Rudolph v. Lloyd

Filing 37

ORDER denying 17 Motion to Dismiss filed by Defendants, granting in part 24 MOTION for Partial Summary Judgment , Declaratory Relief and Reinstatement filed by Plaintiff and dismissing Defendant Diane Sevigny-Lefebvre. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES RUDOLPH,

Case No. 17-10953
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiff,
v.
SHERYL LLOYD, ET AL.,

U.S. MAGISTRATE JUDGE
ELIZABETH A. STAFFORD

Defendants.
/
OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO DISMISS [17],
GRANTING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT,
DECLARATORY RELIEF, AND REINSTATEMENT [24]
Charles Rudolph, a United States Army veteran, worked in Custodial
Operations at Wayne State University for approximately 14 years, until he was
fired on February 24, 2015. Almost immediately after being discharged, Rudolph
requested a hearing pursuant to the Michigan Veterans Preference Act (“MVPA”),
which limits the circumstances in which veterans may be dismissed from public
employment jobs. Defendants – Custodial Operations supervisors, members of the
Wayne State Board of Governors, and the President of Wayne State University –
refused to hold the hearing.
Rudolph argues that Defendants violated the MVPA and the due process
clause of the 14th Amendment by depriving him of his constitutionally protected
property interest in employment. He seeks reinstatement to his employment;
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declaratory relief indicating that he cannot be terminated absent a hearing and that
the failure to provide such a hearing constitutes a continued due process violation;
and damages from the former Director and Associate Director of Custodial
Operations, Defendants Sheryl Lloyd and Donald Wrench, who are sued in their
individual capacities.
For the reasons set forth below, Defendants’ Motion to Dismiss [Dkt. 17] is
DENIED. Plaintiff’s Motion for Partial Summary Judgment, Declaratory Relief,
and Reinstatement [24] is GRANTED IN PART. All claims pertaining to
Defendant Diane Sevigny-Lefebvre are DISMISSED.1
FACTUAL BACKGROUND
Rudolph began having problems at work in May 2010, when he was issued a
written reprimand for poor performance and failure to follow instructions. See Dkt.
1-2, Pg. ID 21-22. Two years later, in May 2012, Rudolph was suspended for one
day. Additional, longer suspensions followed in April and May 2013. Id.
An incident that occurred on January 26, 2015 seems to be the straw that
broke the camel’s back. On that day, Anthony McKinnon, Rudolph’s supervisor,
noticed that Rudolph was not at his work area at the designated start time. An
investigative interview was held on February 13, 2015. Rudolph explained that
he’d left his work area without permission because he needed to get his work
1

Plaintiff’s counsel informed the Court that Ms. Diane Sevigny-Lefebvre no longer
works at Wayne State.

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equipment from his car. Id. The Associate Director of Custodial Operations,
Defendant Sheryl Lloyd, rejected Rudolph’s explanation because he was absent
from his work area for an extended period of time. Id. She terminated Rudolph
effective February 24, 2015.
Three days later, Rudolph wrote to Governor Snyder, requesting “a
meaningful termination hearing.” Dkt. 1-3. On March 25, 2015, Rudolph, through
counsel, wrote to Governor Snyder a second time, again asking for a Veterans
Preference hearing. That same day, the Governor’s Office contacted Rudolph and
informed him that the Governor was not responsible for facilitating the hearing.
Rudolph’s lawyer then delivered to Defendants a written request for a Veterans
Preference Hearing and a copy of Rudolph’s correspondence with the Governor.
Counsel for Wayne State responded to Rudolph on March 30, 2015. She directed
Rudolph to pursue his remedies through union representatives and through the
grievance process outlined in the Collective Bargaining Agreement (“CBA”)
between Rudolph’s union and Wayne State.
According to a document signed by A.L. Rainey, Jr., the Wayne State
University Director of Labor Relations, on May 21, 2015, Rudolph was not eligible
for appeal to arbitration because any appeal efforts would be untimely. See Pl.’s
Ex. K. Rudolph filed his Complaint [1] approximately two years later, on March
27, 2017.
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I.

