                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0045n.06
                           Filed: January 18, 2006

                                           No. 04-1924

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


MARILYN D. MCGEE,                                        )
                                                         )
       Plaintiff-Appellant,                              )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
v.                                                       )        COURT FOR THE EASTERN
                                                         )        DISTRICT OF MICHIGAN
SCHOOLCRAFT COMMUNITY COLLEGE, et. al.,                  )
                                                         )                          OPINION
       Defendants-Appellees.                             )
                                                         )



BEFORE:        MOORE, ROGERS, McKEAGUE

       McKeague, Circuit Judge. This case arises out of Plaintiff Marilyn McGee’s dismissal

from Schoolcraft Community College’s Occupational Therapy Assistant program. Plaintiff brought

a complaint against the college, the clinics who employed her as part of the program, and several

individual employees of those entities alleging various state and federal claims. All of the

defendants filed motions for dismissal and/or summary judgment. The district court granted these

motions and dismissed all claims against all defendants. For the reasons set forth below, we affirm

the judgment of the district court.

                                       I. BACKGROUND

       Plaintiff enrolled in Schoolcraft Community College’s (“SCC”) Occupational Therapy

Assistant (“OTA”) program in the fall of 1995. Plaintiff began a required clinical fieldwork

assignment at Glacier Hills Nursing Center (“Glacier Hills”) in the fall of 1996. Plaintiff withdrew
No. 04-1924
McGee v. Schoolcraft Community College

from the Glacier Hills placement on October 28, 1996, believing that she was about to be expelled

from the placement. The next day Plaintiff met with Cheryl Hawkins, a SCC instructor, who

produced a “Faculty Student Advisement Form” alleging Plaintiff had unexcused absences and had

engaged in “inappropriate clinical behavior.” Linnea Atkins, the director of occupational therapy

at Glacier Hills, sent SCC a letter on November 1, 1996, describing problems in Plaintiff’s

fieldwork.

        Plaintiff returned to SCC in the fall of 1997 subject to certain conditions, including regular

completion of a guideline checklist and supervision by a SCC-hired mentor. Plaintiff began a new

fieldwork assignment at Rainbow Rehabilitation Center (“Rainbow”). On October 17, 1997, SCC’s

OTA program director Nancy Vandeweile-Milligan, Rainbow fieldwork supervisor Therese Mensah,

and Plaintiff’s mentor Kimberly Sherwood met with Plaintiff and terminated her placement at

Rainbow, citing problems in Plaintiff’s fieldwork performance such as scheduling and

organizational difficulties and inappropriate behavior with patients. Mensah completed a review

of Plaintiff’s work (the “Wiscouncil Level I Fieldwork Evaluation Form”) which was unfavorable

to Plaintiff.

        Plaintiff filed an appeal of her termination from the Rainbow fieldwork assignment and

subsequent dismissal from the OTA program through SCC’s seven-step Appeals Procedure for

Academic Matters. A new individual or panel upheld Plaintiff’s termination at each of the first six

steps. After the denial of Plaintiff’s appeal at step six on September 8, 1998, SCC chose to offer

Plaintiff a chance to return to the OTA program anyway, subject to various conditions. The appeals

procedure provided Plaintiff ten working days to appeal to the Board of Trustees (“Board”) at step

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seven.    Plaintiff discussed and met with various SCC administrators regarding conditional

reinstatement. On February 19, 1999, Robert Pearce, SCC Associate Dean of College Centers,

wrote Plaintiff a letter, again offering reinstatement and stating that Plaintiff had the right to appeal

this decision.

