Down v. Ann Arbor Public Schools et al

Filing 27

OPINION and ORDER Granting in Part and Denying in Part 17 MOTION to for Judgment on the Pleadings and to Dismiss - Signed by District Judge Nancy G. Edmunds. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DIANNE DOWN,

Case No. 17-13456

Plaintiff,

Honorable Nancy G. Edmunds

v.
ANN ARBOR PUBLIC SCHOOLS,
CYNTHIA RYAN, AND DAVID COMSA,
Defendants.
________________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANTS’ MOTION FOR JUDGMENT
ON THE PLEADINGS AND MOTION TO DISMISS [17]
This is the second civil rights action Plaintiff Dianne Down has filed against her
employer in this Court. She brings this action against Ann Arbor Public Schools; its
(now retired) executive director of human resources, Cynthia Ryan; and its deputy
superintendent, David Comsa (collectively “Defendants”). Her amended complaint
asserts claims under the Americans with Disabilities Act (“ADA”) and Michigan’s
Persons with Disabilities Civil Rights Act (“PWDCRA”), as well as three claims under 42
U.S.C. § 1983 based on alleged violations of the First and Fourteenth Amendments of
the United States Constitution. The matter is before the Court on Defendants Ann Arbor
Public Schools and Cynthia Ryan’s motion for judgment on the pleadings and motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(c) and 12(b)(1) respectively.
(Dkt. 17.) Defendant David Comsa filed a joinder. (See Dkt. 19.) Plaintiff filed a
response to the motion, and Defendants filed a reply. (Dkts. 22, 24.) The Court heard

1 

oral arguments on the motion on December 18, 2018. For the reasons discussed
below, the Court GRANTS in part and DENIES in part Defendants’ motion.
I.

Background
In 2013, Plaintiff, a high school teacher in the Ann Arbor Public Schools, was

placed on administrative paid leave of absence pending an investigation of allegations
of verbal abuse of students and instructed to appear for a psychological examination to
determine whether “she was mentally fit for the professional duties associated with
teaching at the high school level.” Down v. Ann Arbor Pub. Sch., No. 14-10086, 2015
U.S. Dist. LEXIS 128982, at *2 (E.D. Mich. Sept. 25, 2015). Shortly thereafter, Plaintiff
filed her first lawsuit against Defendant Ann Arbor Public Schools and Defendant Ryan,
asserting claims under the Fourth Amendment and the PWDCRA. See id. at *1-2. She
also sought an injunction prohibiting Defendants from requiring her to submit to the
examination. After conducting an extensive evidentiary hearing and considering the
testimony of several witnesses, including Plaintiff, this Court concluded as follows:
Given the long history of issues that have evolved with Plaintiff over the
years, the long history of parent complaints and student difficulties,
including the summer school problems which seem particularly difficult, the
Court finds that the Ann Arbor Public Schools have established that it is
reasonable for them, under these circumstances, to require Plaintiff to
undergo [a psychological examination] to see if there is some medical or
mental or emotional condition which is preventing Plaintiff from becoming
an effective teacher and performing her teaching job. The Ann Arbor Public
Schools have satisfied the requirement for invoking ¶ 4.911 [of the collective
bargaining agreement] by showing that it had reason to suspect that Plaintiff
was unable to perform her professional duties due to physical, mental,
and/or emotional disability.
Down v. Ann Arbor Pub. Sch., 29 F. Supp. 3d 1030, 1037 (E.D. Mich. 2014). The first
lawsuit proceeded to discovery and eventually summary judgment. In its opinion
granting Defendants’ motion for summary judgment, the Court relied upon and
2 

