Odom et al v. University of Michigan et al
OPINION and ORDER (1) Granting Defendants' 19 Motion to Dismiss and for Judgment on the Pleadings; and (2) Granting Plaintiffs' 29 Motion to Strike Defendants' Reply Brief. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
JOANNE ODOM and
Civil Case No. 16-12791
Honorable Linda V. Parker
UNIVERSITY OF MICHIGAN,
UNIVERSITY OF MICHIGAN HEALTH
SYSTEM, RUSS LAURIN, and KATHY
OPINION AND ORDER (1) GRANTING DEFENDANTS’ MOTION TO
DISMISS AND FOR JUDGMENT ON THE PLEADINGS (ECF NO. 19)
AND (2) GRANTING PLAINTIFFS’ MOTION TO STRIKE
DEFENDANTS’ REPLY BRIEF (ECF NO. 29)
This lawsuit arises from the termination of Plaintiffs’ positions with
University of Michigan Health System (“UMHS”) in July 2013. In an Amended
Complaint filed August 1, 2016, Plaintiffs assert: (I) a claim under 42 U.S.C.
§ 1983 for Defendants’ alleged violation of Plaintiffs’ Fourteenth Amendment due
process right to a neutral decision-maker at their post-termination hearing, and (II)
an age discrimination claim under Michigan’s Elliott-Larsen Civil Rights Act
(“ELCRA”). Presently before the Court is Defendants’ “Motion to Dismiss and for
Judgment on the Pleadings,” filed October 17, 2016. (ECF No. 19.) Plaintiffs
filed a response to the motion on November 7, 2016. (ECF No. 23.) Defendants
filed a reply brief on February 2, 2017, which Plaintiffs move to strike because it
was untimely.1 (ECF Nos. 28, 29.)
In their motion, Defendants first argue that Eleventh Amendment immunity
bars Plaintiffs’ § 1983 claim against the University of Michigan (“UofM”),
UMHS, and the individual defendants to the extent they are sued in their official
capacities for monetary relief. Thus, Defendants seek dismissal of this claim
pursuant to Federal Rule of Civil Procedure 12(b)(1). Next, Defendants cite
Federal Rules of Civil Procedure 12(b)(6), (c), and 56 in support of their request to
dismiss Plaintiffs’ § 1983 claim against the individual defendants, to the extent
they are sued in their individual capacities.2 Specifically, Defendants contend that
the individual defendants are entitled to qualified immunity because Plaintiffs
The Court is granting Plaintiffs’ motion to strike Defendants’ reply brief, as
Defendants offer no explanation—much less good cause—for why they filed the
brief more than two months beyond its November 21, 2016 due date. See Fed. R.
Civ. P. 6(b) (granting the court the discretion to extend time “for good cause”).
Eastern District of Michigan Local Rule 7.1(e)(1)(C) establishes the following
deadline for filing a reply: “within 14 days after service of the response, but not
less than 3 days before oral argument.” (emphasis added). As plainly written,
“less than 3 days before oral argument” is not an alternative deadline. Instead, that
language means only that the filing deadline is shortened if oral argument is
scheduled before the fourteen-day deadline expires.
As Defendants filed an Answer to Plaintiffs’ Amended Complaint, their motion
technically cannot be brought under Rule 12(b)(6) and, instead must be brought
pursuant to Rule 12(c). See McGlone v. Bell, 681 F.3d 718, 728 n.2 (citing
Satkowiak v. Bay Cty. Sheriff’s Dep’t, 47 F. App’x 376, 377 n.1 (6th Cir. 2002)).
As set forth below, however, motions brought under Rules 12(b)(6) and (c) are
evaluated using the same standard.
cannot establish a violation of their Fourteenth Amendment rights. 3 Finally,
Defendants argue that the Court lacks subject matter jurisdiction to adjudicate
Plaintiffs’ pendent state-law claim and thus this claim also must be dismissed
pursuant to Rule 12(b)(1).