         On March 18, 1999, Plaintiff wrote to Sharon Braun, SCC Director of College Centers,

stating that Plaintiff intended to appeal her termination to step seven of the appeals process. Braun

sent Plaintiff a March 25 letter telling Plaintiff that the time to appeal had passed. On April 7,

Plaintiff wrote to SCC President Roger McDowell, stating she would like to present an appeal to the

Board. On April 19, 1999, McDowell wrote back, again stating that the ten day time limit had

passed but that the Board might elect to hear her complaint. On September 10, 1999, Plaintiff wrote

to Carol Strom, chairperson of the Board, requesting that the Board hear Plaintiff’s appeal. Strom

replied on October 28, 1999, stating, “the Board has chosen to act in a manner consistent with the

timeliness stated in [the SCC Appeals Procedure].”

         Plaintiff filed her complaint in this case on October 18, 2002. Plaintiff alleges that Milligan

became antagonistic toward her in December of 1995 when a teacher reduced Plaintiff’s grade for

turning in an assignment late and Plaintiff argued to SCC administrators, including Milligan, that

the grade reduction was unfair. Plaintiff alleges that Milligan then began a concerted effort to expel

Plaintiff from the OTA program. Among other things, Plaintiff alleges that she withdrew from the

Glacier Hills placement when Milligan and Atkins were about to terminate her from the placement

without just cause; that Milligan, Mensah, and Sherwood expelled Plaintiff from the Rainbow

placement without just cause; that these terminations and unfavorable evaluations by Atkins and

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Mensah were concocted as part of a conspiracy to expel Plaintiff from the OTA program; and that

SCC administrators and the Board of Trustees either explicitly or implicitly joined in this conspiracy

during the appeals process in ruling against Plaintiff.

       After the close of discovery the SCC defendants filed a motion for dismissal and/or summary

judgment on all claims against both SCC and the individual defendants who were employed by SCC.

The remaining defendants–Glacier Hills, Rainbow, and their employees who were sued–also filed

motions for summary judgment. The district court dismissed the individual SCC defendants on the

basis that they had not been properly served with the summons and complaint. Then the district

court examined the various claims against SCC and held that on each claim SCC was either entitled

to summary judgment or dismissal based on Federal Rule of Civil Procedure 12(b). Finally the

district court determined that Plaintiff‘s claims against the Glacier Hills and Rainbow defendants

were barred because they were not brought within the applicable statutes of limitations. Plaintiff

filed a timely notice of appeal.

                                           II. ANALYSIS

A.     Standard of Review

       Whether the district court properly dismissed a suit pursuant to Fed. R. Civ. P. 12(b)(6) is

a question of law subject to de novo review. Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir.

2005); Smith v. City of Salem, 378 F.3d 566, 570 (6th Cir. 2004); Arrow v. Fed. Reserve Bank, 358

F.3d 392, 393 (6th Cir. 2004). The court must construe the complaint in the light most favorable

to the plaintiff, accept all the factual allegations as true, Smith, 378 F.3d at 568, and determine

whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle

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him to relief. Roberson, 399 F.3d at 794; Arrow, 358 F.3d at 393. When an allegation is capable of

more than one inference, it must be construed in the plaintiff’s favor. Saglioccolo v. Eagle Ins. Co.,

112 F.3d 226, 228-29 (6th Cir. 1997); Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109

(6th Cir. 1995). Hence, a judge may not grant a Rule 12(b)(6) motion based on a disbelief of a

complaint’s factual allegations. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir.

2001); Saglioccolo, 112 F.3d at 228-29; Wright v. MetroHealth Med. Ctr., 58 F.3d 1130, 1138 (6th

Cir. 1995). Though decidedly liberal, this standard of review does require more than the bare

assertion of legal conclusions. Bovee, 272 F.3d at 361; Gregory v. Shelby County, Tenn., 220 F.3d

433, 446 (6th Cir. 2000). The complaint should give the defendant fair notice of what the plaintiff’s

claim is and the grounds upon which it rests. Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th

Cir. 1994). “In practice, ‘a . . . complaint must contain either direct or inferential allegations

respecting all the material elements to sustain a recovery under some viable legal theory.’” Lillard

v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (quoting Scheid v. Fanny Farmer

Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)). See also Booker v. GTE.net, 350 F.3d 515,

517 (6th Cir. 2003) (the court need not accept as true legal conclusions and unwarranted factual

inferences); Perry, 324 F.3d at 848 (same).