incorporated its previous findings of fact. The Court held that there was no genuine
issue of material fact regarding the allegedly unreasonable search under the Fourth
Amendment nor was there a genuine issue of material fact regarding whether Plaintiff
suffered from a disability that is recognized under the PWDCRA. See Down v. Ann
Arbor Pub. Sch., 2015 U.S. Dist. LEXIS 128982, at *13, 16.
The psychological examination was eventually conducted in October of 2015.
(Dkt. 12, Pg ID 64.) Plaintiff learned of the results in the Spring of 2016. (Id.) The
results revealed that there was no psychological basis to keep Plaintiff from teaching.
(Id.) However, Defendants did not allow Plaintiff to return to her teaching job and
placed her on another administrative paid leave of absence. (Id.)
Plaintiff’s filed her current lawsuit in October of 2017. Count I of her amended
complaint alleges that Defendants required her to undergo a medical examination that
was unlawful pursuant to the ADA. (Id. at Pg ID 70-71.) Counts II, III, and IV allege that
Defendants retaliated against Plaintiff for filing her first lawsuit in violation of the
PWDCRA, the ADA, and the First Amendment, respectively. (Id. at Pg ID 71-78.) The
alleged retaliatory acts include placing Plaintiff on administrative leave, threatening to
proceed with a tenure action against her and possible termination when they had no
intention to do so, refusing to return Plaintiff to her position upon receipt of favorable
results of the psychological examination, permitting and/or conspiring with the
psychologist to delay production of a written report of the examination, delaying
Plaintiff’s access to records of her continuing education in an effort to prevent her from
renewing her teaching certificate, refusing to provide her with district-provided
professional development courses, and refusing to verify to the Michigan Department of

3 

Education the district-provided professional development hours she had already
completed. Counts V and VI allege violations of the Equal Protection and Due Process
Clauses. (Id. at Pg ID 78-80.) As a basis for those claims, Plaintiff asserts that
Defendants refused to submit signed verification forms of her district-provided
professional development courses to the Michigan Department of Education and took
actions that led to an audit of her professional development hours, putting her teaching
certificate at risk for suspension or revocation.
II.

Legal Standard
Defendants seek a judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c). Motions for a judgment on the pleadings under Rule 12(c) are
analyzed under the same standard as motions to dismiss for failure to state a claim
under Rule 12(b)(6). Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511-12 (6th Cir. 2001)
(citing Mixon v. Ohio, 193 F.3d 389, 399-400 (6th Cir. 1999)). In reviewing the motion,
courts “construe the complaint in the light most favorable to the plaintiff, accept all of the
complaint's factual allegations as true, and determine whether the plaintiff undoubtedly
can prove no set of facts in support of his claim that would entitle him [or her] to relief.”
Id. at 512 (citing Mixon, 193 F.3d at 400).
Defendants also seek dismissal of Counts V and VI of Plaintiff’s amended
complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for a lack of subject
matter jurisdiction based on their argument that these claims are moot. “Mootness
implicates the Court’s subject matter jurisdiction and matters outside the pleadings may
be considered on a Rule 12(b)(1) motion.” Klinger v. Corr. Corp. of Am., Inc., No.
4:11CV2299, 2012 U.S. Dist. LEXIS 184316, at *32 (N.D. Ohio Dec. 13, 2012) (citing

4 

McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997);
Rogers v. Stratton Indus., Inc., 798 F.2d 913, 916 (6th Cir. 1986)).
III.

Analysis
A.

