Wortmann v. Ann Arbor Public Schools et al

Filing 49

OPINION and ORDER Denying 21 Motion to Dismiss, and Granting 33 Motion to Dismiss. Signed by District Judge Linda V. Parker. (Loury, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VINCENT WORTMANN,
Plaintiff,

Civil Case No. 13-14350
Honorable Linda V. Parker

v.
ANN ARBOR PUBLIC SCHOOLS,
PCMI, PATRICIA P. GREEN,
DOTTIE DAVIS, CORY
GILDERSLEEVE, and
DAVID COMSA 1,
Defendants.
__________________________________/
OPINION AND ORDER DENYING [ECF NO. 21] MOTION TO DISMISS
AND GRANTING [ECF NO. 33] MOTION TO DISMISS
In the case at hand, Plaintiff Vincent Wortmann (“Plaintiff”) brings this
lawsuit against Defendants Ann Arbor Public Schools, Patricia P. Green, Dottie
Davis, Cory Gildersleeve, David Comsa, and Professional Contract Management,
Inc. (“PCMI”) (collectively “Defendants”). Plaintiff’s state law claims were
dismissed voluntarily pursuant to Federal Rule of Civil Procedure 41(a)(2).
Plaintiff’s sole federal law claim, brought pursuant to 42 U.S.C. § 1983, alleging
deprivation of his 14th Amendment liberty interest in his reputation and good name,
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Defendant David Cosma indicates that his surname is Comsa. This opinion
reflects the correction and the Court is therefore sua sponte amending the case
caption and is directing the Clerk of the Court to make the change on the docket as
well.
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remains. For reasons that follow, the Court DENIES the motion to dismiss filed by
Ann Arbor Public Schools, Patricia P. Green, Dottie Davis, Cory Gildersleeve, and
David Comsa (ECF No. 21) and GRANTS Defendant PCMI’s motion to dismiss
(ECF No. 33). Although Defendants have filed their motions as “motions to
dismiss or, alternatively for summary judgment,” the Court is only considering
their requests for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6),
because Plaintiff has responded to the requests for summary judgment indicating
that it needs discovery in order to respond.
I.
This matter arises from an altercation that took place during a high school
football game on October 12, 2012 between Pioneer High School and Huron High
School. (Compl., ECF No. 1 at Pg. ID 3.) Both schools are within the Ann Arbor
Public School District. (Id.) Defendants Patricia P. Green, Dottie Davis, Cory
Gildersleeve, and David Comsa are employees of Defendant Ann Arbor Public
Schools. (Id. at Pg. ID 2–10.) At the time of the incident, Plaintiff was an
employee of PCMI. (Id.) PCMI is a privately owned staffing agency that
specializes in providing employees, including athletic coaches, to public and
private educational institutions. (Def.’s Mot., ECF No. 33 at Pg. ID 468.) Ann
Arbor Public Schools contracted with PCMI, and PCMI subsequently assigned
Plaintiff to the position of assistant football coach of Pioneer High School. (Id.;

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Compl., ECF No. 1 at Pg. ID 3.) Allegedly, at the end of the football game at issue,
Paul Test and Cory Gildersleeve, head coaches of Pioneer High School and Huron
High School respectively, became involved in a heated and angry physical dispute.
(Compl., ECF No. 1 at Pg. ID 4–5.) Plaintiff asserts he was concerned for the
safety of Test, and that “Plaintiff pushed Gildersleeve, once, to separate him from
Test.” (Id. at Pg. ID 5-6.) Simultaneously, while this exchange between the
coaches was occurring, on-field brawling commenced between the players for both
schools. (Id. at Pg. ID 5.) Game officials, coaches, Ann Arbor Public School staff,
including Defendant Davis, worked to stop the on-field brawling. (Id. at Pg. ID 6;
Def.’s Mot., ECF No. 33 at Pg. ID 467.)
Following the altercation, Ann Arbor Public School officials conducted an
investigation of the evening in order to determine what occurred and to consider
disciplinary action. (Compl., ECF No. 1 at Pg. ID 6.) Plaintiff asserts that during
the investigation, Defendant Davis “falsely accused Plaintiff of pushing or striking
her during the brawl,” and that he was suspended “as a direct result” of Davis’
knowingly false statement.” (Id. at Pg. ID 6–7.) Supposedly, as the investigation
continued, Defendant Davis continued to allege that Plaintiff pushed or struck her.
(Id. at Pg. ID 7.) Thereafter, “[Ann Arbor Public Schools] terminated Plaintiff’s
assignment as assistant coach.” (Id.) In his complaint, Plaintiff states that “[t]he
investigation of the incident and the decision to suspend and terminate Plaintiff

