McGowan v. University of Michigan

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRIGETTE MCGOWAN,
Plaintiff, 	Case No. 2:24-cv-13362
v. 	Hon. Brandy R. McMillion
United States District Judge
UNIVERSITY OF MICHIGAN,
Defendant.
__________________________________/
OPINION AND ORDER GRANTING
DEFENDANT’S MOTION TO DISMISS (ECF NO. 8)
Before the Court is Defendant University of Michigan’s (“U of M”) Motion
to Dismiss Plaintiff Brigette McGowan’s (“McGowan”) Complaint. 	ECF No. 8.
McGowan alleged federal and state law claims against U of M for employment
discrimination and retaliation under the Americans with Disabilities Act (“ADA”),
retaliation under the Family Medical Leave Act (“FMLA”), and two additional
claims for breach of contract and wrongful termination pursuant to Michigan law.
See generally ECF No. 1. The Motion has been adequately briefed, so the Court will
rule without a hearing. See ECF Nos. 9,10; E.D. Mich. LR. 7.1(f). For the reasons
stated below, U of M’s Motion is GRANTED.
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I.
McGowan worked full-time at U of M as a cook for 11 years. 	See ECF No.
1, PageID.2. During her employment, she injured her ankle while working in one
of the dining halls. 	Id. 	Since the incident, she has suffered ongoing pain and
mobility issues. But as a cook, she was “expected to stand and/or walk” during her
shift, despite needing to rest and elevate her ankle. 	Id. at PageID.3. 	McGowan
worked until August 23, 2022, then took short-term disability leave to undergo ankle
surgery around September 8, 2022. She remained on short-term disability leave until
June 2023 and then returned to work. See id. at PageID.4.
Before returning, McGowan’s doctor advised in writing that she be equipped
with the following conditions: perform sedentary work, remain seated for majority
of the time except for limited walking and standing, with regular breaks to move and
stretch. 	Id. 	U of M acknowledged McGowan could return to work, but only at a
position that did not require her to primarily stand or walk. 	Id. 	McGowan alleges
this request was accommodated until September 2023, when her manager did not
allow her to return to work as a greeter.
In response, McGowan took short-term disability leave, pursuant to FMLA,
which lasted until it expired around January 2024. Id. At that time, U of M informed
McGowan that her short-term disability leave had been exhausted and “Work
Connections continues to support your permanent restrictions; however, M|Dining
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cannot [sic] accommodate these restrictions.” 	Id. at PageID.5. 	McGowan then
proceeded to request long-term disability. Id. However, she was informed via email
by U of M that
‘in order to be eligible for [long-term disability] coverage, you must be
actively at work. Actively at work means you are present in the
workplace at your regular appointment effort. You are not considered
actively at work if you are absent from the workplace for medical,
childcare, 	personal 	leaves, 	leave 	without 	salary, 	or 	while 	using
extended sick time pay.’ Because you have coded days of ETW, UET
and PST (between July 24, 2023 – September 7, 2023), this does not
consider you to be actively working.
See id. 	U of M also informed McGowan that she could not regain her long-term
disability because of unexcused absences during the summer of 2023 related to her
medical needs and severe pain. Id. at PageID.6. McGowan then decided she would
take an unpaid leave of absence and informed U of M in writing. 	Id. at PageID.7.
However, due to technical issues, she was unable to have the required forms
submitted to U of M before the deadline of January 26, 2024. As a result, U of M
terminated McGowan.
Before initiating this lawsuit, McGowan filed and was denied a formal
grievance through her union CBA. 	Id. at PageID.8. 	On September 16, 2024, she
filed a charge of discrimination with the EEOC, which issued a Notice of Right to
Sue letter on the same day. Id.; see also ECF No. 1-1, PageID.17. McGowan filed
this action on December 16, 2024. See generally ECF No.1. The case was originally
assigned to the Honorable F. Kay Behm, then reassigned to the undersigned. 	See
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ECF No.3. An order for show cause as to why this matter should not be sua sponte
dismissed for failure to prosecute was issued and responded to by McGowan. 	See
ECF Nos. 5, 6. 	This Motion followed shortly thereafter. 	See ECF No. 8. 	The
Motion has now been fully briefed, see ECF Nos. 9, 10, and the Court will rule
without a hearing based on the record before it. See E.D. Mich. LR 7.1(f).
