               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0012n.06

                                       Case No. 14-1151

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                             Jan 07, 2015
SYLVIA JAMES,                                        )                   DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellant,                          )
                                                     )        ON APPEAL FROM THE
v.                                                   )        UNITED STATES DISTRICT
                                                     )        COURT FOR THE EASTERN
HILLIARD HAMPTON, et al.,                            )        DISTRICT OF MICHIGAN
                                                     )
       Defendants-Appellees.                         )
                                                     )
                                                     )                            OPINION


BEFORE:       COLE, Chief Judge; KEITH and BATCHELDER, Circuit Judges.

       COLE, Chief Judge. Sylvia James, a former Michigan state court judge, was removed

from the bench by the Michigan Supreme Court in 2012 after the state Judicial Tenure

Commission (“JTC”) investigated her for financial and other misconduct and recommended her

removal. While the investigation was ongoing, James sued the JTC and other state and local

officials under 42 U.S.C. § 1983, alleging violations of (1) her Fourth Amendment rights under

the United States Constitution stemming from a search of her courthouse office and personal safe

and (2) her Fourteenth Amendment equal protection rights under the United States Constitution

because the JTC chose not to recommend the discipline of several white Michigan state court

judges who also engaged in judicial misconduct. She also alleged various state law claims.
Case No. 14-1151, James v. Hampton


       The district court declined to exercise supplemental jurisdiction over the state law claims

and dismissed the federal claims under the Younger abstention doctrine because the JTC

proceedings against James were ongoing. A panel of our court reversed the district court’s

dismissal of the complaint, finding that abstention was proper but that the case should have been

stayed instead. On remand, the district court again dismissed the federal claims, this time for

failure to state a claim for relief, and declined to reconsider its decision not to exercise

supplemental jurisdiction over the state claims. James now appeals the dismissal of her federal

claims as well as the decision not to exercise supplemental jurisdiction. For the following

reasons, we reverse the district court’s dismissal of James’s Fourth and Fourteenth Amendment

claims and affirm the dismissal of her state claims.

                                       I.     BACKGROUND

       In reviewing a district court’s grant of a motion to dismiss, we construe the complaint in

the light most favorable to the plaintiff and accept all allegations as true. Pedreira v. Ky. Baptist

Homes for Children, Inc., 579 F.3d 722, 727 (6th Cir. 2009). Plaintiff-Appellant Sylvia James,

an African-American woman, served as the sole judge of the 22nd District Court in Inkster,

Michigan, for more than 23 years. In 2010, the Inkster City Council, the funding unit for the

22nd District Court, hired attorney David Jones to investigate James, and in February 2011 he

filed a grievance against her with the JTC alleging that James abused her office. Due to Jones’s

grievance, the JTC conducted an investigation to determine whether a formal complaint and

hearing was warranted.

       The Michigan Constitution authorizes the nine-member JTC to oversee the discipline of

Michigan’s judiciary. Mich. Const. art. VI, § 30. The JTC investigates grievances against

judges in order to determine whether to file a formal complaint. Mich. Ct. R. 9.207(B). If the



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JTC files a formal complaint, it then conducts a hearing on the matter. Mich. Ct. R. 9.210(A).

The Michigan Supreme Court may appoint a master to conduct the hearing and issue a report of

his or her findings. Mich. Ct. R. 9.210(B); 9.214. By majority vote, the JTC may then

recommend to the Michigan Supreme Court that a judge be removed from office or otherwise

disciplined. Mich. Ct. R. 9.220(A). The court then considers the recommendation of the JTC as

well as a petition and brief submitted by the judge being investigated if she so chooses. Mich.

Ct. R. 9.224. Finally, the court files an opinion and judgment, which may accept, reject, or

modify the recommendations of the JTC, or orders further evidence to be taken. Mich. Ct. R.

9.225.

         During the course of the investigation of the grievance against James, the Michigan

Supreme Court voted to place her on administrative leave on April 13, 2011. Compl., R. 1-2,

PageID 68. In May 2011, James met with Defendant Green, the regional administrator for the

Michigan Supreme Court Administrator’s Office, to discuss procedures associated with her

administrative leave, and she told Green that her safe and office contained personal documents.

Green told James that “she would not allow the violation of [James’s] privacy rights and that no

one would open her personal safe outside of her presence.” Compl., R. 1, PageID 7. Sometime

after this meeting, Defendants Green and Washington, James’s replacement as chief judge of the

22nd District Court, searched James’s office and safe. James alleges that on June 14, 2011,

documents seized during the search were provided to the JTC, but she did not learn of the search

until after it was completed. James further alleges that, sometime before the JTC filed its formal

complaint, she was allowed one hour to enter her office and retrieve items. When she entered

the office, she found that “locks to her personal safe had been dismantled and that many of the

documents that would be exculpatory were missing from her office and safe.” Id. at 9.



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       On October 26, 2011, the JTC filed a formal complaint against James alleging financial,

administrative, and employment improprieties, as well as misrepresentations to the JTC during

the investigation. In re James, 492 Mich. 553, 558, 821 N.W.2d 144, 148 (2012). In December,

the Michigan Supreme Court suspended James with pay and appointed a master, who conducted

a formal hearing from January 23, 2012 until March 1, 2012. Id.

       Three days before the hearing began, James filed this 42 U.S.C. § 1983 action in the

United States District Court for the Eastern District of Michigan, asserting violations of her

federal constitutional rights by the following two groups of defendants: (1) Hilliard Hampton,

mayor of the City of Inkster; the City of Inkster; David Jones, attorney for the City of Inkster;

and Pamela Anderson, court administrator for the 22nd District Court (collectively, “Inkster

Defendants”); and (2) Deborah Green, regional administrator for the Michigan Supreme Court

Administrator’s Office; the JTC; Paul Fischer, executive director of the JTC; and Valdemar

Washington, chief judge of the 22nd District Court (collectively, “State Defendants”). She

further alleged state claims of defamation (against Hampton), the right to privacy (against the

State Defendants), replevin for the return of her documents (against the State Defendants), and

violations of the Michigan Court Rules (against the State Defendants). She also sought a

temporary restraining order (“TRO”) against the JTC proceedings.

       Specifically, James argued that both the Inkster and State Defendants violated her Fourth

Amendment right to be free from unreasonable searches and seizures when they searched her

office and broke into her locked personal safe without a warrant or a showing of probable cause.

James further contended that these documents were provided to Fischer, the JTC executive

director, and to the JTC for use in the investigation against her. Finally, James claimed that




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Anderson, the court administrator for the 22nd District Court, removed and/or destroyed

exculpatory evidence from her safe and office.

       James also contended that the JTC and Fischer denied her the equal protection of the law

guaranteed by the Fourteenth Amendment by disciplining her while failing to initiate disciplinary

proceedings against five white Michigan state court judges who had engaged in serious judicial

misconduct. The misconduct of those judges consisted of the following: (1) improper personal

contact with a litigant in a divorce case, resulting in an improper termination and subsequent

pay-off of the court administrator who reported the contact (Judge Stowe); (2) retaliatory

termination of a court employee for living with her fiancé and of another employee who

complained the judge interrogated him about his religious beliefs (Judge Somers); (3) improperly

terminating a whistleblower-employee (Judge Kandrevas); and (4) conspiring to fire a court

employee for allegedly embarrassing the wife of one of the judges (Judges Baron and Small).

All five of the judges faced civil lawsuits that ended either in settlement or jury verdicts

unfavorable to them. The JTC did not pursue disciplinary action against any of the judges.

       The district court denied James’s motion for a TRO and also declined to exercise

supplemental jurisdiction over James’s state law claims. The court then dismissed James’s

remaining federal claims on the grounds that the abstention doctrine articulated in Younger v.

Harris, 401 U.S. 37 (1971), required it to refrain from ruling on the claims while the state

proceedings remained ongoing.

