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: I recommend that Defendant’s Motion to Dismiss be granted as to

Counts One through Five of the Complaint, and as to the contract based claim in Count Six. 

I recommend that the Motion to Dismiss be denied as to the Title VII race discrimination

claim asserted in Count Six.

 * * *

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/Hawthorn Center 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 Act, 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, but he did not

provide a right to sue letter from the EEOC. 

In a Report and Recommendation dated October 30, 2009, it was recommended

that the case be dismissed for failure to exhaust administrative remedies before the EEOC. 

In addition, it was recommended that Plaintiff’s claims under Michigan’s Whistleblower

Protection Act be dismissed for failure to state a claim since the state statute expressly

excludes classified civil service employees from the right to sue under the Act (Docket #15).

Plaintiff submitted his right to sue letter from the EEOC with his Objections to the

October 30, 2009 Report and Recommendation (Docket #16). In an Order of November

23, 2009, the Court returned Defendant’s Motion to Dismiss the Title VII claims to the

undersigned for further consideration. The Court adopted the Report and Recommendation

as to the state law claim, and dismissed Plaintiff’s whistleblower count (Docket #23). 

In Plaintiff’s response to Defendant’s Motion to Dismiss, dated October 2, 2009, he

insisted that he had been made to work in a racially hostile work environment, and that he

was fired by the defendant based upon his race and in retaliation for having filing

grievances against management with his union. Defendant filed a reply on October 9, 2009,

maintaining that Plaintiff had been discharged for poor work performance, and that the

agency’s termination of his employment was not racially motivated or based upon Plaintiff’s

protected activity.

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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 is 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 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. 

HOSTILE WORK ENVIRONMENT CLAIM (Count One)

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

claims in Count One that he was subjected to a hostile work environment, in violation of 42

U.S.C. § 2000e (also known as Title VII of the Civil Rights Act of 1964). The elements of

a prima facie case of a racially hostile work environment are: 1) plaintiff is a member of a

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protected class; 2) he was subjected to unwelcome racial harassment; 3) the harassment

was based on race; 4) the harassment had the effect of unreasonably interfering with the

plaintiff’s work performance; and 5) the employer knew or should have known about the

harassing conduct but failed to take corrective action. Bailey v. USF Holland, Inc., 526 F.3d

880, 885 (6th Cir. 2008); Hafford, 183 F.3d at 512. Whether a hostile work environment

exists is judged based on “the ‘totality of the circumstances,’ and not discrete events in

isolation.” Ladd v. Grand Trunk W. RR., 552 F.3d 495, 500 (6th Cir. 2009) (citation omitted). 

Plaintiff alleges in his complaint that the following eleven actions by Defendant

created a hostile work environment:

1. misinforming Plaintiff of the policy on when police

should be called to address patient abuse; 

2. ending the practice of accommodating school days; 

3. initiating a "loss time" policy, which resulted in Plaintiff

losing pay following a determination that he had faked

illness to attend classes; 

4. offering to settle Plaintiff's grievance over the loss time; 

5. "agreeing in theory" to take specific actions to address

Plaintiff's civil rights complaints, such as amending its

policy on patient abuse complaints; 

6. agreeing to keep a log of police contacts made by

administrators; 

7. agreeing to provide sensitivity training; 

8. contacting the Michigan State Police on a complaint of

patient abuse concerning Plaintiff; 

9. terminating Plaintiff and having him escorted out of the

facility; 

10. denying Plaintiff's grievances; 

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11. causing Plaintiff's "experiencing having [his] Michigan

Department of Civil Rights, and the U.S. Equal

Employment Opportunity Commission [complaints]

closed due to lack of evidence." 

(See Complaint, Docket #1, pp 2-10).

The Supreme Court has held that, in order to constitute actionable harassment, the

conduct complained of must be judged by both an objective and a subjective standard, i.e.,

it must be severe or pervasive enough to create an environment that a reasonable person

would find hostile or abusive, and the victim must subjectively regard that environment as

abusive. Harris, 510 U.S. at 21-22; Williams v. Gen. Motors Corp., 187 F.3d 553, 566 (6th

Cir. 1999); Abeita, 159 F.3d at 251. In other words, the harassment must be sufficiently

severe or pervasive to alter the conditions of the plaintiff’s employment and create an

abusive working environment. Valentine-Johnson v. Roche, 486 F.3d 800, 814 (6th Cir.

2004).