Whether Plaintiff is Precluded from Bringing her ADA Claim

In Count I, Plaintiff alleges that Defendants required her to undergo an unlawful
medical examination in violation of the Americans with Disabilities Act, which only
allows medical examinations that are “job-related and consistent with business
necessity.” 42 U.S.C. § 12112(d)(4)(A). Defendants argue that this claim should be
dismissed on the basis of issue preclusion due to the Court’s ruling in Plaintiff’s prior
lawsuit.
Issue preclusion, also known as collateral estoppel, “‘precludes relitigation of
issues of fact or law actually litigated and decided in a prior action between the same
parties and necessary to the judgment, even if decided as part of a different claim or
cause of action.’” Georgia-Pacific Consumer Prods. LP v. Four-U-Packaging, Inc., 701
F.3d 1093, 1098 (6th Cir. 2012) (quoting Gargallo v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 918 F.2d 658, 661 (6th Cir. 1990)). For issue preclusion to be applicable,
four requirements must be satisfied:
(1) the precise issue must have been raised and actually litigated in the prior
proceedings; (2) the determination of the issue must have been necessary
to the outcome of the prior proceedings; (3) the prior proceedings must have
resulted in a final judgment on the merits; and (4) the party against whom
estoppel is sought must have had a full and fair opportunity to litigate the
issue in the prior proceeding.
Id. at 1098 (quoting Cobbins v. Tenn. Dep’t of Transp., 566 F.3d 582, 589-90 (6th Cir.
2009)).

5 

Plaintiff argues that issue preclusion does not apply here because, in the prior
lawsuit, she had asserted a § 1983 claim based on an unreasonable search under the
Fourth Amendment and, this time, her theory is based on a violation of the ADA. More
specifically, Plaintiff argues that the Court did not decide whether the psychological
examination was job-related and consistent with business necessity in the prior lawsuit.
The fact that Plaintiff relies on a different legal theory in this case does not
prevent the application of the doctrine of issue preclusion. See id. at 1098 (“Where a
litigant brings repeated actions based upon the same operative facts, issue preclusion
may still properly apply despite a change in legal theory . . . .” (citing Randles v.
Gregart, 965 F.2d 90, 93 (6th Cir. 1992))). Moreover, while Plaintiff is correct that
different legal standards apply to the reasonableness inquiry under the Fourth
Amendment and the business necessity exception under the ADA, the applicability of
issue preclusion here depends on whether the same issues were raised and litigated in
the first case.
In Plaintiff’s prior lawsuit, the Court found no Fourth Amendment violation
because Defendants had “reason to suspect that Plaintiff might be suffering from some
degree of emotional impairment on or before the date the [examination] was
scheduled.” See Down, 2015 U.S. Dist. LEXIS 128982, at *12. In this lawsuit, the issue
is whether the medical examination fits within the business necessity exception set forth
in the ADA. Courts have found that this exception applies when “‘(1) the employee
requests an accommodation; (2) the employee’s ability to perform the essential
functions of the job is impaired; or (3) the employee poses a direct threat to himself or
others.’” Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014)

6 

(quoting Denman v. Davey Tree Expert Co., 266 F. App’x 377, 379 (6th Cir. 2007)).
Relevant factors courts take into account when making the determination of whether an
employee’s ability to perform the functions of the job is impaired or the employee poses
a threat are: “(1) the manifestation or symptom of a disability affecting an employee’s
conduct; (2) the frequency of occurrences; (3) the nature of the job; (4) the specific
conduct at issue; and (5) the working environment.” Hunault v. FCA US LLC, No. 1512772, 2016 U.S. Dist. LEXIS 169435, at *25 (E.D. Mich. Oct. 26, 2016). The Court’s
previous rulings addressed a number of these factors. For example, the Court found
“that Plaintiff ha[d] a long history of difficult and problematic interactions with students
and complaints from parents” and that she “was unable to acknowledge these
difficulties and deal with them in the most effective manner.” See Down, 29 F. Supp. 3d
at 1037. Thus, even though the Court did not explicitly address whether the medical
examination was job-related and consistent with business necessity in the first case, the
Court’s findings related to the Fourth Amendment claim encompassed a determination
that Plaintiff’s ability to perform the functions of her job was impaired. The Court
therefore finds that issue preclusion applies.1
And even if issue preclusion does not apply in this case due to the different legal
standards, the Court finds that the doctrine of claim preclusion does apply. The
purpose of claim preclusion, also known as res judicata, “‘is to promote the finality of

