SEAN F. COX, District Judge.
Plaintiff previously worked for the City of Detroit. After she retired, she submitted job applications for three positions but was not hired. She then filed this action against the City, asserting federal-question jurisdiction. Plaintiff's Amended Complaint is the operative complaint and it asserts claims under Title VII of the Civil Rights Act of 1968, Section 3 of the Housing and Urban Development Act of 1968 ("HUD") and its implementing regulations, and Michigan's Whistleblower Protection Act. The matter is currently before the Court on the City's Motion for Summary Judgment. The parties briefed the issues and the Court heard oral argument on June 2, 2016. For the reasons set forth below, the Court shall GRANT the City's motion as to Plaintiff's Title VII and HUD claims. Having dismissed the only federal claims in this action, this Court declines to exercise supplemental jurisdiction over Plaintiff's remaining state-law whistleblower claims and shall dismiss those claims without prejudice.
Acting pro se, Plaintiff Shirley A. Scott ("Plaintiff" or "Scott") filed this action on March 12, 2015. Plaintiff applied for, and was granted, permission to proceed in forma pauperis. Plaintiff's original complaint (see Docket Entry No. 1) was eleven pages long and included a claim for intentional infliction of emotional distress.
On July 13, 2015, Plaintiff filed an Amended Complaint, along with a motion seeking leave to file that Amended Complaint. (Docket Entry Nos. 6 & 7). This Court granted her motion for leave to file the Amended Complaint, via text-only order on August 12, 2015. Accordingly, Plaintiff's July 13, 2015 Amended Complaint superceded and replaced her original complaint.
Plaintiff's Amended Complaint is only three and a half pages long. Although Plaintiff's Amended Complaint lists "City of Detroit et al," as the Defendant in the caption, the City of Detroit is the only Defendant named and identified in the body of her Amended Complaint.
Plaintiff alleges that she is a "Black/African American Female, 50 years of age." (Pl.'s Am. Complaint at ¶ 1). Plaintiff alleges that "on December 19th and 20th of 2014, Plaintiff applied for three HUD-funded contractual positions — Compliance Associate and Grants Specialist I and II positions with the City of Detroit Office of Grants Management." (Id. at ¶ 5). Plaintiff alleges that agents of the City denied her employment request to be rehired or reinstated. (Id. at ¶ 6). Plaintiff alleges that an agent of the City "informed Plaintiff on March 3, 2015, that Plaintiff could not be rehired and that Plaintiff would have to apply for employment opportunities on the Defendant's website, and not Indeed.com." (Id. at ¶ 7). Plaintiff alleges that the "City of Detroit Office of Grants Management had excluded or limited Plaintiff's employment applications in violation of [42 USC 2000 E-2)A)(2)] 2, and [42 USC 2000E-2(C)(1)](1) Griggs v. Duke Power Co., 401 U.S. 424 (1971)." (Id. at ¶ 8). Plaintiff also alleges that "it is violation of the State of Michigan's Whistleblower Protection Act 469 of 1980 to deny Plaintiff to be rehired for a HUD-funded contractual position, and Plaintiff could file a Section 3 Complaint against the agents of the Defendant based on Plaintiff's low-income status." (Id. at ¶ 9). Plaintiff's Amended Complaint seeks the following relief:
WHEREFORE, Plaintiff demands:
(Am. Compl. at 4).
On August 18, 2015, this Court issued the Scheduling Order in this action. (Docket Entry No. 11). Plaintiff's Response to Defendant's Motion for Summary Judgment states that "Plaintiff did not participate in the discovery process" because Plaintiff was diagnosed with diabetes. (Pl.'s Br. at 12). It appears that while the City deposed Plaintiff, Plaintiff did not seek any discovery from the City.
In any event, on January 25, 2016, the City filed a Motion for Summary Judgment. This Court's practice guidelines, which are expressly included in the Scheduling Order issued in this case, provide, consistent with Fed. R. Civ. P. 56 (c) and (e), that:
(Docket Entry No. 11 at 2-3).
In compliance with this Court's guidelines, in support of its Motions for Summary Judgment, the City filed a "Statement of Material Facts Not In Dispute" (Docket Entry No. 13) ("Def.'s Stmt.). In response to that submission, Plaintiff filed a "Counter-Statement of Disputed Facts" (D.E. No. 15) (Pl.'s Stmt.").
The following material facts are gleaned from the evidence submitted by the parties, viewed in the light most favorable to Plaintiff, the non-moving party.
Plaintiff was employed by the City from September 1985 until April 11, 2013, the effective date of her retirement. (Def.'s Stmt. at ¶ 1; Pl.'s Stmt. at ¶ 1).
