Opinion
Case No. 99-CV-75872-DT.
November 22, 2000.
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on defendants' Motion for Dismissal and Summary Judgment pursuant to Fed.R.Civ.P. 12 (b)(6) and 56. Plaintiff responded. The Court finds that the parties have adequately set forth the relevant law and facts and oral argument would not aid in the disposition of the instant motions. See E.D. Mich. LR 7.1(e)(2). Accordingly, the Court ORDERS that the motions be decided on the briefs submitted. For the reasons set forth below, defendants' Motion for Dismissal and Summary Judgment is GRANTED.
II. BACKGROUND
Plaintiff, Dan Wolfington, began employment with the defendant Detroit Board of Education as a teacher on or about September 3, 1979. He received various promotions throughout his career, ultimately attaining the position of principal at the Dexter Careers Center.
On February 4, 1997, plaintiff submitted a Request for Accommodations under the American with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., to defendants, stating that he had an impairment which substantially limited his ability to problem analyze, be decisive, be flexible, and perceive school climate. For the purposes of this motion, defendants have stipulated that plaintiff is disabled under the ADA. The school district has a procedure for responding to requests for accommodation which included review of requests by the Joint Committee on Accommodating Disabilities (JCAD). Plaintiff requested reassignment to a vacant position within his bargaining unit, the Organization of School Administrators and Supervisors. On August 12, 1997, the JCAD approved a reassignment for Plaintiff to a vacant Program Supervisor position.
Sometime before August 21, 1997, the JCAD was informed that Program Supervisor was a promotional position that was required to be filled through a competitive selection process only, pursuant to the collective bargaining agreement and past practice. Plaintiff was advised of the district's position on August 28, 1997. In his response, plaintiff disagrees that Program Supervisor was a promotional position. This is the only fact that was specifically disputed by plaintiff.
On September 2, 1997, plaintiff informed the personnel office that he was requesting a transfer to a Program Associate I position. His request was granted and he was reassigned, effective September 15, 1997. He remained in the Program Associate I position until his application for a disability retirement was granted by the Michigan Public Schools Retirement System Retirement Board on February 19, 1999.
On November 28, 1997, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission, alleging that he had been denied a reasonable accommodation under the ADA. The case was referred to the Department of Justice on March 2, 1998. Plaintiff was advised that the Department would not be filing a lawsuit on his behalf and he was sent a Right to Sue Letter on September 10, 1999. Plaintiff filed this lawsuit on December 8, 1999.
III. LEGAL STANDARDS
A. Motion to Dismiss
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) requires the Court to construe the complaint in the light most favorable to the plaintiff, accept all the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly cannot prove a set of facts in support of the claims that would entitle relief. Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir. 1990), cert. denied, 498 U.S. 867 (1990). However, the complaint must articulate more than a bare assertion of legal conclusions. Sheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). "[The] complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id.
B. Summary Judgment
Summary judgment is appropriate only if the answers to interrogatories, depositions, admissions and pleadings, combined with the affidavits in support, show that no genuine issue as to any material fact remains and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). In application of this summary judgment standard, the Court must view all materials supplied, including all pleadings, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
The moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324. The non-moving party must do more than show that there is some metaphysical doubt as to the material facts. It must present significant probative evidence in support of its opposition to the motion for summary judgment in order to defeat the motion for summary judgment. Moore v. Philip Morris Co., 8 F.3d 335, 339-4O (6th Cir. 1993).
IV. ANALYSIS
A. Motion to Dismiss
Preliminarily, defendants argue that the ADA claim as it relates to individual defendants Dorothy Merchant, Marsha Brightwell, Dr. David Porter, and David Adamany should be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6).
Defendants assert that defendants in their individual capacity do not fall under the ADA's definition of "employer" and therefore all claims against them in their individual capacity should be dismissed. Generally, "[t]he ADA prohibits an employer from discriminating `against a qualified individual with a disability because of the disability of such individual.'" McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 371 (6th Cir. 1997) (emphasis added) (quoting 42 U.S.C. § 12112 (a)). In Hiler v. Brown, 177 F.3d 542 (6th Cir. 1999), the plaintiff was suing under the Rehabilitation Act. Id. at 542. The Court held that the definition of "employer" in the Rehabilitation Act, 42 U.S.C. § 2000e(b), does not include supervisors. Id. at 546. The Court reached its conclusion by analyzing the law relevant to all of the Rehabilitation Act's sister civil rights statutes, including the ADA, and concluded that their definition of "employer" did not include supervisors in their individual capacity. Id. at 546; see also EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1279-81 (7th Cir. 1995) (collecting cases and finding that the ADA does not impose liability upon individual defendants).
Because the defendants named in their individual capacity do not fit the definition of "employer" under the ADA, plaintiff has failed to state "all the material elements to sustain a recovery under some viable legal theory." Sheid, 859 F.2d at 436. For the foregoing reasons, defendants' Motion to Dismiss as to the claims against Dorothy Merchant, Marsha Brightwell, Dr. David Porter, and David Adamany in their individual capacities is GRANTED.
B. Motion for Summary Judgment
Defendants also seek summary judgment as to the ADA claims against the Detroit Public Schools, the Detroit Board of Education and the individual defendants in their official capacity. Defendants have identified those portions of the record that establish the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. However, plaintiff has not pointed to specific facts which demonstrate that there is a genuine issue of material fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324.
In plaintiff's response, counsel for plaintiff only points to a potential aftidavit by plaintiff, not yet received by the Court, which would establish these facts. However, despite two phone calls by this Court's clerk, this affidavit has not been received. Defendants' Motion for Dismissal and Summary Judgement was filed on August 7, 2000 and plaintiff's response was received a few weeks later. It has been almost three months since the court received plalntiff's response and he has still failed to provide the promised affidavit to the Court.
Because plaintiff has failed to show that there is a genuine issue of material fact left to be determined at trial as required by Celotex, defendants' Motion for Summary Judgment is GRANTED.
V. CONCLUSION
For the reasons discussed above, defendants' Motion for Dismissal and Summary Judgment is GRANTED.
IT IS SO ORDERED.