Kieffer v. Planet Fitness of Adrian, LLC d/b/a Planet Fitness of Adrian et al

Filing 15

OPINION and ORDER Granting Defendants' 8 MOTION to Dismiss and Declining to Exercise Supplemental Jurisdiction. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Cary Kieffer,
Plaintiff,
v.

Case No. 17-cv-11307
Judith E. Levy
United States District Judge

Planet Fitness of Adrian, LLC
d/b/a Planet Fitness of Adrian,
Damian Berry, and Justin Bailey,

Mag. Judge Stephanie Dawkins
Davis

Defendants.
________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS [8] AND DECLINING TO EXERCISE SUPPLEMENTAL
JURISDICTION
This is an employment discrimination case.

Pending is

defendants’ motion to dismiss plaintiff’s federal claims for failure to
state a claim, and request for the Court to decline to exercise
supplemental jurisdiction. (Dkt. 8.) For the reasons set forth below, the
motion is granted.
I.

Background

The following facts are drawn from plaintiff’s complaint, and are
treated as true for the purposes of this motion.

Plaintiff Cary Kieffer served in the United States military for
twelve years, from 1996 until 2008.

On January 13, 2007, plaintiff

suffered injuries to his leg and eye during an ambush in Mosul, Iraq.1
He was also diagnosed with Post-Traumatic Stress Disorder (“PTSD”)
as a result of his military service. Plaintiff’s manifestation of PTSD
includes anxiety and panic attacks.
Plaintiff was hired to work for defendant Planet Fitness at their
Adrian, Michigan location on October 9, 2015.

When plaintiff was

hired, he advised defendants, including Damian Berry, the owner of the
franchise, and Justin Bailey, the general manager of the Adrian
location, of his disabilities related to his military service.

He also

informed them that he would need to take pre-planned leave at certain
times as a reasonable accommodation to attend medical appointments
in Ann Arbor, Michigan, related to his disabilities.
In December 2015, plaintiff was promoted to the position of fitness
instructor. In May 2016, plaintiff requested permission to take short
breaks of one to two minutes to deal with anxiety attacks arising from

Mosul is spelled as “Mozel” throughout plaintiff’s complaint and briefing, but there
does not appear to be a location in Iraq spelled in the latter manner. The Court
assumes plaintiff means to refer to Mosul, absent any other indication.
1

2

his PTSD. Plaintiff does not state whether this request was granted, or
whether he took any such breaks.
On May 28, 2016, plaintiff requested unpaid leave from his job for
three medical appointments during the week of June 20, 2016. The
request was granted. In late June 2016, plaintiff was given a raise. On
July 5, 2016, plaintiff was terminated from his job “for no reason
whatsoever.” (Dkt. 1 at 6.) Plaintiff filed a charge of discrimination
with the Equal Employment Opportunity Commission (“EEOC”) and
the Michigan Department of Civil Rights on August 11, 2016. (Dkt. 12.) On February 1, 2017, the EEOC issued a Dismissal and Notice of
Rights, including a Right to Sue letter. (Dkt. 1-3.)
Plaintiff timely filed suit on April 25, 2017, asserting claims for
discrimination and retaliation under the Americans with Disabilities
Act (“ADA”), failure to accommodate and wrongful discharge under
Michigan’s Persons With Disabilities Civil Rights Act (“PWDCRA”), and
an unspecified claim under the Uniform Services Employment and
Reemployment Rights Act of 1994 (“USERRA”).

Defendants filed a

motion to dismiss plaintiff’s federal claims on June 21, 2017. (Dkt. 8.)

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The motion is fully briefed, and the Court determines that oral
argument is not necessary pursuant to E.D. Mich. Local R. 7.1(f)(2).
II.

Legal Standard

When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6),
the Court must “construe the complaint in the light most favorable to
the plaintiff and accept all allegations as true.” Keys v. Humana, Inc.,
684 F.3d 605, 608 (6th Cir. 2012). “To 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.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A plausible claim 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
III. Analysis
Although defendants’ motion to dismiss is styled as one brought
under both Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction
and Fed. R. Civ. P. 12(b)(6) for failure to state a claim, it is only the
latter. Defendants move to dismiss all of plaintiff’s federal claims, and
state that the Court must decline the exercise of supplemental
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jurisdiction over the remaining state law claims.