       James appealed the district court’s dismissal of her federal claims. In her opening brief

she did not challenge the court’s decision not to exercise jurisdiction over her state law claims,

but she later contended in her reply brief that she had not waived the issue. Our court addressed

only the issue of Younger abstention, concluding that abstention was proper but reversing and



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remanding because the district court should have stayed, rather than dismissed, the case given

that James sought monetary damages in addition to equitable relief. James v. Hampton, 513 F.

App’x 471 (6th Cir. 2013).

       While her appeal was pending before this court, the JTC proceedings against James

concluded. The master issued a report on April 23, 2012, finding that James had committed

judicial misconduct, and on June 11, 2012, the JTC adopted all but one of the master’s findings

and recommended that James be removed from office. In re James, 492 Mich. at 558–59, 821

N.W.2d at 148. On July 31, 2012, the Michigan Supreme Court adopted the recommendation of

the JTC that James be removed from office for the remainder of her term. Id. at 555, 821

N.W.2d at 146. The court determined that “[a]lthough some of her misconduct, considered in

isolation, does not justify such a severe sanction, taken as a whole her misconduct rises to a level

that requires her removal from office.” Id. at 556, 821 N.W.2d at 147.

       After James’s removal from the bench and the remand to district court, both the Inkster

Defendants and State Defendants filed motions to dismiss. The district court dismissed James’s

Fourth Amendment claim under Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim for relief, applying the Supreme Court’s holding in O’Connor v. Ortega, 480 U.S. 709,

726 (1987), that a public employer’s warrantless search of an employee does not violate the

Fourth Amendment if it is reasonable at its inception and in its scope. The district court

observed that James’s complaint was “devoid of any allegations alleging how or why the search

was unreasonable in terms of inception and scope,” and found that the ongoing investigation

against James justified the search. James v. Hampton, No. 12-10273, 2013 WL 6839136, at *5

(E.D. Mich. December 27, 2013).




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           The district court also dismissed James’s Fourteenth Amendment equal protection claim.

It concluded that James had failed to establish a prima facie case of discrimination because she

could not show that she and any of the five white judges were similarly situated. In support of its

conclusion, the court pointed to the fact that James had been disciplined for four counts of

judicial misconduct, including: (1) misappropriating public funds; (2) denying citizens access to

court by enforcing a business-attire policy; (3) employing a family member in violation of the

Michigan Supreme Court’s anti-nepotism policy; and (4) making misrepresentations to the JTC

during the investigation and hearing. Id. at *7. The district court further stressed that the

transgressions of three of the white judges (the court did not mention the other two judges

identified in James’s complaint) were not of “comparable seriousness” to James’s conduct, and

that James offered only “scant details” of the other judges’ misconduct. Id.

           The district court also pointed out that it had previously declined to exercise

supplemental jurisdiction over James’s state law claims and that the issue was neither appealed

to nor addressed by this court on appeal. Id. at *2. Therefore, it declined to address the issue

further.

           James now appeals the order dismissing her Fourth and Fourteenth Amendment claims,

as well as the district court’s decision to decline to exercise supplemental jurisdiction over her

state law claims.

                                          II.    ANALYSIS

           A. Standard of Review

           Our review of a district court’s dismissal of a claim under Federal Rule of Civil

Procedure 12(b)(6) is de novo. Pedreira, 579 F.3d at 727. We construe the complaint in the

light most favorable to the plaintiff and accept all allegations as true. Keys v. Humana, Inc.,



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684 F.3d 605, 608 (6th Cir. 2012). However, the plaintiff must plead “factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We review the district court’s decision to

decline to exercise supplemental jurisdiction for abuse of discretion.         Gamel v. City of

Cincinnati, 625 F.3d 949, 951 (6th Cir. 2010). A district court abuses its discretion when the

reviewing court has “the definite and firm conviction that the district court made a clear error of

judgment in its conclusion upon weighing relevant factors.” Id. (quoting Gaeth v. Hartford Life

Ins. Co., 538 F.3d 524, 528–29 (6th Cir. 2008)).

       B. Fourth Amendment Claim

       Although warrantless searches are presumptively unreasonable under the Fourth

Amendment, the Supreme Court has recognized an exception for searches of a public employee’s

workplace under the special needs doctrine. See O’Connor, 480 U.S. at 719–20. In O’Connor,

the Court reasoned that a warrant requirement would be impracticable in the public employment

context because such a requirement would seriously disrupt the routine business of the

workplace. Id. at 722. A plurality of the O’Connor Court thus laid out a two-step inquiry to

determine whether a public employee workplace search without a warrant would violate the

Fourth Amendment. First, a court must determine whether the employee has a reasonable

expectation of privacy in the workplace. Id. at 711–12. Second, if the employee does have an

expectation of privacy, the warrantless search must be reasonable both at its inception and in its

scope. Id. at 725–26. A search is justified at its inception “when there are reasonable grounds

for suspecting that the search will turn up evidence that the employee is guilty of work-related

misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as

to retrieve a needed file.” Id. at 726. The search is reasonable in scope when it is “reasonably



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related to the objectives of the search and not excessively intrusive in light of . . . the nature of

the [misconduct].” Id. (alterations in original).

               1. Reasonable Expectation of Privacy

       The O’Connor plurality disagreed with the four dissenters and Justice Scalia, who wrote

a concurring opinion, about when a public employee has a reasonable expectation of privacy.

The plurality used an “operational realities” test to determine whether Fourth Amendment rights

are implicated in a specific workplace context, reasoning that “some government offices may be

so open to fellow employees or the public that no expectation of privacy is reasonable.” Id. at

717–18. Justice Scalia concluded that the offices of government employees, as a general matter,

were covered by the Fourth Amendment but that employer investigations of violations of

workplace rules that would be regarded as reasonable in the private sector do not violate the

Fourth Amendment. Id. at 731–32 (Scalia, J., concurring). The Supreme Court has not yet

resolved which premise governs. See City of Ontario v. Quon, 560 U.S. 746, 757 (2010).

However, under either approach James can establish a reasonable expectation of privacy in her

office and safe.

       The O’Connor plurality recognized that government employees’ expectations of privacy

in their offices can be diminished by virtue of office practices and procedures or by legitimate

regulation. O’Connor, 480 U.S. at 717. The O’Connor plurality reasoned that the plaintiff in

that case had an expectation of privacy, at the very least, in his desk and file cabinets because he

did not share them with other employees and the employer had no policy against storing personal

items in them. Id. at 718–19. Our court has relied on O’Connor for the proposition that

government employees’ expectation of privacy in the workplace can be reduced through

regulations or prior notice to employees that their workspaces were subject to search. Am. Postal



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Workers Union v. United States Postal Serv., 871 F.2d 556, 560 (6th Cir. 1989) (holding that

there is no reasonable expectation of privacy in an employee’s locker because employees had

signed a waiver indicating they were subject to search); see also United States v. Broadus, 7 F.3d

460, 464 (6th Cir. 1993) (finding no reasonable expectation of privacy in the contents of a jacket

hanging inside a locker where the defendant shared the locker with a coworker and had signed a

form acknowledging the authority of postal inspectors to search the locker at any time). When

confronted with circumstances in which such regulations or prior notice to employees were not

in place, other circuits have concluded that public employees do have a reasonable expectation of

privacy.   See, e.g., United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991) (a private

government office that was not open to the public or subject to regular inspection by agency

officials, even though some other employees did have access to it); United States v. Slanina,

283 F.3d 670, 677 (5th Cir. 2002) (a government-issued computer when there was no policy that

computer usage would be monitored and no routine access of other employees to the computer),

vacated on other grounds, 537 U.S. 802 (2002); Leventhal v. Knapek, 266 F.3d 64, 73–74 (2d

Cir. 2001) (a desk, filing cabinet, and computer when the employee had exclusive use of the

items and there was no policy of routine searches by the employer).

