               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0068n.06

                                      Case No. 18-1447

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                              FILED
JOHANA CABANTAC ARUCAN,                              )                   Feb 12, 2019
                                                                     DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellant,                          )
                                                     )    ON APPEAL FROM THE UNITED
v.                                                   )    STATES DISTRICT COURT FOR
                                                     )    THE EASTERN DISTRICT OF
CAMBRIDGE EAST HEALTHCARE                            )    MICHIGAN
CENTER/SAVA SENIORCARE, LLC, et al.,                 )
                                                     )
       Defendants-Appellees.                         )




BEFORE: SILER, COOK, and BUSH, Circuit Judges.

       SILER, Circuit Judge. Johana Arucan appeals the district court’s dismissal of her civil

rights claims against: (1) her former employer, Cambridge East Healthcare Center (Cambridge),

and former supervisors, Paige Vantiem and Megan Reusser (collectively, Cambridge Defendants);

and (2) two officers from the Madison Heights Police Department, John Heinrich and Rick

Zamojski (collectively, the Officers). We AFFIRM.

                                               I.

       Arucan began working for Cambridge as a physical therapy assistant in 2012. In that role,

Arucan provided therapy to patients pursuant to a schedule that Cambridge generated each day.

       On January 5, 2016, Arucan mistakenly treated a patient who had never been evaluated for

and did not need physical therapy. The mix-up occurred when a physical therapist asked Arucan
Case No. 18-1447, Cabantac Arucan v. Cambridge E. Healthcare Center, et al.


to treat Catherine Y.—a patient not on Arucan’s schedule. Instead of treating Catherine Y.,

however, Arucan treated Catherine B.

          The next day, Megan Mocny—Arucan’s direct supervisor and Cambridge’s rehabilitation

manager—learned of Arucan’s mistake.1 Mocny told Arucan that her mistake was unacceptable

and then reported the incident to Vantiem, Cambridge’s head administrator. Arucan signed a

handwritten statement explaining her error. While Arucan testified that she did not write the

statement (and later that Mocny forced her to write it, she ultimately admitted that she committed

a terminable offense when she treated the wrong patient.

          On January 8, 2016, Vantiem called Arucan and Mocny into her office and fired Arucan.

Vantiem explained that Arucan’s mistake was intolerable given that she could have easily verified

that she was treating the correct patient and that providing a patient with unnecessary treatment

can cause injury.

          According to Cambridge Defendants, after Vantiem fired Arucan, Arucan refused to sign

termination paperwork or leave the premises.2 Instead, Arucan exited Vantiem’s office, explaining

that she was going to treat her patients. Vantiem told Arucan that she would call the police if

Arucan did not leave the facility. Arucan reiterated her intention to treat her patients and left the

office; Mocny followed her.

          Someone called the Madison Heights Police Department, and, within a few minutes,

Officers Zamojski and Heinrich (collectively, the Officers) arrived at the facility. Upon the




1
 Arucan mentioned to Mocny that “Catherine Y.’s” daughter did not want her to receive treatment,
which prompted Mocny to ask Arucan to take her to the room of the patient she had treated the
day before. Upon arrival, Mocny realized that Arucan had treated Catherine B.
2
    Arucan testified that she could not recall anything about her meeting in Vantiem’s office.
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Case No. 18-1447, Cabantac Arucan v. Cambridge E. Healthcare Center, et al.


Officers’ arrival, Vantiem told the Officers that she wanted Arucan to leave the facility

immediately. Then, Vantiem—in Zamojski’s presence—asked Arucan to leave, but she refused.

       Thereafter, the Officers asked Arucan to leave and warned her that if she did not leave, she

would be arrested. Arucan ignored the Officers’ warnings.

       Ultimately, Heinrich arrested Arucan for trespassing. The Officers subsequently escorted

Arucan off Cambridge’s property and transported her to the Madison Heights Police Department

where she was booked and placed in a holding cell until one of her (former) co-workers bonded

her out.

       Arucan was charged with trespassing, an offense to which she ultimately pleaded no

contest. Pursuant to the plea agreement, Arucan agreed to “release the City, its officers, employees

and agents from any claims, damages, or causes of action of any kind that may be associated with

the incident resulting in the prosecution of this case.” Both Arucan and her attorney signed the

agreement and release of liability.

