Opinion
Case No. 1:02-cv-275
December 12, 2003
OPINION AND ORDER ON DEFENDANT GLEN PETERSON'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DISMISSAL
Plaintiffs filed a complaint asserting a section 1983 claim for violation of Plaintiffs' First Amendment Right to Free Speech (Count One); a section 1983 claim for violation of Plaintiffs' First Amendment Right to Petition (Count Two); Intentional Infliction of Emotional Distress (Count Three); violation of Title VII/ Sex Discrimination and Retaliation for Same (Count Four); violation of Elliot-Larsen/sex-discrimination and retaliation for same (Count Five); and Tortious Interference with Contractual Relations (Count Six). This matter is before the court on Defendant Dr. Glen Peterson's motion for partial summary judgment and dismissal (dkt #138) under FED. R. CIV. P. 56 and FED. R. Civ. P. 12(b)(6). Dr. Peterson seeks dismissal or summary judgment on Plaintiffs' claims for sex discrimination/retaliation under Title VII of the Civil Rights Act of 1964 (Count Four), violation of Michigan's Elliott-Larsen Civil Rights Act ("CRA") (Count Five), MICH. COMP. LAWS § 37.2101 et seq., and Intentional Infliction of Emotional Distress (Court Three).
After Dr. Peterson's motion was filed, Plaintiffs stipulated to dismissal of the Title claim (Count Four), and on June 5, 2003, the court dismissed that count as to all defendants except the City of Grand Rapids. The questions remaining are whether Plaintiffs' CRA claim and Intentional Infliction of Emotional Distress claim should be dismissed, and if not, whether Dr. Peterson is entitled to summary judgment on either of these claims.
For the reasons to follow, the court grants Dr. Peterson's motion as to Plaintiffs'CRA claim and denies the motion as to the Intentional Infliction of Emotional Distress claim.
I.
Plaintiffs Patricia Denhof and Renee LeClear were employed by the City of Grand Rapids Police Department ("GRPD"), respectively beginning employment in 1984 and 1995. Dr. Peterson is a licensed psychologist who owned and operated Michigan Law Enforcement Consultants ("MLEC").
In January 2001, plaintiffs Denhof and LeClear, along with several other female police officers employed by the GRPD, filed a lawsuit in the Kent County Circuit Court alleging gender based discrimination and harassment by their command staff and coworkers. Plaintiffs both testified in the state court regarding not only gender-based discrimination but allegedly corrupt and illegal activities by the GRPD.
Shortly after plaintiffs' state court testimony, the GRPD retained MLEC and Dr. Peterson to conduct "fitness for duty" evaluations of Denhof and LeClear. On January 18, 2002, plaintiff Denhof was placed on paid leave, and on April 18, 2002, she was evaluated by Dr. Peterson. Dr. Peterson found that plaintiff Denhof "mismanages" her emotions and was not fit for duty.
Plaintiff LeClear was also removed from duty on January 18, 2002. Dr. Peterson interviewed plaintiff LeClear four times before submitting his March 14, 2002 report, in which he found her unfit for duty because of a personality disorder.
Plaintiffs claim that the GRPD has a history of referring female police officers who complain of gender based discrimination or sexual harassment to Dr. Peterson for "fitness of duty" evaluations, and that Dr. Peterson consistently finds these female police officers unfit for duty.
II.
Dismissal of a complaint is proper under FED. R. CIv. P. 12(b)(6) "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding. 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). The court "must construe the complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claim that would entitle him to relief." Id. at 512. The court, however, "need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church's Fried Chicken. 829 F.2d 10, 12 (6th Cir. 1987) (citations omitted).
Summary judgment under Rule 56 is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). In evaluating a motion for summary judgment, the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 251-52 (1986).
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett. 477 U.S. 317, 322-323 (1986). "In such a situation, there can be `no genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. Only factual disputes which may have an effect on the outcome of a lawsuit under the applicable substantive law are "material." Anderson. 477 U.S. at 248.
III.
Michigan's CRA prohibits gender based discrimination by an employer. MICH. COMP. LAWS 37.2201(a). The Act defines employer as "a person who has 1 or more employees, and includes an agent of that person." MICH. COMP. LAWS 37.2201(a). Dr. Peterson argues that he cannot be held liable under the CRA because he was never the employer of either plaintiff, and he cannot be held liable as an agent for the GRPD. Plaintiffs contend that the question of whether or not an agent of an employer can be held personally liable is "in flux." Plaintiffs suggest "a stipulation to dismiss without prejudice" the CRA claim pending a resolution of the question by the Michigan Supreme Court.
