wahl in the Washtenaw County Case.
On February 6, 2013, Plaintiff filed Case Number 13-10469, in federal court, through Mr.
Wahl. Plaintiff named the University of Michigan and Martin Meyers as Defendants and
Plaintiff asserted two counts: “Discrimination/Rehabilitation Act” (Count I); and
“Retaliation/Rehabilitation Act” (Count II).
A stipulated order dismissing Defendant Myers from Case Number 13-10469 was issued
on April 18, 2013. On June 20, 2013, Mr. Wahl filed a motion seeking to withdraw as counsel
for Plaintiff in Case Number 13-10469.
The docket reflects that this Court held a motion hearing and status conference on July 8,
2013. On that date, an Order Dismissing Case with Prejudice was ultimately filed and it states:
“The parties having placed a settlement of this action on the record on this date, IT IS
ORDERED that this action is hereby DISMISSED WITH PREJUDICE and without costs or
fees.” (D.E. No. 14).
The transcript of the proceedings held on July 8, 2013 reflects the following. Plaintiff
appeared at the hearing accompanied by a man named Douglas Smith, who is a physician. Wahl,
Plaintiff’s attorney, described Smith as “an advocate of sorts” for Plaintiff. (7/8/13 Hrg. Tr. at

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3). When Wahl stated that he wished to withdraw from representing Plaintiff, Plaintiff
responded that she was not understanding what he was saying, said she needed Smith’s help (Id.
at 4), and at one point appears to have asked for language translator. (Id. at 5). The Court went
off the record after Plaintiff made statements indicating that she did not understand Wahl’s
motion to withdraw.
When the parties went back on the record later that same day, Wahl advised the Court
that his Motion to Withdraw was now moot because the parties had reached a resolution of the
case. (Id. at 8). Wahl stated that he “would like to put the resolution of – my client’s assent to
the terms on the record, without going through the terms. It’s a five-page release document
which she signed.” (Id.). The Court then swore Plaintiff in and the following was placed on the
record:
MR. WAHL: I only have a few questions, Ms. Gong. You and I, along with Dr.
Douglas Smith, have had a chance to – he has assisted you in
understanding some of this legal process, correct?
PLAINTIFF GONG: Yes.
MR. WAHL: And you, Dr. Smith, and myself have had a chance to go over the
full and final release of all claims?
PLAINTIFF GONE: Yes.
MR. WAHL: And you’ve signed it?
PLAINTIFF GONG: Yes.
MR. WAHL: And you understand its terms?
PLAINTIFF GONG: Yeah.
MR. WAHL: And you’ve agreed to those terms, in signing and initialing the
various paragraphs in the release, is that right?
PLAINTIFF GONG: Yes.
MR. WAHL: And this is something that you want to do, you haven’t been
coerced in some way that would suggest you’re going to change
your mind, based on your reading of the document?
PLAINTIFF GONG: No.
MR. WAHL: Is that correct?
PLAINTIFF GONG: Yes.
MR. WAHL: And you understand you’re not going to sue U of M for the events
up until this time –
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PLAINTIFF GONG: Yeah.
MR. WAHL: – regarding your employment, is that correct?
PLAINTIFF GONG: Yes.
MR. WAHL: And just finally, you understood that you could have proceeded on
with the litigation and gotten more money, gotten less money, got
no money, or gotten the amount of money that you and the
university have agreed to, is that correct?
PLAINTIFF GONG: Say it again.
MR. WAHL: Yeah. You could have continued on with the litigation, and
through the court process you could have obtained more money
than you’re getting, less money than you’re getting, possibly no
money, or the amount that you’ve agreed to in this release,
correct?
PLAINTIFF GONG: Yes.
MR. WAHL: Okay. I have no further questions
MR. TUKEL: Just a couple.
Ms. Gong, nobody forced you to sign this agreement did they?
PLAINTIFF GONG: No.
MR. TUKEL: You did it because it was your decision that this was in your best
interest to do, correct?
PLAINTIFF GONG: Yeah.
MR. TUKEL: And you understand that the settlement is not only this lawsuit, but
also the lawsuit that’s in state court in Ann Arbor, –
PLAINTIFF GONG: yes.
MR. TUKEL: – that will also be dismissed?
PLAINTIFF GONG: Yes.
MR. TUKEL: I have no other questions.
THE COURT:
All right. And have you understood what went on here
today, what the attorneys said to you, what I’m saying to
you?
PLAINTIFF GONG: Yes.
THE COURT:
Okay. And, Dr. Smith, could you identify yourself for the
record, please?
MR. SMITH: Dr. Douglas Smith.
THE COURT:
And have you been in consultation with Ms. Gong and her
attorney regarding this lawsuit?
MR. SMITH: Yes.
THE COURT:
And the discussions that took place here this afternoon?
MR. SMITH: Yes.
THE COURT:
And has she been able to understand in your mind what the
attorneys have been saying to her and being able to
communicate effectively with her attorney, Mr. Wahl, as
well as Mr. Tukel?
MR. SMITH: I believe so.
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(Hrg. Tr. at 9-12). The Court suggested that the parties enter the signed agreement as an exhibit,
but Defense Counsel did not want the exhibit submitted to the Court. (Id. at 12-13).
Defendants submitted, as Exhibit A to their motion, what they represent is the “Full and
Final Release Of All Claims” that was signed by the parties on July 8, 2013. The document is
five pages long. It provides that Wahl would receive $19,000.00, that Plaintiff would receive
$41,000.00, and that the Sterling Law Firm and Plaintiff would each execute a W-9 form “as a
pre-condition of payment.” (Id. at 1).
The Release states that in consideration for the payment, Plaintiff “does hereby fully and
forever release and discharge U of M and its agents, officers, Regents, employees and
representatives, past, present and future . . . from any and all claims and causes of action of every
kind, whether known or unknown . . . Such claims include, but are not limited to, any claim
arising out of or in connection with Yusong Gong’s employment with or termination of
employment from any of the Released Parties; any claim for any type of employment
discrimination or retaliation . . . ” (Id. at 1-2). It states that the “parties understand that the only
claim that Yusong Gong is not releasing is any potential workers disability compensation claim
against the University.” (Id. at 2).
The Release states that Plaintiff agrees not to be employed by the University, or to seek
employment by the University in the future, and that Plaintiff “understands that her status with U
of M will remain not eligible for rehire.” (Id. at 3-4).
The Release states that “Yusong Gong understands that during the seven day period
following her signature on this Release she may revoke this Release, provided that such
revocation is in writing and delivered to the University of Michigan Officer of General Counsel