1

Plaintiff also argues that the Fourth Amendment claim in her first lawsuit raised
questions of law that were decided by the Court, while her current ADA claim raises
questions of fact that should be decided by a jury. While Plaintiff’s ADA claim does
raise questions of fact, this distinction does not defeat the application of the doctrine of
issue preclusion. See, e.g., B&B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293,
1304 (2015) (noting that “the right to a jury trial does not negate the issue-preclusive
effect of a judgment, even if that judgment was entered by a juryless tribunal”).
7 

judgments and thereby increase certainty, discourage multiple litigation, and conserve
judicial resources.’” Heike v. Cent. Mich. Univ. Bd. of Trs., 573 F. App’x 476, 479 (6th
Cir. 2014) (unpublished) (quoting Westwood Chem. Co., Inc. v. Kulick, 656 F.2d 1224,
1227 (6th Cir. 1981)). Under this doctrine, “‘a final judgment on the merits of an action
precludes the parties or their privies from relitigating issues that were or could have
been raised in that action.’” Id. at 480 (quoting Rivet v. Regions Bank of La., 522 U.S.
470, 476 (1998)). Claim preclusion is applicable when
(1) there is a final decision on the merits in the first action by a court of
competent jurisdiction; (2) the second action involves the same parties, or
their privies, as the first; (3) the second action raises an issue actually
litigated or which should have been litigated in the first action; and (4) there
is an identity of claims between the first and second actions.
Id. at 480 (citing Sanders Confectionery Prods., Inc. v. Heller Fin., Inc., 973 F.2d 474,
480 (6th Cir. 1992)).
Plaintiff argues that her ADA claim was not ripe at the time of her prior lawsuit
because the medical examination had not been conducted at that point. However, just
as she raised the Fourth Amendment issue in the first lawsuit in an attempt to prevent
Defendants from requiring her to undergo the medical examination, she could have
raised her ADA claim at that time as well. See, e.g., Yin v. California, 95 F.3d 864, 867
(9th Cir. 1996) (asserting claims under both the Fourth Amendment and the ADA in an
attempt to prevent her employer from requiring her to undergo a medical examination).
Moreover, because both claims address the propriety of the medical examination, “the
same underlying factual evidence could support and establish both the former and
present causes of action.” See Heike, 573 F. App’x at 483. Therefore, there is an
identity of claims between the two actions and claim preclusion applies. In sum, the

8 

Court finds that Plaintiff’s ADA claim (Count I) is barred by both the doctrines of issue
and claim preclusion.
B.

Whether Defendants Ryan and Comsa Can Be Held Individually
Liable Under the PWDCRA and ADA

In Counts II and III, Plaintiff alleges that Defendants retaliated against her for
bringing her first lawsuit in violation of both the PWDCRA and ADA. Defendants argue
that these claims should be dismissed against Defendants Ryan and Comsa because
supervisors do not qualify as employers under the statutes. See, e.g., Sullivan v. River
Valley School District, 197 F.3d 804, 808 n.1 (6th Cir. 1999) (noting that “[i]ndividual
supervisors who do not independently qualify under the statutory definition of employers
may not be held personally liable in ADA cases”). The Court notes that while the
statutes prohibit discrimination by “employer[s],” Mich. Comp. Laws § 37.1202; 42
U.S.C. §§ 12111, 12112, the retaliation provisions are broader and prohibit retaliation by
“person[s],” Mich. Comp. Laws § 37.1602; 42 U.S.C. § 12203(a). Despite this
difference, the courts have similarly held that individual liability may not be imposed
under the retaliation provisions. See, e.g., Smith v. Heyns, No. 12-CV-11373, 2013
U.S. Dist. LEXIS 108130, at *55 (E.D. Mich. June 21, 2013).
Plaintiff concedes that there is no individual liability under the ADA but argues
that individual liability may be imposed under the PWDCRA. In support of her
argument, Plaintiff relies on cases holding that individual liability exists in the context of
a different statute, Michigan’s Elliott-Larsen Civil Rights Act. See, e.g., Elezovic v. Ford
Motor Co., 697 N.W.2d 851, 861 (Mich. 2005). However, Michigan courts have
interpreted that statute differently than its federal counterpart, Tittle VII, due in part to
differences between the two statutes. See id. at 859. In contrast, Michigan courts have
9 

