Fischer v. State of Michigan et al
OPINION AND ORDER denying 11 Motion to Dismiss. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 17-CV-10478
HON. GEORGE CARAM STEEH
PAUL J. FISCHER,
STATE OF MICHIGAN and
OPINION AND ORDER
This Title VII religious and ethnic discrimination action arises out of
plaintiff Paul Fischer’s termination as the Executive Director and General
Counsel of the Judicial Tenure Commission (“JTC”), a position he held for
over fifteen years. Fischer alleges he was terminated based on his status
and beliefs as an Orthodox Jew. Now before the court is the State of
Michigan’s and JTC’s (collectively “defendants”) motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6). Because the allegations of the
Complaint are sufficient to state a Title VII claim, defendants’ motion shall
be denied. This court decides this matter based on the written submissions
pursuant to Local Rule 7.1(f)(2).
Because the court is deciding a Rule 12(b)(6) motion to dismiss, the
facts set forth here are those set forth in the Complaint. Fischer is an
Orthodox Jew. He was hired as the Executive Director and General
Counsel of the JTC in January, 2001 and worked in that position until he
was terminated on September 16, 2016. The JTC investigates allegations
of judicial misconduct or disability and is comprised of nine Commissioners.
As part of his duties as General Counsel, Fischer worked as the Examiner
after the issuance of a formal complaint. As Examiner, Fischer acted as
prosecutor in judicial misconduct hearings before the Master and
In June, 2015, in a case drawing attention from news media around
the country, Oakland County Circuit Judge Lisa Gorcyca, while presiding
over a domestic relations case, held three minor children in contempt of
court (then ages 13, 10 and 9) for failing to have a healthy relationship with
their father, and sent them to a juvenile detention center. The minor
children are Israeli as well as American citizens. As a result of Judge
Gorcyca’s conduct, Fischer sought and received authority from the JTC to
begin a preliminary investigation. At the inception of the investigation
against Judge Gorcyca, three Commissioners recused themselves.
Fischer identifies these Commissioners as Commissioners 2, 3 and 4.
While the investigation was ongoing, the Consul General of Israel to
the Midwest, Roey Gilad, wrote to the Michigan Attorney General
expressing concern about Judge Gorcyca’s treatment of the minor children.
The Attorney General’s office forwarded the letter to the JTC. Fischer
called Gilad and informed him that his letter did not qualify as a grievance,
but that he could file one, and notified him that he could not discuss the
matter with him. Gilad told Fischer that he wished to speak to the children
as an Israeli diplomat to determine their welfare. Gilad asked Fischer to
notify the father’s attorney and the Guardian ad Litem that he wished to
speak to them regarding the children. Fischer spoke to the Guardian ad
Litem during the course of the investigation, and to the father’s attorney at
a chance encounter at a social gathering, and passed along Gilad’s desire
to speak with the children.
In late August 2015, Fischer recommended to the JTC that they issue
a 28-day letter, which is the necessary prerequisite to filing a formal
complaint. The JTC authorized its issuance, and the 28-day letter was
forwarded to Judge Gorcyca. After receiving Judge Gorcyca’s response to
the 28-day letter, Fischer recommended to the six Commissioners, who
had not recused themselves, that a formal complaint be issued. At the
December, 2015 meeting of the JTC, the Commission went into executive
session, and Fischer and the recused Commissioners were excused so
that the remaining Commissioners could deliberate on the question of
whether a formal complaint should issue. The Commission returned from
the executive session having reached the decision to issue a formal
complaint. But recused Commissioner 2 questioned Fischer’s objectivity.
Also, Fischer alleges that after the August, 2015 meeting, recused
Commissioner 2 sought him out and expressed his opinion that Judge
Gorcyca’s only sanction should be a public censure.
In January and February, 2016, the JTC went into executive session,
excluding Fischer from the room, without offering an explanation for his
exclusion. At the end of the February, 2016 meeting, Commissioners 1
and 3 spoke with Fischer stating that they had several concerns about
things that had happened. Among other complaints, Commissioner 1 told
Fischer, “You’re Jewish, you speak Hebrew, you’ve been to Israel.”
Commissioner 1 also tied those facts to Judge Gorcyca’s allegations that
Fischer was “an agent of the Israeli government” because he had spoken
with the Israeli Consul General and shared his request to meet with the
children with the Guardian ad Litem and the attorney for the father.
In January, 2016, the Michigan Supreme Court appointed retired
Wayne County Circuit Judge Daniel Ryan to serve as the Hearing Master.
