Marshall v. Wayne, County of et al

Filing 17

OPINION and ORDER Granting in Part and Denying in Part 7 MOTION to Dismiss Brief in Support and Certificate of Service. Department of Public Services, Wayne, Count of terminated. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JIMMY E. MARSHALL,

Case No. 2:19-cv-12515

Plaintiff,

HONORABLE STEPHEN J. MURPHY, III

v.
WAYNE COUNTY and WAYNE
COUNTY DEPARTMENT OF
PUBLIC SERVICES,
Defendants.

/

OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTION TO DISMISS [7]
Plaintiff Jimmy E. Marshall filed the present civil rights complaint against
Defendants Wayne County and the Wayne County Department of Public Services
("WCDPS"). ECF 1. And Defendants filed a motion to dismiss instead of an answer.
ECF 7. The Court reviewed the briefs1 and finds that a hearing is unnecessary. See
E.D. Mich. LR 7.1(f). For the following reasons the Court will grant in part and deny
in part the motion.
BACKGROUND2
Plaintiff, a 58-year-old African American male, worked for Defendants as a
Pump Station Mechanic from 1991 to 2018. ECF 1, PgID 4–5. He alleged that

The Court encourages Plaintiff to consult Local Rule 5.1(a) and ensure that all
future filings meet the appropriate formatting standards.
2 Because the Court must view all facts in the light most favorable to the nonmoving
party, see Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008),
the Court's recitation does not constitute a finding of fact.
1

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Defendants suspended his employment from March 10, 2018, to March 14, 2018,
because of "unsatisfactory performance and insubordination." Id. at 5. But, prior to
the start of the suspension, Defendants had scheduled an Independent Medical
Examination ("IME") for Plaintiff, for April 9, 2018. Id. When he returned from his
suspension, Plaintiff was placed on "Administrative Leave" pending the results of the
IME. Id. at 6.
The IME report stated that "Plaintiff possibly posed a 'risk of physical harm'
to coworkers." Id. at 7. Additionally, "the IME conditioned Plaintiff's return to work
under a set of onerous conditions including taking psychotropic medications,
counseling sessions" and "testing." Id. at 8. Plaintiff also alleged that after
Defendants received the IME report, they "began discussing procedures to place [him]
on disability leave and retirement." Id. Then, without Plaintiff's consent, Defendants
"prepared forms for Family Medical Leave for [] Plaintiff." Id. at 9. Plaintiff remained
on leave under the Family Medical Leave Act ("FMLA") until June 22, 2018, when he
was informed that he had used all his FMLA time. Id. at 10. Ultimately, Plaintiff
decided to retire prematurely after facing the possibility of not returning to work. Id.
Plaintiff then filed the current action, and alleged that he was "subjected to
unequal treatment based on his race[,]" that he was treated differently than his white
coworkers, and that Defendants' white employees broke into his locker, threw out his
food from the communal refrigerator, and left "debris and dirt in work areas" that he
had to clean up. Id. at 10–11. He then alleged that Defendants' employees and a
supervisor demeaned and intimidated him "because of his race," and his supervisor

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falsified his timecard and prevented him from receiving overtime pay. Id. at 11. As a
result, he brought nine claims against Defendants: (1) violation of the Civil Rights
Act of 1964, 1991 based on race discrimination; (2) violation of the Civil Rights Act of
1991 based on the right to contract; (3) a Fourteenth Amendment substantive and
procedural due process claim based on 42 U.S.C. § 1983; (4) a Fourteenth Amendment
equal protection claim based on 42 U.S.C. § 1983; (5) violation of the Age
Discrimination in Employment Act, 28 U.S.C. § 621, et seq.; (6) violation of the Family
Medical Leave Act, 29 U.S.C. § 2611, et seq.; (7) violation of the Americans With
Disabilities Act, 42 U.S.C. § 1211, et seq.; (8) common law negligence/ gross
negligence; and (9) common law conspiracy. ECF 1, PgID 11–23. Defendants' motion
to dismiss is largely predicated on arguments that each of Plaintiff's claims fail as a
matter of law because they were either improperly pleaded or lack a legal basis.
LEGAL STANDARD
The Court may grant a Rule 12(b)(6) motion to dismiss if the complaint fails to
allege facts "sufficient 'to raise a right to relief above the speculative level,' and to
'state a claim to relief that is plausible on its face.'" Hensley Mfg. v. ProPride, Inc.,
579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007)). The Court views the complaint in the light most favorable to the
plaintiff, presumes the truth of all well-pleaded factual assertions, and draws every
reasonable inference in favor of the non-moving party. Bassett, 528 F.3d at 430. But
the Court will not presume the truth of legal conclusions in the complaint. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). If "a cause of action fails as a matter of law,

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regardless of whether the plaintiff's factual allegations are true or not," then the
Court must dismiss. Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005 (6th Cir. 2009).
DISCUSSION
Plaintiff alleged nine claims against Defendant. The Court will address each
claim in turn.
I.