found the PWDCRA and ADA to be similar. See Chiles v. Mach. Shop, Inc., 606
N.W.2d 398, 405 (Mich. Ct. App. 1999) (“[The Michigan Court of Appeals] and the
Michigan Supreme Court have noted that the federal [ADA] and the PWDCRA share the
same purpose and use similar definitions and analyses, and both courts have relied on
the ADA in interpreting the PWDCRA.”) (citations omitted). Because the ADA does not
impose individual liability on supervisors, the Court finds that supervisors similarly may
not be held personally liable under the PWDCRA. See Farhat v. Mich. Dep’t of Corr.,
No. 12-10864, 2012 U.S. Dist. LEXIS 165422, at *9-10 (E.D. Mich. Nov. 20, 2012)
(finding the same). Both Counts II and III brought against Defendants Ryan and Comsa
in their individual capacities fail.
C.

Whether Defendant Ann Arbor Public Schools Is Immune from
Plaintiff’s PWDCRA and ADA’s Claims

Defendants also argue that Plaintiff’s retaliation claims under the PWDCRA and
ADA should be dismissed against Defendant Ann Arbor Public Schools due to
governmental immunity. See Mich. Comp. Laws § 691.1407(1) (“a governmental
agency is immune from tort liability if the governmental agency is engaged in the
exercise or discharge of a governmental function”). Plaintiff responds by arguing that
governmental immunity applies to common law tort liability only and not to claims under
civil rights statutes.
As Plaintiff notes, the PWDCRA, by its own terms, prohibits retaliation by a
“person,” Mich. Comp. Laws § 37.1602, and the definition of “person” includes a
“governmental entity or agency,” Mich. Comp. Laws § 37.1103(g). Due to similar
language in Michigan’s Elliott-Larsen Civil Rights Act, Michigan courts have held that
governmental immunity does not apply to claims brought under that statute. See, e.g.,
10 

Diamond v. Witherspoon, 696 N.W.2d 770, 780 (Mich. Ct. App. 2005) (noting that “[t]he
Legislature has allowed specific actions against the government to stand”). The Court
therefore finds that governmental immunity does not apply to the PWDCRA and
Defendant Ann Arbor Public Schools is not immune from Plaintiff’s claim pled in Count
II.
Mich. Comp. Laws § 691.1407 is also inapplicable to Plaintiff’s retaliation claim
under the ADA. See, e.g., Doe v. Dearborn Pub. Sch., No. 06-12369, 2008 U.S. Dist.
LEXIS 25514, at *24-25 (E.D Mich. Mar. 31, 2008) (applying government immunity
under Mich. Comp. Laws § 691.1407 to state law claims only). And while the Eleventh
Amendment does provide immunity from claims under the ADA for states and their
agencies, this immunity does not apply to municipalities. See S.J. v. Hamilton Cty., 374
F.3d 416, 419-20 (6th Cir. 2004). Thus, Defendant Ann Arbor Public Schools in not
immune from Count III.
D.