Defendants’ Motion to Dismiss
LEGAL STANDARD
Defendants move for dismissal under Federal Rule of Civil Procedure

12(b)(6), which requires the Court to “assume the veracity of [the plaintiff’s] wellpleaded factual allegations and determine whether the plaintiff is entitled to legal
relief as a matter of law.” McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir.
2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). “To survive a motion
to dismiss, [plaintiff] must allege ‘enough facts to state a claim to relief that is
plausible on its face.’” Traverse Bay Area Intermediate Sch. Dist. v. Mich. Dep’t of
Educ., 615 F.3d 622, 627 (6th Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).

ANALYSIS
Defendants argue that Plaintiff has failed to establish the existence of a
constitutionally protected property interest. They also contend that Wayne State is
not subject to the MVPA and that the MVPA provides no cause of action against
individuals. Finally, Defendants claim that Plaintiff’s due process rights were
protected under the terms of the Collective Bargaining Agreement (“CBA”) that
governed his employment with Wayne State.

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A. Wayne State University is subject to the MVPA.
Defendants note that Plaintiff has not named Wayne State as a defendant in
this matter. Even if he had, however, Defendants argue that Wayne State is not
subject to the MVPA.
Michigan case law – in which courts have held that public universities are
public employers for the purposes of other labor laws – suggests otherwise. For
example, in Peters v. Michigan State College, 320 Mich. 243, 250-51 (1948), the
Michigan Supreme Court held that Michigan State College was subject to the
provisions of the Michigan Workmen’s Compensation Act because the Act did
“not undertake to change or disturb the educational activities of” the College. Id. at
250. Rather, it was “enacted to promote the general welfare of the people of this
State.” Id. at 250-51. The College, the court explained, did not have the authority
to “disturb[ ] the general relationship in this State of employer and employee.” Id.
at 250. Similarly, in Regents of University of Michigan v. Michigan Employment
Relations Commission, 389 Mich. 96, 104 (1973), the Michigan Supreme Court
determined that the University of Michigan was a public employer within the
meaning of the Public Employees Relations Act (“PERA”). The court defined the
university as
a public body corporate deriving its being from the people, and is
supported by the people, and the regents, who are State officers, are elected
by the people.
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Id. at 105; see also Board of Control of Eastern Michigan University v. Labor
Mediation Board, 384 Mich. 561, 566 (1971) (the court found “no plenary grant of
powers which, by any stretch of the imagination, would take [the University’s]
operations outside of the area of public employment.”).
The legitimate “concern for the educational process to be controlled by the
Regents,” the court said, “does not and cannot mean that [the University is] exempt
from all the laws of the state.” Id. at 107. The people of Michigan, “through the
passage of Article IV, section 48 of the 1963 Constitution have deemed the
resolution of public employee disputes a matter of public policy.” Id. Finally, the
court explained,
The University of Michigan is an independent branch of the government of
the State of Michigan, but it is not an island. Within the confines of the
operation and the allocation of funds of the University, it is supreme.
Without these confines, however, there is no reason to allow the
Regents to use their independent to thwart the clearly established public
policy of the people of Michigan.
Id. at 108 (quoting Branum v. State, 5 Mich.App. 134, 138-39 (1966)).
In support of their argument, Defendants rely on a February 1932 Opinion
Letter from the Michigan Attorney General, who opined that employees of the
University of Michigan did not fall under the Veterans Preference Act. (Dkt. 27,
Pg. ID 341). However, several cases cited to in the letter have been overruled. See,
e.g., Weinberg v. Univ. of Michigan Regents, 97 Mich. 246 (1893), overruled by
W.T. Andrew Co., Inc. v. Mid-State Sur. Corp., 450 Mich. 655, 665-66 (1996). The
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other cases referred to in the letter are either not dispositive, or have been
implicitly overruled by the cases discussed above.
The Veterans Preference Act applies to Wayne State University. Plaintiff’s
employment with Wayne State, and his protected status under the VPA, does not
implicate an issue “that clearly infringes on the university’s educational or
financial autonomy.” Federated Publications, Inc. v. Bd. of Trustees of Michigan
State Univ., 460 Mich. 75, 87 (1999). The people of Michigan enacted legislation
that provides certain protections to honorably discharged veterans in public
employment positions; this is a valid regulation that is “designed to provide for the
general welfare of society and does not extend into the university’s sphere of
educational authority. W.T. Andrew Co., Inc., 450 Mich. at 668.
B. The applicability of the MVPA to the individual Wayne State
Defendants
As mentioned above, Plaintiff did not name Wayne State as a defendant in
this action. Instead, he sued the former Associate Director and Director of
Custodial Operations in their individual capacities for monetary damages; and the
current Associate Director of Custodial Operations, members of the Board of
Governors, and the Wayne State President, in their official capacities for
reinstatement and other equitable remedies.
Defendants contend that the MVPA applies to public employers, and that
Plaintiff has no cause of action against them as public employees of Wayne State.
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The essence of Defendants’ argument is that Plaintiff should have sued Wayne
State, his employer, rather than the named individuals, who, like Plaintiff, are
Wayne State employees.
1. Individual capacity suit against Lloyd and Wrench
Plaintiff submits that Lloyd and Wrench intentionally fired him without due
process, rendering them liable in their individual capacities. Plaintiff seeks
compensatory and punitive damages against Lloyd and Wrench, including lost
wages and damages for emotional distress.
A § 1983 individual capacity claim “seeks to hold an official personally
liable for the wrong alleged.” Peatross v. City of Memphis, 818 F.3d 233, 241 (6th
Cir. 2016). “[T]o establish personal liability in a § 1983 action, it is enough to
show that the official, acting under color of state law, caused the deprivation of a
federal right.” Leach v. Shelby Cty. Sheriff, 891 F.2d 1241, 1245 (6th Cir. 1989).
“Persons sued in their individual capacities under § 1983 can be held liable based
only on their own unconstitutional behavior.” Heyerman v. City of Calhoun, 680
F.3d 642, 647 (6th Cir. 2012).
Plaintiff has set forth factual allegations sufficient to meet the 12(b)(6)
threshold. Lloyd and Wrench were directly involved in and responsible for
Rudolf’s firing. In addition, they neither provided for nor facilitated any kind of