       This court also reviews an order granting summary judgment de novo. Johnson v. Karnes,

398 F.3d 868, 873 (6th Cir. 2005); Daniels v. Woodside, 396 F.3d 730, 734 (6th Cir. 2005);

Valentine-Johnson v. Roche, 386 F.3d 800, 807 (6th Cir. 2004). Summary judgment is proper “if

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

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McGee v. Schoolcraft Community College

party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); accord Johnson, 398 F.3d

at 873; Daniels, 396 F.3d at 734; Leadbetter v. Gilley, 385 F.3d 683, 689 (6th Cir. 2004). When

deciding a motion for summary judgment, the court must view the evidence and draw all reasonable

inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986); Johnson, 398 F.3d at 873; Daniels, 396 F.3d at 734; Valentine-Johnson, 386

F.3d at 807. Any direct evidence offered by the plaintiff in response to a summary judgment motion

must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004). Nevertheless,

the “mere existence of some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement is that there be no genuine issue

of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in

original); accord Leadbetter, 385 F.3d at 689-90; Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir.

2003).

B.       Claims Against the Individual SCC Defendants

         SCC’s dispositive motion below argued that the district court should dismiss the individual

SCC defendants for lack of proper service pursuant to Federal Rule of Civil Procedure 12(b)(5).

SCC pointed out that in a previous order the district court had already ruled that the attempted

service of the summons and complaint on the individual SCC defendants by delivering those

documents to SCC did not comply with the requirements of Rule 4 for service on individuals. The

district court agreed and dismissed these defendants based on its previous conclusion that they had

not been properly served. That dismissal was proper.




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        Below Plaintiff argued that the delivery of a copy of the summons and complaint to SCC’s

offices was adequate service of the individual SCC defendants under Rule 5. The district court

agreed that the method of service complied with the requirements of Rule 5, but pointed out that

service of the summons and complaint is governed by the more stringent standards of Rule 4 which

were not met by the method of service employed. This conclusion was sound. See Fed. R. Civ. P.

4, 5.

        Plaintiff’s only argument on appeal is that delivering a copy of the summons and complaint

to an agent of SCC at SCC’s office was adequate service of the individual defendants pursuant to

Rule 4(e). Specifically, Plaintiff posits that since she served the individual defendants in their

official capacities, their “usual place of abode” was their office at SCC. However, this argument

was not presented to the district court. Below, Plaintiff only argued that the method of service

complied with Rule 5. This court generally will not review issues raised for the first time on appeal.

Barner v. Pilkington N. Am., 399 F.3d 745, 749 (6th Cir. 2005); Lepard v. NBD Bank, 384 F.3d 232,

236 (6th Cir. 2004); United States v. Ninety-Three (93) Firearms, 330 F.3d 414, 424 (6th Cir. 2003).

The appellate court’s function is “to review the case presented to the district court, rather than a

better case fashioned after a district court’s unfavorable order.” Barner, 399 F.3d at 749. There is

no reason to depart from this general rule.1 The district court’s dismissal of the individual SCC

defendants was not error.




        1
        Even if the argument had been presented properly, there is no authority to support Plaintiff’s
counter-intuitive argument that an individual’s office can be considered his usual place of abode for
service of process pursuant to Rule 4(e).

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C.     State Law Tort Claims Against SCC

       Plaintiff asserts several state law tort claims against SCC. SCC sought dismissal of these

claims based on the argument that it is entitled to governmental immunity under Michigan law.

After setting forth the applicable legal framework for determining whether an entity is entitled to

governmental immunity and outlining SCC’s argument, the district court observed that Plaintiff’s

arguments against the application of governmental immunity did not appear to apply to SCC itself,

but only to the individual SCC defendants. After making this observation, the district court found

that “SCC is entitled to absolute immunity as to the state tort claims.” This ruling was not error.