Michigan's CRA is modeled after Title VII of the federal Civil Rights Act, which also prohibits discrimination and which defines "employer" as "a person . . . who has fifteen or more employees . . . and any agent of such a person." 42 U.S.C. § 2000e(b). Although federal precedent is not binding on state courts, Northville Public Schools v. Michigan Civil Rights Comm., 118 Mich. App. 573, 576, 325 N.W.2d 497 (1982), when addressing claims under the CRA, Michigan courts have considered the reasoning of federal courts in interpreting the scope of liability under Title VII. In Jenkins v. American Red Cross. 141 Mich. App. 785, 369 N.W.2d 223 (1985), the court held that under Michigan's CRA, the agent of an employer could be held personally liable. The Jenkins court followed the reasoning of Munford v. James T. Barnes Co.. 441 F. Supp. 459 (ED Mich. 1977), which involved violations of Title VII. The holding in Jenkins was the prevailing law in Michigan until the court revisited the question inJager v. Nationwide Truck Brokers. 252 Mich. App. 464, 652 N.W.2d 503 (2002).
The Jager court rejected the holding in Jenkins for several reasons, including that the federal case Jenkins had relied upon was later overruled by Wathen v. General Electric Co.. 115 F.3d 400 (CA 6, 1997). Wathen held that an agent "who does not otherwise qualify as an `employer' may not be held personally liable under Title VII." The Jager court did a lengthy analysis of the language and purpose of Michigan's CRA, see id. at 483-486, and determined that it "provides solely for employer liability," and the employer's agent who engaged in the prohibited activity "may not be held individually liable for violating a plaintiff's civil rights." Id. at 485. Under Jager, plaintiffs may not maintain a CRA claim against Dr. Peterson, individually.
According to Plaintiffs, supported by an affidavit of Plaintiffs' counsel, they have not had sufficient time to complete discovery. They argue that with further discovery, they could establish the exact nature of Dr. Peterson's relationship with the City of Grand Rapids. However, there is no reason to refrain from deciding this motion in order to give Plaintiffs additional time to conduct discovery because even if Dr. Peterson was not acting as an independent contractor but as an agent of the City of Grand Rapids, Plaintiffs will not be able to hold Dr. Peterson personally liable.
Plaintiffs point out that the Jager plaintiff filed for leave to appeal the decision of the Court of Appeals. Although the Michigan Supreme Court denied the request on April 8, 2003, the plaintiff filed a motion to reconsider on April 28, 2003. When Plaintiffs filed their response to Dr. Peterson's motion, the motion for reconsideration was pending before the Michigan Supreme Court. However, on July 28, 2003, the Michigan Supreme Court denied the motion for reconsideration. Jager v. Nationwide Truck Brokers. 666 NW 2d 668 (Mich 2003) (Table). Thus, the Michigan Court of Appeals decision in Jager is the governing law and, as discussed, precludes Plaintiffs' CRA claim against Dr. Peterson individually. Accordingly, the court must grant Dr. Peterson's motion to dismiss the CRA claim under FED. R. CIV. P. 12(b)(6).
IV
Plaintiffs also asserted a claim of intentional infliction of emotional distress against Dr. Peterson. Plaintiff Denhof was evaluated by Dr. Peterson on April 18, 2002. Allegedly, Dr. Peterson made no specific diagnosis, but reported that Plaintiff Denhof "mismanages" her emotions and was unfit for duty. Plaintiff Denhof claims his report is "filled with falsehoods and outright misrepresentation of the facts," and is being used by the City to prevent her from working as a police officer for GRPD or any other police department. She also alleges that the GRPD generally refers female officers who complain of sexual harassment/discrimination to Dr. Peterson for evaluation, and Dr. Peterson inevitably finds them unfit for duty.
Plaintiff LeClear was also evaluated by Dr. Peterson. The doctor concluded that she had a personality disorder, although he allegedly had not done any testing. Moreover, Dr. Peterson did not find a personality disorder during his evaluation of Plaintiff LeClear seven years earlier.
Plaintiffs submitted reports from doctors Andrew M. Barclay, Mark S. Kane, and Lawrence M. Probes regarding Plaintiffs' fitness for duty. Each of the doctors evaluated Denhof and LeClear and found them fit for duty. Dr. Barclay opined that Dr. Peterson's report concerning LeClear raises questions as to (1) unethical treatment of Officer LeClear, (2) failure to utilize accepted standards of testing in evaluation, and (3) unscientific and improper use of psychology. Dr. Kane discussed the several tests he had administered to LeClear and his review of Dr. Peterson's data, and found no scientific evidence of a diagnosable mental illness.