A motion to dismiss on the ground that sovereign immunity bars the
plaintiff’s claims is properly treated as a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1). See Lee Testing & Eng’g, Inc. v. Ohio
Dep’t of Transp., 855 F. Supp. 2d 722, 725 (S.D. Ohio 2012); see also Nair v.
Oakland Cty. Cmty. Health Auth., 443 F.3d 474, 476 (6th Cir. 2006). When a
defendant raises the issue of subject matter jurisdiction, the plaintiff generally
bears the burden of establishing jurisdiction. Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 104 (1998). However, “ ‘the entity asserting Eleventh
Amendment immunity has the burden to show that it is entitled to immunity.’ ”
Nair, 443 F.3d at 474 (quoting Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d
958, 963 (6th Cir. 2002)).
Plaintiffs argue in their response brief that it is premature for the Court to decide
this constitutional issue because Plaintiffs have not had the opportunity to develop
the factual record and prove that they had a constitutionally recognized property
interest in their jobs to give them the right to due process under the Fourteenth
Amendment. Plaintiffs do not attach an affidavit or declaration to their response
brief, however, showing that they cannot present facts to oppose the motion. See
Fed. R. Civ. P. 56(d).
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of
the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134
(6th Cir. 1996). A Rule 12(c) motion for judgment on the pleadings is subject to
the same standard of review as a Rule 12(b)(6) motion. Grindstaff v. Green, 133
F.3d 416, 421 (6th Cir. 1998).
A pleading must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive motion
brought under Rule 12(b)(6) or (c), 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 . . ..” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not “suffice if it tenders
‘naked assertions’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).
As the Supreme Court provided in Iqbal and Twombly, “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The
plausibility standard “does not impose a probability requirement at the pleading
stage; it simply calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of illegal [conduct].” Twombly, 550 U.S. at 556.
In deciding whether the plaintiff has set forth a “plausible” claim, the court
must accept the factual allegations in the complaint as true. Erickson v. Pardus,
551 U.S. 89, 94 (2007). This presumption, however, is not applicable to legal
conclusions. Iqbal, 556 U.S. at 668. Therefore, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555).
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is
appropriate “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The central inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986).
The movant has the initial burden of showing “the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once
the movant meets this burden, the “nonmoving party must come forward with
specific facts showing that there is a genuine issue for trial.” Matsushita Electric
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation
marks and citation omitted). To demonstrate a genuine issue, the nonmoving party
must present sufficient evidence upon which a jury could reasonably find for that
party; a “scintilla of evidence” is insufficient. See Liberty Lobby, 477 U.S. at 252.
“A party asserting that a fact cannot be or is genuinely disputed” must
designate specifically the materials in the record supporting the assertion,
“including depositions, documents, electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c)(1). The court must accept as true the non-movant’s evidence
and draw “all justifiable inferences” in the non-movant’s favor. See Liberty Lobby,
477 U.S. at 255.
UofM owns and operates UMHS. (Am. Compl. ¶ 4, ECF No. 4.) Defendant
Russ Laurin was employed in UMHS’ Human Resources Department at all times
relevant to this lawsuit. (Id. ¶ 5.) Defendant Kathy Jordan-Sedgeman was
employed as the Director of Labor Relations for UMHS during the relevant period.
(Id. ¶ 6.)
On or about August 9, 2005, Plaintiff Joanne Odom (“Ms. Odom”) began
working for UMHS as a linen distribution supervisor. (Id. ¶ 10; Pls.’ Resp. Br.,
Ex. A ¶ 2, ECF No. 23-2.) Ms. Odom subsequently was transferred to the position
of Patient Transportation Supervisor. (Am. Compl. ¶ 10, ECF No. 4.) On or about
January 15, 2008, Plaintiff Reginald Whitlow (“Mr. Whitlow”) began working for
UMHS as a Multifunctional Material Management Intermediate Supervisor. (Id.