       In her appellate brief, the only reason Plaintiff sets forth for overturning the district court’s

governmental immunity ruling is that in her response to SCC’s motion for summary judgment she

actually did argue that SCC itself was not entitled to governmental immunity. The appellate brief

cites several sections of the response to supposedly support this argument. However, most of the

sections cited put forth arguments which are only relevant to whether each of the individual SCC

defendants was entitled to immunity. The one or two places where Plaintiff argued below that none

of the defendants were entitled to immunity did not include any arguments addressed specifically

to SCC itself. Therefore, the factual basis of Plaintiff’s argument is suspect at best.

       Even if Plaintiff had challenged whether SCC was entitled to governmental immunity, that

fact would not have any relevance to this appeal because the district court did not rely on the

perceived absence of any argument from Plaintiff to support its ruling. The district court merely

made an observation regarding the paucity of Plaintiff’s argument on the point under consideration

and then proceeded to conclude the discussion of the issue by stating its holding that SCC was

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McGee v. Schoolcraft Community College

entitled to governmental immunity. The most logical way to read the district court’s opinion is that

this holding was based on the court’s application of the relevant law and facts previously set out in

a fair amount of detail. Since the district court did not rely on Plaintiff’s failure to oppose the

governmental immunity argument, any mistake it might have made in characterizing Plaintiff’s

arguments, or lack thereof, did not have any impact on its holding.

       In her reply appellate brief Plaintiff sets forth the additional argument that SCC is not

entitled to governmental immunity because under Michigan law there is no such immunity for

intentional torts or actions not taken in good faith. Even if this argument had been properly raised,

it would fail because the exceptions to governmental immunity Plaintiff cites are only relevant when

determining whether an individual governmental employee is entitled to governmental immunity.

The Michigan Supreme Court has held that “governmental agencies ha[ve] a broad grant of

immunity while, in contrast, the immunity extended to individuals is far less.” Sudul v. City of

Hamtramck, 562 N.W.2d 478, 482 (Mich. 1997) (emphasis in original).                In the course of

determining the scope of a governmental agency’s immunity, the Michigan Supreme Court has held

that “[t]here is no intentional tort exception to governmental immunity.” Smith v. Dept’t of Public

Health, 410 N.W.2d 749, (Mich. 1987), aff’d sub nom, Will v. Michigan Dept. of State Police, 491

U.S. 58 (1989). Nor does the applicable statute or case law cited by Plaintiff evidence any good

faith requirement in order for a government agency to be entitled to governmental immunity.

Instead, Michigan courts have held that the state’s governmental tort liability statute provides broad

immunity for governmental agencies and that exceptions to that broad immunity must be narrowly

construed. See, e.g., Glancy v. City of Roseville, 577 N.W.2d 897, 900 (Mich. 1998). Plaintiff has

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failed to point to any legitimate exception to the broad governmental immunity SCC enjoys.

Therefore, the district court did not err when it held that SCC was entitled to governmental immunity

on the state law tort claims.

D.     Conspiracy Claim

       Count II of the complaint alleges a conspiracy to violate Plaintiff’s civil rights in violation

of 42 U.S.C. § 1985(3). The district court properly held that the complaint fails to adequately plead

such a conspiracy. To prove a conspiracy under § 1985(3) a plaintiff is required to show: “(1) that

some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the

conspirators' action, and (2) that the conspiracy aimed at interfering with rights that are protected

against private, as well as official, encroachment.” Bray v. Alexandria Women’s Health Clinic, 506

U.S. 263 (1993) (internal quotations and citations omitted). The Sixth Circuit has ruled that §

1985(3) only applies to discrimination based on race or membership in a class which is one of “those

so-called ‘discrete and insular’ minorities that receive special protection under the Equal Protection

Clause because of inherent personal characteristics.” Volunteers Medical Clinic, Inc., v. Operation

Rescue, 948 F.2d 218, 224 (6th Cir. 1991). Plaintiff has acknowledged that her race was not a factor

and alleged only that she belongs to a class of persons “attending an institution of higher learning

in pursuit of a degree as a [Certified Occupational Therapy Assistant].” Compl. ¶ 130. The district

court concluded that this class was not entitled to the kind of special protection which would make

§ 1985(3) applicable to Plaintiff’s claim.