The hearing on the formal complaint against Judge Gorcyca was held on
May 31, and June 1, 2016. On May 18, 2016, Judge Gorcyca moved to
disqualify Fischer on the grounds that he had contacted the attorneys for
the minor children and the father regarding the Consul General’s request to
meet with the children.1 In June, 2016, some of the Commissioners
discussed Fischer’s contact with the Consul from Israel as proof of his bias
against Judge Gorcyca.
Judge Ryan issued his report on July 1, 2016, denied Judge
Gorcyca’s motion to disqualify Fischer, and found that Judge Gorcyca had
engaged in judicial misconduct. Fischer then recommended to the JTC
that Judge Gorcyca be suspended for nine months without pay and
assessed costs of more than $12,000.
At the regularly scheduled meeting of the JTC on September 12,
2016, the JTC went into executive session. A short while later,
Commissioners 1 and 3 informed Fischer that he was terminated effective
Although the motion to disqualify is not mentioned in the Complaint, the court
can consider matters outside the pleadings which are a matter of public record. Bassett
v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
immediately, but offered him until September 16, 2016 to offer his
resignation voluntarily. Fischer declined to do so and his termination
became effective on September 16, 2016. On November 14, 2016, the
JTC found Judge Gorcyca guilty of judicial misconduct and recommended
that the Court suspend her without pay for 30 days plus payment of costs.
On December 9, 2016, Fischer filed a lawsuit against the State of Michigan
and the JTC in Wayne County Circuit Court alleging a violation of the
Michigan Whistleblower Protection Act on the basis that he was allegedly
terminated in retaliation for his recommendation regarding a more serious
level of discipline and punishment for Judge Gorcyca’s misconduct than the
Commission wished to impose. On February 14, 2017, Fischer filed the
instant lawsuit against the State of Michigan and the JTC alleging a
violation of Title VII because defendants allegedly discriminated against
him because of his religion or ethnicity.
Now before the court is defendants’ joint motion to dismiss pursuant
to Rule 12(b)(6). Defendants argue Fischer’s Complaint is deficient
because it relies on the “stray” remark of one Commissioner. Defendants
also devote considerable time in their brief to a recitation of the facts that
goes far beyond the allegations of the Complaint. Defendants claim that in
four prior investigations, Fischer’s conduct was deficient, thus warranting
his eventual removal from his position as Executive Director. Defendants
also seek to rely on the affidavit of Judge David Sawyer, one of the
Commissioners of the JTC. Because these matters are outside the
pleadings, the court does not consider them in rendering its decision here.
II. Standard of Law
Rule 12(b)(6) allows the Court to make an assessment as to whether
the plaintiff has stated a claim upon which relief may be granted. Under the
Supreme Court’s articulation of the Rule 12(b)(6) standard in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 554-56 (2007), the court must construe
the complaint in favor of the plaintiff, accept the allegations of the complaint
as true, and determine whether plaintiff’s factual allegations present
plausible claims. “‘[N]aked assertions’ devoid of ‘further factual
enhancement’” are insufficient to “‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 557, 570). To survive a Rule 12(b)(6) motion to dismiss,
plaintiff’s pleading for relief must provide “‘more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.’” D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014)
(quoting Twombly, 550 U.S. at 555). Even though the complaint need not
contain “detailed” factual allegations, its “‘factual allegations must be
enough to raise a right to relief above the speculative level on the
assumption that all of the allegations in the complaint are true.’” New
Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir.
2011) (quoting Twombly, 550 U.S. at 555).
In deciding a motion to dismiss under Rule 12(b)(6), the court is
directed to assess the “sufficiency of the plaintiff's claim” and a court “may
consider only matters properly part of the complaint or pleadings in
deciding the motion.” Armengau v. Cline, 7 F.App’x. 336, 344 (6th Cir.
In order to establish a religious discrimination claim under Title VII,
plaintiff must demonstrate that he was discharged or discriminated against
because of his religion. 42 U.S.C. § 2000e-2(a). Title VII defines “religion”
as “all aspects of religious observance or practice, as well as belief, unless
the employer demonstrates that he is unable to reasonably accommodate
to an employee’s or prospective employee’s religious observances or
practice without undue hardship on the conduct of the employer’s
business.” 42 U.S.C. § 2000e(j); see Hall v. Baptist Mem’l Health Care
Corp., 215 F.3d 618, 627-28 (6th Cir. 2000). To prevail, plaintiff must
demonstrate that one of the factors that made a difference in the decision
to terminate plaintiff was his religion and/or religious beliefs. 42 U.S.C. §
Defendants argue that Fischer’s claim should be analyzed under the
familiar McDonnell-Douglas-Burdine burden-shifting framework. However,
at the pleadings stage, that framework does not apply as it is an evidentiary
standard, not a pleading standard. Swierkiewicz v. Sorema NA, 534 U.S.