¶ 13.) LaKita Pogue supervised Ms. Odom and Mr. Whitlow (collectively
“Plaintiffs”) during their employment. (Id. ¶ 17.)
In an affidavit submitted in response to Defendants’ motion, Ms. Odom
asserts that when she was hired, she met with Deborah Cobbs, the manager of
patient transportation, and Rolando Crooks, the director of the linen department.
(Pls.’ Resp. Br., Ex. A ¶ 3, ECF No. 23-2.) Ms. Odom attests that during this
meeting, Ms. Cobbs “promised me that I can continue working at the University
until I voluntarily retired, which would be in 2022.” (Id. ¶ 4.) Ms. Odom further
states that Ms. Cobbs also “promised … that as long as I am following the
employment policies and procedures of the University of Michigan, I am
guaranteed to keep my job.” Ms. Odom claims that Ms. Cobbs was the person
responsible for terminating her employment, if necessary, and “[t]hus, she spoke
with authority when making the statements.” (Id.)
Ms. Odom also asserts in her affidavit that supervisors in the patient
transportation department trained with human resources at least once a year and
“[t]he human resources department trainers would repeatedly say that as long as
we follow the UofM employment policies and procedures, we can continue to be
employed and be promoted up the employment ladder.” (Id. ¶ 6.) Ms. Odom
claims that she heard this statement from the time she began working at UofM,
until the year she was discharged. (Id.)
On or about July 30, 2013, Plaintiffs learned that there had been an
investigation concerning whether they had committed time sheet fraud by falsely
reporting hours worked. (Am. Compl. ¶ 22.) The investigation concluded that
Plaintiffs were not working for numerous hours they reported on their time sheets.
(Id. ¶ 23.) Plaintiffs dispute this finding. Nevertheless, their employment was
terminated in late July 2013, and they were placed on a list precluding their
employment with any UofM entity. (Id. ¶¶ 29, 31.)
According to Plaintiffs, “Defendants have a policy of treating employees
fairly and equitably.” (Id. ¶ 32.) Managers are advised to suspend, discipline, and
discharge employees only as needed. (Id.) Defendants utilize progressive
discipline and provide for a Disciplinary Review Committee prior to terminating
an employee for misconduct. (Id. ¶¶ 33, 37.) Defendants afford an employee “the
opportunity to file a grievance on matters associated with their employment
relationship with Defendants or enter into a dispute resolution process to facilitate
resolving misunderstandings and maintain positive work relationships.” (Id. ¶ 40.)
Grievances concerning discharge begin at the third and final step of Defendants’
disciplinary process. (Id.)
Step 3 goes to the University Grievance Review Committee (“GRC”). (Id.
¶ 41.) The GRC includes the following: the head of the aggrieved employee’s
operating unit or a designated representative, responsible for the answer; an
appropriate Director of Human Resources or a designated representative, who
presides and is responsible for conducting the review; and an employee not
employed in the vice presidential or vice chancellor area in which the aggrieved
employee works, who is selected by the aggrieved employee from a panel
appointed by the Vice Presidents and Vice Chancellors. (Id.) At the hearing
before the GRC, the aggrieved employee may present all relevant information, but
should not expect to call witnesses, take testimony, or have the proceedings
recorded electronically. (Id.)
The GRC heard Plaintiffs’ grievances concerning their termination. (Id.
¶ 43.) Plaintiffs were not given the opportunity to call witnesses. The panel
included only Defendants’ managers and officers. (Id.) Plaintiffs’ employment
was not reinstated following the GRC’s review. (Id. ¶ 44.)
Applicable Law & Analysis
Eleventh Amendment Immunity
The Eleventh Amendment provides:
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
U.S. Const. amend. XI. Although on its face the Eleventh Amendment prohibits
only suits brought against a state by “Citizens of another State” or “Citizens or
Subjects of any Foreign State,” the Supreme Court has long construed the
Amendment to protect states from suits filed by their own citizens in federal court.
See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Hans v.
Louisiana, 134 U.S. 1 (1980).