       On appeal Plaintiff argues that the district court’s reliance on the Volunteers Medical Clinic

case was inappropriate because that case involved individuals who were not acting under color of

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state law while in this case all defendants were acting under color of state law. While the factual

distinction is accurate, it has no legal significance here. The Supreme Court has repeatedly held that

the scope of § 1985(3) extends only to cases in which there is “some racial, or perhaps otherwise

class-based, invidiously discriminatory animus behind the conspirators’ action.”            Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971). This rule has been applied without reference to whether the

conspiracy alleged directly involved actions under color of state law. See United Broth. of

Carpenters v. Scott, 463 U.S. 825, 834-35 (1983).

       The Sixth Circuit has ruled that § 1985(3) covers cases involving invidious discrimination

on a class basis as long as the class meets certain stringent requirements. See Volunteers Medical

Clinic, 948 F.2d at 224. The only class Plaintiff alleges she is a part of does not meet these

requirements. The group of individuals seeking a degree as a certified occupational therapy assistant

may be a relatively discrete minority, but certainly it is neither based on inherent personal

characteristics nor traditionally the subject of special protection under the Equal Protection Clause.

Nor does Plaintiff provide any argument that her pleadings meet these requirements. Consequently,

her argument that the district court’s dismissal of her conspiracy claim should be overturned fails.2

E.     Due Process Claim

       Count I of the complaint sets forth a claim for violation of due process but does not explicitly

specify whether it is a procedural or substantive due process challenge or both. The district court


       2
        Plaintiff briefly notes that even if she did not sufficiently plead that she is a member of a
protected class under § 1985(3) the district court should be directed to grant her leave to amend her
complaint to cure this deficiency. However, the record before the court makes it clear that any such
amendment would be futile.

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McGee v. Schoolcraft Community College

ruled that SCC was entitled to summary judgment on this claim without explicitly addressing

whether Plaintiff’s due process claim was procedural or substantive in nature. The content of the

district court’s analysis, however, indicates that the district court concluded that there was no

genuine issue of material fact sufficient to support either a procedural or substantive due process

claim. That ruling was correct on both points.

        1.      Substantive Due Process

        In order to prevail on a substantive due process claim, a plaintiff must first establish the

existence of a constitutionally protected life, liberty or property interest. Silver v. Franklin Twp. Bd.

of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir. 1992). The only interest Plaintiff claims as the

basis of her due process claim is an asserted property interest in her continued enrollment in SCC’s

OTA program. See Compl. ¶ 79. The Sixth Circuit has held that in the absence of an equal

protection violation there is “no basis for finding that a medical student’s interest in continuing her

medical school education is protected by substantive due process.” Bell v. Ohio State University,

351 F.3d 240, 251 (6th Cir. 2003). The court went on to observe that “[c]ertainly the contention that

the medical college’s actions were arbitrary or capricious cannot be sufficient.” Id. Plaintiff has not

alleged any equal protection violation. The interest she asserts is virtually identical to the one

asserted in Bell which was rejected as a basis for a substantive due process claim. See id.

Consequently, SCC is entitled to judgment as a matter of law to the extent that the complaint asserts

a substantive due process claim.

        2.      Procedural Due Process




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        The district court held that “the facts establish that plaintiff received a full and fair

opportunity to present her issues through the internal appeal process provided by SCC.” This is the

only reference the court made to the procedural aspect of Plaintiff’s due process claim. Plaintiff

argues that the internal process provided by SCC did not meet procedural due process requirements.