(Dkt. 8-1 at 9.)

Defendants have misread 28 U.S.C. § 1367(c)(3), which states that
“district courts may decline to exercise supplemental jurisdiction over a
claim [that is sufficiently related to the claims over which the court has
original jurisdiction]. . . if . . . the district court has dismissed all claims
over which it has original jurisdiction.” Section 1367(c) is permissive,
not mandatory, and is not properly the subject of a motion to dismiss for
lack of subject matter jurisdiction. Instead, the Court will interpret the
motion as a request for the Court to decline to exercise supplemental
jurisdiction over plaintiff’s state law claims if his federal claims are
dismissed.
Plaintiff’s complaint sets forth that he requested two types of
accommodations in May 2016: time for a short break when he was
having a PTSD-related anxiety attack, and unpaid time to attend three
medical

appointments.

According

to

his

EEOC

Charge

of

Discrimination, “[his] requests were granted.” (Dkt. 1-2.) Further, he
stated in that Charge of Discrimination that on July 5, 2016, he “was
sent a text message from [his] employer stating that due to [his] prior
commitments, [he] was terminated.” (Id.) Plaintiff’s complaint not only
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does not expand on this text message to explain what “prior
commitments” means, it omits any mention of the text message entirely
and instead says that he was fired for “no reason whatsoever.”
Plaintiff asserts that he was discriminated and retaliated against
under

the

ADA,

and

that

defendants

violated

USERRA

by

discriminating against him on the basis of his disabilities, because his
disabilities arose from his service.
A. ADA – Discrimination
“To recover on a claim for discrimination under the ADA, a
plaintiff must show that he or she (1) is disabled, (2) otherwise qualified
to perform the essential functions of the position, with or without
accommodation, and (3) suffered an adverse employment action because
of his or her disability.” Ferrari v. Ford Motor Co., 826 F.3d 885, 891
(6th Cir. 2016). Defendants do not dispute that plaintiff is disabled
within the meaning of the ADA, or that he was qualified to perform the
essential functions of the position, with or without accommodation.
Instead, defendants argue that plaintiff has failed to plead that he
suffered an adverse employment action because of his disability.

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Plaintiff

alleges

that

at

every

point

he

requested

an

accommodation, it was given to him. Plaintiff argues that the close
proximity between his requests and his termination give rise to an
inference that his termination was because of his disability. (Dkt. 12 at
20.)

However, plaintiff cites Bernau v. Architectural Stainless, Inc.,

Case No. 17-cv-10766, 2017 WL 2831518 (E.D. Mich. June 30, 2017), in
which that court held that temporal proximity creates such an inference
for a claim under Michigan’s Workers Disability Compensation Act, not
the ADA. Id., at *5.
Under the ADA, “temporal proximity may establish a prima facie
case only if the temporal proximity is ‘very close’.” Barrett v. Lucent
Techs., Inc., 36 F. App’x 835, 843 (6th Cir. 2002) (citing Clark Cty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273 (2001); Hafford v. Seidner, 183 F.3d
506, 515 (6th Cir. 1999) (without additional evidence, two to five
months is insufficient to create a triable issue of causation); Cooper v.
City of North Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986)). Further,
intervening facts may “negate any inferences that may arise from the
temporal proximity between the protected activities and plaintiff’s
termination.”

Barrett, 36 F. App’x at 843.
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In the time between

plaintiff’s requests for accommodation and his termination, his requests
were granted and he was given a raise for his performance at work.
Other than bare recitations of the applicable legal standard, plaintiff
pleads no facts that would establish his disabilities were the but-for
cause of his termination.
Plaintiff may also meet his prima facie burden under the indirect
method of establishing a claim for disability discrimination. To do so,
he must show that “(1) he or she is disabled, (2) he or she is otherwise
qualified for the position, with or without reasonable accommodation,
(3) he or she suffered an adverse employment decision, (4) the employer
knew or had reason to know of the plaintiff's disability, and (5) the
position remained open while the employer sought other applicants or
the disabled individual was replaced.”
(further citations omitted).