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pre- or post-termination hearing. See Murphy v. Grenier, 406 Fed. Appx. 972, 974
(6th Cir. 2011).
2. Official capacity suit against the individual WSU defendants
Plaintiff sues the individual Wayne State Defendants in their official
capacities. “[T]he real party in interest in an official-capacity suit is the
governmental entity and not the named official.” Hafer v. Melo, 502 U.S. 21, 25
(1991). Plaintiff avoids any Eleventh Amendment immunity issues because he
seeks “injunctive relief to stop violations of federal law,” specifically, his 14th
Amendment due process rights. Cimerman v. Cook, 561 Fed. Appx. 447, 449 (6th
Cir. 2014) (citing Ex parte Young, 209 U.S. 123, 155-56 (1908)). The States’
federal court immunity “does not apply if the lawsuit is filed against a state official
for purely injunctive relief enjoining the official from violating federal law.” Ernst
v. Rising, 427 F.3d 351, 358-59 (6th Cir. 2005).
Plaintiff’s official capacity suit against the Wayne State Board of Governors
and Wayne State’s President survives because for all intents and purposes,
Plaintiff’s official capacity claim is essentially against Wayne State itself. See
Hafer, 502 U.S. at 25. Wayne State improperly terminated Plaintiff’s employment
without a hearing pursuant to the MVPA.

