Weisbord v. Michigan State University, G76-475 CA5.

• Court: United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
• Citation: 495 F. Supp. 1347
• Docket Number: No. G76-475 CA5.,G76-475 CA5.
• Parties: Paul WEISBORD, Plaintiff, v. MICHIGAN STATE UNIVERSITY, Defendant.
• Decision Date: 26 August 1980

495 F. Supp. 1347

Paul WEISBORD, Plaintiff, v. MICHIGAN STATE UNIVERSITY, Defendant.

No. G76-475 CA5.

United States District Court, W. D. Michigan, S. D.

August 26, 1980.

COPYRIGHT MATERIAL OMITTED

Paul Weisbord, pro se.

Leland W. Carr, Jr., Lansing, Mich., for defendant.

OPINION AND ORDER

BENJAMIN F. GIBSON, District Judge.

This is a civil rights action wherein plaintiff alleges unlawful discrimination in employment based upon sex and/or sex coupled with race. Plaintiff, a white male, sought a position with defendant as Assistant Director of Women's Programs in February, 1975. The position was filled by a woman. After pursuing the appropriate administrative remedies plaintiff instituted the present lawsuit.

Plaintiff now seeks to amend and supplement his original complaint to add legal theories for relief, to add parties defendant, and to add similar claims concerning subsequent applications for the positions of Director and Assistant Director of Women's Programs. Defendant has responded to plaintiffs motion with a motion to dismiss, or, in the alternative, for summary judgment. Defendant's motion appears to address both the theories of the original complaint and those of the proposed amended and supplemental version. It is therefore logical to address plaintiff's motions first and then proceed to discuss the one offered by the defendant.

I. MOTIONS TO AMEND AND SUPPLEMENT

Amended and supplemental pleadings are governed by Rule 15 of the Federal Rules of Civil Procedure, which reads in pertinent part as follows:

AMENDED AND SUPPLEMENTAL PLEADINGS

(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

. . . . .

(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

The delivery or mailing of process to the United States Attorney, or his designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of clauses (1) and (2) hereof with respect to the United States or any agency or officer thereof to be brought into the action as a defendant.

(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.

As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966.

Liberality prevails in permitting amendments to the pleadings. Unless a proposed amendment would result in undue prejudice to the opposing party, has been unduly delayed, has not been offered in good faith, or would be futile, leave to amend should be granted. The decision to permit amendment is within the Court's discretion, but it has been considered an abuse of discretion and reversible error to deny leave to amend unless there is a good reason for the denial. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

Liberality is the rule with regard to supplemental pleadings as well. The purpose of a supplemental pleading is to set forth new facts that have occurred since the filing of the original pleading and that affect the controversy and the relief sought. Its function is to bring the action "up to date."

Neither defendant University or proposed defendants Board of Trustees and President have asserted that the grant of plaintiff's motions to amend and supplement would result in undue prejudice or that there has been undue delay or bad faith in their filing. To the extent that defendant and proposed defendants assert the futility of the amended and supplemental claims their arguments will be considered in the Court's discussion of their motion for dismissal or summary judgment below.

Defendants do argue, however, that plaintiff's new theories for recovery are barred by the statute of limitations. Plaintiff, on the other hand, relies on Rule 15(c) governing the relation back of the proposed amendments, and argues that because the new theories "arose out of the conduct, transaction, or occurrence set forth . . in the original pleading, the amendments relate back to the date of the original pleading." Fed.R.Civ.P. 15(c). Defendant and proposed defendants were made aware of the fact situation upon which the amended complaint is based by the original complaint. The fact situation underlying the new theories is the same as that originally plead. Proposed defendant president was served with the original complaint at the time this lawsuit was commenced. In view of these factors this Court holds that plaintiff's claims relate back and are not barred by the statute of limitations. See, e. g., Hageman v. Signal L. P. Gas, Inc., 486 F.2d 479 (6th Cir. 1973).

Plaintiff's motions to amend and supplement are granted. The Clerk of the Court shall file plaintiff's revised "First Amended and Supplemental Complaint" that was attached to plaintiff's supplemental motion to amend and supplement filed April 28, 1980. Pursuant to Rule 15(d) defendants are ordered to answer said complaint within 20 days of the filing of this opinion. Service of process shall stand as complete inasmuch as it appears that no prejudice will befall defendants as a consequence.

II. MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

Plaintiff puts forth many theories for recovery. In addition to his claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., he seeks relief pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.; Executive Order 11246; U.S. Const., amend. XIII; U.S. Const., amend. XIV; 42 U.S.C. § 1981; 42 U.S.C. § 1983; U.S. Const., amend. I; Mich.Const., art. I § 2; Mich. Const., art. I § 17; the Michigan Fair Employment Practices Act, Mich.Comp.Laws Ann. § 423.301 et seq.; and the Elliott-Larsen Civil Rights Act, Mich.Comp.Laws Ann. § 37.2101 et seq.

Defendant has moved to dismiss the complaint for "failure to state a claim upon which relief can be granted" pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court's inquiry at this point, before the reception of any evidence by affidavit or admission, is merely whether the challenged complaint sets forth sufficient allegations to make out the elements of a right to relief. In making this determination, the allegations in the complaint are taken at "face value," California Motor Transit Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 614, 30 L.Ed.2d 642 (1972), and should be construed favorably to the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). "Well pleaded facts are taken as true, and the complaint is construed liberally in favor of the party opposing the motion." Davis H. Elliot Co. v. Caribbean Utilities Co., 513 F.2d 1176, 1182 (6th Cir. 1975). All reasonable inferences that might be drawn from the pleading must be indulged. Fitzke v. Shappell, 468 F.2d 1072, 1076 n.6 (6th Cir. 1972).

The Sixth Circuit has made it clear that dismissals of civil rights claims will be scrutinized with special care. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). In this regard the District Courts have been given a clear directive that "a case brought under the Civil Rights Act should not be dismissed at the pleading stage unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim." Lucarell v. McNair, 453 F.2d 836, 838 (6th Cir. 1972).

With this standard in mind this opinion will proceed to address defendants' arguments against each of plaintiff's claims.

A. TITLE VII

Defendants set forth three arguments for dismissal of plaintiff's Title VII claims. First, that plaintiff has not properly plead a violation of Title VII; second, that gender is a bona fide occupational qualification (BFOQ) for the positions that plaintiff sought; and third, that plaintiff's "many job applications for Women's Program positions have been litigated before the Michigan Department of Civil Rights and Equal Employment Opportunity Commission with rejections in each instance."

As to the sufficiency of the pleading to state a Title VII claim defendant argues: "It is insufficient for plaintiff to attach his law...