       Here, there is no indication of any policies or practices at the 22nd District Court that

would have diminished James’s expectation of privacy in her office and safe. Nor is there

evidence that her office or safe were subject to routine searches by the City of Inkster, other

court officials, or the JTC, or that the office was not for her exclusive use. James kept personal

belongings in the office. She states that the safe was secured with two locks, and there is no

indication that anyone else had access to the safe. She also claims that she purchased the safe




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with her personal funds and used it exclusively. Therefore, she can establish a reasonable

expectation of privacy in both the office and safe.

               2. Reasonableness of the Search

       Since James has established a reasonable expectation of privacy, we next turn to the

question of whether the office and safe were part of the “workplace context” and thus should be

analyzed under the reasonableness rubric of O’Connor, and if so, whether the search must be

upheld as reasonable under the circumstances.

       In defining the boundaries of the workplace context, the O’Connor plurality explicitly

carved out an exception to the reasonableness standard that it set forth for a workplace search:

       Not everything that passes through the confines of the business address can be
       considered part of the workplace context, however. An employee may bring
       closed luggage to the office prior to leaving on a trip, or a handbag or briefcase
       each workday. While whatever expectation of privacy the employee has in the
       existence and the outward appearance of the luggage is affected by its presence in
       the workplace, the employee’s expectation of privacy in the contents of the
       luggage is not affected in the same way. The appropriate standard for a
       workplace search does not necessarily apply to a piece of closed personal
       luggage, a handbag or a briefcase that happens to be within the employer’s
       business address.

Id. at 716 (emphasis in original).     Although an office is clearly within the bounds of the

workplace context delineated in O’Connor, no case in our circuit has presented the issue of a

warrantless search of a locked personal item that a public employee had not been previously

notified would be subject to search. Indeed, the few courts that have analyzed this language

from O’Connor have distinguished the items that were searched either because they were used

primarily for purposes related to their employment or because the employees were on notice that

their personal items were subject to search. See, e.g., United States v. Gonzalez, 300 F.3d 1048,

1054–55 (9th Cir. 2002) (upholding the search of a public employee’s personal backpack as he

was leaving work because he had been notified that his personal belongings were subject to

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Case No. 14-1151, James v. Hampton


search at any time in order to discourage employee theft and the search did not go beyond the

scope appropriate to search for stolen merchandise); Gossmeyer v. McDonald, 128 F.3d 481, 490

(7th Cir. 1997) (upholding the search of a filing cabinet and storage unit located in her office, but

purchased by the employee, because they were purchased “primarily for the storage of work-

related materials,” the plaintiff had purchased the items due to a lack of storage space in her

office, and the supervisor had a key at least to the storage unit).

       The search of James’s safe presents very different circumstances than these cases because

she claims to have used the safe primarily for personal use. James purchased the safe herself,

kept it locked, and used it to store personal items. James alleges that she did not authorize

employer use or access; she used it exclusively. Specifically, James alleges that she and her

attorney met with Defendant Green and informed her that the safe contained personal documents.

In response, James was advised that no one would violate her privacy rights. Importantly,

because she was not on notice that her safe could be subject to search and there is no evidence

that others had access to her safe or that it was “generally within the employer’s control,”

James’s safe is further distinguished from the confines of the workplace delineated in O’Connor,

480 U.S. at 715 (“The workplace includes those areas and items that are related to work and are

generally within the employer’s control.”). Thus, although the safe was “within the employer’s

business address,” it is analogous to a piece of closed personal luggage or a briefcase because it

was not within the employer’s control, and thus is not part of the “workplace context.” Id. at

716. O’Connor counsels that the warrantless search of the safe falls outside the bounds of the

special needs exception to the warrant requirement altogether.

       Because the safe is not a workplace item, it is subject to the general rule under the Fourth

Amendment. The complaint states that the safe was searched absent a warrant, probable cause,



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Case No. 14-1151, James v. Hampton


or exception. These allegations sufficiently state an illegal search claim under the Fourth

Amendment.

       Moreover, even if we consider James’s safe to be within the workplace context, thus

triggering the special needs exception, James has still stated a plausible claim that the search was

unreasonable in its scope because it was “excessively intrusive in light of . . . the nature of the

[misconduct].” Id. at 726.

       In order to state a Fourth Amendment claim against a warrantless search in a workplace

context, James must plead facts that could show that the search was unreasonable either at its

inception or in its scope. Id. James argues that the search of her office and locked safe was

unreasonable at its inception because no formal charges had been lodged against her at the time

of the search. But there is no support for the proposition that a formal charge is a prerequisite to

the search of a government employee’s workplace. Indeed, in O’Connor, the plaintiff’s office

was searched after he, like James, had been placed on administrative leave pending an

investigation into work-related misconduct. O’Connor, 480 U.S. at 712–13. In Jackson v. City

of Columbus, our court upheld the dismissal of a police chief’s claim that his office was

unreasonably searched after he was reassigned from his duties upon the city’s initiation of an

investigation against him for improper conduct. 194 F.3d 737, 744 (6th Cir. 1999), overruled on

other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). At the point of the search,

no formal charges had been lodged or disciplinary proceedings commenced against the chief. Id.

We cannot conclude that the search of James’s office was unreasonable simply because it was

initiated before formal charges were filed.

       James further argues that the search was unreasonable in its inception because it lacked

any “safeguards” to ensure that the documents were not destroyed or otherwise made unavailable



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to her. But this contention is irrelevant to an analysis of the reasonableness of the search at its

inception. Other circuits have focused not on how evidence found in a public employee’s office

was safeguarded but on whether the evidence seized was work-related or whether there were

sufficient grounds to suspect the employee of work-related misconduct. In one case, the Seventh

Circuit held that a search of a child protective investigator’s office was reasonable at its

inception due to an anonymous tip that the investigator possessed child pornography.

Gossmeyer, 128 F.3d at 491. The court distinguished the facts before it from an earlier Seventh

Circuit case disposed of on other grounds in which the court expressed doubt that the search was

reasonable at its inception because it was initiated months after an anonymous tip that did not

indicate the informant’s first-hand knowledge. Id. at 491 (citing Shields v. Burge, 874 F.2d.

1201, 1204–05 (7th Cir. 1989)). In Gossmeyer, by contrast, the court found the anonymous tip

to be sufficient grounds to suspect the employee of work-related misconduct because: the tipper

identified herself as a coworker and alleged specifically where the pictures could be found; the

search was conducted immediately after the tip was received; and the child protective

investigator had unusual access to children. Id. In another case, the Fourth Circuit found that

entry into an employee’s office to seize his hard drive was reasonable at the inception of the

search because the employer was aware that the employee had misused his Internet privileges to

download child pornography. United States v. Simons, 206 F.3d 392, 401 (4th Cir. 2000).

       Here, there were “reasonable grounds” for suspecting that a search of James’s office

would yield evidence that James was “guilty of work-related misconduct.” O’Connor, 480 U.S.

at 726. It was reasonable to suspect that the judge’s office might contain financial documents

and other evidence useful in an investigation. An investigation by Attorney Jones had uncovered

possible financial improprieties in the court’s management, which led him to file a grievance



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with the JTC. By the time the search was conducted, the JTC had begun an investigation against

James and the Michigan Supreme Court had voted to place her on administrative leave. The

facts here are similar to Jackson, where shortly after the city began an investigation against the

police chief for improper conduct in office, he was placed on administrative leave, his office was

searched, and the matter was later referred to the Columbus Municipal Service Commission.