Proper Defendants
To begin, Plaintiff sued Wayne County and the WCDPS. ECF 1. But the

WCDPS "is merely a department within the jurisdictional authority of Wayne
County, and as such, is not legally separate from the county. M.C.L. § 45.501, et seq.
Since a charter county is a body corporate capable of being sued, M.C.L. § 45.501,
Wayne County is a proper defendant, but the [WCDPS] is not." Sumner v. Wayne
Cnty, 94 F. Supp. 2d 822, 827 (E.D. Mich. 2000); see also Rhodes v. McDannel, 945
F.2d 117, 120 (6th Cir. 1991) (holding that a county department is not a proper
defendant). Because WCDPS is not a separate entity subject to suit, the Court will
dismiss all claims against it.3
II.

Race Discrimination
Title VII of the Civil Rights Act of 1964 "prohibits discrimination in

employment on the basis of race. . . ." Hunter v. Sec'y of U.S. Army, 565 F.3d 986, 993
(6th Cir. 2009). First, Plaintiff claimed that Defendant violated Title VII "by refusing
to investigate and remedy incidents of harassment by white coworkers including

Because Wayne County is the only remaining Defendant, the Court will refer to the
County as "Defendant" for the remainder of this order.
3

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[breaking] into Plaintiff's locker, stealing and dumping Plaintiff's meals left in a
workplace refrigerator, [and] manipulating the [overtime] records to deny Plaintiff
his opportunity to earn said hours in favor of white coworkers." ECF 1, PgID 12. He
also alleged that Defendant forced him to retire, suspended him, treated him
differently, discriminated against him by requiring him to undergo a psychiatric
evaluation before returning to work, forcing him to use his FMLA leave, and
"imposing arbitrary and stringent conditions for Plaintiff's return to work" all
because of his race. Id.
But before Plaintiff can bring a discrimination claim under Title VII, he must
comply with certain procedural requirements. Specifically, he must timely file a
charge of discrimination with the Equal Employment Opportunity Commission
("EEOC"). The general deadline to file the charge is 180 days "after the alleged
unlawful employment practice occurred," 42 U.S.C. § 2000e-5(e)(1), but because
Michigan participates in a work-sharing arrangement with the EEOC, the deadline
for filing is 300 days after the conduct, Schoneboom v. Michigan, 28 F. App'x 504, 505
(6th Cir. 2002) (citations omitted). In any event, if the EEOC chooses not to take
further action, it notifies the employee of a decision and the employee has 90 days
from the decision date to sue. 42 U.S.C. § 2000e-5(e)(1). And "a Title VII plaintiff
cannot bring claims in a lawsuit that were not included in his EEOC charge." Younis
v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010) (citations omitted).

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Plaintiff's EEOC charge4 alleged that he was treated differently than his white
coworkers and that he was forced to retire because of his race. ECF 7-9, PgID 93. The
EEOC charge did not, however, allege that Plaintiff's coworkers harassed him or that
his overtime records were unfairly adjusted. And because Plaintiff did not bring the
hostile work environment claims in his EEOC charge, he is barred from bringing
them in the present lawsuit. See Younis, 610 F.3d at 361. The Court must therefore
dismiss Plaintiff's Title VII claim as it relates to harassment and his overtime records
for failure to exhaust his administrative remedies.
This leaves only one of Plaintiff's race discrimination allegations still viable:
Plaintiff was treated differently than similarly situated white coworkers. To survive
a motion to dismiss, the complaint "must allege sufficient 'factual content' from which
a court, informed by its 'judicial experience and common sense,' could 'draw the
reasonable inference'" that Defendant discriminated against Plaintiff because of his
race. Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir. 2012) (quoting Iqbal, 556 U.S.
at 678). Generic "recitations of the elements [of a claim] unenhanced by specific facts"
cannot survive a motion to dismiss. Smith v. Wrigley Mfg. Co., LLC, 749 F. App'x 446,
448 (6th Cir. 2018).
Plaintiff's only "specific" factual assertion was that Defendants suspended him
for "failing to complete certain procedures that had similarly been committed by