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C. The Collective Bargaining Agreement
Defendants assert that Plaintiff’s due process rights were protected under the
terms of the CBA. They also submit that Plaintiff did not exhaust his
administrative remedies as required by the CBA. Plaintiff claims that the CBA is
irrelevant to the due process required for protecting his interests under the MVPA.
That Rudolph may not have exhausted his administrative remedies under the
CBA is not a bar to this action. He had a right to proceed in this case on his
“claims pursuant to [the MVPA] regardless of” the CBA. Florence v. Department
of Social Services, 215 Mich.App. 211, 214 (1996). The Supreme Court has
explicitly held that arbitration “cannot provide an adequate substitute for a judicial
proceeding in protecting the federal statutory and constitutional rights that § 1983
is designed to safeguard.” McDonald v. City of West Branch, Mich., 466 U.S. 284,
290 (1984); see also Arslanian v. Oakwood United Hospitals, Inc., 240 Mich. App.
540, 550 (2000) (“mandatory labor arbitration of civil rights claims is
inappropriate.”). In addition, Sixth Circuit law provides that an arbitration clause in
a collective bargaining agreement must contain “clear and unmistakable language .
. . to waive procedural due process rights.” Morrison v. Warren, 375 F.3d 468, 474
(6th Cir. 2004) (citing Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 78-79
(1988)). There is no evidence of such language in the contract at issue here.

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II.

Plaintiff’s Motion for Partial Summary Judgment
LEGAL STANDARD
On a Rule 56 motion for summary judgment, the Court must determine

whether “the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of
law.” FED. R. CIV. P. 56(c). The moving party has the burden of establishing that
there are no genuine issues of material fact, which may be accomplished by
demonstrating that the nonmoving party lacks evidence to support an essential
element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court
must construe the evidence and all reasonable inferences drawn therefrom in the
light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine issue for trial exists if
“the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
An additional two-step analysis is needed to determine whether a 14th
Amendment due process clause claim “establishes a genuine issue of material fact
as to the deprivation of a constitutional right.” Moss v. Bieri, 134 Fed. Appx. 806,
810 (6th Cir. 2005). First, the Court determines “whether the plaintiff has a
property interest entitled to due process protection.” Mitchell v. Fankhauser, 375
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F.3d 477, 480 (6th Cir. 2004). If Plaintiff has such a protected property interest, the
Court then “determine[s] what process is due” with respect to that property right.
Id.
ANALYSIS
1. Plaintiff has a property interest in continued employment
A property interest in continued employment is “not created by the
Constitution.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
Rather, it is “created and . . . defined by existing rules or understandings that stem
from an independent source such as state-law.” Id. Plaintiff contends that the
MVPA provides him with a property interest in his employment with Wayne State.
The relevant portion of the MVPA provides:
No veteran . . . holding an office or employment in any public department or
public works of the state . . . shall be removed or suspended . . . except for
official misconduct, habitual, serious or willful neglect in the performance of
duty, extortion, conviction of intoxication, conviction of felony, or
incompetency; and such veteran shall not be removed, transferred or
suspended for any cause . . . except after a full hearing before the governor
of the state if a state employee . . . as a condition precedent to the removal,
transfer, or suspension of such veteran, he shall be entitled to a notice in
writing stating the cause or causes of removal, transfer, or suspension at
least 15 days prior to the hearing . . . and such removal, suspension or
transfer shall be made only upon written order of the governor . . . where
such veteran has been removed, transferred, or suspended other than in
accordance with the provisions of this act, he shall file a written protest with
the officer whose duty . . . it is to make the removal . . . within 30 days from
the day such veteran is removed . . . otherwise the veteran shall be deemed
to have waived the benefits and privileges of this act: Provided, however,
Said hearing shall be held within 30 days of filing such notice . . .
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MCL § 35.402.
The purpose of the MVPA was to grant veterans “a preference in original
employment and retention thereof in public service.’” Valentine v. McDonald, 371
Mich. 138, 145 (1963). Before an employer takes adverse action, the employeeveteran is entitled to notice and a hearing. The Act “converts at-will public
employment positions into ones that are terminable only for cause.” Sherrod v.
City of Detroit, 244 Mich.App. 516, 523 (2001). Therefore, as a matter of law, the
MVPA created Plaintiff’s property interest in his employment. Jackson v. Detroit
Police Chief, 201 Mich.App. 173, 176 (1993) (because the MVPA “converts atwill public employment into just-cause employment . . . it granted the plaintiff a
property right in continued employment.”); see also Deleon v. City of Ecorse, No.
05-70187, 2006 WL 83063, at *7 (E.D. Mich. Jan. 11, 2006). Through the MVPA,
the Michigan legislature conferred a property interest in continued public
employment, and Wayne State wrongfully deprived Plaintiff of that interest
without “appropriate procedural safeguards.” Cleveland Bd. of Ed. v. Loudermill,
470 U.S. 532, 541 (1985); see also Young v. Township of Green Oak, F.3d 674,
684 (6th Cir. 2006) (“The VPA takes veterans out of an at-will employment regime
and provides them with a property interest in their continued employment.”).
2. Plaintiff was entitled to notice and a hearing before the adverse
employment action.