194 F.3d at 744.    The Commission ultimately found that the chief had failed to properly

discipline a commander and had destroyed police records in a homicide investigation. Id. We

found that search to be reasonable in its inception. Id. at 755. Like the plaintiff in Jackson,

James has not alleged facts that suggest it would be unreasonable, given the context of the JTC

investigation against her, to suspect her office to contain evidence of her work-related

misconduct. Therefore, we conclude that the search of James’s office was reasonable at its

inception.

       James next contends that the search was unreasonable in scope because it “went well

beyond a search of records of the 22nd District Court, and involved intrusions” into her locked

safe, which was not the property of the court. To be reasonable in scope, a search must be

reasonably related to the objectives of the search and not excessively intrusive in light of the

nature of the misconduct. O’Connor, 480 U.S. at 726. Our court has confronted the issue of a

search of a government office most squarely in Jackson. There, we upheld a warrantless search

of a police chief’s office conducted after he was placed on administrative leave. Jackson,

194 F.3d at 754–55 (“Jackson alleged that his office was sealed off, his professional and personal

belongings were searched, and the locks on his office were changed.”). We found that these

allegations alone were insufficient to state a claim that the search was unreasonable. Id. at 755.

And given the subject matter of the misconduct allegations against James—including



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employment irregularities and misappropriation of public funds—a thorough search of areas that

might contain financial and employment records is “reasonably related to the objectives of the

search.” O’Connor, 480 U.S. at 726. James acknowledged in her complaint that she had “taken

control” of the court’s finances in 2010—all the more reason to suspect that financial documents

pertinent to the investigation would be located in her office. However, unlike in Jackson, James

alleges that a locked personal item—her safe—was also searched, and thus Jackson does not

settle the question of whether the search was unreasonable in scope. As discussed above, James

has alleged that she purchased the safe, maintained it for her personal use, and kept it under lock

and key. These facts are sufficient to establish a plausible claim that it was excessively intrusive

to search her personal safe, because evidence of work-related misconduct was unlikely to be

found there. See O’Connor, 480 U.S. at 726.

       The defendants argue that due to an audit that indicated irregularities in the finances of

the 22nd District Court, it was reasonable to search James’s safe for documents that might

uncover evidence of her misconduct, and that since James alleges that some of the documents in

the safe were exculpatory, they must necessarily be work-related. We are unconvinced by this

contention.   As James has pointed out, personal financial documents could be considered

exculpatory to charges of improper expenditures of court funds if the documents showed that she

had used personal funds for certain purchases. Further, we note that the defendants’ argument

that there were grounds for the search also demonstrates that there were likely grounds for the

JTC to secure a warrant. James had already been placed on administrative leave and did not

have access to her office or safe at the time of the search, and there is no indication of any

exigent circumstances that would have made it impracticable for the JTC to obtain a search

warrant. Moreover, while many workplace searches under the O’Connor exception involve



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employers like public hospitals where a warrant requirement may impose unreasonable demands

on supervisors who are unfamiliar with such procedures, we do not believe that a warrant

requirement for a search of James’s personal safe would “seriously disrupt the routine conduct of

business and be unduly burdensome” for an investigative body like the JTC. O’Connor, 480

U.S. at 722.

       Therefore, we find that James has stated a claim that the search of her locked personal

safe was unreasonable. Accordingly, we reverse the district court’s dismissal of James’s Fourth

Amendment claim.

       C. Equal Protection Claim

       In order to prevail on a Fourteenth Amendment equal protection claim under 42 U.S.C.

§ 1983, a plaintiff must prove the same elements required to establish a disparate treatment claim

under Title VII of the Civil Rights Act of 1964. Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir.

2000). A plaintiff may prove disparate treatment either by direct evidence of discriminatory

motive or through circumstantial evidence based on a prima facie showing of discrimination.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In order to establish a prima

facie case of racial discrimination under the burden-shifting framework laid out in McDonnell

Douglas, the plaintiff must show that 1) she was a member of a protected class; 2) she suffered

an adverse employment action; 3) she was qualified for the job; and 4) she was treated

differently from similarly situated employees who were not members of the protected class.

Perry, 209 F.3d at 601. Upon establishing the prima facie case, the burden shifts to the

defendant to show evidence of a legitimate nondiscriminatory reason for the adverse

employment action. White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008). Here,

the district court found that James did not state a plausible claim because she did not demonstrate



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Case No. 14-1151, James v. Hampton


that she and the other judges engaged in relevantly similar conduct. See Wright v. Murray

Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006). Accordingly, the district court held that James

had not established the fourth prong of the prima facie case and thus dismissed her complaint.

        Although it is ultimately James’s burden either to establish the elements of the prima

facie case under McDonnell Douglas or to offer direct evidence of discrimination, the Supreme

Court has held that McDonnell Douglas sets an evidentiary standard, not a pleading requirement.

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002). In Swierkiewicz, a unanimous Court

reasoned that because a plaintiff may ultimately rely on either direct or circumstantial evidence

to make out a case of discrimination, it would be inappropriate to require “a plaintiff without

direct evidence of discrimination at the time of his complaint” to “plead a prima facie case of

discrimination, even though discovery might uncover such direct evidence.” Id. at 511. Because

“the precise requirements of a prima facie case can vary depending on the context,” it is

inappropriate to require the plaintiff to plead certain facts she may ultimately not need to prove.

Id. at 512.

        Our court has held that Swierkiewicz remains good law after the Supreme Court’s

decisions in Iqbal and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). See Keys v.

Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012). We have consistently held that McDonnell

Douglas “does not set the standard for pleading any complaint.” Lindsay v. Yates, 498 F.3d 434,

439–40 (6th Cir. 2007); see also Pedreira, 579 F.3d at 728 (explaining that an analysis of the

prima facie case under the McDonnell Douglas framework is “premature” at the motion to

dismiss stage). Therefore, it was improper for the district court to dismiss James’s claim on the

ground that she had failed to plead a prima facie case under McDonnell Douglas. The district

court erroneously relied on our decision in Perry, which applied the McDonnell Douglas



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framework to a review of a district court’s grant of summary judgment to an employer on a racial

discrimination claim. 209 F.3d at 600. To withstand a motion to dismiss, James’s complaint

need only provide “an adequate factual basis” for a discrimination claim in order to satisfy the

pleading requirements of Federal Rule of Civil Procedure 8(a)(2). Serrano v. Cintas Corp.,

699 F.3d 884, 897 (6th Cir. 2012).

       Although the plaintiff may survive a motion to dismiss without pleading a prima facie

case of discrimination, the complaint must nevertheless allege sufficient “factual content” from

which a court could “draw the reasonable inference” of racial discrimination. Iqbal, 556 U.S. at

678. In Swierkiewicz, in which both national origin and age discrimination were at issue, the

Supreme Court held that the plaintiff “easily satisfie[d]” the pleading requirements with a

complaint that “detailed the events leading to his termination, provided relevant dates, and

included the ages and nationalities of at least some of the relevant persons involved with his

termination.” 534 U.S. at 514. Recently, in Keys, we reversed a district court’s dismissal of a

Title VII race discrimination claim because the African-American plaintiff’s complaint detailed

several specific adverse employment actions in which she alleged she was treated differently

than her white counterparts and identified key supervisors and other relevant persons by race and

either name or company title. 684 F.3d at 610.

       James alleges facts that are sufficient “to state a claim to relief that is plausible on its

face.” Twombly, 550 U.S. at 570. She identifies herself as a member of a protected class, details

the JTC’s investigation against her both prior and subsequent to her suspension from her

judgeship, and identifies and describes the misconduct of five white state court judges who were

not investigated or disciplined by the JTC. Although the district court correctly noted that

James’s complaint lacks significant detail of the alleged misconduct of the other judges, on its



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Case No. 14-1151, James v. Hampton


face the complaint provides enough facts to “raise a right to relief above the speculative level.”