Plaintiff does not allege that any racially derogatory comments were made in the

workplace. His claim is based on the theory that the facially neutral conduct of his

supervisors towards him was, in fact, based on his race. Conduct that is not explicitly racebased may be illegal and properly considered in a hostile-work-environment analysis when

it can be shown that, but for the employee’s race, he would not have been the object of

harassment. Farmer v. Cleveland Pub. Power, 295 F.3d 593, 605 (6th Cir. 2002), abrogated

on other grounds by White v. Columbus Metro. Housing Auth., 429 F.3d 232, 240 (6th Cir.

2005).

None of the eleven alleged actions by Defendant, individually or in combination,

created a hostile work environment or were indicative of racial harassment. Plaintiff does

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not assert that the listed actions and management policies were applied to him on the basis

of his race. For instance, Plaintiff does not reveal how Defendant's offer to settle a

grievance, or to address Plaintiff’s concerns, made his workplace hostile. Nor does he

assert facts tending to demonstrate that Defendant’s timekeeping policies were

implemented differently for black employees than for their white counterparts. Defendant’s

alleged actions during Plaintiff’s tenure are simply not objectively severe or discriminatory

toward Plaintiff so as to support a claim. 

While Plaintiff's termination and subsequent removal from the facility were certainly

objectively adverse employment actions, they represented the end of his employment and

cannot be said to have made his workplace hostile by affecting his job performance. 

Plaintiff’s allegation that Defendant administered its patient abuse reporting policy in a

racially discriminatory manner as to him is properly addressed as a disparate treatment

claim. That single incident, even if accepted as true, is insufficient to establish a racially

hostile work environment. 

Plaintiff fails to allege that, but for his race, he would not have experienced any of

the remaining events allegedly causing a hostile work environment. He did not allege that

he was subjected to objectively severe or pervasive race based harassment sufficient to

create a abusive working environment. As he has failed to allege facts to support his

conclusion that he endured harassment based on race, or that the harassment

unreasonably interfered with his job performance, Plaintiff’s hostile work environment claim

should be dismissed.

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DISPARATE TREATMENT (Count Two)

SYSTEMIC DISPARATE TREATMENT (Count Four)

Counts Two and Four of the Complaint allege disparate treatment. Both counts are

based upon a single set of facts. Plaintiff alleges that, on March 21, 2008, he was accused

of harming a female patient. The accusation was reported by his superiors to the Michigan

State Police, and an investigation was conducted. Plaintiff was suspended with pay during

the inquiry. He was ultimately exonerated and continued his employment. Plaintiff maintains

that Defendant departed from long established policy in reporting the alleged patient abuse

to the police. He further alleges that black child care workers (CCW) are treated more

severely than their white counterparts under similar circumstances. 

A prima facie case of disparate treatment discrimination under Title VII requires

Plaintiff to prove that (1) he is part of a protected class; (2) he was qualified for the job; (3)

he suffered an adverse employment action; and (4) he was treated differently than similarly

situated individuals who are not members of his protected class. McDonnell Douglas v.

Green, 411 U.S. 792, 802-805 (1973).

Defendant concedes that Plaintiff, an African American, is a member of a protected

class. For purposes of the instant motion, Defendant has accepted the proposition that

Plaintiff was qualified for his job. Defendant maintains, however, that Plaintiff has failed to

satisfy the remaining elements of a prima facie case of disparate treatment.

Defendant argues that Plaintiff has failed to allege facts establishing the third

element of a prima facie case, that is, that Plaintiff suffered a materially adverse

employment action. The Complaint states that Plaintiff was suspended with pay during the

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pendency of the police investigation, and that he was exonerated. He was returned to duty

and remained employed by Defendant until his termination in July 2008. 

[A] Materially adverse change in the terms and conditions of

employment must be more disruptive than a mere

inconvenience or an alteration of job responsibilities. A

materially adverse change might be indicated by a termination

of employment, a demotion evidenced by a decrease in wage

or salary, a less distinguished title, a material loss of benefits,

significantly diminished material responsibilities, or other

indices that might be unique to a particular situation.

Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999). Under this standard, de minimus

employment actions are not materially adverse and, thus, not actionable. Bowman v.

Shawney State University, 220 F.3d 456, 461-62 (6th Cir. 2000). Our Circuit has specifically

held that a suspension with pay pending a timely investigation into suspected wrongdoing

is not an adverse employment action. Peltier v. Untied States, 388 F.3d 984, 988 (6th Cir.

2004). In view of the clear statements in the Complaint that Plaintiff was suspended with

pay during the police investigation, and that he was exonerated by that inquiry and returned

to duty, I find that the Plaintiff has not alleged an adverse employment action, and that his

Complaint fails to state a compensable claim in Counts 2 and 4. I recommend that those

Counts be dismissed.