Whether Plaintiff’s Retaliation Claims are Time-Barred

Defendants also argue that Plaintiff is time-barred from alleging that Defendants
retaliated against her by keeping her on administrative leave.2 Defendants note that the
limitations period is three years under the PWDCRA. Sumner v. Goodyear Tire &
Rubber Co., 398 N.W.2d 368, 381 (Mich. 1986), overruled on other grounds by Garg v.
Macomb Cty. Cmty. Mental Health Servs., 696 N.W.2d 646 (Mich. 2005). The
limitations period is also three years for § 1983 actions that arise in Michigan. See
McCune v. City of Grand Rapids, 842 F.2d 903, 905 (6th Cir. 1988). And as for

2

Defendants acknowledge that Plaintiff has pled other retaliatory acts, but argue
that those actions are not sufficiently adverse to be a basis for a retaliation claim, as will
be discussed below.
11 

Plaintiff’s ADA retaliation claim, Plaintiff must have filed a charge of discrimination with
the EEOC within 300 days of the alleged discrimination. See Parry v. Mohawk Motors
of Mich., Inc., 236 F.3d 299, 309 (6th Cir. 2000); 42 U.S.C. § 2000e-5(e). Defendants
argue that because Plaintiff asserts that they retaliated against her for filing her first
lawsuit, the date of that lawsuit—January 9, 2014—is when the limitations period started
running. Plaintiff did not file her charge of discrimination with the EEOC until August 26,
2016, and her complaint in this lawsuit was filed on October 23, 2017.
Plaintiff responds by arguing that her retaliation claims are based on the second
administrative leave she was placed on in March of 2016. Defendants assert that
Plaintiff was placed on the second administrative leave for the same reason she was
placed on leave in the first place and therefore there was no new action. Defendants
further argue that Michigan does not recognize the continuing violations doctrine and
that under the federal doctrine, the limitations period is not tolled for “continual ill effects
from an original violation.” (Dkt. 17, Pg ID 178 (citing Eidson v. Tenn. Dep’t of
Children’s Servs., 510 F.3d 631, 635 (6th Cir. 2007)).
While Defendants attempt to characterize Plaintiff’s position as one based on the
continuing violations doctrine, the Court finds that Plaintiff has sufficiently pled a new,
affirmative act—Defendants placing her on a second administrative leave in March of
2016—that started the limitations period running. See Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 113-14 (2002) (holding that “[e]ach discrete discriminatory [or
retaliatory] act starts a new clock for filing charges alleging that act”). Moreover,
Defendants’ arguments raise questions of fact that cannot be resolved at this early
stage of the litigation. See Am. Premier Underwriters, Inc. v. Nat’l R.R. Passenger

12 

Corp., 839 F.3d 458, 464 (6th Cir. 2016) (noting that “courts should not dismiss
complaints on statute-of-limitations grounds when there are disputed factual questions
relating to the accrual date”) (unpublished). Whether Plaintiff was placed on the second
administrative leave in retaliation for filing her first lawsuit or for the reason she was
placed on leave in the first place goes to the merits of Plaintiff’s claim. Thus, the
question of whether Plaintiff is time-barred from asserting her retaliation claims based
on the second administrative leave she was placed on by Defendants survives this
motion.
E.

Whether Plaintiff Sufficiently Pled an Adverse Action as the Basis for
Her Retaliation Claims

As the basis for her retaliation claims, in addition to being placed on
administrative leave, Plaintiff pleads the following allegedly retaliatory actions
undertaken by Defendants: threating a tenure action when they had no intention of
initiating one, refusing to return her to her teaching position after the completion of the
medical examination, conspiring with the psychologist to delay production of the report
of the exam, delaying Plaintiff’s access to a record of her continuing education hours,
refusing to provide her with district-provided professional development courses, and
refusing to verify her professional development hours to the Michigan Department of
Education. Having argued that Plaintiff is time-barred from asserting that Defendants
retaliated against her by placing her on administrative leave, Defendants argue that the
remaining actions do not constitute actions sufficiently adverse to sustain a retaliation
claim. However, the Court has rejected the argument based on the limitations period,
and even Defendants do not argue that being placed on administrative leave is not a
sufficiently adverse action.
13 