Id. at 555. Her factual allegations are analogous to those in Swierkiewicz and Keys, in which the

plaintiffs pleaded membership in the protected class, specific adverse employment actions taken

against them, and instances in which they were treated less favorably than identified non-class

members. She does not merely make “conclusory allegations” that the JTC treated white judges

differently, but identifies specific individuals and summarizes instances of their misconduct. Cf.

16630 Southfield Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 506 (6th Cir. 2013)

(upholding the dismissal of a race discrimination claim in which the plaintiffs alleged their belief

that a bank had refinanced the loans of delinquent white borrowers but failed to identify these

borrowers). The “factual content” she alleges, in the form of the misconduct of the other judges,

is sufficient to draw a reasonable inference of discrimination because she points to specific

instances of abuse of judicial power by white judges. For instance, she alleges that one judge

had improperly used court funds to pay off a court employee who reported inappropriate

personal contact between the judge and a litigant, and that other judges had engaged in various

other employment improprieties.       James’s complaint is thus sufficient to “giv[e] rise to

‘reasonably founded hope that the discovery process will reveal relevant evidence’ to support”

her claims. Lindsay, 498 F.3d at 440 n.6 (quoting Twombly, 550 U.S. at 559–60).

       Accordingly, we reverse the dismissal of James’s equal protection claim as to the State

Defendants and remand for further proceedings.          Because James has not alleged an equal

protection claim against the Inkster Defendants, on remand the district court need only consider

this claim against the State Defendants.




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Case No. 14-1151, James v. Hampton


       D. Supplemental Jurisdiction

       “The law-of-the-case doctrine bars challenges to a decision made at a previous stage of

the litigation which could have been challenged in a prior appeal, but were not.” United States v.

Adesida, 129 F.3d 846, 850 (6th Cir. 1997). In its January 2012 order denying James’s motion

for a TRO, the district court declined to exercise supplemental jurisdiction over her state law

claims. When James subsequently appealed both that order and the April 2012 order granting

defendants’ motion to dismiss under the doctrine of Younger abstention, she did not raise the

issue of supplemental jurisdiction. Because she could have raised the issue during the first

appeal, she may not now challenge the district court’s decision not to exercise supplemental

jurisdiction over her state law claims.

       James argues that she did in fact raise the issue in her first appeal because she appealed

the district court’s January order and because she argued in her reply brief on the first appeal that

the district court abused its discretion in declining to exercise jurisdiction.      Both of these

arguments lack merit. Federal Rule of Appellate Procedure 28(a)(5) requires that an appellant’s

brief contain a statement of the issues presented for review and an argument on each issue

presented. Radvansky v. City of Olmsted Falls, 395 F.3d 291, 318 (6th Cir. 2005). But James

did not present the issue of supplemental jurisdiction in her statement of issues, nor did she

advance the argument elsewhere in her opening brief in the first appeal.

       Although James did subsequently raise the issue of supplemental jurisdiction in her reply

brief, an issue raised for the first time on appeal in a reply brief is generally not reviewable.

Osborne v. Hartford Life & Accident Ins. Co., 465 F.3d 296, 301 (6th Cir. 2006) (“We ordinarily

do not entertain an argument first made in a reply brief.”); Marks v. Newcourt Credit Group,

Inc., 342 F.3d 444, 462 (6th Cir. 2003) (“An appellant waives an issue when he fails to present it



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Case No. 14-1151, James v. Hampton


in his initial briefs before this court.”). Therefore, we need not review James’s supplemental

jurisdiction claim because she had the opportunity to raise the issue in her prior appeal but did

not.

       Moreover, even if James did not waive the issue, the district court did not abuse its

discretion here. Our decisions have consistently affirmed that supplemental jurisdiction is a

“doctrine of discretion, not of plaintiff’s right.” Habich v. City of Dearborn, 331 F.3d 524, 535

(6th Cir. 2003) (internal quotation marks omitted). A district court may decline to exercise

supplemental jurisdiction, among other reasons, if the claim “raises a novel or complex issue of

State law.” 28 U.S.C. § 1367(c)(1). Here, the district court found that James’s common law

right-to-privacy claim presented a novel and complex issue of state law and therefore declined to

exercise jurisdiction over that claim as well as her remaining state law claims. The court did not

articulate its reasons for declining to exercise jurisdiction over the remaining state law claims,

but did cite 28 U.S.C. § 1367(c)(4) in noting its discretion to decline to exercise jurisdiction if

there are “compelling reasons” to do so. It was reasonable for the district court to conclude that

a novel and complex state law issue made the exercise of its jurisdiction over all of James’s state

law claims unwise.

       Although James argues that the district court abused its discretion because the interest of

judicial economy weighs in favor of exercising supplemental jurisdiction, the appropriate inquiry

for the trial court is not to consider only judicial economy but to balance the “interests of judicial

economy and the avoidance of multiplicity of litigation” against “needlessly deciding state law

issues.” Landefeld v. Marion General Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993). In

Landefeld, we upheld the district court’s decision because it found novel state law questions and

“no overwhelming issues of judicial economy.” Id.; see also Gamel, 625 F.3d at 953 (affirming



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Case No. 14-1151, James v. Hampton


a district court’s decision to decline to exercise supplemental jurisdiction when the court found

that exercising jurisdiction would not advance judicial economy and would result in an

unnecessary resolution of state law). The district court dismissed James’s state claims early in

the proceedings, which minimized any delay and inconvenience to James.               See Musson

Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1255 (6th Cir. 1996) (suggesting that

dismissal of state claims is more appropriate “when the court has not yet invested a great deal of

time” into their resolution).     We thus affirm the district court’s dismissal of James’s

supplemental state law claims.

                                      III. CONCLUSION

       For the foregoing reasons, we reverse the district court’s dismissal of James’s Fourth and

Fourteenth Amendment claims and remand for further proceedings consistent with this opinion.

We affirm the dismissal of James’s supplemental state law claims.




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Case No. 14-1151, James v. Hampton


       DAMON J. KEITH, concurring in part and dissenting in part. I concur in part and

dissent in part because the holding that James did not plead facts sufficient to demonstrate that

the search of her office was unreasonable is based on a misapplication of the presumption of

truth given to pleadings under the Federal Rules of Civil Procedure. Otherwise, I fully concur

with Chief Judge Cole and his reasoning. As the majority opinion acknowledges, in reviewing a

district court’s dismissal of a claim under Rule 12(b)(6), we are required to construe the

complaint in the light most favorable to a plaintiff and accept all allegations as true. Keys, 684

F.3d at 608. The majority held that James had a legitimate expectation of privacy in her office

but that the search of her office was reasonable in its inception because it was reasonable to

suspect that her office might contain financial documents and evidence useful in Defendants’

investigation. I agree that the conclusion that the search was reasonable in its inception might be

accurate but only if James had pleaded that her office was searched to further a legitimate

investigation. James did not so aver. James alleged in her complaint that Defendants initiated

fraudulent claims against her to intimidate her and ultimately remove her from office. James

further alleged that there was no proper purpose to search her office and that the investigation

and search were, in fact, initiated for the express purpose of pushing her out of office. For the

following reasons, I find that these allegations sufficiently state an illegal search-of-office claim

under the Fourth Amendment.

       Although the Supreme Court recognized an exception in O’Connor to the Fourth

Amendment’s protection against warrantless and unreasonable searches and seizures, the

exception is not without limits, limits that I believe apply to this case. As a starting point,

O’Connor defined the workplace, stating that “[t]he workplace includes those areas and items

that are related to work and are generally within the employer’s control . . . [e.g.,] offices, desks



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Case No. 14-1151, James v. Hampton


and file cabinets, among other areas . . . .” O’Connor, 480 U.S. at 715−16. The court then held

that if an employer searches the workplace area to which the employee does not have a

legitimate expectation of privacy, there is no constitutional violation. Id. If, on the other hand,

an employer searches an area to which the employee has a legitimate expectation of privacy, to

withstand constitutional rigor, the search must be reasonable in both its inception and scope. Id.

at 717−18, 726. O’Connor held that a search is only reasonable in its inception “when there are

reasonable grounds for suspecting that the search will turn up evidence that the employee is

guilty of work-related misconduct.” Id. at 726. To be reasonable in scope, a search must be

“reasonably related to the objectives of the search and not excessively intrusive in light of the

nature of the misconduct.” Id. (alterations in original) (citation omitted).