       Based on the events that led to and followed her termination, Arucan filed a pro se

complaint—which she later amended—against Cambridge, Vantiem, Reusser (one of Arucan’s

managers), Zamojski, and Heinrich. Though the amended complaint is vague, it appears to contain

claims against Cambridge Defendants for discrimination based on race, color, gender, and national

origin—and creation of a hostile work environment—in violation of Title VII.3 Further, Arucan

seemingly asserted that the Officers were liable to her pursuant to 42 U.S.C. § 1983 because they

violated her Fourth and Fourteenth Amendment rights when they: (1) arrested her without probable

cause and (2) subjected her to excessive force during her arrest. Arucan also claimed that the




3
 Arucan also alleged that the Cambridge Defendants committed various torts under Michigan law,
such as libel, slander, and infliction of emotional distress.
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Case No. 18-1447, Cabantac Arucan v. Cambridge E. Healthcare Center, et al.


Cambridge Defendants and/or the Officers committed a “flagrant violation to [her] civil and

constitutional rights as a woman, a minority and as an [sic] U.S. citizen’s employee,” which the

lower court interpreted as an attempt to allege an Equal Protection violation.

          As the case progressed, Arucan sought but was denied counsel on several occasions. She

filed two requests for counsel. The magistrate judge denied Arucan’s requests, reasoning that—

because her claims were “not of an unduly complex nature” and she “ha[d] an adequate

understanding of the issues and matters involved in [the] case” and was “able to articulate the

claims and arguments in a reasonable fashion”—her case did not present the type of “exceptional

circumstances” that warrant appointment of counsel. Later, Arucan twice more requested counsel.

The magistrate judge denied the requests, reasoning that she had “offer[ed] no reason[] for the

Court to depart from its earlier decision to deny the appointment of counsel.”

          Soon thereafter, Cambridge Defendants and the Officers moved for and obtained summary

judgment as to each of Arucan’s claims.           The magistrate judge reasoned that Arucan’s

discrimination claim failed because the undisputed facts: (1) did not show that Cambridge

Defendants treated her differently from a similarly situated, non-protected employee; and (2)

established that Cambridge Defendants had a legitimate reason for terminating her—namely, she

treated the wrong patient. The magistrate judge also concluded that Arucan’s hostile work

environment claim failed because she offered no evidence supporting it. The magistrate judge

then found that the Officers were entitled to qualified immunity because they did not violate

Arucan’s Fourth Amendment rights. Finally, the magistrate judge reasoned that, if Arucan raised

an Equal Protection claim, that claim was implausible.4




4
    The district court adopted the magistrate’s recommendation in full.
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Case No. 18-1447, Cabantac Arucan v. Cambridge E. Healthcare Center, et al.


                                                 II.

       Arucan—with assistance of counsel—appeals. She argues (in a relatively unstructured

manner) that the lower court abused its discretion when it denied her requests for counsel. She

also asserts that the lower court erred in: (1) granting the motions for summary judgment, and

(2) dismissing her supposed Equal Protection claim.

       We find none of Arucan’s arguments persuasive.

       A.      The District Court Did Not Abuse its Discretion When it Denied Arucan’s
               Requests for Counsel

       Arucan argues that the district court erred when it denied her requests for counsel.

Specifically, she claims that it failed to consider the complexity of her claims and “whether [she]

was competent” to prosecute them pro se.

       A district court’s decision regarding appointment of counsel is reviewed for abuse of

discretion and “will be overturned only when the denial of counsel results in ‘fundamental

unfairness impinging on due process rights.’” See Reneer v. Sewell, 975 F.2d 258, 261 (6th Cir.

1992) (citation omitted); see also 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to

represent any person unable to afford counsel.”). In exercising its discretion, the district court

considers whether “exceptional circumstances”—such as highly complex issues—warrant

appointed counsel. Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993) (citation omitted); see

also Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985).

       The district court did not abuse its discretion. Arucan’s requests for counsel stated only

that she would like an attorney and that several attorneys had declined to represent her. Thus,

Arucan “did not identify any exceptional circumstances that warranted the appointment of

counsel.” See Cleary v. Mukasey, 307 F. App’x 963, 966 (6th Cir. 2009). Moreover, the district

court considered the nature of the case, its complexity, and Arucan’s ability to prosecute her claim,

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Case No. 18-1447, Cabantac Arucan v. Cambridge E. Healthcare Center, et al.


and the record does not suggest that it abused its discretion in denying the requests or that such

denials constituted “fundamental unfairness impinging on due process rights.” See Richmond v.