In December of 2014, over a year after her retirement, Plaintiff submitted her interest in three positions within the Office of Grants Management through a jobs website, Indeed.com. (Def.'s Stmt. at ¶ 4; Pl.'s Stmt. at ¶ 4).
On February 5, 2015, Plaintiff sought either reinstatement or rehire through the Mayor's office, but was informed that she must follow City's protocol in applying for open positions. (Def.'s Stmt. at ¶ 5; Pl.'s Stmt. at ¶ 5; Exs. to Am. Compl., Docket Entry No. 6 at Pg Id 56 & 57).
After Plaintiff filed her original complaint in this action on March 12, 2015, Plaintiff sought information from the City's Human Resources Director relating to the status of her applications. (Def.'s Stmt. at ¶ 6; Pl.'s Stmt. at ¶ 6). Plaintiff was informed that the recruitment was not handled by the City's Human Resources Department. (Def.'s Stmt. at ¶ 8; Pl.'s Stmt. at ¶ 8; Exs. to Am. Compl., Docket Entry No. 6 at Pg Id 58 & 59). Plaintiff was directed to the Office of Grants Management. (Id.).
Plaintiff made inquiry with the Office of Grants Management on or about May 26, 2015, asking about the status of her applications, and claims that she did not receive a response. (Def.'s Stmt. at ¶ 10; Pl.'s Stmt. at ¶ 10; Exs. to Am. Compl., Docket Entry No. 6 at Pg Id 60).
Plaintiff did not receive any of the three positions that she applied for. (Def.'s Stmt. at ¶ 11; Pl.'s Stmt. at ¶ 11).
Summary judgment will be granted where there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact exists where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252.
The Court "must view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the non-moving party." Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002). "The court's duty to view the facts in the light most favorable to the nonmovant does not require or permit the court to accept mere allegations that are not supported by factual evidence." Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009). "This is so because the nonmovant, in response to a properly made and supported motion for summary judgment, cannot rely merely on allegations but must set out specific facts showing a genuine issue for trial." Id.
In its Motion for Summary Judgment, the City challenges all three of the claims asserted in Plaintiff's Amended Complaint.
Under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. ("Title VII"), it is an unlawful employment practice for an employer: "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."
In her Amended Complaint, Plaintiff alleges that the City "excluded or limited [her] employment applications" in violation of Title VII. (Am. Compl. at ¶ 8). The Amended Complaint also notes that Plaintiff is a black female. (Id. at ¶ 1). But her Amended Complaint does not include any factual allegations that support a Title VII claim. Even a pro se plaintiff's claim fails where the plaintiff's complaint simply alludes to his or her race or gender and offers no factual allegations to support a bare legal conclusion that race or gender discrimination occurred. See, e.g., Alexander v. Rosen, 804 F.3d 1203, 1208 (6th Cir. 2015). This Court will dismiss Plaintiff's Title VII claim because her Amended Complaint fails to state a Title VII claim. This is especially so given that Plaintiff is proceeding in forma pauperis, and the applicable statute requires this Court to dismiss this case, at any time, if it fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(b)(2) ("the court shall dismiss the case at any time if the court determines that" the action "fails to state a claim on which relief may be granted.")
Moreover, in seeking summary judgment, the City focuses on Plaintiff's deposition testimony as to her Title VII claim, and challenges her ability to proceed with such a claim because there is no genuine issue of material fact for trial. (See Def.'s Br. at 14-15).
Although no such allegation is included in her Amended Complaint, Plaintiff believes that because of her sex (female),
Although no such allegation is included in her Amended Complaint, Plaintiff also testified that she believes that her applications for jobs were somehow segregated from other persons who applied for those positions. (Pl.'s Dep. at 38-39). Plaintiff testified that she believes that occurred simply because Mayor Bing's office had provided an acknowledgment of a job application Plaintiff submitted at some point in the past and "[t]his Office of Grants Management never acknowledged receipt" of her job applications for the positions she applied for with that office. (Id.). In her brief, Plaintiff asserts that her application must have been segregated because Plaintiff was not given an interview and because the Mayor did not respond to her letters. (Pl.'s Br. at 16).
The Court agrees with Defendant that Plaintiff has not established that a genuine issue of material fact exists as to her claim that the City violated Title VII by not hiring her.
24 C.F.R. § 135.1 provides that "[t]he purpose of section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u) (section 3) is to ensure that employment and other economic opportunities generated by certain HUD financial assistance shall, to the greatest extent feasible, and consistent with existing Federal, State and local laws and regulations, be directed to low- and very low-income persons, particularly those who are recipients of government assistance for housing, and to business concerns which provide economic opportunities to low- and very low-income persons. 24 C.F.R. § 135.1(a) (emphasis added).