          There is little room to dispute that James had a legitimate expectation of privacy in her

office.    This case turns on whether the alleged search of James’s office was reasonable,

specifically whether it was reasonable in its inception. The majority concludes that Defendants’

proffered reason for searching James’s office justifies the search even though it is contrary

to James’s allegations. The majority states, “It was reasonable to suspect that the judge’s office

might contain financial documents and other evidence useful in an investigation, and James has

not alleged any facts that suggest otherwise.” It is this disregard for the facts alleged in the

complaint that leads directly to error, because the complaint does suggest otherwise. See United

States v. Hamilton, 538 F.3d 162, 169 (2d Cir. 2008) (reversible error when a district court fails

to credit the facts asserted).    James alleged that: (1) the search was conducted to remove

exculpatory evidence and “alter[] Court documents to create the appearance of wrongful

conduct” in order to create negative publicity that would lead to her removal; and, (2) this

scheme was only concocted to remove a black judge from office who spoke against a political



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figure. James even asserted the name of a staff member who was allegedly coerced into

searching her office and destroying her documents.         James further alleged that other staff

members were instructed not to assist her with her defense. And, she alleged that white judges

who were under review by the JTC were treated less harshly than her because of race. These

allegations are sufficient “factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. As further proof,

James attached an affidavit to the complaint of an attorney who worked for both the JTC and

Attorney Grievance Commission of the MSC. The affidavit says, “The treatment James has

received by the JTC and MSC is unprecedented.”

       Notably, the majority reaches all arguments, except the argument that Defendants created

a ploy to remove a black judge from office and that searching her office was merely part of the

scheme. To that end, the majority cites many cases, but none of these cases is instructive on the

pleading standard required to challenge the purpose of a workplace search. Jackson is a case

where we, interpreting the Ohio Constitution, held that the plaintiff failed to state a claim

regarding the search of his office because he only alleged that “his office was sealed off, his

professional and personal belongings were searched, and the locks on his office were changed.”

194 F.3d at 754-55. We held that “these facts do not establish that the search was unreasonable,

unjustified in its inception, or unreasonably related in scope to the circumstances that prompted

it.” Id. at 755. We did not state the extent of specificity that is required to state a claim for an

unconstitutional search of an office. Gossmeyer, like Jackson, does not analyze an instance

when the purpose of the search is disputed. In Gossmeyer, the Seventh Circuit held that a

reliable tip could support a workplace search. 128 F.3d at 491. The Fourth Circuit’s holding in

Simons is also distinguishable because the employer’s justification for the search was not



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Case No. 14-1151, James v. Hampton


challenged. Simons held that the seizure of an employee’s hard drive was reasonable in its

inception because the employer was already aware that the employee “had misused his Internet

access to download over a thousand pornographic images, some of which involved minors.”

206 F.3d at 401 (citing O’Connor, 480 U.S. at 726). Because the plaintiffs in the above cases

did not allege facts challenging the justification of the searches, these cases are less instructive.

        O’Connor, however, is directly instructive here given that the complaint sets forth a

factual reason for challenging the constitutionality of the search of James’s office. There, the

Supreme Court held that when the parties are “in dispute about the actual justification for the

search, and the record [is] . . . inadequate for a determination of [its] reasonableness[,]” summary

judgment is inappropriate. O’Connor, 480 U.S. 727.             If it is improper to grant summary

judgment when the justification of the search is disputed, the same certainly holds true on a

motion to dismiss standard when the allegations are taken as true and viewed in the light most

favorable to a plaintiff.

        While no court has specifically set forth the pleading standard required to sufficiently

state a claim for an illegal workplace search, or as the majority would require, to challenge an

employer’s reason for conducting a workplace search, there is case law discussing the

unconstitutionality of searches conducted for personal reasons, unrelated to work. See generally

Abbott v. Village of Winthrop Harbor, 205 F.3d 976, 982–83 (7th Cir. 2002) (recording the

personal telephone line of officer for personal reasons, unrelated to police work is

unconstitutional). James unequivocally alleged that the search of her office was personal. She

asserted that a defendant met with her and told her that the accusations, which Defendants argue

warranted the search, were political. Because the complaint, viewed in a light most favorable to




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Case No. 14-1151, James v. Hampton


James, compels the inference that there was no proper purpose to search her office, James did

sufficiently state an illegal search-of-office claim under the Fourth Amendment.

        Gossmeyer further emphasizes why James’s search-of-office claim is plausible as

alleged. Gossmeyer held that a tip is reliable, even if anonymous, when the tip: (1) comes from a

source who would have knowledge of the misconduct, (2) is serious and specific, and

(3) specifically identifies where evidence of the misconduct can be found. See Gossmeyer, 128

F.3d at 491. Here, the information that Defendants argue prompted the search did not come from

a reliable source, it came from Jones. The majority states that Jones’s grievance, which alleged

abuse of office, justified the search. James alleged, however, that Jones was hired to disparage

her in an effort to remove her from office and that filing a false charge was allegedly part of the

scheme. James also alleged that Defendants worked collectively to achieve that common goal.

The information Jones provided could not reasonably support a legitimate search because of his

purported bias and alleged conspiracy to remove James from office. Secondly, the record is

devoid of the details contained in Jones’s grievance. We only know that the grievance was based

on abuse of office. We do not know what the grievance detailed. We do not even know if the

grievance stated where evidence of misconduct could be found. The record does not support that

Jones’s grievance contained enough specificity to reasonably support a search.          Thus, the

majority errs in concluding that the search was reasonable based on Jones’s grievance because

such a conclusion ignores that James alleged that Jones was part of the scheme and the record is

lacking in detail.

        Even if Jones’s grievance would have been a reliable basis to search James’s office, it

could not support the search because it had gone stale. The majority reasons that the timeline of

the investigation and search of James’s office is analogous to the investigation and search of the



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Case No. 14-1151, James v. Hampton


police chief’s office in Jackson. But, it is not. In Jackson, the chief’s office was searched no

more than a month after an investigation began and days after he was reassigned pending further

investigation. 194 F.3d at 744. The search of James’s office occurred several months after

Defendants’ investigation began and Jones’s grievance was filed. Jones was hired and began to

investigate James in 2010. Jones’s investigation lasted months. Jones filed his grievance with

the JTC in February 2011. While on leave and sometime after May 2011, James’s office and

safe were searched. James alleged that on June 14, 2011, documents seized during the search

were provided to the JTC, but she did not learn of the search until after it was completed. James

alleged that, sometime before the JTC filed its complaint, she was allowed one hour to enter her

office and retrieve items. When she entered her office, she found that “locks to her personal safe

had been dismantled and that many of the documents that would be exculpatory were missing

from her office and safe.” According to this timeline, the search was conducted roughly six

months after the investigation began and at least three months after the grievance was filed.

Therefore, it is not plausible to think that Jones’s grievance supported the ground for the search.

       The majority, however, argues that the grievance was sufficient to justify the search of

James’s office because “Attorney Jones had uncovered possible financial improprieties in the

court’s management, which led him to file a grievance with the JTC.” Defendants hired an

attorney to investigate James who, as the majority holds, discovered only the possibility of

financial impropriety after a several-month long investigation. But, the possibility of misconduct

is not the standard; there must be sufficient grounds to suspect the employee of work-related

misconduct. Even considering that it were the standard, Jones’s uncovered possibility would not

suffice because information about the grievance is lacking in detail. And, information about

what possible financial improprieties Jones discovered is also lacking in detail. It is error to hold



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Case No. 14-1151, James v. Hampton


that a grievance, which we only know was based on abuse of office, is sufficient to suspect

James of work-related misconduct.

