Turppa v. County Of Montmorency

• Decision Date: 14 July 2010
• Docket Number: Case No. 09-12974-BC.
• Citation: 724 F.Supp.2d 783
• Parties: Bonnie TURPPA, Plaintiff, v. COUNTY OF MONTMORENCY, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

724 F.Supp.2d 783

Bonnie TURPPA, Plaintiff,

v.COUNTY OF MONTMORENCY, Defendant.

Case No. 09-12974-BC.

United States District Court, E.D. Michigan,Northern Division.

July 14, 2010.

Mandel I. Allweil, Hurlburt, Tsiros, Saginaw, MI, for Plaintiff.

Christopher K. Cooke, Cummings, McClorey, Traverse City, MI, for Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND AMENDING THE CASE MANAGEMENT AND SCHEDULING ORDER

THOMAS L. LUDINGTON, District Judge.

On July 29, 2009 Plaintiff Bonnie Turppa filed a complaint alleging she was discriminated against by Defendant County of Montmorency because of her age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-629, and the Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws §§ 37.2101-.2804. The case was initially assigned to Judge Stephen J. Murphy, III in Detroit, but was reassigned to this Court on January 20, 2010 because the initial assignment was the result of a clerical error. See E.D. Mich. L.R. 83.10(b)(3) & 83.11; [Dkt. # 12]. Before the reassignment, Defendant filed a motion to dismiss [Dkt. # 4] on November 17, 2009, contending that Montmorency County is not Plaintiff's employer. Plaintiff filed a motion for sanctions [Dkt. # 8] on December 14, 2009, contending the motion to dismiss was filed in bad faith and that Plaintiff is entitled to attorney fees and costs associated with contesting it.

On April 28, 2010, the Court issued an Opinion and Order denying Plaintiff's motion for sanctions and directing additional briefing on the motion to dismiss. The Opinion and Order [Dkt. # 16] noted that determining the identity of Plaintiff's employer or employers in this instance is “complicated by the structure of the Michigan Judiciary and the relationship between the state's trial courts and the local government units that fund their operation.” Before her termination, Plaintiff was a probate register for the Montmorency County Probate Court-a position involving judicial responsibilities supervised by an officer of the court but funded and administered by the county. The Court requested that the parties focus their supplemental briefing on the personnel policies applicable to the Montmorency County Probate Register, whether the probate court is an “arm of the state” and immune from suit, the budgetary and management processes for the probate court, and whether additional discovery would be necessary to answer the questions raised.

The supplemental briefing has been received. Plaintiff has advanced enough evidence to substantiate her allegation that Montmorency County and the Montmorency County Probate Court may be Plaintiff's co-employers. As a result, both are subject to suit for the allegedly discriminatory discharge, but neither is necessarily a “required” party under Federal Rule of Civil Procedure 19(b). The probate court is not “required to be joined” because Plaintiff's complaint seeks damages and not reinstatement. Indeed, as Defendant emphasizes in its supplemental brief there are two significant reasons Plaintiff may have decided not to join the probate court as a Defendant. First, there is some degree of probability that the probate court is immune from suit as an arm of the state. Lowe v. Hamilton County Dep't of Job & Family Servs., 610 F.3d 321 (6th Cir.2010); Ernst v. Rising, 427 F.3d 351, 359 (6th Cir.2005); Dolan v. City of Ann Arbor, 666 F.Supp.2d 754 (E.D.Mich.2009); Pucci v. Nineteenth Dist. Ct., 565 F.Supp.2d 792 (E.D.Mich.2008). Second, because Montmorency County Probate Court was not named as a party in Plaintiff's proceedings before the Equal Employment Opportunity Commission (“EEOC”), she may not have successfully exhausted her administrative claims against the probate court. Accordingly, Plaintiff will be permitted to proceed against only the county, and the scheduling order will be extended in light of the delays associated with transferring the case from the Southern Division and resolving Defendant's pre-answer motion to dismiss.

I

Defendant initially challenged Plaintiff's complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). “A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief....” Fed.R.Civ.P. 8(a)(2). The requirement is meant to provide the opposing party with “ ‘fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). If a complaint does not meet that standard, the opposing party may move to dismiss it for failure to state a claim at any time before filing an answer. Fed.R.Civ.P. 12(b)(6).