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prior to the expiration of the seven day period, and this Release will not become effective or
enforceable until the seven day revocation period has expired without her exercise of the right to
revoke.” (Id. at 4).
It is undisputed that Plaintiff never received the proceeds from the settlement that Wahl
negotiated in her prior federal case.
Defendants attached an August 2, 2013 email from Defense Counsel to Wahl that noted
that the University was prepared to tender settlement checks once certain conditions precedent
were satisfied, such as Plaintiff filling out a W-9 and agreeing to dismiss the Washtenaw County
case. (Defs.’ Ex. C). That email to Wahl stated that Defense Counsel was “feeling some
pressure to move forward, possibly with a Motion to Enforcement settlement agreement in
federal court,” but the docket reflects that no such motion was ever filed in the prior federal case
before this Court.
Although the Court does not have a copy of the motion, it appears that Wahl filed a
motion asking the judge in the Washtenaw County Case to reinstate that case for the purpose of
dismissing the case. Defendants filed a response to that motion, asking the Court to reinstate the
case for the sole purpose of entering an order of dismissal with prejudice. (Defs.’ Ex. D). The
motion noted that Plaintiff would not agree to a stipulated order to reinstate and dismiss the case
and, therefore, sought an award of attorney fees for having to respond to the motion.
On September 25, 2013, the judge in the Washtenaw County Case issued an “Order of
Reinstatement and Dismissal with Prejudice” “for the reasons stated” on the record on
September 25, 2013, and ordered that case reinstated for the purpose of dismissing the case.
(Defs.’ Ex. E). Defendants were not awarded costs or attorney fees. This Court does not have a