       The search of James’s office was, at best, a mere unauthorized fishing expedition.

Shields, a case to which Gossmeyer distinguished its ruling, expressed more than doubt that “the

sparse record did not establish the nature of the tip, the reliability of the informant, the extent to

which the tip was corroborated, or any other facts which might have led investigators to suspect

that Shields was involved in any misconduct[,]” Gossmeyer, 128 F.3d at 491 (citing Shields, 874

F.2d at 1204), as the majority’s main focus. The court was equally concerned that the search

took place several months after the tip had been received. Id. Specifically, Shields cautioned

that the delay between a tip and a search would create “an inference . . . that instead of being

based on reasonable grounds that the search would discover relevant evidence, the search was

merely a fishing expedition conducted with the hope that something would turn up.” 874 F.2d at

1204 (emphasis added); see also Shamaeizadeh v. Cunigan, 338 F.3d 535, 549 (6th Cir. 2003).

       According to James, the search was conducted with the hope to find her personal,

exculpatory documents and destroy them. James alleged that the search was conducted no

longer than one month after she and her attorney informed Defendants that there were personal

documents in her office and safe. James alleged that during that meeting, she questioned, but

was assured of, the safe keeping of her personal documents and privacy. She alleged that after

that meeting, Defendants searched her office without her knowledge or consent, seizing

exculpatory documents to thwart her defense. The above meeting took place in May 2011.

Although the exact date of the search is not alleged, the James did allege that it occurred prior to

June 14, 2011. Because the date of the meeting is in closer proximity to the search, it is plausible

to believe that James’s alleged conversation with Defendants prompted the search of her office,



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Case No. 14-1151, James v. Hampton


not Jones’s grievance. If this is true, not only have Defendants been disingenuous about what

prompted their search, the search was undoubtedly unjustified. For the above reasons and taking

all of the allegations in the complaint as true, there are sufficient allegations which establish that

the search was unreasonable at its inception. Accordingly, James sufficiently pleaded an illegal

search-of-office claim under the Fourth Amendment.

       Because James pleaded an illegal search-of-office claim, the search of her safe was also

illegal for these reasons stated above as well as for those reason stated in the majority opinion.

And, because the alleged search of office and safe were illegal, so was the seizure of documents

within the office and safe. Although fourth-amendment cases sometimes refer synonymously to

searches and seizures, “there are important differences between the two.” United States v.

Giannetta, 909 F.2d 571, 578 (1st Cir. 1990). Seizures refer to a retained interest in the

possession of property, searches to personal privacy. Texas v. Brown, 460 U.S. 730, 747 (1983);

see also Arizona v. Hicks, 480 U.S. 321, 328 (1987).            O’Connor declined to decide the

appropriate Fourth Amendment standard for seizures made pursuant to a warrantless workspace

search, O’Connor, 480 U.S. at 729 n.* (“We have no occasion in this case to reach the issue of

the Fourth Amendment reasonableness of seizures . . . [n]either the District Court nor the Court

of Appeals addressed the issue . . . .”), and neither need we. Because the alleged search of the

office and safe were unconstitutional, so was the seizure of documents derived from the search. I

respectfully concur in part and dissent in part.




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Case No. 14-1151, James v. Hampton


        ALICE M. BATCHELDER, Circuit Judge, dissenting. Given the amount of ink that

has been spilled in this case, it is difficult to determine which opinion controls on which point.

For the sake of ease, I will refer to Chief Judge Cole’s opinion as the majority opinion. Although

I agree with the majority that there was no Fourth Amendment violation in the search of James’s

office and that James has waived her supplemental jurisdiction argument, I respectfully dissent

from the remainder of the opinion.           The majority opinion’s Fourth Amendment analysis

regarding the safe rests on the dubious assumption that a safe is more analogous to a portable,

lightweight briefcase or piece of luggage than the more permanent office fixtures of a desk or

filing cabinet. Because a safe should be analyzed as part of the “workplace context,” and

because the search here was both justified at its inception and reasonable in its scope, the district

court properly dismissed James’s Fourth Amendment claim. Further, although the majority is

correct to point out that James need not plead a prima facie case of discrimination, she still must

plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). She has not met even this liberal pleading standard and

thus the district court did not err in dismissing her Fourteenth Amendment claim either. I would

affirm the district court’s opinion in its entirety.

                                                       I.

        The majority’s Fourth Amendment analysis rests on two separate misapprehensions of

O’Connor v. Ortega, 480 U.S. 709 (1987). First, the majority incorrectly places the safe outside

of both the workplace context and, by extrapolation, O’Connor’s reasonableness inquiry for

workplace searches. Second, assuming arguendo that the safe is part of the workplace context,

the majority analyzes the search under the O’Connor framework but incorrectly characterizes it

as unreasonable in its scope.



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Case No. 14-1151, James v. Hampton


                                                          A.

         Whether or not an item is part of the “workplace context” is a threshold inquiry that

determines whether an individual has a reasonable expectation of privacy in that item. See

O’Connor, 480 U.S. at 715 (“Because the reasonableness of an expectation of privacy, as well as

the appropriate standard for a search, is understood to differ according to context, it is essential

first to delineate the boundaries of the workplace context.”).1 The O’Connor Court contrasted

the workplace context, which includes hallways, cafeterias, offices, desks, and filing cabinets

with things that merely “pass[] through the confines of the business address” such as closed

luggage, handbags, or briefcases. Id. at 716. Purely as an intuitive matter, the most relevant

factor for distinguishing between the two groups is the portable nature of the item. Desks and

filing cabinets are fixtures of an office whereas handbags and briefcases can rightly be said to

“pass[] through the confines of the business address,” usually on a daily basis. Indeed, the items

the Court placed outside the workplace context are inherently transient. See id. (“An employee

may bring closed luggage to the office prior to leaving on a trip, or a handbag or briefcase each

workday.” (emphasis added)). By contrast, few employees, if any, lug a safe to and from work

each day.

         In the majority’s opinion, however, a safe is analogous to a piece of closed personal

luggage or a briefcase. This defies reason. The majority emphasizes that James purchased the

safe herself and kept it locked. But in Gossmeyer v. McDonald, 128 F.3d 481 (7th Cir. 1997), a

case on which the majority relies, the plaintiff similarly contended that she had an expectation of

privacy in a filing cabinet and a storage unit because she had bought them herself and kept them

locked. Id. at 490. The court rejected this argument, declining “to find an expectation of privacy

         1
           Curiously, the majority analyzes whether or not the safe is part of the workplace context in its analysis of
the reasonableness of the search, after already having determined that James had a reasonable expectation of privacy
in her office and her desk.

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Case No. 14-1151, James v. Hampton


in the cabinets simply because [plaintiff] bought them herself.”         Id.   Next, the majority

emphasizes that James was not on notice that her safe could be searched. Neither was the

plaintiff in Gossmeyer, and nowhere in O’Connor is such a notification required to keep a

stationary item in the workplace context. The majority has invented this requirement out of

whole cloth. Finally, the majority points out that James used the safe to store personal items.

The Court in O’Connor, however, noted that desks and filing cabinets “remain part of the

workplace context even if the employee has placed personal items in them.” 480 U.S. at 716.

Thus, the contents of an item in question are wholly irrelevant; the reasonable-expectation-of-

privacy determination rests on the nature of the container.