In the previous Opinion and Order, the Court determined that both parties had submitted materials outside the pleadings and it was appropriate to consider those materials in determining which entity or entities employed Plaintiff. Accordingly, the motion to dismiss was converted to a motion for summary judgment pursuant to Rule 56. Fed.R.Civ.P. 12(d). Notably, the motion was filed early in the case. As a result, the factual information that has been submitted and considered is only that information known to the parties when the case was filed, and additional information may be learned or challenged as discovery progresses. Both parties may learn information that is at present in the sole possession of their opponent.

A motion for summary judgment should be granted if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The party seeking summary judgment has the initial burden of informing the Court of the basis for its motion, and identifying where to look in the record for relevant evidence, “which it believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the opposing party who must “set out specific facts showing a genuine issue for trial.” Fed. R. Civ. Pro. 56(e)(2); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the opposing party fails to raise genuine issues of fact and the record indicates the moving party is entitled to judgment as a matter of law, the court shall grant summary judgment. Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

II

Plaintiff was hired as the “Deputy Probate/Juvenile Register in the Probate Court Office in Montmorency County” on July 17, 1995. Def.'s Answers to Interrogatories at 4; [Dkt. # 7-10]. She was elevated to the position of “probate register” in 1998 by then-Montmorency County Chief Probate Judge Robert P.M. Nordstrom. Pl.'s Compl. ¶ 10. A “probate register” is a statutorily defined position with specific powers and duties. Mich. Comp. Laws §§ 600.833-.834. She served as probate register until October 29, 2007 when her employment was terminated by Montmorency County Chief Probate Judge John E. Fitzgerald. Pl.'s Resp.; [Dkt. # 7-6]. Plaintiff was more than forty years old when her employment was terminated. Pl.'s Compl. ¶ 6.

From 1998, when she was appointed probate register, until 2000, Plaintiff served without the assistance of a deputy register. Id. ¶ 13. In 2002, while the probate court was still under the direction of Judge Nordstrom, Montmorency County approved funding to hire a deputy probate register to work two or three days per week. Id. ¶ 14. Judge Nordstrom retired in July 2003, and he was replaced by Judge Michael G. Mack that fall. Id. ¶¶ 15-16. In March 2006 Judge Mack resigned, and the deputy register also left for a different position. Id. ¶¶ 19-20. After Judge Fitzgerald was appointed to fill the probate court judge vacancy in May 2006, Jodi Gordon was hired to fill the vacant deputy probate register position in October 2006. Id. ¶¶ 21-22. Plaintiff was responsible for training Gordon, who was 39 years old, as she had been for training both of the previous deputy probate registers. Id. ¶ ¶ 22-26.

Plaintiff asserts that in August 2007, Judge Fitzgerald started asking Plaintiff about retirement, “in light of her age,” and suggesting that he would like her to retire. Id. ¶¶ 27-28. Plaintiff asserts that Judge Fitzgerald never questioned her ability to do her job, and that concerns about her performance were not raised until her employment was terminated. Id. ¶¶ 28-30. On October 27, 2009, Plaintiff had a discussion with Judge Fitzgerald and Montmorency County Coordinator Robert Goodall in the Judge's office. Id. ¶ 32. She was asked to resign, and when she refused, her employment was terminated. Id. ¶¶ 33-35. Gordon, the former deputy probate register, was appointed probate register in December 2007. Id. ¶ 37.

III

Defendant's response to the Court's request for additional briefing reiterates its position that “Plaintiff was an employee of the Montmorency County Probate Court, only,” and not of the county. As the earlier Opinion and Order explained, in Judicial Attorneys Ass'n v. Michigan, 459 Mich. 291, 586 N.W.2d 894 (1998), the Michigan Supreme Court concluded that portions of Public Act 374 of 1996 designating court support workers, including probate registers, employees of the county where they work were unconstitutional. Defendant now emphasizes that Montmorency County reached a similar conclusion in a resolution passed by the County board shortly after Public Act 374 was passed by the Michigan Legislature. The resolution provides:

By the lawful Authority of Const 1963, art 3, § 2, and art 6, § 1, county-paid employees of the Probate Court as defined [Public Act 374], § 837, are hereby declared to be the employees of the judicial branch of government-probate ...