Eleventh Amendment immunity extends to states and their agencies. Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 143 (1993);
Abick v. State of Mich., 803 F.2d 874, 876 (6th Cir. 1986). Defendants assert, and
Plaintiffs do not dispute (Pls.’ Resp. Br. at 12 n.4, ECF No. 23 at Pg ID 212), that
UofM (which owns and operates UMHS) is a state agency to which the Eleventh
Amendment applies. See Estate of Ritter v. Univ. of. Mich., 851 F.2d 846, 848 (6th
Cir. 1988). Under the Eleventh Amendment, a state and its agencies are immune
from actions for damages and injunctive relief unless immunity is validly
abrogated by Congress or expressly waived by the state. See Seminole Tribe of
Florida, 517 U.S. at 54-55; Thiokol Corp. v. Dep’t of Treasury, State of Mich.,
Revenue Div., 987 F.2d 376, 381 (6th Cir. 1993). Neither Congress nor the State
of Michigan have waived Eleventh Amendment immunity for suits brought under
§ 1983. See Kentucky v. Graham, 473 U.S. 159, 169 n.17 (1985) (citations
omitted); McCoy v. Michigan, 369 F. App’x 646, 653 (6th Cir. 2010).
As such, Plaintiffs’ § 1983 claim against UofM and UMHS are subject to
Eleventh Amendment immunity also extends to suits against state officials
sued for monetary damages based on their conduct in their official capacities
because such lawsuits are not suits against the officials themselves but in fact are
suits against the office of the officials, i.e. against the state itself. S & M Brands,
Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008) (citing Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71 (1989)). Plaintiffs do not contest this point, but
The dismissal is without prejudice, as the Eleventh Amendment does not bar
Plaintiffs from asserting the claim in state court. See Ernst v. Rising, 427 F.3d 351,
367 (6th Cir. 2005). Notably, with respect to Plaintiffs’ § 1983 claim against
UofM, UMHS, and the individual defendants in their official capacities, the only
basis Defendants raise for dismissal is sovereign immunity. In other words,
Defendants do not raise sovereign immunity as an “alternative” ground for
rejecting Plaintiffs’ claim against these defendants. Had Defendants alternatively
argued that Plaintiffs’ § 1983 claim failed on its merits (as they argue, but only to
the extent the claim is asserted against the individual defendants in their individual
capacities), the Court may have chosen to ignore their sovereign immunity defense
and rule as it does infra that Plaintiffs lacked a property interest entitling them to
due process protection, which would result in a dismissal with prejudice. See Nair
v. Oakland Cty. Cmty. Health Auth., 443 F.3d 469, 477 (6th Cir. 2006) (holding
that “under any circumstances in which the State (or the United States) declines to
raise sovereign immunity as a threshold defense, … the federal courts have
discretion to address the sovereign-immunity defense and the merits in whichever
order the prefer”). The Court is unaware of precedent suggesting that it has this
discretion when the defendant raises sovereign immunity not only as a threshold
defense, but as its only defense.
contend that under Ex Parte Young, 209 U.S. 123 (1908), the Eleventh
Amendment does not bar this federal court from “ ‘issu[ing] prospective injunctive
and declaratory relief compelling a state official to comply with federal law.’ ”
(Pls.’ Resp. Br. at 13 (quoting S&M Brands, 527 F.3d at 507).) According to
Plaintiffs, they “request that this Court enjoin Defendants from continuing to
employ practices that violate the Due Process rights of their employees ….” (Id.)
Yet, Plaintiffs do not seek such relief in their Amended Complaint.5
Therefore, the Court also concludes that Plaintiffs’ § 1983 claim against the
individual defendants in their official capacities are barred by the Eleventh
Amendment and must be dismissed without prejudice. Defendants do not contend
that the individual defendants are entitled to Eleventh Amendment immunity to the
extent they are sued in their individual capacities, as they in fact are not. See, e.g.,
Hardin v. Straub, 954 F.2d 1193 (6th Cir. 1992) (explaining the difference
between official and individual capacity suits and that a state officer sued in the
latter capacity cannot advance Eleventh Amendment immunity as a defense).