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transcript of the reasons stated on the record.
On November 26, 2013, Donica Varner from the University sent Plaintiff an email that
stated:
Your email to Dr. Simon was forwarded to me for response. Please recall that we
asked you not to contact people at the University regarding your lawsuit. You are
not eligible for re-hire at the University of Michigan.
Per the settlement agreement that you signed, you are entitled to $41,000.00. I’ve
attached the signed settlement agreement for your reference. We need for you to
fill out the attached W-9 Form and return it to my attention. I will then ensure
that your check is delivered to you.
Thanks for your prompt attention to finalizing your settlement agreement.
(Defs.’ Ex. F).
On January 15, 2016, Timothy Lynch, Vice President and General Counsel for the
University, sent Plaintiff a letter stating:
I appreciate the concerns you raised in our meeting yesterday regarding
the termination of your employment at the University of Michigan. I have looked
into these issues and see that (1) you signed a full and final release of all of your
claims against the University and its employees; (2) the release has been approved
by the court; and (3) your claims have been dismissed. In the release you agreed
that you would not be reemployed by the University of Michigan.
This release is a final and binding document, and it resolves all of your
claims against the University and its employees. In addition, please be advised
that although you have refused to accept the settlement payment the University is
ready and willing to make the payment at your request.
Under the circumstances, and having met with you in person, I will not
continue to discuss these issues with you. Furthermore, please be advised that
other University officials will not meet or otherwise communicate with you about
these matters any further.
(Pl.’s Ex. 6).
On June 9, 2016, Donica Varner from the University sent an email, that was a
continuation of her November 26, 2013 email thread to Plaintiff, stating:

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I’m writing to provide a gentle reminder that you are entitled to $41,000.00 from
the University of Michigan. Completing the form W-9 and returning it to me will
not change the outcome of the employment lawsuit or the workers’ compensation
proceeding. The payment, however, if likely to positively improve your current
situation.
Based on your recent email to Ms. Rychlinski and Ms. Winarski, I’m hopeful that
your are [sic] ready to accept this resolution.
(Id.). On June 22, 2016, Plaintiff responded that “If the U is willing to provide me a health
insurance, I may consider your offer to end this battle.” (Id.).
On July 18, 2016, Plaintiff filed a Charge of Discrimination against the University with
the EEOC, asserting that the University, claiming that the University wrongfully failed to
consider her for employment. (Defs.’ Ex. G).
ANALYSIS
Plaintiff’s Complaint in this action includes a Title VII retaliation claim (Count I) and
two counts asserted under the ADA (Counts II & III). Defendants’ Motion to Dismiss asserts
that all three of those claims should be dismissed on several grounds.
In response to Defendants’ motion, Plaintiff filed a “Motion to Strike Defendants’
Motion to Dismiss Plaintiff’s Complaint,” that is actually a response brief in opposition to
Defendants’ Motion to Dismiss. That is, it asserts no permissible basis for “striking”
Defendants’ properly-filed motion, but rather, contains arguments as to why Plaintiff believes
the motion should be denied.1
I.

Are Plaintiff’s Claims Barred By The Settlement In Plaintiff’s Prior Federal Case?
Defendants’ first argument is that Plaintiff’s claims in this action are barred by the

1

As such, this “motion” shall be terminated on the Court’s docket.
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written settlement that Plaintiff signed in connection with her prior federal case. Defendants
argue that the Release that Plaintiff acknowledges that she signed on July 8, 2013, “should be
enforced to bar Plaintiff’s claims of discrimination and retaliation” asserted in this case. (Defs.’
Br. at 8).
Defendants assert that settlement agreements are contracts, which are governed by state
law. They note that under Michigan law, a settlement agreement is a final agreement and
generally cannot be modified except for specified reasons, such as fraud, mutual mistake, or
fraud.
Often times, such arguments are raised in connection with a motion to enforce a
settlement agreement (see, e.g., Neely v. Good Samaritan Hosp., 345 F. App’x 39 (6th Cir.
2009). But here, the University never filed such a motion in connection with Plaintiff’s prior
federal case. And this argument is raised in a motion to dismiss under Fed. R. Civ. P. 12(b)(6) –
not a motion for summary judgment under Fed. R. Civ. P. 56.
Broadly construing Plaintiff’s pro se Complaint and her response brief, she asserts that
the Release is not enforceable under Michigan law because: 1) she exercised her right to revoke
it; and 2) she was under duress and/or lacked mental capacity to contract at the time she signed
it.
A.