During her deposition, Plaintiff testified as to the nature of her claim based upon that regulation:
(Pl.'s Dep. at 44-45).
In its motion, the City asks the Court to dismiss this claim with prejudice because Section 3 of the HUD Act, and its implementing regulations, does not confer a private right of action. The City directs the Court to a case that is directly on point, Marcel v. Donovan, 2012 WL 868977 (E.D. N.Y. 2012). The plaintiff in that case alleged that he was entitled to preferential employment under Section 3 of the HUD Act. The defendant filed a motion to dismiss, asserting that there is no private right of action under Section 3 of the HUD Act. The district court engaged in a thorough analysis of that issue, and agreed with all the other federal courts that have addressed the issue, in concluding that there is no private right of action:
Marcel, supra, at * 5.
This Court shall dismiss Plaintiff's HUD claim because Section 3 of the HUD Act, and its implementing regulations, does not confer a private right of action. Marcel, supra; see also Price v. Housing Auth. of New Orleans, 453 F. App'x 446, 449-50 (5th Cir. 2011)(affirming district court's grant of summary judgment as to the plaintiff's claim, based on 24 C.F.R. § 135.1, that defendants failed to give him employment opportunities); Bardney v. Chicago Housing Auth., 2013 WL 1278526 (N.D. Ill. 2013)(dismissing claim that defendants failed to provide priority employment opportunities for plaintiffs because there is no private right of action under the HUD Act); Watkins v. Chicago Housing Auth., 527 F. App'x 505, 507 (7th Cir. 2013) (Noting that the Seventh Circuit has not found a private right of action to exist under Section 3 of the HUD Act and collecting cases wherein other courts have found no such right to exist).
Given the above rulings, this Court is dismissing the only federal claims asserted in this action, which are the basis for this Court exercising jurisdiction over this action.
This Court must therefore consider whether it should exercise supplemental jurisdiction over Plaintiff's remaining state-law claim, her claim under Michigan's Whistleblower Protection Act.
The applicable statute regarding supplemental jurisdiction, 28 U.S.C. § 1367, provides, in pertinent part, that district courts may decline to exercise supplemental jurisdiction over a claim when:
28 U.S.C. § 1367(c).
The Sixth Circuit has stated that a federal court that has disposed of a plaintiff's federal-law claims "should not ordinarily reach the plaintiff's state-law claims." Moon v. Harrison Piping Supply, et al., 465 F.3d 719 (6th Cir.2006). "Residual jurisdiction should be exercised only in cases where the `interests of judicial economy and the avoidance of multiplicity of litigation' outweigh" concerns "over needlessly deciding state law issues.'" Id. (quoting Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir.1993)).
Under the circumstances presented here, this Court does not believe that this is an exceptional case where the Court should go on to rule upon a state-law claim after dismissing all federal claims. This Court declines to exercise supplemental jurisdiction and shall dismiss this Count without prejudice.
Plaintiff's original complaint included a state-law claim for intentional infliction of emotional distress. (Docket Entry No. 1 at Pg ID 3). On July 13, 2015, however, Plaintiff filed an Amended Complaint, along with a motion seeking leave to file that Amended Complaint. (Docket Entry Nos. 6 & 7). This Court granted her motion for leave to file the Amended Complaint. Accordingly, Plaintiff's July 13, 2015 Amended Complaint superceded and replaced her original complaint. See, e.g. Drake v. City of Detroit, 266 F. App'x 444,448 (6th Cir. 2008) ("an amended complaint supercedes all prior complaints"). Plaintiff's Amended Complaint
Nevertheless, in responding to the City's motion, Plaintiff appears to believe that she still has a claim for intentional infliction of emotional distress in this action. (See Pl.'s Br. at 20-22).
Plaintiff is mistaken. Plaintiff dropped her claim for intentional infliction of emotional distress claim when she filed her Amended Complaint.
For the reasons set forth above, IT IS ORDERED that Defendant's Motion is GRANTED to the extent that the Court DISMISSES WITH PREJUDICE Plaintiff's federal claims (her Title VII claims and her HUD claims).
Having dismissed Plaintiff's only federal claims, the Court DECLINES TO EXERCISE SUPPLEMENTAL JURISDICTION over Plaintiff's remaining state-law claims (the whistleblower claims) and therefore DISMISSES those claims without prejudice.
IT IS SO ORDERED.