II.
“A claim of sovereign immunity challenges the court’s subject matter
jurisdiction and, as such, is properly raised under Federal Rule of Civil Procedure
12(b)(1).” 	Skidmore v. Access Grp., Inc., 149 F. Supp. 3d 807, 809 (E.D. Mich.
2015) (citing O’Bryan v. Holy See, 556 F.3d 361, 375 (6th Cir. 2009)). 	Such a
motion “either facially or factually attack[s] jurisdiction.” L.C. v. United States, 83
F.4th 534, 542 (6th Cir. 2023) (emphasis in original). 	Facial attacks focus on
whether the plaintiff has alleged a basis for subject-matter jurisdiction, challenging
subject-matter jurisdiction “without disputing the facts alleged in the complaint” and
“requir[ing] the court to treat the allegations of the complaint as true.” Id. (quotation
marks and citations omitted). 	Conversely, factual attacks “challenge[] the factual
existence of subject matter jurisdiction,” attacking the factual allegations underlying
jurisdictional assertions, either by “the filing of an answer or otherwise presenting
competing facts.” Id. (quotation marks and citations omitted).
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Defendants’ Motion presents a factual attack on the Court’s subject-matter
jurisdiction. See ECF No. 8, PageID.43. A factual attack is a challenge to the factual
existence of subject matter jurisdiction. Gen. Ret. Sys. of City of Detroit v. Snyder,
822 F. Supp. 2d 686, 693 (E.D. Mich. 2011). There is no presumption of truthfulness
as to Plaintiff’s complaint and “the court is free to weigh the evidence and satisfy
itself as to the existence of its power to hear the case.” Id. (quoting United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)). 	The burden remains with Plaintiff to
establish that jurisdiction exists. 	Shepherd v. Cancer & Hematology Centers of W.
Michigan, P.C., No. 1:22-CV-734, 2023 WL 4056342, at *5 (W.D. Mich. Feb. 28,
2023) (citing Rogers v. Stratton Indus. Inc., 798 F.2d 913, 915 (6th Cir. 1986) (per
curiam)).
III.
A. 	SOVEREIGN IMMUNITY
U of M argues that all of McGowan’s claims (ADA, FMLA, and state law
claims) are barred by the doctrine of sovereign immunity. 	See ECF No. 8,
PageID.43. 	As an arm of the State of Michigan, the University asserts that it is
entitled to Eleventh Amendment immunity from suit in federal court. 	Id. at
PageID.44. The Court agrees.
The Eleventh Amendment protects states and their departments from federal
lawsuits unless they consent to be sued or Congress, pursuant to a valid exercise of
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its power, unequivocally expresses its intent to abrogate sovereign immunity. U.S.
Const. amend. XI; Ashford v. Univ. Mich., 89 F.4th 960, 969 (6th Cir. 2024); see
also Whole Woman’s Health v. Jackson, 595 U.S. 30, 39 (2021); Morgan v. Bd. Of
Pro. Resp. of the Sup. Ct. of Tenn., 63 F.4th 510, 515 (6th Cir. 2023). And here, the
State of Michigan has not consented to suit in federal court, nor has Congress
abrogated Eleventh Amendment immunity in the claims at issue. In the context of
the ADA, the Supreme Court has expressly recognized that “Congress did not
validly abrogate the States’ sovereign immunity from suit by private individuals for
money damages under Title I . . . .” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S.
356, 374 n.9 (2001); see also Whitfield v. Tennessee, 639 F.3d 253, 257 (6th Cir.
2011) (same). 	Similarly, FMLA claims are not validly abrogated against state
sovereign 	immunity. 	See 	Touvell 	v. 	Ohio 	Dep’t 	of 	Mental 	Retardation 	&
Developmental Disabilities, 422 F.3d 392, 400 (6th Cir. 2005).