For the reasons discussed infra, any attempt by Plaintiffs to amend their
complaint to request such relief would be futile.
Plaintiffs allege that Defendants deprived them of their Fourteenth
Amendment due process right to a post-termination hearing before a neutral
decision-maker. Defendants argue, however, that Plaintiffs lacked a property
interest in their employment entitling them to due process protection.
“The requirements of procedural due process apply only to the deprivation
of interests encompassed by the Fourteenth Amendment’s protection of liberty and
property.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972).
Property interests “are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law—rules or
understandings that secure certain benefits and that support claims of entitlement to
those benefits.” Id. at 577; Chilingirian v. Boris, 882 F.2d 200, 203 (6th Cir.
1989). “A public employee does not have a property interest in continued
employment when his position is held at the will and pleasure of his superiors and
when he has not been promised that he will only be terminated for good cause.”
Chilingirian, 882 F.2d at 203.
In Michigan, employment contracts for an indefinite term are presumed to
be at-will and may be terminated by either party at any time for any reason. Rood
v. Gen. Dynamics Corp., 507 N.W.2d 591, 597 (Mich. 1993) (citation omitted); see
also Pucci v. Ninteenth Dist. Court, 628 F.3d 752, 766 (6th Cir. 2010) (citing Lytle
v. Malady, 579 N.W.2d 906-910-11 (Mich. 1998) (“Michigan law generally
presumes that employment relationships are ‘at-will’ arrangements; at-will
employees, in turn, have no property interest in their continued employment.”). A
party may overcome this presumption, however, in one of three ways:
“(1) proof of a contractual provision for a definite term of
employment or a provision forbidding discharge absent
just cause; (2) an express agreement, either written or
oral, regarding job security that is clear and unequivocal;
or (3) a contractual provision, implied at law, where an
employer’s policies and procedures instill a legitimate
expectation of job security in the employee.”
Pucci, 628 F.3d at 766 (quoting Lytle, 579 N.W.2d at 911).
In their Amended Complaint, Plaintiffs rely on Defendants’ policy “of
treating employees fairly and equitably” and their progressive disciplinary
procedures to show that employees had “a legitimate expectation of job security[.]”
(Am. Compl. ¶¶ 32-42.) In response to Defendants’ motion, Plaintiffs also rely on
Ms. Odom’s affidavit, attesting to statements made to her concerning her future as
“In general, a jury can find the existence of a legitimate expectation [of job
security] based on the ‘employer’s written policy statements set forth in [a] manual
of personnel policies.’ ” Mannix v. Cty. of Monroe, 348 F.3d 526, 534 (6th Cir.
Plaintiffs do not relate any similar statements to Mr. Whitlow. Thus, his claim to
a property interest in his job appears to depend solely on Defendants’ policies and
2003) (quoting Toussaint v. Blue Cross & Blue Shield of Mich., 292 N.W.2d 880,
885 (Mich. 1980)). Nevertheless, the Michigan courts have advised that “the trial
court should only allow the case to proceed if the ‘policies are reasonably capable
of being interpreted as promises of just-cause employment.’ ” Id. (quoting Rood,
507 N.W.2d at 606). “ ‘Neither the adopting of systematic procedures for dealing
with employees nor the creating of disciplinary guidelines transforms an at-will
relationship into one prohibiting discharge except for just-cause.’ ” Id. (quoting
Mitchell v. White Castle Sys., No. 94-1193, 1996 WL 279863, at *5 (6th Cir. 1996)
(unpublished op.)); see also Biggs v. Hilton Hotel Corp., 486 N.W.2d 61, 63
(Mich. Ct. App. 1992) (“The fact that [the] defendant had established a disciplinary
system for its employees and, apparently, obligated [the] plaintiff to abide by that
disciplinary system in dealing with his subordinates does not establish
unequivocally [the] plaintiff’s position that he was a just-cause employee rather
than an at-will employee.”).