Ferrari, 826 F.3d at 891-92

Here, plaintiff does not plead that the

position remained open after he was terminated, that the employer
sought other applicants, or that he was replaced.
Plaintiff argues that these facts can be “inferred from his
Complaint.” (Dkt. 12 at 21.) However, to survive a motion to dismiss,
the complaint must “contain sufficient factual matter” to state a
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plausible claim for relief. Iqbal, 556 U.S. at 678 (emphasis added). The
Court cannot infer a series of post-termination actions by defendants
that are alleged nowhere in the complaint.
Because plaintiff fails to plausibly plead a claim for discrimination
under the ADA, this claim is dismissed.2
B. ADA – Retaliation
The ADA states: “No person shall discriminate against any
individual because such individual has opposed any act or practice
made unlawful by this chapter or because such individual made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.” 42 U.S.C. §
12203(a).

The ADA “protects individuals only from retaliation for

engaging in, or aiding another who engages in, activity covered by
the ADA.” Rorrer v. City of Stow, 743 F.3d 1025, 1047 (6th Cir. 2014)
(citing 42 U.S.C. § 12203(a)).
action

taken

to

protest

“Protected activity typically refers to
or

oppose

a

statutorily

prohibited

Plaintiff also argues that the individual supervisor defendant may be held liable
under the ADA. However, “[i]ndividual supervisors who do not independently
qualify under the statutory definition of employers may not be held personally
liable in ADA cases.” Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 808 n.1 (6th
Cir. 1999).
2

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discrimination.” Id. (citing Goonan v. Fed. Reserve Bank of New York,
916 F. Supp. 2d 470, 484-85 (S.D.N.Y. 2013)) (further citation omitted).
A prima facie case of retaliation requires the plaintiff plead facts
showing that “(1) the plaintiff engaged in activity protected by the ADA;
(2) the defendant knew of that activity; (3) the defendant took an
adverse action against plaintiff; and (4) the adverse action was caused
or motivated by the protected activity.” Mich. Flyer, LLC v. Wayne Cty.
Airport Auth., 138 F. Supp. 3d 899, 902 (E.D. Mich. 2015) (citing Rorrer,
743 F.3d at 1046, A.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687, 697
(6th Cir. 2013)).
On its face, plaintiff’s retaliation claim is his discrimination claim
restated, with the word “retaliation” substituted in the place of
“discrimination.” In the same way that plaintiff has failed to plead a
causal connection for the purposes of his discrimination claim, so has he
failed to plead a causal connection for the purposes of his retaliation
claim.

The complaint shows that in-between plaintiff’s request for

accommodations

and

his

termination,

he

was

at

all

times

accommodated and even rewarded with a raise. Plaintiff again relies on
Bernau, supra, to argue that temporal proximity alone suffices to plead
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a causal connection under the ADA. (Dkt. 12 at 26.) That is not the
law, and plaintiff’s pleading does not suffice to establish a plausible
cause of action for retaliation under the ADA.
C. USERRA
Plaintiff alleges that his “past military service which resulted in
his disability was a motivating factor in Defendants’ decision to
terminate his employment.” (Dkt. 1 at 15.) Plaintiff relies on 38 U.S.C.
§ 4311(a), which states that:
A person who is a member of, applies to be a member of,
performs, has performed, applies to perform, or has an
obligation to perform service in a uniformed service shall not
be denied initial employment, reemployment, retention in
employment, promotion, or any benefit of employment by an
employer on the basis of that membership, application for
membership, performance of service, application for service,
or obligation.
“Section 4311 applies after reemployment has occurred and
prohibits discrimination with respect to any benefit of employment
against persons who serve in the armed services after they return from
a deployment and are reemployed.” Petty v. Metro. Gov’t of NashvilleDavidson Cty., 538 F.3d 431, 440 (6th Cir. 2008) (citing Clegg v. Ark.
Dep’t of Corr., 496 F.3d 922, 930 (8th Cir. 2007)).
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“An individual