Not Enforceable Because Of Revocation

In response to Defendants’ Motion to Dismiss, Plaintiff notes that “the document which
Ms. Gong signed on July 8, 2013 includes the right to revoke within 7 days after signing.” (Pl.’s
Br. at 14). Plaintiff asserts that she “exercised her right to revoke on July 9, 2013 and later.”
(Id.). Plaintiff further asserts that she “ordered her attorney to revoke her July 8, 2013 signing

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within the seven days revocation period” and that “Mr. Wahl should have informed the
defendant within 7 days.” (Id. at 13 & 14).
Although this is a motion to dismiss, Defendants’ Reply Brief asserts that while Plaintiff
claims to have revoked consent, “she fails to present any evidence that she revoked the
agreement as provided for in the settlement.” (Defs.’ Reply Br. at 2) (emphasis added).
Defendants then submit two exhibits to their Reply Brief, which are affidavits from Mr. Tukel
and another agent of the University. But this is a motion to dismiss, not a motion for summary
judgment, and those affidavits were not referenced in the complaint. The Court cannot consider
those affidavits without converting the pending Motion to Dismiss into a motion for summary
judgment.
B.

Not Enforceable Because Of Duress Or Incapacity

Broadly construing Plaintiff’s pro se Complaint and her response brief, she also asserts
that the Release is not enforceable under Michigan law because she was under duress and/or
lacked mental capacity at the time she signed it.
Defendants’ Reply Brief raises issues relating to that response,2 but they are not issues
that can be resolved on motion to dismiss and they were raised for the first time in a reply brief,
and therefore Plaintiff had no opportunity to respond to those issues.
While Defendants may well prevail on this challenge at the summary judgment stage, the
Court does not believe Defendants have established that Plaintiff’s claims should be dismissed

2

In Defendants’ Reply Brief, they also improperly raise additional arguments for the first
time. (See Reply Brief at 3, making an estoppel argument and res judicata argument for the first
time).
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based on the Release in connection with this motion dismiss brought under Fed. R. Civ. P.
12(b)(6).
II.

Is The University Immune From Plaintiff’s ADA Counts Under The Doctrine Of
Sovereign Immunity?
In their motion, Defendants assert that the University3 is immune from Plaintiff’s ADA

claims under the doctrine of sovereign immunity.
In response to Defendants’ motion, Plaintiff asserts that because the University accepted
federal funds, that is a waiver of sovereign immunity. (Pl.’s Br. at 10). In support of that
argument, Plaintiff directs the Court to “Doe v. Nebraska in the 8th Circuit and Thomas v.
University of Houston in the 5th Circuit.” (Id.).
As Defendants’ correctly note in their Reply Brief, those cases dealt with the
Rehabilitation Act, not the ADA. See Nihiser v. Ohio E.P.A. 269 F.3d 626 (6th Cir. 2001)
(noting that while the plaintiff’s ADA claims were barred by Eleventh Amendment immunity,
his claims under the Rehabilitation Act were not because the State waived their Eleventh
Amendment immunity “with regard to Rehabilitation Act claims when they accept federal
funds.”). Plaintiff has not asserted any Rehabilitation Act claims in this action. The Court will
therefore consider this challenge to Plaintiff’s ADA claims.

The Eleventh Amendment provides that “The Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against one of