In order to demonstrate that there was intentional systematic disparate treatment of

all African-American workers at Hawthorn Center, Plaintiff relies in Count Four on statistical

data provided to the Equal Employment Commission by his union. Based upon Plaintiff’s

analysis of these statistics, he avers that between 75 to 100 percent of child care workers

suspended from 2007 through 2009 at Hawthorne Center were African-American (See

paragraph 31(h)(I-iii) at page 18 of Complaint).

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Plaintiff fails to disclose what offenses the other suspended child care workers were

alleged to have committed. Moreover, he did not indicate what percentage of the overall

child care worker population is African-American, which would be necessary to determine

whether suspensions were disproportionately assessed against the protected class. 

Moreover, the Supreme Court has noted a “manifest” and “crucial” difference between an

individual’s claim of discrimination and a class action alleging a general pattern of

discrimination. See Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (1984). 

The pattern or practice method of proving discrimination is not available to individual

plaintiffs. Bacon v. Honda Motors, 370 F.3d 565, 575 (6th Cir. 2004). Accordingly, Plaintiff

has failed to plead facts sufficient to state a claim of disparate treatment under Title VII. 

Counts Two and Four of the Complaint should be dismissed.

UNLAWFUL EMPLOYMENT PRACTICE (Count Three)

Plaintiff alleges that Defendant engaged in unlawful employment practices when its

management agents acted contrary to Michigan civil service rules and the union’s collective

bargaining agreement. An “unlawful employment practice” is not a discrete cause of action

under Title VII of the Civil Rights Act. The Act states that discrimination on the basis of

race, color, religion, sex or national origin is an unlawful employment practice. 42 U.S.C.

§ 2000e-2. Similarly, the Civil Rights Act makes it an unlawful employment practice to

retaliate against a person for engaging in protected conduct. 42 U.S.C. § 2000e-3. 

However, there is no separate cause of action for unlawful employment practice under Title

VII based upon violation of state law or contract provisions. While an individual union

member may have standing as a third party beneficiary to maintain a suit for violation of a

collective bargaining agreement, Plaintiff has not alleged sufficient facts to raise his right

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to relief under the contract beyond the speculative level. Count Three of the Complaint

asserts no more than legal conclusions, and is insufficient to state a claim. Bell Atlantic

Corp. V. Twombly, 127 S.Ct. 1955, 1964 (2007).

RETALIATION CLAIM (Count Five)

Plaintiff alleges that his wages were reduced on December 23, 2007 and January

15, 2008, when Defendant disallowed payment for sick time after determining that he had

fabricated an illness in order to attend college classes (See paragraphs 14(b)(ii) and 34(a)

of Complaint). Plaintiff alleges in Count Five that the reduction in pay was in retaliation for

his prosecution of a union grievance against management personnel at the Hawthorn

Center. 

To state a claim for retaliation, Plaintiff must allege that: (1) he had engaged in Title

VII protected activity; (2) the employer had knowledge of this fact; (3) he suffered an

adverse employment action; and (4) there is a causal connection between the protected

activity and the adverse employment action. Singfield v. Akron Metro. Housing Auth., 389

F.3d 555, 563 (6th Cir. 2004). 

The fact that an adverse act (reduction in pay) occurred after a protected activity

(filing of grievance) is insufficient in itself to support a claim of retaliation. There must be

a causal link between the grievance and the loss of pay. The causal connection may be

established by the facts that the adverse action was taken shortly after the protected

activity and that the Plaintiff was treated differently from other employees. Singfield, 389

F.3d at 563; Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). Plaintiff’s

allegations are insufficient in both respects. The Complaint states that Defendant twice

shorted Plaintiff’s pay after learning that his grievance was denied at Step 3. Plaintiff

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thereafter sought arbitration, and Defendant proposed a settlement of the dispute. The

Complaint contains no facts tending to explain why Defendant’s alleged acts of retaliation

occurred in the middle of the grievance process, rather than after its initiation or its

conclusion. Moreover, Plaintiff admits that his paycheck was “shortened” as a result of

management’s toughened lost time policy (see paragraph 14(b)(ii) at page 6 of Complaint). 

Plaintiff has failed to assert facts establishing a causal link between his grievance and the

reduction in his pay. His unsupported conclusions are nothing more than speculation. He

does not allege that the lost time policy was instituted in retaliation for any protected activity

on his part, or that he was treated differently under it than any other employee. Plaintiff has

failed to state a claim for retaliation under Title VII and Count Five should be dismissed.