bringing a § 4311 claim has the initial burden of proving a prima facie
case of discrimination by showing, by a preponderance of the evidence,
that his protected status was a substantial or motivating factor in the
adverse employment action(s).” Petty, 538 F.3d at 446.
A plaintiff may show discriminatory motivation by direct or
circumstantial evidence, including:
[P]roximity in time between the employee's military activity
and the adverse employment action, inconsistencies between
the proffered reason and other actions of the employer, an
employer's expressed hostility towards members protected
by the statute together with knowledge of the employee's
military activity, and disparate treatment of certain
employees compared to other employees with similar work
records or offenses.
Hance v. Norfolk S. Ry. Co., 571 F.3d 511, 518 (6th Cir. 2009) (citing
Sheehan v. Dep’t of Navy, 204 F.3d 1009, 1014 (Fed. Cir. 2001).
In his response to the motion to dismiss, plaintiff states that his
“taking time off work to go to the VA for medical reasons due to his
wartime disabilities was a substantial or motivating factor in
Defendants’ decision to terminate him.”

(Dkt. 12 at 30.)

Plaintiff’s

complaint dedicates only seven paragraphs to his USERRA claim, and
only two to the underlying facts supporting the allegation. Those two
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paragraphs are also nearly verbatim copies of each other, and consist of
a conclusory allegation that the defendants each violated USERRA.
Plaintiff must allege that his protected status as a veteran was a
substantial or motivating factor in his termination. Instead, he has
alleged that his taking time off of work to attend medical appointments
related to his disability was the substantial or motivating factor in his
termination, which is an ADA claim. He then attempts to convert this
claim into one under USERRA because his disability is associated with
his military service. His military service ended over eight years before
the events at issue in his complaint.

He cites no other action,

statement, or policy of the employer that could lead to a plausible
inference of discriminatory intent.
Plaintiff’s purported USERRA claim has no basis in law.

As

pleaded, it is a conclusory legal allegation with no factual support. As
argued in his response to the motion to dismiss, it is not his military
service that was the substantial or motivating factor in his termination,
but his time off from work to attend medical appointments, the need for
which arose from injuries sustained during his military service that
ended eight years prior. USERRA is to be broadly construed in favor of
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veterans and active members of the military. Petty, 538 F.3d at 446. It
cannot be so broadly construed that a cause of action exists where the
plaintiff argues that something other than his military status was the
actual substantial or motivating factor for an adverse employment
action, but he was also a veteran.
Accordingly, plaintiff’s USERRA claim is dismissed.
D. Exercise of Supplemental Jurisdiction
The Court will decline to exercise supplemental jurisdiction over
plaintiff’s remaining state law claim. Defendants in their reply brief
argue that the PWDCRA claim should also be dismissed on the merits
with prejudice, but they did not move for such dismissal, and so it
cannot be granted.

The PWDCRA claim will be dismissed without

prejudice to refiling it in Michigan state court.
E. Leave to Amend
Plaintiff has sought leave to amend under Fed. R. Civ. P. 15(a)(2)
in the event the Court dismissed any of the above claims. Under the
Local Rules, parties seeking leave to amend must file a separate motion
to amend their complaint, and attach the proposed amended pleading to
the motion. E.D. Mich. Local R. 15.1.
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The Court must deny leave to amend here because plaintiff has
provided no reason that an amended complaint would not also be futile.
As plaintiff notes, “[a] proposed amendment is futile if the amendment
could not withstand a Rule 12(b)(6) motion to dismiss.”

Riverview

Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010)
(further citation omitted). A threadbare request to amend a complaint
appended to the end of a response to a successful motion to dismiss is
disfavored, because the Court has none of the information necessary to
determine whether the amended complaint could survive a second
motion to dismiss.
IV.

Conclusion

For the reasons set forth above, it is hereby ordered that:
Defendants’ motion to dismiss (Dkt. 8) is GRANTED;
The Court will decline to exercise supplemental jurisdiction over
plaintiff’s PWDCRA claim, and dismisses that claim without prejudice
to refiling it in Michigan state court; and
Plaintiff’s remaining claims are DISMISSED WITH PREJUDICE.

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IT IS SO ORDERED.
Dated: August 18, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 18, 2017.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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