As the Michigan Court of Appeals explained in Briggs, the fact that an
employer creates a disciplinary system for dealing with employees does not justify
the employee harboring any legitimate expectation of just-cause employment:
Certainly, it is not unreasonable to expect that an
employer, particularly one such as defendant that
employs a large number of individuals, would want a
systematic method of dealing with its employees and
would provide a consistent set of guidelines under which
its managers would deal with subordinates. This does
not mean that by doing so an employer establishes justcause employment rather than at-will employment.
486 N.W.2d at 63. “ ‘If such documents were sufficient, no employer could ever
establish policies informing its employees of reasons why they could be fired
without creating a ‘just-cause’ labor force.’ ” Mannix, 348 F.3d at 535 (quoting
Mitchell, 1996 WL 279863, at *5). Thus, “[p]olicy statements of fairness and a
commitment to maintain good will, loyalty, and harmony among employees are not
inconsistent with at-will employment and do not objectively support just-cause
employment.” Schultz v. Mem’l Healthcare Ctr., No. 230774, 2002 WL 1308635,
at * (Mich. Ct. App. June 14, 2002) (citing Rood, 507 N.W.2d at 601-02).
The policies on which Plaintiffs rely are insufficient to create an issue of fact
under a “legitimate expectations” theory because there is no evidence that
Defendants represented that an employee could be discharged only after the
procedures had been followed. See Bailey v. Dover Elevator Co., No. 93-1493,
1994 WL 198194, at *3 (6th Cir. May 19, 1994) (unpublished op.) (citing Baggs v.
Eagle-Picher Indus., Inc., 957 F.2d 268, 271-72 (6th Cir. 1992)) (concluding that
an employee handbook providing for fair treatment and a progressive discipline
system did not create a jury question as to whether the plaintiff could be
discharged only for cause because the handbook never expressly stated that
employees would be discharged only for cause); see also Biggs, 486 N.W.2d at 63.
Plaintiffs do not point to anything in Defendants’ policies or procedures expressly
representing that employees would be discharged only for cause. In comparison,
the employee manuals in almost all of the cases Plaintiffs cite expressly promised
employees that they would be terminated “for just cause only.”7 Toussaint, 292
N.W.2d at 884 (explaining that the plaintiff was “handed a manual of Blue Cross
personnel policies which … stated … that it was the ‘policy’ of the company to
release employees ‘for just cause only.’ ”); see also Khalifa v. Henry Ford Hosp.,
401 N.W.2d 884, 888 (Mich. Ct. App. 1986) (quoting manual stating under
“discharge” the policy is “Hospital termination for cause.”) (emphasis in manual);
Gleason v. Bd. of Cty. Comm’rs of Weld Cty., 620 F. Supp. 632, 634 (D. Colo.
1985) (quoting policy manual provisions defining the plaintiff as a “permanent”
employee and providing that, as such, she could only be terminated “for cause”).
The Court is not persuaded to reach a different result based on the Illinois state
court decision Plaintiffs cite as its ruling has no procedural value.
Oral statements may be sufficient to create a contract for just-cause
employment. See, e.g., Pucci, 628 F.3d at 766. Nevertheless, the Michigan
Supreme Court “require[s] such verbal assurances to be clear and unequivocal.”
Lytle, 579 N.W.2d at 171 (citing Rowe, 473 N.W.2d at 273). This requirement is
necessary because “individuals often harbor ‘optimistic hope of a long
Plaintiffs cite the Eighth Circuit’s decision in Skeets v. Johnson, 805 F.2d 767
(1986); however, the en banc court reversed that decision. 816 F.2d 1213 (8th Cir.