WRONGFUL DISCHARGE AND TERMINATION (COUNT SIX)

Plaintiff alleges that he is entitled to money damages and injunctive relief for

wrongful discharge by the Michigan Department of Health/Hawthorn Center. He claims that

he was terminated from his job in violation of “an express contract” contained in Hawthorn

Center’s employee manual (See paragraphs 37 & 38 at page 19 of Complaint). 

The Department of Community Health is a subdivision of the State of Michigan. 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.

This immunity is far reaching. It bars all suits, whether for injunctive, declaratory or

monetary relief, against the state and its departments. Pennhurst State School & Hospital

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v. Halderman, 465 U.S. 89, 100-01 (1984). As a result, the Defendant is entitled to

dismissal of the contract law claim based on Eleventh Amendment immunity.

Plaintiff also asserts in Count Six that his termination was based upon his race. To

demonstrate a prima facie case, he must allege that: 1) he was a member of a protected

class; 2) he suffered an adverse employment action; 3) he was qualified for the position;

and 4) he was replaced by someone outside the protected class. Wright v. Murray Guard,

Inc., 455 F.3d 702, 707 (6th Cir. 2006). 

The Complaint asserts that Plaintiff is an African American male. (Complaint,

Paragraph 2). He alleges that his employment by Defendant was terminated based upon

his race. (Complaint, Paragraph 37). Termination is clearly an adverse employment action

under Title VII. Defendant has conceded, for purposes of this motion that Plaintiff was

qualified for the position he held. Accordingly, the first three elements of a prima facie case

are satisfied. 

Paragraph 39 of the Complaint asserts that, after Plaintiff was discharged,

Defendant hired white employees to perform the same work. Accordingly, he has alleged

that he was replaced by someone outside the protected class. In evaluating a Motion for

Summary Judgment, the court must accept Plaintiff’s factual allegations as true. Mayer v.

Mylod, 998 F.2d 635, 648 (6th Cir. 1993). A Complaint need not contain detailed factual

allegations, so long as the facts asserted are enough to raise a right to relief beyond the

speculative level, on the assumption that the allegations are true. Bell Atlantic Corporation

v. Twombly, 127 S.Ct. 1955, 1964 (2007). Applying those standards, I am satisfied that

Plaintiff has alleged all necessary elements of race based discrimination with respect to his

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termination. I recommend that Defendant’s Motion to Dismiss be denied as to the race

discrimination claim in Count Six.

Courts generally hold pro se pleadings to a less stringent standard than those

drafted by an attorney. Nonetheless, liberal treatment of pro se pleadings does not require

lenient treatment of substantive law. Even a pro se Plaintiff must state and support all

elements of a substantive claim to avoid an adverse judgment. Fed.R.Civ.P. 15 has been

construed to establish a liberal policy with respect to amendments of defective pleadings. 

This Plaintiff, for example, has effectively amended his Complaint by the late submission

of his right to sue letter. In order to be granted leave to amend, a party must provide

specific facts to support his claim. Should Plaintiff move to amend, and support his request

with previously undisclosed facts sufficient to withstand dismissal, leave should be granted. 

Absent such facts, however, a motion for leave to amend his Complaint would be fruitless.

For all of the above reasons, I recommend that Defendant’s Motion to Dismiss be

granted as to Counts One through Five of the Complaint, and as to the contract based

claim in Count Six. I recommend that the Motion to Dismiss be denied as to the Title VII

race discrimination claim asserted in Count Six.

NOTICE TO PARTIES REGARDING OBJECTIONS

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to act within fourteen (14) days of service of a copy

hereof as provided for in 28 U.S.C. Section 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure

to file specific objections constitutes a waiver of any further right of appeal. United States

v. Walters, 638 F.2d 947 (6th Cir. 1981), Thomas v. Arn, 474 U.S. 140 (1985), Howard v.

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991). Filing of objections that raise some issues

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but fail to raise others with specificity, will not preserve all the objections a party might have

to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231,

829 F.2d 1370, 1373 (6th Cir. 1987), Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.

1991). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon

this Magistrate Judge.

Within fourteen (14) days of service of any objecting party's timely filed objections,

the opposing party may file a response. The response shall not be more than five (5) pages

in length unless by motion and order such page limit is extended by the Court. The

response shall address specifically, and in the same order raised, each issue contained

within the objections.

s/Donald A. Scheer

DONALD A. SCHEER

UNITED STATES MAGISTRATE JUDGE

DATED: February 3, 2010

______________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on February 3, 2010 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 February 3, 2010: Anderson Lee Fernanders

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge Donald A. Scheer

(313) 234-5217 

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