Settles, 450 F. App’x 448, 452-53 (6th Cir. 2011); see also Lavado, 992 F.2d at 604-05.

       B.      Cambridge Defendants’ and the Officers are Entitled to Summary Judgment

       Next, Arucan asserts that the district court erred when it granted Cambridge Defendants’

and the Officers’ motions for summary judgment. This court reviews a grant of summary judgment

de novo. Groening v. Glen Lake Cmty. Sch., 884 F.3d 626, 630 (6th Cir. 2018).

               1. Cambridge Defendants

       Arucan claims that Cambridge Defendants are not entitled to summary judgment on her

Title VII claims. With respect to her disparate treatment claim, she argues that she established a

prima facie case of employment discrimination and that Cambridge Defendants’ supposed reason

for terminating her was pretext for discrimination. She also argues that the record supports her

hostile work environment claim.

                      a.   Disparate Treatment

       Title VII prohibits an employer from “discharg[ing] any individual, or otherwise . . .

discriminat[ing] against any individual with respect to [her] . . . employment[] because of [her]

race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). An employee may prove

Title VII race discrimination with direct or circumstantial evidence. Johnson v. Kroger Co.,

319 F.3d 858, 864-65 (6th Cir. 2003). Courts assess claims based on circumstantial evidence—

such as the ones in this case—via the burden-shifting analysis articulated in McDonnell Douglas

Corp. v. Green, 411 U.S. 791 (1973).




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Case No. 18-1447, Cabantac Arucan v. Cambridge E. Healthcare Center, et al.


       In her complaint, Arucan alleged that she had been discriminated against on the basis of

race, color, gender, and national origin.5 The district court rejected Arucan’s disparate treatment

claim, reasoning that: (1) she failed to present a prima facie case of discrimination because she did

not establish that Cambridge Defendants treated her differently than a similarly situated employee,

and (2) even if Arucan had established a prima facie case, her claim still failed because Cambridge

Defendants had a legitimate reason for terminating her (treating the wrong patient), and she offered

no evidence suggesting that that reason was pretext.

       The district court’s analysis is sound. While Arucan claims in her brief that her “deposition

testimony show[s] that she was treated differently than other similarly-situated employees” and

that “her job ultimately went to a non-Asian, younger male,” she cites no evidence supporting

those propositions and a review of the record reveals there is none. Further, though Arucan argues

(without citation to evidence) that she “pointed to facts showing [that] ‘other physical therapists

who were white or male performed deficiently, received citations, and harmed patients even to the

point of causing death, yet were not terminated,’” no such facts exist. On the other hand,

Cambridge Defendants have submitted undisputed evidence establishing that no other employee

at Cambridge has ever treated the wrong patient. Thus, Cambridge has never had an employee

who is “similarly-situated” to Arucan, meaning that Cambridge could not have treated such an

employee differently. Barry v. Noble Metal Processing, Inc., 276 F. App’x 477, 483 (6th Cir.

2008) (indicating that two employees are similarly situated if they had the same supervisor, were

subject to the same standards, and engaged in conduct that was “similar in kind and severity”).




5
  Arucan also alleged that she was discriminated against on the basis of age, in violation of the
Age Discrimination in Employment Act. She does not ask us to review the district court’s
dismissal of that claim.
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Case No. 18-1447, Cabantac Arucan v. Cambridge E. Healthcare Center, et al.


       Further, assuming Arucan has presented a prima facie case for employment discrimination,

her claim fails because Cambridge Defendants terminated her for treating the wrong patient and

she has failed to show that that reason is pretext for discrimination. To establish that an employer’s

reason for termination is pretext for discrimination, an employee generally must show that the

reason: “(1) has no basis in fact, (2) was not the actual reason, or (3) is insufficient to explain the

employer’s action.” White v. Baxter Healthcare Corp., 533 F.3d 381, 393 (6th Cir. 2008) (citation

omitted). Arucan, however, admitted that she treated the wrong patient and that doing so

constituted terminable conduct, thereby signifying that Cambridge Defendants’ reason for

terminating her was based in fact and sufficient to explain their actions. Nonetheless, Arucan

asserts that her mistake was insufficient to justify termination because Cambridge’s employee

handbook generally implements a progressive disciplinary process. This argument fails: the

handbook states that some mistakes are “serious enough under the circumstances to warrant . . .

termination.” The district court did not err in granting summary judgment in favor of Cambridge

Defendants on Arucan’s disparate treatment claim.

                       b.   Hostile Work Environment

       Title VII also protects an employee from a “workplace . . . permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of

the [employee’s] employment . . . .” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal

quotation marks and citations omitted). “Conduct that is not severe or pervasive enough to create

an objectively hostile or abusive work environment—an environment that a reasonable person

would find hostile or abusive—is beyond Title VII’s purview.” Id.