Here, McGowan challenges that her ADA claims are brought pursuant to Title
V and not Title I; therefore, her ADA retaliation claims should stand because U of
M fails to identify binding precedent that proves it is entitled to sovereign immunity.
See ECF No. 9, PageID.53. However, as U of M points out in its Reply Brief, the
Sixth Circuit has held that retaliation claims under Title V are akin to Title I ADA
claims and “if Congress did not validly abrogate Eleventh Amendment immunity for
Title I claims, then it also did not abrogate Eleventh Amendment immunity for a
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claim under Title V...” See ECF No. 10, PageID.69 (citing Stanley v. Western Mich.
Univ., 105 F.4th 856, 866 (6th Cir. 2024)).
Similarly, 	“[t]he Eleventh 	Amendment 	to 	the U.S. 	Constitution 	grants
immunity to states from litigation on state law claims in federal court.” 	See VIBO
Corp v. Conway, 669 F.3d 675, 691 (6th Cir. 2012). 	And further, pursuant to 28
U.S.C. § 1367(c), a district court may decline to exercise supplemental jurisdiction
over a pendent state claim if the district court has dismissed all claims over which it
has original jurisdiction. 28 U.S.C. § 1367(c)(2); see also Musson Theatrical, Inc.
v. Fed. Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996) (“When all federal
claims are dismissed before trial, the balance of consideration usually will point to
dismissing the state law claims . . . .”). Therefore, McGowan’s state law claims are
also subject to dismissal.
Consequently, because U of M did not give consent to be subject to
McGowan’s claims under the ADA (Counts I and II), the FMLA (Count III), or the
state law claims (Counts IV and V), this suit is barred under the Eleventh
Amendment.
B. 	AMENDMENT
Lastly, in the Response to this Motion, McGowan raises a potential request to
amend her Complaint pursuant to Federal Rule 15(a). See ECF No. 10, PageID.69.
Federal Rule 15 allows a party to amend its pleadings once as a matter of course, but
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subsequent amendments are allowed only with “the opposing party’s written consent
or the court’s leave.” 	See Fed. R. Civ. P. 15(a)(1), (2). 	And while amendments
should be freely given when justice so requires, the Court does not have to allow a
party to amend the complaint if doing so would be futile. Martin v. Trott Law, P.C.,
198 F. Supp. 3d 794, 814 (E.D. Mich. 2016).
First, the Response Brief is not the proper method to request leave to amend.
Pursuant to local court rules, to request leave to amend, the requesting party must
submit a separate filing to amend the complaint, not request that relief within a
response to a motion. 	See E.D. Mich. LR 15.1. 	But here, amendment would be
futile, so there is no need for the Court to consider a separate motion. 	McGowan
suggest that “[u]niversities often outsource their dining services to third-parties,
which are not entitled to immunity under the Eleventh Amendment.” 	ECF No. 9,
PageID.55. And since “dining services are provided by Michigan Dining” which is
“comprised of twelve on campus cafes and seven markets, seven residential dining
halls, the Michigan Bakery and the Michigan catering unit[,]” she could request
amendment if she determines this entity to be non-governmental in nature. 	Id.
However, U of M confirms that Michigan Dining is a department of the university
and not a separate third-party entity. 	ECF No. 10, PageID.70, ECF No. 10-1,
PageID.75. Therefore, the Court finds that Michigan Dining would be subject to the
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same immunity protections as the University itself. 	And therefore, amendment
would be futile, and any amended complaint would still be subject to dismissal.
V.
Accordingly, 	the 	Court 	finds 	Eleventh 	Amendment 	immunity 	bars
McGowan’s claims against U of M. 	The Court GRANTS U of M’s Motion to
Dismiss (ECF No. 8) and this case is DISMISSED.
This is a final order that closes this case.
IT IS SO ORDERED.
Dated: November 4, 2025 	s/Brandy R. McMillion
Detroit, Michigan 	H ON. BRANDY R. MCMILLION
United States District Judge
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