       “The workplace includes those areas and items that are related to work and are generally

within the employer’s control.” Id. at 715. A piece of luggage, a handbag, or a briefcase

remains outside the employer’s control for purposes of the Fourth Amendment because it

accompanies an employee to and from work. The safe, like a desk or a filing cabinet, is

immobile and thus becomes part of the workplace. If James had wanted to shield any personal

belongings in her government-provided office, she could have heeded the Court’s advice: “The

employee may avoid exposing personal belongings at work by simply leaving them at home.”

Id. at 725. Instead, she brought the safe into her office and used it to hold documents. It thus is

part of the workplace context, and properly falls within O’Connor’s reasonableness analysis.

The majority incorrectly places the safe outside of this framework.

                                                B.

       Having determined that the safe falls outside the workplace context, the majority then

assumes arguendo that the reasonableness inquiry applies and analyzes the search under that

rubric. The majority again comes to the wrong result. While I agree with the majority that the



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search was clearly justified at its inception, I believe it erred by holding that the search was

unreasonable in its scope.

       “Under this reasonableness standard, both the inception and scope of the intrusion must

be reasonable. . . .” O’Connor, 480 U.S. at 726. The majority believes the search of James’s

office was reasonable in its scope because “given the subject matter of the allegations against

James—including employment irregularities and misappropriation of funds—a thorough search

of areas that might contain financial and employment records” was reasonable. Maj. Op. 14. It

is difficult to see why this same reasoning would not also apply to James’s safe. It is not

unreasonable for the defendants to have believed that the safe would also hold financial and

employment records, exactly the type of documents kept in safes.

       The majority argues that the defendants were unlikely to find evidence of work-related

misconduct in the safe because James had purchased the safe, maintained it for her personal use,

and kept it secured. None of these factors are legally relevant as to whether the scope of the

search was unreasonable. In Gossmeyer, the court found the search of the plaintiff’s desk and

filing cabinet reasonable in scope because “[t]he targets of the search were those places where

[plaintiff] would likely store the alleged pornographic pictures.” 128 F.3d at 491. Similarly, the

defendants here reasonably believed the safe could contain financial or employment records.

That James told the defendants the safe held only personal documents is irrelevant, because,

despite her claim, a safe would be a logical place for someone to keep such records. See

Demaine v. Samuels, 29 F. App’x 671, 675 (2d Cir. 2002) (holding that a search of plaintiff’s

day planner for notes was reasonable because, despite plaintiff’s protest that its use was personal,

a day planner is “a logical place for someone to record such information”).




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       The defendants were looking for evidence of financial and employment improprieties.

The majority concedes that James’s office would be a natural place to look. Maj. Op. 14. What

the majority ignores, however, is that a safe in the office would be just as natural, despite its

ownership status or alleged contents. It was reasonable for the defendants to search the safe for

financial and employment records. For that reason, I must dissent from the majority’s Fourth

Amendment holding as it pertains to the safe.

                                                 II.

       As for the Fourteenth Amendment claim, even though the Supreme Court held in

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002), that McDonnell Douglas sets an

evidentiary standard, not a pleading requirement, it made clear in Twombly that a discrimination

plaintiff must still plead “enough facts to state a claim to relief that is plausible on its face.”

550 U.S. at 569–70. “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

       The majority relies on two cases to prove that James pleaded sufficient factual content for

the court to draw a reasonable inference of racial discrimination: Swierkiewicz itself and Keys v.

Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012). The plaintiffs in both of those cases, however,

pleaded significantly more factual detail than James did here. In Swierkiewicz, the plaintiff

alleged that he was demoted and replaced by a younger employee of the employer’s nationality;

that that employee was inexperienced; that the purpose of promoting the younger employee was

to “energize” the department; that the employer excluded plaintiff from business decisions and

meetings; that plaintiff sent a memo to the employer outlining his grievances and tried to meet

with the employer to discuss his discontent; and that plaintiff was fired. 534 U.S. at 508–09.



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Similarly, in Keys, the plaintiff alleged that she was hired as a Director but was given the title of

Consultant Leader instead of Director; that Caucasian candidates who accepted Director

positions were given the correct title; that Caucasian Directors were given an incentive plan of

twenty-five percent while plaintiff was only given fifteen percent; that plaintiff was excluded

from weekly sales meetings when all Caucasian Directors were invited; that her employer

reorganized its management staff and removed only plaintiff from her role; that plaintiff was

placed on a performance improvement plan despite the fact that she met her performance

expectations while “[s]imilarly situated Caucasian employees” were not placed on such plans;

and that she was eventually terminated. 684 F.3d at 607 (internal quotation marks omitted).

Both the Supreme Court and this court found that these allegations easily satisfied the pleading

requirements. See Swierkiewicz, 534 U.S. at 507; Keys, 684 F.3d at 610.

         James has not pleaded enough factual detail to satisfy even liberal pleading requirements.

James made a broad and conclusory allegation that the defendants violated her right to equal

protection “by prosecuting a complaint to remove her from the bench under circumstances that

they routinely decline to pursue with matters involving respondents who are not African-

American.” She then described five Caucasian judges who abused their power, including such

improprieties as using court funds to pay off a court employee. Despite the majority’s contention

that this level of detail is enough because a court could draw “a reasonable inference of

discrimination because she points to specific instances of abuse of judicial power by white

judges,” Maj. Op. 20, these facts do not make her claim plausible.2



         2
          In an attempt to analogize to Swierkiewicz and Keys, the majority notes that James, along with discussing
the judges who abused their power, also details “specific adverse employment actions” taken against her by the JTC.
Maj. Op. 20. The only “specific adverse employment action” the majority highlights, however, is the JTC’s
investigation. This court has held that an internal investigation of an employee is not an adverse employment action.
See Kuhn v. Washtenaw Cnty., 709 F.3d 612, 625 (6th Cir. 2013). The majority’s, and James’s, focus is misplaced.

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       A case from our sister circuit, Coleman v. Maryland Court of Appeals, 626 F.3d 187 (4th

Cir. 2010), is instructive. In Coleman, a plaintiff’s conclusory allegation that he was treated

differently as a result of his race was insufficient—even where he had identified an alleged

comparator—because no factual allegations plausibly suggested the comparator was similarly

situated. The complaint in that case alleged that the plaintiff, who was terminated for allegations

of steering contracts to vendors in which he had an interest, “was treated differently as a result of

his race than whites” and specifically identified another employee as a white person who was not

disciplined despite also having “outside business involvements.” Id. at 191 (internal quotation

marks omitted). The court held, however, that the complaint “fails to establish a plausible basis

for believing [comparators] were actually similarly situated or that race was the true basis for

[plaintiff’s] termination.” Id. (footnote omitted). Further, the court criticized the complaint for

failing to allege “that any impropriety was comparable to the acts [plaintiff] was alleged to have

committed.”    Id.   Absent such support, the court concluded that the allegations of race

discrimination were speculative. Id.

       James is not required to plead the four elements of McDonnell Douglas. That much is

clear. However, “broad and conclusory allegations of discrimination cannot be the basis of a

complaint and a plaintiff must state allegations that plausibly give rise to the inference that a

defendant acted as the plaintiff claims.” HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 613 (6th

Cir. 2012). Unlike the plaintiffs in Swierkiewicz and Keys, who pleaded multiple facts that could

form the basis for a plausible allegation of discrimination, James simply pointed to five

Caucasian judges who were not investigated despite their improprieties. Although the majority

accepts James’s invitation to raise the level of generality needed for a valid discrimination claim,

even a cursory look at her complaint shows that her conduct does not compare to that of these



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other judges. Other than the fact that James is African-American and the five judges are

Caucasian, her pleaded facts show no plausible basis for believing that race was the true basis for

the JTC’s investigation of her. And while the majority is correct to note that James is not

required to demonstrate that she and other judges engaged in relevantly similar conduct at this

stage in the litigation, she must plead enough facts to “raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555.

       I respectfully dissent.




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