        Prevailing on a procedural due process claim requires first establishing the existence of a

constitutionally protected life, liberty or property interest. Bd. of Regents v. Roth, 408 U.S. 564,

569-70 (1972). The fact that Plaintiff has not demonstrated such an interest in the context of her

substantive due process claim does not necessarily doom her procedural claim as well. Although

establishing a protectable interest is a common element of both kinds of due process claims, “[t]he

interests protected by substantive due process are of course much narrower than those protected by

procedural due process.” Bell v. Ohio State University, 351 F.3d 240, 249-50 (6th Cir. 2003). The

issue of whether a student’s interest in continued enrollment at a post-secondary institution is

protected by procedural due process has not been resolved. Courts have avoided this issue where

possible by assuming for the sake of argument that such an interest exists. See, e.g., Bd. of Curators

of Univ. of Missouri v. Horowitz, 435 U.S. 78, 84-85 (1978); Bell, 351 F.3d at 249. This practice

is well-suited to the current case. Even viewed in the light most favorable to Plaintiff, the facts in

the record do not establish a violation of procedural due process. Therefore, it is not necessary to

determine whether Plaintiff had a protectable property interest in her continued enrollment at SCC.

        In order to establish a procedural due process claim, Plaintiff must establish that the

government deprived her of a protectable interest without due process of law. Horowitz, 435 U.S.

at 82. The only protectable interest Plaintiff asserts is a property interest in her continued enrollment

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in the OTA program at SCC. SCC is entitled to judgment as a matter of law because the undisputed

facts show that SCC did not ultimately deprive Plaintiff of that interest. The internal process which

Plaintiff assailed as constitutionally inadequate resulted in SCC repeatedly offering her an

opportunity to be reinstated in the OTA program. Plaintiff chose not to accept that offer because

it was not accompanied by the apologies she sought and because the offer required her to sign a

letter of agreement which stated that if she failed clinical course work she would be terminated from

the program.3 The fact that the terms were not acceptable to Plaintiff does not change the fact that

SCC offered to restore to her the property interest she claims she was deprived of, her continued

enrollment. The restrictions on the re-instatement offer did not deprive her of this or any other

interest even arguably protected by due process requirements. Consequently, there is no basis to

overturn the district court’s ruling that SCC was entitled to summary judgment on Plaintiff’s due

process claim.4

F.      First Amendment Retaliation Claim




        3
        Plaintiff felt that this requirement did not accurately reflect the terms of the school catalogue
which by her interpretation should have given her a second chance to complete fieldwork if she
failed.
        4
         Even if the appeals process had culminated without SCC offering Plaintiff reinstatement,
there would still be no deprivation of procedural due process as long as SCC’s post-deprivation
appeal process offered Plaintiff a fair and meaningful opportunity to be heard. Horowitz, 435 U.S.
at 84-85. However, the record indicates that Plaintiff may have created a genuine issue of fact
regarding the fundamental fairness of the internal appeal process. She submitted testimony that the
Glacier Hills letter was withheld from her until part way though the process when she was given a
redacted copy, that false testimony was submitted at some levels of the appeal, and that SCC
officials put pressure on at least one decision-maker to uphold the school’s termination decision.


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        Count III of the complaint alleges that when Plaintiff continued appealing the adverse

determinations, Defendants retaliated against her in violation of her First Amendment rights to

speech and petition by threatening to expel her, actually expelling her, and refusing to hear her Level

VII appeal. The district court properly dismissed this claim. A First Amendment retaliation claim

requires the following elements:

        (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
        against the plaintiff that would deter a person of ordinary firmness from continuing
        to engage in that conduct; and (3) there is a causal connection between elements one
        and two–that is, the adverse action was motivated at least in part by the plaintiff’s
        protected conduct.