1987). The en banc court held that the employer’s personnel manual did not create
a property interest in the plaintiff’s employment. Id. at 1215.
relationship’ that causes them to misinterpret their employer’s oral statements as
manifestations of an intention to undertake a commitment in the form of a promise
of job security.” Rood, 507 N.W.2d at 598 (citing Rowe, 473 N.W.2d at 273).
“ ‘[N]either party to the beginning of an employment relationship expects it to be
unsatisfactory, and both hope it will have a significant duration. This hope and
noncontractual wish is expressed in terms of language such as ‘as long as you do
the job.’ ” Rowe, 473 N.W.2d at 273 (quoting Carpenter v. Am. Excelsior Co., 650
F. Supp. 933, 936 n.6 (E.D. Mich. 1987)). Thus, “any orally grounded contractual
obligation for permanent employment ‘must be based on more than an expression
of an optimistic hope of a long relationship.’ ” Id. (emphasis added in Rowe).
In Rowe, the Michigan Supreme Court indicated that “[i]n determining
whether a reasonable factfinder can find a promise of job security implied in fact,
we look to all the facts and circumstances to evaluate the intent of the parties.”
473 N.W.2d at 273. This is an objective evaluation. Id. “The starting point in
analyzing oral statements for contractual implications is to determine the meaning
that reasonable persons might have attached to the language, given the
circumstances presented.” Id. Relevant to the evaluation are whether the
statements were made in connection with “preemployment negotiations regarding
[job] security” or in response to the plaintiff’s “inquiry regarding job security” and
whether “the terms were specifically negotiated.” Id. at 274. An employer’s
vague statements or those “couched in general terms, more akin to stating a policy
as opposed to offering an express contract” are insufficient to indicate an intent to
form a contract for permanent employment. Id. at 275.
To establish an oral promise of just-cause employment, Plaintiffs rely on
Ms. Cobbs’ alleged promise at the time of Ms. Odom’s hiring that Ms. Odom
could continue working at the University until she voluntarily retired. Plaintiffs
also rely on the alleged statements by Ms. Cobbs and unnamed human resources
department trainers that as long as employees followed UofM’s employment
policies and procedures, they were guaranteed to keep their job. Such statements,
however, are equivalent to those the Michigan courts have found not reflective of a
clear or unequivocal promise of permanent- or just-cause employment, but instead
optimistic hopes about the future of the plaintiff’s employment that will not suffice
to prove just-cause employment. See, e.g., Rowe, 473 N.W.2d at 268 (concluding
that the statements made to the plaintiff at her initial interview that as long as she
sold, she would have a job at Montgomery Ward, did not clearly indicate an intent
to form a just-cause employment relationship); Barber v. SMH (US), Inc., 509
N.W.2d 791, 795 (Mich. Ct. App. 1993) (holding that statements made during
preemployment negotiations with representatives of the employer that the plaintiff
would be employed “as long as he was profitable and doing the job,” did not give
rise to a just-cause claim where the plaintiff did not specifically assert that the
promise was made in response to his articulated concerns that he be terminated for
just cause only); Biggs, 486 N.W.2d at 63 (finding that the general manager’s
comments to the plaintiff during preemployment interviews to the effect that he
saw the plaintiff as a person who would go places with the corporation and that he
felt the relationship would be a good one in which there would be an opportunity
for the plaintiff to grow and maintain some type of long-term relationship could
not induce the belief that termination would be for just cause only); Mitchell,
1996 WL 279863, at *4 (rejecting as a basis for a binding employment contract
oral assurances when the plaintiff was hired that “as long as I follow the policy of
cash handling and the attendance policy that I would always be assured a job at
In short, Plaintiffs fail to create a genuine issue of material fact to overcome
the presumption of at-will employment. As such, they cannot establish a property
interest in their employment with Defendants protected by the Fourteenth
Amendment’s Due Process Clause. Therefore, the Court is dismissing with
prejudice Plaintiffs’ § 1983 due process claim against Ms. Jordan-Sedgeman and
Mr. Laurin, to the extent Plaintiffs are suing them in their individual capacities.