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“[T]he root requirement of the Due Process clause” is “that an individual be
given the opportunity for a hearing before he is deprived of any significant
property interest.” Loudermill, 470 U.S. at 542 (quoting Boddie v. Connecticut,
401 U.S. 371, 379 (1971) (emphasis in original)). “This principle requires ‘some
kind of a hearing’ prior to the discharge of an employee who has a constitutionally
protected property interest in his employment.” Id.
The case law is clear: the VPA entitles veterans to notice and a hearing prior
to termination. See Jackson, 201 Mich. App. at 177. “The statute in clear language
prohibits taking any employment action against a veteran until after there has been
notice and a hearing.” Id. (citing M.C.L. § 35.402).
3. The appropriate remedy
In Jackson, the court decided that “plaintiff [was] entitled to the protection
of the VPA.” Jackson, 201 Mich. App. at 177. In that case, the plaintiff – like Mr.
Rudolph here – argued that he was entitled to automatic reinstatement with back
pay. The court disagreed, explaining as follows:
[T]he remedy the VPA provides for a violation of the right to notice and a
hearing is not automatic reinstatement with back pay. Because Plaintiff was
demoted without a hearing, he was required to file a written protest with the
mayor or he would be deemed to have waived the protections of the VPA.
M.C.L. § 35.402; M.S.A. § 4.1222. If Plaintiff filed such a protest, the
mayor would be required to conduct a hearing, or refer the protest to the
city’s legal department to conduct a hearing. Id. Plaintiff would be entitled
to back pay only if the mayor found plaintiff’s allegations to be true and
determined that he should be reinstated. Id.; see also Valentine, 371 Mich. at
147.
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Id.
Likewise, Plaintiff here is not entitled to automatic reinstatement and back
pay. Pursuant to the statute, Defendants shall provide Plaintiff with notice and a
hearing before an impartial decision maker. The Court will revisit the issue of back
pay if Plaintiff’s allegations are determined to be true and if it is found that he is
entitled to reinstatement.
CONCLUSION
For the reasons explained above,
IT IS ORDERED that Defendants’ Motion to Dismiss [17] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Partial Summary
Judgment, Declaratory Relief, and Reinstatement [24] is GRANTED IN PART.
Pursuant to the Veterans Preference Act, Plaintiff is entitled to notice and a hearing
before an impartial decision maker, who will determine the truth of Plaintiff’s
allegations and whether he is entitled to reinstatement.
SO ORDERED.

Dated: March 21, 2018

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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