506, 510 (2002). Under the liberal notice pleading standard of Federal
Rule of Civil Procedure 8(a), plaintiff need only plead sufficient facts that if
proven through discovery will establish that one of the reasons for his
termination was his religion and religious beliefs. Lindsay v. Yates, 498
F.3d 434, 439 (6th Cir. 2007).
Fischer has met the strictures of Rule 8(a) and has sufficiently pled
his Title VII religious discrimination claim. Fischer alleges that he is an
observant Orthodox Jew, and that he was discharged as a result of the
Judge Gorcyca investigation, for which several of the Commissioners
suggested he was biased in favor of the children and father because of his
faith and his interaction with the Israeli Consul General. Fischer alleges
that the Commissioners expressed concern that his religious faith could
compromise his handling of the Judge Gorcyca matter. Further, Fischer
alleges that Commissioner 1 told him in the presence of Commissioner 3
that the fact that Fischer was Jewish, spoke Hebrew, and had been to
Israel could be issues. Fischer also alleges that Commissioner 2
challenged Fischer’s objectivity. Also, in June, 2016, some Commissioners
raised Fischer’s contact with the Israeli Consul as proof of his bias against
Defendants identify Commissioner 1 as Judge Sawyer and claim that
his statement should not be considered discriminatory because it was the
stray remark of one of nine decision makers in the decision to fire Fischer,
and because it is not discriminatory, in any event, as Judge Sawyer was
merely expressing a concern about Fischer’s objectivity. Defendants’
arguments are more appropriate in a motion for summary judgment, not a
motion to dismiss. The court is not to weigh the probative value of
Fischer’s factual allegations at this juncture, but must accept the allegations
of the Complaint as true. The cases defendants cite regarding the
probative value to give to a remark by one of a corporate defendant’s
employees involve analysis of such statements at the summary judgment
or trial stage. See Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir.
1998) (summary judgment); Cooley v. Carmike, Inc., 25 F.3d 1325, 1333
(6th Cir. 1994) (trial). Also, Judge Sawyer was one of the decision makers
in the decision to terminate Fischer, Commissioner 3 was present when the
comments were made, and other Commissioners made similar comments
in June, 2016. Also, Judge Sawyer made the allegedly discriminatory
comments to Fischer immediately after a closed executive session of all the
Commissioners and told Fischer that he needed to discuss matters with
him “regarding things that happened.”
Defendants also argue that the facts negate any inference of
discrimination because the Commission granted Fischer’s request to
informally investigate Judge Gorcyca, agreed with his recommendation to
bring a preliminary and then a formal complaint against Judge Gorcyca, did
not interfere with Fischer’s investigation of Judge Gorcyca, and affirmed his
finding of judicial misconduct. Again, these are all arguments that would be
appropriate at summary judgment or trial, but the court cannot weigh the
evidence in deciding a Rule 12(b)(6) motion to dismiss, but must accept the
allegations of the Complaint as true. Here, Fischer alleges that after his
contact by the Israeli Consul General, several Commissioners challenged
his objectivity to perform his job on the basis of the fact that he was Jewish,
spoke Hebrew, and had been to Israel. Fischer alleges that he was a fully
satisfactory employee who was never disciplined during his fifteen year
tenure and was discharged solely based on his actions in the Judge
Gorcyca investigation. Defendants, on the other hand, argue that Fischer
was not an exemplary Executive Director and that the Commissioners had
numerous concerns about Fischer’s work performance prior to the Judge
Gorcyca matter. Once again, these are all evidentiary issues to be decided
at the summary judgment or trial stage. At this early juncture, the court is
concerned solely with the sufficiency of the allegations of the Complaint.
For the reasons set forth above, the court finds that the allegations are
sufficient to state a claim under Iqbal and Twombly.
For the reasons set forth above, defendant’s motion to dismiss (Doc.
11) is DENIED.
IT IS SO ORDERED.
Dated: September 13, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 13, 2017, by electronic and/or ordinary mail.
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