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). The district court held that Plaintiff’s

complaint did not adequately allege the first element and that there was no evidence to support the

second or third elements. Even assuming for the sake of argument that Plaintiff’s allegations

establish the first two elements, there is no evidence that SCC’s decisions to expel Plaintiff and to

not hear her step VII appeal were motivated by the fact that Plaintiff chose to appeal her termination

from the OTA program. Since there is no evidence which would allow a reasonable jury to conclude

that the third element had been met, there is no need to examine the district court’s ruling on the first

two elements.

G.      Sovereign Immunity Defense

        After dismissing all of the federal law claims against SCC, the district court went on to

observe that even if dismissal had not been merited on the grounds already discussed, SCC was

entitled to Eleventh Amendment sovereign immunity. Plaintiff challenges this ruling on appeal.




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Since there is no basis for overturning the primary bases for the district court’s dismissal of the

federal claims, there is no reason to scrutinize the alternative basis of sovereign immunity.5

H.      Breach of Contract Claim

        1.      Contract claim against SCC

        Count XII of the complaint alleges that SCC breached various contractual duties set forth

in the SCC catalogue and manuals related to the OTA program. The district court properly held that

Plaintiff did not point to any language in the cited documents which constituted an unqualified

promise of a student’s right to be warned and evaluated prior to termination from the program. The

district court also noted that the SCC catalogue contained a disclaimer which explicitly stated that

its contents did not create a contract. Therefore, the district court dismissed the breach of contract

count for failure to state a claim.

        On appeal Plaintiff argues that the disclaimer language in the SCC catalogue does not doom

her contract claim because the claim is based on language in the OTA Student Manual and the OTA

Fieldwork Supervisor’s Manual, neither of which contains a similar disclaimer. However, this

argument was not presented to the district court. Below, Plaintiff’s argument was focused on

alleging that a contract was breached and little space was devoted to establishing the existence of


        5
         If SCC is considered a state entity, as opposed to a municipal entity, it is entitled to
sovereign immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 123 n.34
(1984); Mt. Health City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). However, which side of
this line a community college falls on is often a close question which depends on the particular
funding structure and measure of local autonomy of the community college in question. See United
States ex. rel. Diop v. Wayne County Cmty. College Dist., 242 F. Supp. 2d 497, 527 (E.D. Mich.
2003). To date only one case has addressed this issue in the context of a Michigan community
college. Id. (finding that the college in question was a state entity).

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a contractual relationship. The only statement related to the latter issue was that the breach of

contract claim was supported by statements in SCC’s catalogue. Plaintiff did not direct the district

court to the OTA student or supervisors’ manuals to find the source of the alleged contract. As

observed above, the appellate court’s function is “to review the case presented to the district court,

rather than a better case fashioned after a district court’s unfavorable order.” Barner, 399 F.3d at

749. Plaintiff has offered no argument that the district court’s analysis of the original argument was

flawed. Nor does an examination of the relevant portions of the record reveal any such flaw.

       2.      Contract Claim Against Rainbow Defendants

       The district court granted the Rainbow defendants’ motion for summary judgment on the

breach of contract claim on the basis that Plaintiff did not argue that claim in her response to the

motion for summary judgment. On appeal Plaintiff does not question the propriety of granting

summary judgment on an issue which has not been challenged, but only argues that she did oppose

the Rainbow defendants’ motion for summary judgment on her breach of contract claim. First, she

cites a paragraph in her response which asserted that the Rainbow defendants had violated SCC’s

rules pertaining to grades, evaluations, and termination. However, this discussion of Rainbow’s

allegedly breaking the rules does not make any reference to a contractual duty established by the

rules. Moreover, the discussion is part of a section in which Plaintiff is arguing that the Rainbow

defendants acted in concert with the SCC defendants (in support of her conspiracy claim). The only

other support for her argument that she urged the validity of her breach of contract claim is a citation

to a portion of her “reply.” However, this document was actually a sur-reply which was not

permitted by the local rules. See E.D. Mich. L.R. 7.1. Nor does the record reflect that Plaintiff

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sought or was granted permission to file a sur-reply. This district court apparently paid no heed to

this pleading. Plaintiff cannot rely on arguments she set forth in an impermissible pleading. Since

Plaintiff has failed to effectively refute the district court’s conclusion that she “did not argue her

breach of contract claim in her response to defendants’ motions for summary judgment,” there is no

reason to overturn the district court’s dismissal of the breach of contract claim against the Rainbow

defendants.