Relying on Pennhurst State School and Hospital v. Halderman, 465 U.S. 89
(1984), Defendants argue that the Eleventh Amendment deprives this federal court
of jurisdiction to adjudicate Plaintiffs’ state-law age discrimination claim.
Defendants are correct with respect to Plaintiffs’ claim against UofM, UMHS, and
the individual defendants to the extent they are sued in their official capacities for
money damages, as the Supreme Court held in Pennhurst that “neither pendent
jurisdiction nor any other basis of jurisdiction may override the Eleventh
Amendment.” 465 U.S. at 121. Defendants’ argument does not apply to Plaintiffs’
ELCRA claim against the individual defendants to the extent they are sued in their
individual capacities, however. As the Court stated earlier, they are not entitled to
Eleventh Amendment immunity in their individual capacities.
Nevertheless, this Court has supplemental jurisdiction over Plaintiffs’ state
law claim pursuant to 28 U.S.C. § 1367, and the statute provides that “[t]he district
courts may decline to exercise supplemental jurisdiction over a claim … if … the
district court has dismissed all claims over which it has original jurisdiction.” 28
U.S.C. § 1367(c)(3). District courts have “broad discretion in deciding whether to
exercise supplemental jurisdiction over state law claims.” Musson Theatrical, Inc.
v. Fed. Express Corp., 89 F.3d 1244, 1254 (6th Cir. 1996). The court’s discretion,
however, is circumscribed by considerations of “ ‘judicial economy, convenience,
fairness, and comity.’ ” Id. (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350 (1988)). “After a [Rule] 12(b)(6) dismissal, there is a strong presumption
in favor of dismissing supplemental claims.” Id. at 1255 (citations omitted)
(“When all federal claims are dismissed before trial, the balance of considerations
usually will point to dismissing state law claims, or remanding them to state court
if the action was removed.”).
This lawsuit has been pending in this Court for only eight months and is at
the earliest stages of litigation. Defendants responded to Plaintiffs’ Amended
Complaint with their motion to dismiss and, besides this motion, no other
substantive documents have been filed. Moreover, to the extent Plaintiffs intend to
pursue their § 1983 claim against UofM, UMHS, and the individual defendants in
their official capacities, the claim must be filed in state court. Thus, they can
pursue their state law claim there, as well. It would be an inefficient use of this
Court’s resources to adjudicate Plaintiffs’ state-law claim here while the parties are
litigating Plaintiffs’ § 1983 claim in state court. This Court cannot identify any
prejudice resulting from the litigation of the state law claim there.
For these reasons, the Court finds that it lacks subject matter jurisdiction
over Plaintiffs’ ELCRA claim against UofM, UMHS, and the individual
defendants in their official capacities. The Court is declining to exercise
supplemental jurisdiction over Plaintiffs’ ELCRA claim against the individual
defendants in their individual capacities upon its dismissal of Plaintiffs’ § 1983
For the reasons set forth above, the Court holds that UofM, UMHS, and the
individual defendants to the extent they are sued for monetary damages in their
official capacities are entitled to Eleventh Amendment immunity. The Court
therefore is DISMISSING WITHOUT PREJUDICE Plaintiffs’ § 1983 and
ELCRA claims against these defendants. Plaintiffs did not have a property interest
in their employment with Defendants entitling them to due process protection and
thus their § 1983 claim against the individual defendants, to the extent they are
sued in their individual capacities, fails on the merits and is being DISMISSED
WITH PREJUDICE. The Court declines to exercise supplemental jurisdiction
over Plaintiffs’ state-law claim against these defendants and thus the claim is
DISMISSED WITHOUT PREJUDICE.
IT IS ORDERED that Plaintiffs’ motion to strike Defendants’ Reply brief
IT IS FURTHER ORDERED that Defendants’ “Motion to Dismiss and for
Judgment on the Pleadings” is GRANTED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: May 16, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, May 16, 2017, by electronic and/or U.S.
First Class mail.
s/ R. Loury
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