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Michigan’s Whistleblower Protection Act (WPA) expressly provides that members

of the state classified civil service do not fall under the provisions of the statute. MCLA

15.361(a). As a classified civil servant, Plaintiff’s WPA claims must be dismissed for failure

to state a claim.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANDERSON LEE FERNANDERS,

Plaintiff, CIVIL ACTION NO. 09-12933

vs. DISTRICT JUDGE JOHN FEIKENS

 MAGISTRATE JUDGE DONALD A. SCHEER

MICHIGAN DEPARTMENT OF 

COMMUNITY HEALTH,

Defendant.

_______________________________/

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RECOMMENDATION: Defendant’s Motion to Dismiss should be GRANTED. Plaintiff has

not provided a right to sue letter from the EEOC. He may not pursue a Title VII action in

federal court until he has exhausted his administrative remedies.

 * * *

This matter originally came before the magistrate judge on Order of Reference for

all pretrial matters. Plaintiff, proceeding pro se, filed a Complaint on July 24, 2009, against

the Michigan Department of Community Health alleging he was unfairly terminated from

his employment as a child care worker by the state agency. Plaintiff was employed by the

defendant from October 2006 through July 2008, at the Hawthorn Facility in Northville,

Michigan. He claimed that he was wrongfully discharged by the agency on July 21, 2008,

as a result of racial bias. Claiming violations of Title VII of the Civil Rights Act of 1964 and

Michigan’s Whistleblower Act1, Plaintiff sought injunctive relief and monetary damages. 

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Defendant filed a Motion to Dismiss on September 29, 2009, arguing, inter alia, that

Plaintiff’s failure to provide a right to sue letter from the Equal Employment Opportunity

Commission (EEOC) barred him from bringing a Title VII action in federal court. Plaintiff

filed a response to Defendant’s Motion to Dismiss on October 2, 2009, insisting that he had

been made to work in a racially hostile work environment, and that he was fired by the

defendant in retaliation for having filing grievances against management with his union.

Plaintiff did not attach a right to sue letter from the EEOC to either the Complaint or his

response to Defendant’s Motion to Dismiss.

APPLICABLE LAW AND STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) provides that a complaint must be

dismissed if it fails to state a claim upon which relief may be granted. The purpose of Rule

12(b)(6) is to allow a defendant to test whether, as matter of law, the plaintiff is entitled to

legal relief even if everything alleged in the complaint if true. Mayer v. Mylod, 988 F.2d

635, 638 (6th Cir. 1993). A complaint need not contain detailed factual allegations.

Nonetheless, a plaintiff’s obligation to provide the “grounds” of his entitlement to relief, as

required by Fed.R.Civ.P. 8(a)(2), requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do. Rather, the factual

allegations must be enough to raise a right to relief above the speculative level, on the

assumption that the allegations are true. Bell Atlantic Corporation v. Twombly, 127 S.Ct

1955, 1964 (2007). The pleading must contain something more than a statement of facts

which creates a mere suspicion of a legally cognizable right of action. The court should

proceed on the assumption that all the allegations of the complaint are true. A well pleaded

complaint may proceed even if it appears “that a recovery is very remote and unlikely,” and

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Rule 12(b)(6) does not countenance dismissal based on a judge’s disbelief of the plaintiff’s

factual allegations. Id. The Court is not obliged, however, to accept a plaintiff’s unsupported

legal conclusions.

FEDERAL STATUTORY CLAIM

Plaintiff alleges that the Defendant’s actions violated federal civil rights laws. He

claims that he was unfairly terminated from his job as a child care worker as a result of

racial bias in violation of 42 U.S.C. § 2000e (also known as Title VII of the Civil Rights Act

of 1964). 

In order to recover for illegal discrimination in employment under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et. seq., a plaintiff must first timely file a charge with

the Equal Employment Opportunity Commission (EEOC). Amini v. Oberlin College, 259

F.3d 498 (6th Cir. 2001); Cox v. Memphis, 230 F.3d 199, 201-202 (6th Cir. 2000). Exhaustion

of administrative remedies is necessary so as to allow a resolution of the dispute without

having to proceed to court. The purpose of requiring the filing of EEOC charges “is to

provide the [EEOC] with sufficient information so that it may notify prospective defendants

and to provide the EEOC with the opportunity to eliminate the alleged unlawful practices

through informal methods of conciliation.” Howlett v. Holiday Inns Inc., 49 F.3d 189, 196

(6th Cir. 1995). See also Vinson v. Ford Motor Co., 806 F.2d 686 (6th Cir. 1986)(“Conciliation

is an important purpose of the requirement that a claimant first file with an administrative

agency.”). 

Although these procedural requirements are not jurisdictional, they should not be

disregarded by the courts “out of a vague sympathy for particular litigants.” Pucket v.Tenn.

Eastman Co., 889 F.2d 1481 (6th Cir. 1989)(citing Baldwin County Welcome Ctr. v. Brown,

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466 U.S. 147, 152 (1984). Plaintiff here has failed to establish that he filed a timely

complaint with the EEOC, or that he obtained a right to sue letter.

Having failed to meet those preconditions, Plaintiff’s employment discrimination

claims under Title VII should be dismissed without prejudice pending a showing that his

administrative remedies have been exhausted.

The parties are advised that any objections to this Report and Recommendation

must be filed with the Court within ten (10) days after they are served with a copy, or further

appeal from Judge Feikens’ acceptance thereof is waived.

s/Donald A. Scheer

DONALD A. SCHEER

UNITED STATES MAGISTRATE JUDGE

DATED: October 30, 2009

______________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on November 2, 2009 that I electronically filed the foregoing paper

with the Clerk of the Court sending notification of such filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to the following nonregistered ECF participants on November 2, 2009: Anderson Lee Fernanders.

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge Donald A. Scheer

(313) 234-5217

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