I.      Statutes of Limitations

        The district court properly dismissed counts I through XI of the complaint against the Glacier

Hills defendants and the Rainbow defendants on the basis that the statutes of limitations for those

claims were not met. There is no dispute that the statute of limitations was one year for the

defamation claims and three years for the remaining claims. The complaint was filed on October

18, 2002. Plaintiff only disputes the beginning point of the statutes of limitations.

        All the parties agree that the statutes of limitations began to run when Plaintiff knew, or

should have known, that she had been injured due to the defendants’ alleged actions. See Connelly

v. Paul Ruddy’s Co., 200 N.W.2d 70, 72 (Mich. 1972). The disagreement arises around when that

occurred. According to Plaintiff, she did not suffer any cognizable injury until October 28, 1999

when she claims SCC’s internal due process became complete, finalizing her termination. However,

the Glacier Hills and Rainbow defendants assert that she knew or should have known of the injury

she alleges they caused well before that date. Moreover, they make the legal argument that

Plaintiff’s pending administrative appeals did not toll the running of the statute of limitations. Citing

Roberson v. Tennessee, 399 F.3d 792, 795 (6th Cir. 2005).

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       In the instant case, we need not decide what, if any, impact an ongoing administrative appeal

process has on the commencement of a statute of limitations period because Plaintiff’s appeal

process was complete more than three years before she filed her complaint. The record shows that

a letter dated March 25, 1999 informed Plaintiff that her time to continue her appeal at the seventh

and final stage of the internal process had expired. In spite of this communication, Plaintiff

continued her efforts to obtain a step seven appeal and submitted an appeal packet to SCC’s Board

of Trustees. On October 28, 1999 she received a letter stating that her stage VII appeal would not

be heard because it was untimely.

       Plaintiff urges that her termination was not final until the last communication she received

rejecting her stage VII appeal. However, as the district court noted, Plaintiff’s request to the Board

to hear her step seven appeal after she had been repeatedly notified that her time to file such an

appeal had expired cannot extend the accrual of her claims. See Stewart v. United States Veterans

Admin., 722 F. Supp. 406, 408 (W.D. Tenn. 1989); Hull v. Local 414 of the Int’l Brotherhood of

Teamsters, 601 F. Supp. 869, 872-73 (N.D. Ind. 1985). The statutes of limitations began to run

when Plaintiff knew or should have known that she suffered a cognizable injury caused by

Defendants’ alleged actions. At the latest, Plaintiff knew or should have known that the internal

process was complete and her termination was final when she received the March 25, 1999 letter

informing her that her right to the final stage of appeal had lapsed. This was more than three years

before she filed this lawsuit on October 18, 2002.

       Plaintiff would have this court rule that unsubstantiated optimism that an institution might

later reverse its final decision coupled with continued requests to that effect allows a plaintiff to

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McGee v. Schoolcraft Community College

unilaterally delay the commencement of the relevant statute of limitations. This principle is

supported by neither legal precedent nor sound reasoning. Moreover, adopting this line of reasoning

would make statute of limitations law extremely unwieldy and eviscerate its fundamental purpose.

The district court correctly concluded that Counts I through XI against the Glacier Hills and

Rainbow defendants were not filed within the applicable statutes of limitations.

                                      III. CONCLUSION

       De novo review reveals that each of the district court’s holdings was correct. All defendants

were entitled to dismissal on all claims. Therefore, the decision of the district court is AFFIRMED.




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