Moreover, whether an action is sufficiently adverse is a question of fact, see
Holzemer v. City of Memphis, 621 F.3d 512, 524 (6th Cir. 2010), and whether a
plaintiff’s allegations create a genuine issue of material fact is an issue decided on a
motion for summary judgment, not a motion for a judgment on the pleadings.3 In fact,
even at the summary judgment stage, “if a reasonable trier of fact could conclude that a
retaliatory act would deter a person from exercising his [or her] rights, then the act may
not be dismissed.” Id. at 524 (quoting Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir.
2005)).
The Court also notes that in the First Amendment context, the Sixth Circuit has
made it clear “that the adverse-action requirement ‘is intended to weed out only
inconsequential actions, and is not a means whereby solely egregious retaliatory acts
are allowed to proceed past summary judgment.’” Id. at 524 (quoting Thaddeus-X v.
Blatter, 175 F.3d 378, 398 (6th Cir. 1999)). Similarly, for her ADA claim, “plaintiff’s
burden of establishing an adverse action is less onerous in the retaliation context than
in the anti-discrimination context.” Covert v. Monroe County Dep’t of Job & Family
Servs., No. 2:08-CV-744, 2010 U.S. Dist. LEXIS 55882, at *22 n.10 (S.D. Ohio June 8,
2010) (citing Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 67-68 (2006)).4
In sum, the Court finds that Plaintiff has pled sufficient adverse acts to serve as a basis
for her retaliation claims.

3

Both cases relied upon by Defendants were appeals of a grant of summary
judgment. See Mitchell v. Vanderbilt Univ., 389 F.3d 177, 178 (6th Cir. 2004); Chen v.
Wayne State Univ., 771 N.W.2d 820, 838 (Mich. Ct. App. 2009).
4
These cases arose under Title VII. However, retaliation claims brought under
the ADA and Title VII are analyzed under the same framework. See Penny v. United
Parcel Serv., 128 F.3d 408, 417 (6th Cir. 1997).
14 

F.

Whether Plaintiff’s Equal Protection and Due Process Claims are
Moot

Plaintiff has brought two additional § 1983 Claims based on alleged violations of
the Equal Protection and Due Process clauses of the United States Constitution. As a
basis for these claims, she alleges that Defendants refused to sign and submit the
required forms to verify her district-provided professional development hours to the
Michigan Department of Education, which may lead to the revocation of her Michigan
teaching certificate. Defendants argue that these claims are now moot, because the
Michigan Department of Education has recently completed its audit based on
information provided by Defendants5 and decided not to take any action against
Plaintiff’s teaching certificate.
“Under Article III of the Constitution, [a federal court’s] jurisdiction extends only to
actual cases and controversies. [A federal court has] no power to adjudicate disputes
which are moot.” McPherson, 119 F.3d at 458 (quoting Crane v. Ind. High Sch. Athletic
Ass’n, 975 F.2d 1315, 1318 (7th Cir. 1992)). “‘The test for mootness is whether the
relief sought would, if granted, make a difference to the legal interests of the parties.’”
Id. Here, Plaintiff seeks injunctive relief requiring Defendants to submit the required
forms in support of her teaching certificate renewal. Defendants have resolved this
issue and injunctive relief is no longer necessary.
Plaintiff argues, however, that even if her request for injunctive relief is moot, her
claim for damages is not. The Sixth Circuit has noted that “where a claim for injunctive
relief is moot, relief in the form of damages for a past constitutional violation is not

5

Plaintiff asserts that Defendants did not actually submit the required forms;
instead, Defendants’ attorney sent a letter to the Michigan Department of Education.
15 

affected.” Gottfried v. Med. Planning Servs., 280 F.3d 684, 691 (6th Cir. 2002). Here,
Plaintiff seeks compensatory and punitive damages, and “[n]ominal damages are also
available in actions claiming a violation of constitutionally protected rights.” Id. at 691
(citing Carey v. Piphus, 435 U.S. 247, 266-67 (1978)). Thus, due to Plaintiff’s request
for damages, Counts V and VI are not moot. The Court finds that it has subject matter
jurisdiction over both claims.
G.

