Mich. Flyer, LLC v. Wayne Cnty. Airport Auth., Case Number 15-11512

138 F.Supp.3d 899

Michigan Flyer, LLC and Indian Trails, Inc., Plaintiffs,

v.Wayne County Airport Authority, Defendant.

Case Number 15-11512

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

Signed October 7, 2015

Melissa Nyman, Nyman Turkish PC, Rocklin, CA, Ryan Thomas Kaiser, Nyman Turkish, PC, Jason M. Turkish, William Turkish & Associates, Southfield, MI, for Plaintiffs.

Gary K. August, Jamie J. Janisch, Zausmer, Kaufman, August & Caldwell, P.C., Farmington Hills, MI, for Defendant.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND DISMISSING CERTAIN OTHER MOTIONS AS MOOT

DAVID M. LAWSON, United States District Judge

Through the Americans With Disabilities Act (ADA), Congress prohibited any "person" from retaliating against an "individual" who has "opposed any act or practice made unlawful" by the ADA. 42 U.S.C. § 12203(a). The plaintiffs—two private, for-profit transportation companies that operate bus and shuttle services to and from the defendant's airport facilities—allege in their complaint that defendant Wayne County Airport Authority retaliated against them because it was displeased that representatives of Michigan Flyer and Indian Trails supported a lawsuit brought by disabled individuals against the Airport Authority (also brought under the ADA). The defendants filed a motion to dismiss, arguing that (1) their alleged conduct is insufficient as a matter of law to constitute actionable "retaliation" under the ADA; and (2) the plaintiffs are not "individuals" subject to the protections of the Act.

The complaint describes actions taken by the Airport Authority against the plaintiffs that extend well beyond "petty slights or minor annoyances," Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), and therefore describes actionable retaliatory conduct. However, the anti-retaliation protection in the ADA applies only to "individuals," a term that has come to refer to natural persons, not artificial entities such as the plaintiffs. Therefore, these plaintiffs cannot claim the protection against retaliation that the ADA provides, and their complaint must be dismissed.

I.

In 2014, Michael Harris and Karla Hudson sued the Wayne County Airport Authority for violating the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. , when the Airport Authority changed the pick-up and drop-off location for certain bus operators who transported persons with disabilities to the McNamara Terminal at the Detroit Metropolitan Airport. The change consisted of rerouting the buses operated by Michigan Flyer and Indian Trails from a pick-up and drop-off point located just outside the international area of the airport's McNamara Terminal to a location outside and approximately 600 feet away from the indoor waiting area of the McNamara Ground Transportation Center (GTC).

Michigan Flyer and Indian Trails played a role in assisting the plaintiffs in that case, which included preparing affidavits and giving testimony that the plaintiffs relied upon in support of their position that the Airport flouted the ADA's requirements in constructing and operating its GTC.

That case was dismissed after the parties—including Harris, Hudson, the Airport Authority, and the present plaintiffs—entered into a settlement agreement that called for certain changes to be made to the GTC facility. Michigan Flyer and Indian Trails, the plaintiffs here, allege that, immediately after the settlement was executed, the Airport Authority carried out a number of retaliatory gestures toward them, including unilaterally reducing the amount of time that the plaintiffs' buses could stop at the GTC to load and unload passengers; forcing the plaintiffs' drivers to circle the airport instead of stopping in their assigned spaces, even when spaces were available; and forcing the plaintiffs' drivers to vacate assigned spaces before their scheduled departure times, even when no other vehicles were waiting to use the spaces. The plaintiffs also assert that the Airport Authority undertook—and pursues to this day—the prosecution of frivolous misdemeanor charges based upon tickets issued to the plaintiffs for "prohibited signage" displayed at a desk used by their employees in the GTC.

The plaintiffs contend that this retaliatory conduct violates section 12203 of the ADA, which states that "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a). The defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that the plaintiffs have not stated a viable claim. The motion papers adequately set forth the relevant facts and law, and oral argument will not aid in the disposition of the motion. Therefore, it is ORDERED that the motion be decided on the papers submitted. See E.D. Mich. LR 7.1(f)(2).