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was made by officials of AAPS, and only afterwards communicated to PCMI.”
(Id.) Defendant asserts that PCMI terminated Plaintiff’s employment for “alleged
lack of work.” (Id. at 10.) PCMI claims it never terminated Plaintiff’s employment,
and that to this date Plaintiff is still employed by PCMI. (Def.’s Mot., ECF No. 33
at Pg. ID 468.)
Plaintiff purports that Plaintiff’s suspension was communicated to the public
and the media by Ann Arbor Public Schools, as well as a statement posted on the
Ann Arbor Public School website by Defendant Patricia P. Green. Allegedly,
Defendant Green’s statement indicated that “an assistant coach, referring to
Plaintiff, had been terminated for becoming physical during a verbal altercation
between two head coaches,” and that “the players’ fighting occurred following
Plaintiff’s actions.” (Compl., ECF No. 1 at Pg. ID 7–8.)
Plaintiff further asserts that Ann Arbor Public School officials, including
Defendants Davis and Green, knew at the time the statements were made and
posted on the Ann Arbor Public School website, that Green’s post was untruthful.
(Id. at Pg. ID 8.) Additionally, Plaintiff asserts that during the course of the
independent investigation conducted by local law enforcement officials, Defendant
Davis “admitted that she had no knowledge of Plaintiff making physical contact
with her,” and that despite this admission, Ann Arbor Public Schools did not

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retract Plaintiff’s suspension, termination, or prior statements made concerning
Plaintiff’s purported conduct. (Id. at Pg. ID 9.)
Plaintiff asserts that following his termination, he contacted Ann Arbor
Public Schools and David Comsa, and “requested an opportunity [ ] to present his
side of the story, hear the alleged evidence against him, and to clear his name,” and
that his request was denied. He claims that he also requested a similar hearing from
PCMI, and that they denied his request as well. (Id. at 10.)
Thereafter, Plaintiff filed his lawsuit. Subsequently, Defendant Ann Arbor
Public Schools and its employees Green, Davis, Gildersleeve, and Comsa, filed
their motion to dismiss. (ECF No. 21.) Later, Defendant PCMI filed its own
motion to dismiss (ECF No. 33.)
II.
Only a complaint that states a plausible claim for relief survives a Rule
12(b)(6) motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Courts
must construe the complaint in the light most favorable to the plaintiff and draw all
reasonable inferences in the plaintiff's favor. Ohio Police & Fire Pension Fund v.
Standard & Poor's Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012). Further, the
complaint must plead factual content that allows the court to draw a reasonable
inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at
678 (2009). A complaint does not “suffice if it tenders ‘naked assertions’ devoid of

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‘further factual enhancement.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 557 (2007)). To survive a motion to dismiss, a complaint need not
contain “detailed factual allegations,” but it must contain more than “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action . . .”
Twombly, 550 U.S. at 555.
The Sixth Circuit has emphasized that the “combined effect of Twombly and
Iqbal [is to] require [a] plaintiff to have greater knowledge ... of factual details in
order to draft a ‘plausible complaint.’ ” New Albany Tractor, Inc. v. Louisville
Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011) (citation omitted). Put another
way, complaints must contain “plausible statements as to when, where, in what, or
by whom,” Center for Bio–Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 373
(6th Cir. 2011), in order to avoid merely pleading an “unadorned, the-defendantunlawfully-harmed me accusation,” Iqbal, 556 U.S. at 678.
III.
“In order to recover under 42 U.S.C. § 1983, a plaintiff must prove both (i)
that some person has deprived him of a federal right, and (ii) that the person has
done so under color of state law.” Kolley v. Adult Protective Servs., 786 F. Supp.
2d 1277, 1303 (E.D. Mich. 2011) (citing Adickes v. S.H. Kress & Co., 398 U.S.
144, 150 (1970)).

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To prevail on a procedural due process claim, a Defendant must establish
that it possessed a constitutionally protected interest, that it was deprived of that
interest, and that the state did not afford it adequate procedural rights prior to
depriving it of that interest. Machisa v. Columbus City Bd. of Educ., 563 F. App'x
458, 462 (6th Cir. 2014) (citing Taylor Acquisitions, L.L.C. v. City of Taylor, 313
Fed. Appx. 826, 830 (6th Cir.2009)). “An injury to a person’s reputation, good
name, honor, or integrity constitutes the deprivation of a liberty interest when the
injury occurs in connection with an employee’s termination.” Ludwig v. Bd. Of Trs.
Of Ferris State Univ., 123 F.3d 404, 410 (6th Cir. 1997).
IV.
Defendants Ann Arbor Public Schools, and its employees Green, Davis,
Gildersleeve, and Comsa, assert that Plaintiff fails to state a claim under § 1983.
They argue that:
Plaintiff cannot bring suit under 42 U.S.C. § 1983 because they are
not Plaintiff’s employer. He also cannot rely on 42 U.S.C. 1983
because his actual employer, PCMI, is a private employer, not a state
actor to which the statute applies.
Moreover, Plaintiff as an employee of a private temporary
employment service, PCMI, has no liberty interest in his employment
(Defs.’ Mot., ECF No. 21 at Pg. ID 119–20.)
Defendants fail to provide any direct case law supporting their assertions.
Undoubtedly, public schools themselves are state actors subject to suit under §