Documents attached to Defendant's motion to dismiss "are considered part of the
pleadings if they are referred to in the plaintiff's complaint and are central to
the claim. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001) Here, the Court
may consider the EEOC charge letter because "it is central to his discrimination
claim." Id. at 503.
4

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white coworkers who were not disciplined." ECF 1, PgID 10. The allegation allows
the Court to conclude that Plaintiff adequately plead that he was treated differently
from his white coworkers. See, e.g., Keys, 684 F.3d at 610 (holding that allegations of
specific events showing that Plaintiff was treated differently satisfy the pleading
standard). Plaintiff's claim of improper suspension therefore satisfies the pleading
requirement.
For the remaining racial discrimination claims, Plaintiff pleaded "his own race
and gender, and allege[d] that, as a result of his race and gender," Sam Han v. Univ.
of Dayton, 541 F. App'x 622, 626–27 (6th Cir. 2013), Defendant forced him to undergo
a medical evaluation and use his FMLA time; imposed arbitrary and stringent
conditions for him to return to work; and constructively terminated him, ECF 1, PgID
12. But Plaintiff "allege[d] no set of facts, beyond these bare and conclusory
assertions, from which a reasonable person could infer how his race . . . factored into"
Defendant's actions. Sam Han, 541 F. App'x at 627. Plaintiff concluded "that he was
treated less-favorably than non-[African]-American employees . . . but he has offered
no specifics regarding who those employees were or how they were treated
differently." Id. The Court will therefore dismiss Plaintiff's Title VII race
discrimination claim as it relates to all scenarios except his properly plead suspension
claim.
III.

42 U.S.C. § 1981
Next, Plaintiff alleged that Defendant violated 42 U.S.C. § 1981 by

discriminating against him and preventing him from making and enforcing a

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contract. ECF 1, PgID 13. But the Sixth Circuit has established that "no independent
cause of action against municipalities is created by [42 U.S.C.] § 1981(c)." Arendale
v. City of Memphis, 519 F.3d 587, 599 (6th Cir. 2008). Rather, "the express cause of
action for damages created by § 1983 constitutes the exclusive federal remedy for the
violation of the rights guaranteed in § 1981 by state governmental units." Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989). Plaintiff therefore cannot bring a
42 U.S.C. § 1981 action against Defendant because it is a municipality, so the claim
must fail as a matter of law.
IV.

42 U.S.C. § 1983
Plaintiff alleged two claims under 42 U.S.C. § 1983 that stemmed from alleged

Fourteenth Amendment due process and equal protection violations. ECF 1, PgID
14–17. "A plaintiff can bring a claim under § 1983 when []he is deprived of any rights,
privileges, or immunities secured by the Constitution and laws as a result of any
statute, ordinance, regulation, custom, or usage, of any state." Doe v. Claiborn Cnty.,
103 F.3d 495, 505 (6th Cir. 1996) (internal citations omitted). But a municipality
"may not be sued . . . for an injury inflicted solely by its employees or agents." Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). Rather, liability is created "when
execution of a government's policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official policy, inflicts []
injury[.]" Id. And customs that give rise to 42 U.S.C. § 1983 claims need not actively
deprive Plaintiff of his constitutional rights, but may include customs of "inaction,"
in which the municipality "habitually" allowed unconstitutional conduct to go

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unchecked. D'Ambrosio v. Marion, 747 F.3d 378, 387 (6th Cir. 2014). Thus, the "first
inquiry in any case alleging municipal liability under § 1983 is . . . whether there is
a direct causal link between a municipal policy or custom and the alleged
constitutional deprivation." City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
The response brief clarified that Plaintiff alleged Defendant's "lawful
disciplinary policy was not followed." ECF 13, PgID 171. But Plaintiff never alleged
that Defendant, "as an official policymaking body, had a 'custom' that reflected a
deliberate, intentional" practice of discrimination based on race. Doe, 103 F.3d at 508.
And Plaintiff did not allege "a clear and persistent pattern of unconstitutional
conduct by municipal employees," which is required for a successful "inaction" claim.
D'Ambrosio, 747 F.3d at 387 (quotations omitted). Plaintiff merely alleged that he
was subject to unconstitutional conduct, not the victim of "a pattern of similar
discriminatory or retaliatory activity in other cases." Abdulsalaam v. Franklin Cnty.
Bd. of Comm'rs, 637 F. Supp. 2d 561, 577 (S.D. Ohio 2009). Because Plaintiff did not
produce any evidence that other employees complained about or experienced the
same kind of unconstitutional treatment or that there was a pattern of similar
discrimination, the Court must dismiss his 42 U.S.C. § 1983 claims.5