II.

"The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief if all the facts and allegations in the complaint are taken as true." Rippy ex rel. Rippy v. Hattaway , 270 F.3d 416, 419 (6th Cir.2001) (citing Mayer v. Mylod , 988 F.2d 635, 638 (6th Cir.1993) ). Under Rule 12(b)(6), the complaint is viewed in the light most favorable to the plaintiff, the allegations in the complaint are accepted as true, and all reasonable inferences are drawn in favor of the plaintiff. Bassett v. Nat'l Collegiate Athletic Ass'n , 528 F.3d 426, 430 (6th Cir.2008). "[A] judge may not grant a Rule 12(b)(6) motion based on a disbelief of a complaint's factual allegations." Saglioccolo v. Eagle Ins. Co. , 112 F.3d 226, 228–29 (6th Cir.1997) (quoting Columbia Nat'l Res., Inc. v. Tatum , 58 F.3d 1101, 1109 (6th Cir.1995) ). "However, while liberal, this standard of review does require more than the bare assertion of legal conclusions." Tatum , 58 F.3d at 1109 ; Tackett v. M & G Polymers, USA, L.L.C. , 561 F.3d 478, 488 (6th Cir.2009). "To survive a motion to dismiss, [a plaintiff] must plead ‘enough factual matter’ that, when taken as true, ‘state[s] a claim to relief that is plausible on its face.’ Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plausibility requires showing more than the ‘sheer possibility’ of relief but less than a ‘probab[le]’ entitlement to relief. Ashcroft v. Iqbal , , 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)." Fabian v. Fulmer Helmets, Inc. , 628 F.3d 278, 280 (6th Cir.2010). "Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ).

Under the new regime ushered in by Twombly and Iqbal, pleaded facts must be accepted by the reviewing court but conclusions may not be unless they are plausibly supported by the pleaded facts. "[B]are assertions," such as those that "amount to nothing more than a ‘formulaic recitation of the elements' " of a claim, can provide context to the factual allegations, but are insufficient to state a claim for relief and must be disregarded. Iqbal , 556 U.S. at 681, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). However, as long as a court can " ‘draw the reasonable inference that the defendant is liable for the misconduct alleged,’ a plaintiff's claims must survive a motion to dismiss." Fabian , 628 F.3d at 281 (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ).

The preamble to the ADA states the purpose of the Act as follows: "It is the purpose of this chapter (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; [and] (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." 42 U.S.C. § 12101(b). The anti-retaliation provision of the ADA states: "No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a).

A.

To state a retaliation claim under the ADA, the plaintiff must plead facts showing that (1) the plaintiff engaged in activity protected by the ADA; (2) the defendant knew of that activity; (3) the defendant took an adverse action against plaintiff; and (4) the adverse action was caused or motivated by the protected activity. Rorrer v. City of Stow , 743 F.3d 1025, 1046 (6th Cir.2014) (citing A.C. v. Shelby Cnty. Bd. of Educ. , 711 F.3d 687, 697 (6th Cir.2013) ). The Airport Authority argues that the conduct that the plaintiffs ascribe to it is so trivial that it cannot amount to adverse action as a matter of law.

In another context (Title VII), the Supreme Court held that the anti-retaliation provisions of anti-discrimination statutes "protect[ ] an individual not from all retaliation, but from retaliation that produces an injury or harm." Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Therefore, "those petty slights or minor annoyances that often take place at work and that all employees experience," ibid. do not qualify as adverse action. Instead, adverse action is conduct that a "reasonable [individual] would have found [to be] ... materially adverse." Ibid. That means that the conduct "well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ " Ibid. (quoting Rochon v. Gonzales , 438 F.3d 1211, 1219 (D.C.Cir.2006) ).

The plaintiffs allege that...