The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Before the Court is the motion of defendants Aerospace Testing Alliance ("ATA"), Jacobs Technology Inc., Jacobs-Sverdrup, Computer Science Corporation, and General Physics Corporation (collectively, "Defendants") for judgment on the pleadings (Court File No. 10). Plaintiff alleges Defendants violated an executive order, a statute, a federal regulation, and the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001--1461. Defendants' motion seeks to dismiss all claims but the one premised on ERISA. Plaintiff Sherry Harris ("Plaintiff") filed a response (Court File No. 17), to which Defendants filed a reply (Court File No. 19). Plaintiff also moved to amend her complaint (Court File No. 15), to which Defendants filed a response (Court File No. 20). Both motions are now ripe.
For the following reasons, the Court will GRANT Defendants' motion for judgment on the pleadings, and DENY Plaintiff's motion to amend.
Plaintiff alleges ATA, her employer, wrongly terminated her pursuant to an improperly administered drug test (Court File No. 1, ¶¶ 10-11). Plaintiff suffers from poor health, which has "forced her to work with work restrictions, medications and numerous long term health leaves." (Court File No. 1, ¶ 4). After Plaintiff returned from a period of leave, her employer requested she submit to a drug test under ATA's substance abuse policy (Court File No. 1, ¶¶ 6-7). She alleges the nurse conducting the test took inadequate samples and failed to take a list of Plaintiff's current medications (Court File No. 1, ¶ 8). Because of the legal medications prescribed to Plaintiff, the test showed false positives (Court File No. 1, ¶ 9). As a result, ATA terminated Plaintiff's employment (Court File No. 1, ¶ 11).
Plaintiff alleges ATA violated "Executive Order 12564, Public Law 100-71, and Volume 69, Number 71 of The Federal Register." (Court File No. 1, ¶¶ 3, 10). Plaintiff contends ATA is a federal agency workplace subject to the executive order, public law, and federal regulation because it is a contractor testing military equipment (Court File No. 1, ¶ 3).
She also alleges ATA's actions were "retaliation for and because of her physical claims and medical bills and as such in violation of ERISA." (Court File No. 1, ¶ 13(g)). Defendants do not seek dismissal of Plaintiff's claim of retaliation under ERISA (Court File No. 10 at 1 n. 1).
Plaintiff's motion to amend her complaint seeks to add claims under the Drug-Free Workplace Act, 41 U.S.C. §§ 701--707, and 48 C.F.R § 2252.223-7004 (2004).
Defendants move for judgment on the pleadings under Fed. R. Civ. P. 12(c). A court considers a motion to dismiss under Rule 12(c) under the same standard of review as a Rule 12(b)(6) motion. Roger Miller Music, Inc. v. Sony/ATV Publ'g, L.L.C. 477 F.3d 383, 389 (6th Cir. 2007). The rule expressly allows a 12(b)(6) motion to be made in the form of a motion for judgment on the pleadings. Fed. R. Civ. P. 12(h)(2).
When reviewing a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff, Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998), accept the complaint's factual allegations as true, Broyde v. Gotham Tower, Inc., 13 F.3d 994, 996 (6th Cir. 1994), and determine whether plaintiff has pleaded "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (May 21, 2007). In deciding a motion to dismiss, the question is not whether the plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support his claims. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002). At the same time, bare assertions of legal conclusions are insufficient, and the "complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (emphasis in original).
Though decidedly liberal, this standard of review does require more than the bare assertion of legal conclusions. Bovee, 272 F.3d at 361; Gregory v. Shelby County, Tenn., 220 F.3d 433, 446 (6th Cir. 2000). Unsupported allegations and legal conclusions "masquerading as factual conclusions" are not sufficient. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). The complaint should give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994). A complaint need not anticipate every defense and, accordingly, need not plead every response to a potential defense. Memphis, Tenn. Area Local, Am. Postal Workers Union v. City of Memphis, 361 F.3d 898, 904 (6th Cir. 2004). "[A] complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Mezibov, 411 F.3d at 716 (citing Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)).