Plaintiff's response brief claimed that he "is advancing a claim of violation of his due
process rights, more commonly lodged against individual defendants" and that he
"will seek leave to amend his complaint to name [his] supervisors." ECF 13, PgID
172. The Court will not take the potential amendment into consideration as it must
only consider the allegations in the complaint. See Fed. R. Civ. P. 12(d).
5

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V.

Age Discrimination
The Age Discrimination in Employment Act ("ADEA") makes it unlawful for

an employer to discharge or discriminate against an individual "with respect to his
compensation, terms, conditions, or privileges of employment because of his age[.]"
29 U.S.C. § 623(a)(1). A plaintiff can prove discrimination under the ADEA either
through direct or circumstantial evidence. Wexler v. White's Fine Furniture, Inc., 317
F.3d 564, 570 (6th Cir. 2003). Direct evidence means evidence that "if believed,
requires the conclusion that unlawful discrimination was at least a motivating factor
in the employer's actions." Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp.,
176 F.3d 921, 926 (6th Cir. 1999). Circumstantial evidence is "proof that does not on
its face establish discriminatory animus, but does allow a factfinder to draw a
reasonable inference that discrimination occurred." Wexler, 317 F.3d at 570. If using
"direct and circumstantial evidence, the burden of persuasion remains on [the]
[P]laintiff to demonstrate 'that age was the but-for cause of [his] employer's adverse
action." Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009) (quoting Gross v.
FBL Fin. Servs., 557 U.S. 167, 178, n.4 (2009)).
Plaintiff did not plead any direct evidence of age discrimination, and his
response brief concedes as much. ECF 13, PgID 181–82. The Court will therefore
analyze the age discrimination claim using a circumstantial evidence standard. Proof
of a claim by circumstantial evidence requires Plaintiff to first make a prima facie
showing of discrimination. See Geiger, 579 F.3d at 622. To prove a prima-facie case of
age discrimination, Plaintiff must show that: "(1) []he was over 40 years old; (2) []he

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suffered from an adverse employment action; (3) []he was qualified for the position
[]he held; and (4) []he was either replaced by a person outside the protected class or
treated differently than similarly-situated individuals." Laws v. HealthSouth N. Ky.
Rehab. Hosp. Ltd. P'ship, 508 F. App'x 404, 410–11 (6th Cir. 2012) (citing Policastro
v. Nw Airlines, Inc., 297 F.3d 535, 538–39 (6th Cir. 2002)). Plaintiff sufficiently
pleaded facts to establish the first three requirements: he was over 40 years old (he
was 58 at the time of his termination), he was subjected to an adverse employment
decision (he was constructively terminated), and he was qualified to perform the job
he held. ECF 1, PgID 18.
But Plaintiff inadequately pleaded the fourth factor. An allegation is
insufficient when it "fail[s] to plead any 'facts regarding the names, relative ages, or
qualifications' of the younger employees who allegedly assumed [Plaintiff's] job
duties, or to provide examples of how those employees were treated more favorably."
Smith v. Wrigley Mfg. Co., LLC, 749 F. App'x 446, 448 (6th Cir. 2018) (quoting House
v. Rexam Beverage Can Co., 630 F. App'x 461, 464 (6th Cir. 2015)). Plaintiff only
alleged that "a much younger individual who was not similarly qualified" replaced
him. ECF 1 PgID 18. Because Plaintiff failed to plead specifics about the name, age,
or qualifications of the employee who replaced him, Plaintiff cannot establish a prima
facie case of age discrimination, and the Court will dismiss his ADEA claim.
VI.