Whether Plaintiff Has Stated a Claim for An Equal Protection
Violation

The Equal Protection Clause of the Fourteenth Amendment prohibits state actors
from making distinctions that “either burden a fundamental right, target a suspect class,
or intentionally treat one differently from others similarly situated without any rational
basis for the difference.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th
Cir. 2005). “A ‘class of one’ plaintiff may demonstrate that government action lacks a
rational basis either by negativing every conceivable basis which might support the
government action, or by showing that the challenged action was motivated by animus
or ill-will.” Trihealth, Inc. v. Bd. of Comm’rs, 430 F.3d 783, 788 (6th Cir. 2005) (citing
Warren v. City of Athens, 411 F.3d 697, 711 (6th Cir. 2005)). As Defendants note,
however, the Supreme Court has held that a plaintiff may not bring a “class-of-one”
claim in the public employment context. Engquist v. Or. Dep’t of Agric., 553 U.S. 591,
607 (2008) (“To treat employees differently is not to classify them in a way that raises
equal protection concerns. Rather, it is simply to exercise the broad discretion that
typically characterizes the employer-employee relationship.”). Plaintiff responds by
arguing that because the Engquist court was focused on the discretionary nature of

16 

decision-making by public employers, this rule should not apply to non-discretionary
matters.
While the language in Engquist regarding discretionary acts “signaled a
willingness to extend the exception to the class-of-one doctrine well beyond the
government-employment context,” Argue v. Burnett, No. 1:08-cv-186, 2010 U.S. Dist.
LEXIS 31817, at *34 (W.D. Mich. Apr. 1, 2010), the rule applies to public employees
suing their employers. Therefore, Plaintiff cannot sue her employer on a class of one
theory.
Plaintiff also argues that there may be other teachers similarly situated to her—
teachers on administrative leave whose district-provided professional development
hours are not being verified by Defendants. Even if such teachers exist, Plaintiff’s
theory would still be based on a class-of-one theory. See, e.g., Wood v. Collier, 836
F.3d 534, 541 (5th Cir. 2016) (defining a class of one as “a discrete group of people,
who do not themselves qualify as a suspect class, alleging the government has singled
them out for different treatment absent a rational reason”). The Court therefore finds
that Plaintiff has failed to state a claim pursuant to the Equal Protection Clause and
Count V is dismissed.
H.

Whether Plaintiff Has Stated a Claim for a Due Process Violation

The Due Process Clause of the Fourteenth Amendment prohibits state actors
from depriving citizens of life, liberty, or property without due process of law. While the
Court agrees with Plaintiff that she has a property interest in her teaching certificate,
“not every injury to an alleged property interest rises to the level of a constitutional
violation.” Farkas v. Ross-Lee, 727 F. Supp. 1098, 1104 (W.D. Mich. 1989); see also

17 

Samad v. Jenkins, 845 F.2d 660, 662 (6th Cir. 1988) (finding that “there must be a
substantial, tangible harm and a material change to an employee’s status before the
employee possesses a viable § 1983 cause of action”). Here, the alleged violation—
failing to certify her district-provided professional development hours—does not rise to
the level of a constitutional violation. The Court finds that Plaintiff has failed to state a
claim pursuant to the Due Process Clause and Count VI is therefore dismissed.
IV.

Conclusion
For the above-stated reasons, Defendants’ motion for judgment on the pleadings

is GRANTED in part and DENIED in part, and Defendants’ motion to dismiss Counts V
and VI for a lack of subject matter jurisdiction is DENIED. The claims that remain viable
are Plaintiff’s retaliation claims under the PWDCRA and ADA (Counts II and III) against
Defendant Ann Arbor Public Schools only and her retaliation claim under § 1983 based
on an alleged violation of her First Amendment rights (Count IV) against all Defendants.
SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: December 19, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record
on December 19, 2018, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager

18