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1983, and public school officials act within the scope of their duties when they
represent their institutions. See Brentwood Acad. v. Tennessee Secondary Sch.
Athletic Ass'n, 531 U.S. 288, 297, 299 (2001). Thus, Plaintiff has adequately
proven that Ann Arbor Public Schools and its employees were acting under color
of state law.
Further, Plaintiff asserts that Ann Arbor Public Schools and its employees
through their conduct deprived him of “[the] constitutionally protected liberty
interest in his reputation, good name, honor, and integrity,” in violation of the 14th
Amendment. (Compl., ECF No. 1 at Pg. ID 11.) Plaintiff provides sufficient
factual content that allows the Court to draw the reasonable inference that Plaintiff
has suffered an injury to his reputation, good name, honor, or integrity resulting
from Ann Arbor Public Schools and its employees’ conduct, in connection with his
termination from his position as assistant coach.
In deciding a motion brought under Rule 12(b)(6), the Court must construe
the complaint in the light most favorable to Plaintiffs and accept all well-pled
factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500
F.3d 523, 527 (6th Cir. 2007). The stigmatizing statements made by Defendants
Davis and Green were undoubtedly made in conjunction with Plaintiff’s
termination. Further, a motion to dismiss under Rule 12(b)(6) is disfavored and
rarely granted, Nuchols v. Berrong, 141 F. App'x 451, 453 (6th Cir. 2005) (citing

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Harris v. Am. Postal Workers Union, 198 F.3d 245 (6th Cir.1999)) (further
citations omitted), and the Court is not convinced at this stage of the proceedings
that Ann Arbor Public Schools and its employees cannot be liable for violating
Plaintiff's liberty interest simply because it "employed" Plaintiff through a staffing
agreement with Defendant PCMI, a privately owned staffing agency. Accordingly,
Plaintiff has sufficiently alleged that under the color of state law, Ann Arbor Public
Schools and its employees have deprived him of his liberty interest without due
process. Defendants Ann Arbor Public Schools and its employees’ motion to
dismiss Plaintiff’s § 1983 claim must therefore be denied.
V.
In its motion to dismiss, Defendant PCMI contends that Plaintiff has failed
to adequately plead the § 1983 claim against PCMI. The Court agrees. Plaintiff
concedes that PCMI is a “corporation under the laws of the State of Michigan.”
(Compl., ECF No. 1 at Pg. ID 2.) As previously stated, Defendant PCMI is a
privately owned staffing agency. (Def.’s Mot., ECF No. 33 at Pg. ID 468.)
As the Sixth Circuit recognized in American Postal Workers Union v. City of
Memphis, 361 F.3d 898, 905 (6th Cir. 2004), there are three tests for holding a
private individual or entity liable under § 1983:
the public function test, the state compulsion test, and the nexus test.
Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir.1992). The public function
test “requires that the private entity exercise powers which are
traditionally exclusively reserved to the state.” Id. at 1335. The state
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compulsion test requires proof that the state significantly encouraged
or somehow coerced the private party, either overtly or covertly, to
take a particular action so that the choice is really that of the state. Id.
Finally, the nexus test requires a sufficiently close relationship
between the state and the private actor so that the action taken may be
attributed to the state. Id.
Am. Postal Workers Union, 361 F.3d at 905 (6th Cir. 2004).
Plaintiff concedes that “[t]he investigation of the incident and the decision to
suspend and terminate Plaintiff was made by officials of AAPS, and only
afterwards communicated to PCMI.” (Compl., ECF No. 1 at Pg. ID 7.) Thus, it is
blatantly apparent that PCMI cannot be held liable under the public function test,
the state compulsion test, nor the nexus test given that the decisions at issue were
made solely by Ann Arbor Public Schools and its employees. The complaint
therefore lacks facts sufficient to hold PCMI liable under § 1983
In support of its § 1983 claim against PCMI, Plaintiff states that PCMI is a
“state actor,” and that Plaintiff enjoys a constitutionally protected liberty interest
protected by the 14th Amendment. (Id. at Pg. ID 11.) These are general legal
conclusions. As previously stated, a complaint must contain more than labels and
conclusions to survive a motion to dismiss. Twombly, 550 U.S. at 555. Without
adequate factual allegations to support each element of the claim raised, a plaintiff
fails to plead factual content that allows a court to draw a reasonable inference that
a defendant is liable for the misconduct alleged. See id.; Iqbal, 556 U.S. at 678
(2009). Consequently, Plaintiff’s § 1983 claim must be dismissed.
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Accordingly, for the foregoing reasons, the Court DENIES Defendants Ann
Arbor Public Schools, Patricia P. Green, Dottie Davis, Cory Gildersleeve, and
David Comsa’s motion to dismiss (ECF No. 21) and GRANTS Defendant PCMI’s
motion to dismiss. (ECF No. 33.)
SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: March 13, 2015
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, March 13, 2015, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager

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