FMLA Violation
Plaintiff alleged that Defendant violated the Family Medical Leave Act

("FMLA"), 29 U.S.C. § 2611, et seq. when it forced him "to use FMLA leave" without

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his request and without a "medical certification that FMLA leave was needed." ECF
1, PgID 19. But a FMLA "claim ripens only when and if the employee seeks FMLA
leave at a later date, and such leave is not available because the employee was
wrongfully forced to use FMLA leave in the past." Wysong v. Dow Chem. Co., 503 F.3d
441, 449 (6th Cir. 2007). Plaintiff did not allege that he tried to use FMLA leave at a
later date or that he was unable to take FMLA leave later because it was unavailable.
His FMLA claim is therefore unripe and must be dismissed.
VI.

Americans with Disabilities Act Claim
To establish a claim under the Americans with Disability Act ("ADA"), Plaintiff

"must plead facts that make plausible the inference that (1) []he is disabled, (2) []he
is qualified to perform [his] job requirements with or without reasonable
accommodations, and (3) []he would not have been discharged but for the disability."
Darby v. Childvine, Inc. 964 F.3d 440, 444–45 (6th Cir. 2020) (collecting cases).
Plaintiff alleged that he was "a qualified individual within the meaning of the" ADA,
and that he was qualified "to perform and did perform the essential functions of his
job for 27 years." ECF 1 PgID 20. But Plaintiff did not allege that Defendant
discharged him because of his disability.
The complaint voluminously alleged that Defendant conspired with Dr. Ager—
the doctor who evaluated Plaintiff—to prevent Plaintiff from returning to work. ECF
1, PgID 7–9. Plaintiff alleged that "the IME Report's conclusions [were] basically preagreed answers to conclusory and biased questions provided by the Defendants[,]"
that Dr. Ager answered the questions posed by Defendant "in the affirmative without

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performing the necessary objective testing and thus providing Defendants with a pretextual reason to unlawfully prevent Plaintiff from returning to his employment[,]"
and that the IME examination "was part of the plan to force [] Plaintiff from his lawful
employment." Id. at 8–9. Essentially, Plaintiff alleged that Defendant tried to
terminate his employment for some unknown reason, not because of his disability.
Because Plaintiff did not plead facts to plausibly establish that Defendant fired him
because of his disability the Court will dismiss his ADA claim.
VIII. State Law Tort Claims
Finally, Plaintiff alleged state law claims of negligence, gross negligence, and
conspiracy. ECF 1, PgID 21–23. But Michigan law provides for immunity from tort
claims for government agencies. See EBI-Detroit, Inc. v. City of Detroit, 279 F. App'x
340, 350–51 (6th Cir. 2008) (citing Mich. Comp. Laws § 691.1407(1)). And "the term
'governmental agency' includes counties." HRSS, Inc. v. Wayne Cnty. Treasurer, 279
F. Supp. 2d 846, 851 (E.D. Mich. 2003) (quoting Mich. Comp. Laws § 691.1407(5)). In
Michigan "[a] governmental agency is immune from tort liability if the governmental
agency is engaged in the exercise or discharge of a governmental function." Mack v.
City of Detroit, 467 Mich. 186, 197–98 (2002) (citing Mich. Comp. Laws § 691.1407(1));
see also EBI-Detroit, Inc., 279 F. App'x at 351 (holding that the Detroit Water and
Sewer Department and the City of Detroit were immune from tort claims because
"[a]ll Michigan cases agree that government agencies are immune from liability for
intentional torts"). W if Plaintiff wants to avoid governmental immunity, he must
plead specific facts for why it does not apply. See Chambers v. City of Detroit, 786 F.

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Supp. 2d 1253, 1271 (E.D. Mich. 2011) (citing Mack, 467 Mich. at 204). Plaintiff,
however, did not plead any facts for why governmental immunity should not apply,
and the Court must dismiss the common law tort claims against Defendant.
ORDER
WHEREFORE, it is hereby ORDERED that Defendant's motion to dismiss
[7] is GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that Defendant Wayne County Department of
Public Services is DISMISSED.
IT IS FURTHER ORDERED that Defendant's motion to dismiss [7] is
DENIED as to Plaintiff's Title VII racial discrimination claims relating to his
suspension.
IT IS FURTHER ORDERED that Plaintiff's Title VII claims unrelated to his
suspension are DISMISSED.
IT IS FURTHER ORDERED that Plaintiff's remaining non-Title VII
suspension claims are DISMISSED.
This is not a final order and does not close the case.
SO ORDERED.

Dated: September 11, 2020

s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on September 11, 2020, by electronic and/or ordinary mail.
s/ David P. Parker
Case Manager

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