3

Plaintiff’s complaint does not assert any official capacity claims against the individual
Defendants but, even if Plaintiff had asserted official capacity claims against them for money
damages, they would be barred by the Eleventh Amendment. McCormick, 693 F.3d at 662.
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the United States by Citizens of another State, or by Citizens of Subjects of any Foreign State.”
U.S. Const. amend. XI.
As explained in McCormick v. Miami University, 693 F.3d 654, 661 (6th Cir. 2012),
“Eleventh Amendment immunity ‘bars all suits, whether for injunctive, declaratory or monetary
relief, against the state and its departments, by citizens of another state, foreigners or its own
citizens.’” Id. (quoting Thiokol Corp. v. Dep’t of Treasury, 987 F.2d 376, 381 (6th Cir. 1993)).
In McCormick, the Sixth Circuit held that Eleventh Amendment immunity applied to
Miami University, because it is a public university in the state of Ohio. Id. The University of
Michigan, a state agency, and its Board of Regents, likewise have Eleventh Amendment
immunity unless it has been waived. Ewing v. Board of Regents of the University of Michigan,
552 F. Supp. 881 (E.D. Mich. 1982); Estate of Ritter v. University of Michigan, 851 F.2d 846
(6th Cir. 1988).
It is well-established that Eleventh Amendment immunity applies to ADA claims for
monetary damages. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356
(2001); Whitfield v. Tennessee, 639 F.3d 253, 257 (6th Cir. 2011) (“Because Title I [of the ADA]
did not abrogate the states’ Eleventh Amendment immunity, individuals may not sue states for
money damages under Title I.”)
There is a limited exception to sovereign immunity, however, if the complaint constitutes
an Ex parte Young action for prospective injunctive relief. Whitfield, 639 F.3d at 257. A request
for reinstatement to employment is such an excepted claim. Id. To determine if there is such an
excepted claim in this action, the Court is to look to the plaintiff’s complaint. Whitfield, 639
F.3d at 257.

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Here, Plaintiff’s pro se complaint does not include an express request for reinstatement
but it does include a broad request for injunctive relief. Moreover, her response brief indicates
“Ms. Gong wants her employment reinstated with the defendant” (Pl.’s Br. at 6).
In light of the requests for relief in her pro se complaint, and the express reference to
reinstatement in her response brief, the Court rules that any ADA’s claims for monetary damages
in this action are barred by Eleventh Amendment immunity, but that to the extent Plaintiff’s
complaint seeks reinstatement under the ADA, that limited claim is not barred by Eleventh
Amendment immunity.
III.

Should Plaintiff’s ADA And Title VII Claims Against The Individual Defendants Be
Dismissed?
In their motion, Defendant contends that Plaintiff’s ADA and Title VII claims against the

individual Defendants must be dismissed because: 1) as individual employees of the University,
they can not be held personally liable under either Title VII or the ADA; and 2) even if they
could, Plaintiff failed to exhaust administrative remedies as to her claims against them because
she never filed an EEOC charge against them. The Court need not go beyond the first issue.
Plaintiff’s complaint alleges that she was previously employed by the University. She
does not allege that she was ever employed by the three individual Defendants she names in the
action, Simon, Henderson, and Lynch. Rather, she alleges that those individual Defendants were
employees of the University that she interacted with at various times. She alleges that Simon
was a member of the faculty (Compl. ¶ 25), that Henderson worked in Human Resources
(Compl. at ¶ 73), and that Lynch is the University’s Vice President of General Counsel. (Compl.
at 56).
In Wathen v. General Electric Company, 115 F.3d 100 (6th Cir. 1997), the Sixth Circuit
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held that an individual employee/supervisor, who does not otherwise qualify as an “employer”
under the statute, may not be personally liable under Title VII. The same is true of the ADA.
See Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 808 n.1 (6th Cir. 1999); Williams v.
McLemore, 247 F. App’x 1, 8 (6th Cir. 2007) (“We have held repeatedly that the ADA does not
permit public employees or supervisors to be sued in their individual capacities.”)
As such, Plaintiff’s Title VII and ADA claims against Simon, Henderson, and Lynch,
shall be dismissed with prejudice.
CONCLUSION & ORDER
For the reasons set forth below, the Court ORDERS that Defendants’ Motion to Dismiss
is GRANTED to the extent that the Court:
1)

RULES that any ADA claims for monetary damages in this action are
barred by Eleventh Amendment immunity, but that to the extent Plaintiff’s
complaint seeks reinstatement under the ADA, that limited claim is not
barred by Eleventh Amendment immunity; and

2)

DISMISSES WITH PREJUDICE Plaintiff’s claims against the three
individual Defendants (Simon, Henderson, and Lynch).

The motion is DENIED WITHOUT PREJUDICE in all other respects.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: February 13, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record on
February 13, 2018, by electronic and/or ordinary mail.
s/Teresa McGovern
Case Manager Generalist

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