       The district court rejected Arucan’s hostile work environment claim because “she offer[ed]

no evidence . . . to support her claim that she was subjected to a hostile work environment, and


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Case No. 18-1447, Cabantac Arucan v. Cambridge E. Healthcare Center, et al.


there is no record evidence to support such a claim,” and we agree with this conclusion. The

district court did not err in granting summary judgment on this claim.

               2. The Officers

       Next, Arucan challenges the district court’s decision granting the Officers summary

judgment based on qualified immunity.

       Even assuming the district court erred in holding that the Officers were entitled to qualified

immunity, her claims against them fail because she waived them. In her plea agreement, Arucan

specifically agreed to “release the City, its officers, employees and agents from any claims,

damages, or causes of action of any kind that may be associated with the incident resulting in the

prosecution of this case.”     That agreement is enforceable because Arucan entered into it

voluntarily, there is no evidence that prosecutorial or police misconduct led to the agreement, and

enforcement of the agreement would not adversely affect public policy interests. See Town of

Newton v. Rumery, 480 U.S. 386, 398 (1987) (holding that plaintiff waived released claims

pursuant to plea agreement in similar circumstances).

       C.      Arucan Failed to Plausibly Allege an Equal Protection Violation

       Finally, Arucan claims that she raised a plausible Equal Protection claim and that,

therefore, her claim should not have been dismissed under Federal Rule of Civil Procedure

12(b)(6). In support of her position, Arucan asserts (without additional argument or explanation)

that “[a] liberal reading of [her] Complaint articulates a ‘class-of-one’ claim” pursuant to Village

of Willowbrook v. Olech, 528 U.S. 562 (2000).

       “Whether the district court properly dismissed [a plaintiff’s] claims pursuant to Rule

12(b)(6) is a question of law, which we review de novo.” Ziss Bros. Const. Co. v. City of

Independence, Ohio, 439 F. App’x 467, 470 (6th Cir. 2011) (citation and internal quotation marks


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Case No. 18-1447, Cabantac Arucan v. Cambridge E. Healthcare Center, et al.


omitted). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “a short and

plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P.

8(a)(2). “Although this standard does not require detailed factual allegations, it does require more

than labels and conclusions or a formulaic recitation of the elements of a cause of action.” Ziss

Bros., 439 F. App’x at 470 (internal quotations marks and citations omitted).

       Arucan’s argument fails. Neither Arucan’s complaint nor appellate brief articulates which

defendant—i.e., Cambridge, Cambridge Defendants, the Officers—violated her right to equal

protection. Setting this deficiency aside, Arucan’s “class-of-one” Equal Protection claim (raised

for the first time on appeal) still lacks plausibility. To state a violation of equal protection based

on a “class-of-one” theory, a plaintiff must allege “that she has been intentionally treated

differently from others similarly situated and that there is no rational basis for the difference in

treatment.” See Davis v. Prison Health Servs., 679 F.3d 433, 441 (6th Cir. 2012) (internal

quotation marks and citation omitted).        Assuming the claim is aimed toward Cambridge

Defendants, Arucan’s claim fails because Cambridge Defendants are not state actors. See Paterek

v. Vill. of Armada, 801 F.3d 630, 649 (6th Cir. 2015) (“The Equal Protection Clause safeguards

against the disparate treatment of similarly situated individuals as a result of government action .

. . .”). Likewise, Arucan does not state a plausible claim against the Officers because she has not

alleged that they witnessed someone else commit a crime but declined to effectuate an arrest. Thus,

Arucan’s supposed Equal Protection claim lacks plausibility and was properly dismissed.6

       AFFIRMED.




6
 Arucan requests that we remand her case so that she can amend her pleadings. That request is
denied because Arucan did not request such relief in the district court. See Song v. City of Elyria,
985 F.2d 840, 842 (6th Cir. 1993).
                                                - 10 -