In Dr. Barclay's opinion, Dr. Peterson's report regarding Denhof revealed examples of bias and instances where he denigrated Denhof and supported the position of the GRPD. Dr. Kane reported the testing he had done on Denhof and his review of Dr. Peterson's data, and concluded that nothing revealed a personality disorder.
Dr. Peterson argues that Plaintiffs' claim of intentional infliction of emotional distress must be dismissed as his alleged conduct does not rise to the level of "extreme and outrageous." Plaintiffs contend that it is for a jury to decide whether falsifying psychological evaluations and thereby ending Plaintiffs' law enforcement careers amounts to extreme and outrageous behavior.
Both parties recognize that the Michigan Supreme Court has never specifically adopted the tort of intentional infliction of emotional distress. Smithy. Calvary Christian Church. 462 Mich. 679, 686 n 7, 614 N.W.2d 590, 593 (2000); Roberts v. Auto-Owners Ins. Co.. 422 Mich. 594, 597, 374 NW 2d 905, 906 (1985) (holding "[w]e are constrained from reaching the issue of whether [intentional infliction of emotional distress] should be formally adopted into our jurisprudence. . . ."). Dr. Peterson would have the court dismiss the claim on this basis, while Plaintiffs contend that even though the tort has never been officially adopted, it has never been disclaimed.
The Michigan Court of Appeals has consistently addressed intentional infliction of emotional distress as a valid cause of action under Michigan law. See, e.g. Lewis v. Legrow. 258 Mich. App. 175, ___ NW 2d ___ (2003); Mino v. Clio School Dist. 255 Mich. App. 60, 661 NW 2d 586 (2003); Bernhardt v. Ingham Regional Medical Center. 249 Mich. App. 274, 278, 641 NW 2d 868 (2002);Linebaugh v. Sheraton Michigan Corp.. 198 Mich. App. 335, 497 NW 2d 585, 588-89 (1993); Auto Club Ins. Ass'n v. Hardiman. 228 Mich. App. 470, 475-477, 579 NW.2d 115 (1998); Dickerson v. Nichols. 161 Mich. App. 103, 409 NW 2d 741 (1987). The Sixth Circuit Court of Appeals has likewise recognized this tort under Michigan law.See, e.g. Sperle v. Michigan Dept. of Corrections. 297 F.3d 483, 496 (6th Cir. 2002); Ruffin-Steinback v. dePasse, 267 F.3d 457, 464 (6th Cir. 2001); Pratt v. Brown Mach. Co.. 855 F.2d 1225, 1238-39 (6th Cir. 1988); Coogan v. City of Wixom. 820 F.2d 170, 173-74 (6th Cir. 1987).
"[A] federal court is not free to reject the state rule merely because it has not received the sanction of the highest state court. . . . Where an intermediate appellate court rests its considered judgment upon the rule of law which it announces, that is datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise." West v. American Tel. Tel. Co.. 311 U.S. 223, 236-37, 61 S.Ct. 179, 183, 85 L. Ed 139 (1940); Fl Aerospace v. Aetna Casualty Sur. Co.. 897 F.2d 214, 218-19 (6th Cir.), cert. denied. 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d 238 (1990). The court has not been presented with any facts indicating that the Michigan Supreme Court would likely refuse to adopt the tort of intentional infliction of emotional distress. Accordingly, this court recognizes and will address Plaintiffs' claim of intentional infliction of emotional distress.
To prevail on an action for intentional infliction of emotional distress in Michigan, a plaintiff must prove: "(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress." Bernhardt v. Ingham Regional Medical Ctr.. 249 Mich. App. 274, 278, 641 NW 2d 868 (2002). To satisfy the first element, the conduct must have been so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society.Roberts v. Auto-Owners. 374 NW 2d at 908. A defendant will not be held liable where the conduct amounts to `"mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.'"Id. at 909 (quoting Restatement Torts, 2d, § 46, comment d, pp. 72-73). Whether a defendant's conduct meets the threshold requirement of extreme and outrageous is a question of law to be decided by the court. Teadt v. Lutheran Church Missouri Synod, 237 Mich. App. 567, 582, 603 N.W.2d 816 (2000). If reasonable people could differ, it is for the jury to decide. Id.
A review of cases offers guidance on the type of conduct that rises to the level of extreme and outrageous. In deciding whether the alleged conduct is sufficiently extreme and outrageous, courts look to the totality of the circumstances and the context of the alleged conduct.See, e.g. Bhama v. Bhama. 169 Mich. App. 73, 425 NW 2d 733, 736 T1988): Margita v. Diamond Mortgage Co.. 159 Mich. App. 181, 189, 406 N.W.2d 268, 272 (1987); Rosenberg v. Rosenberg Bros. Special Account. 134 Mich. App. 342, 351 N.W.2d 563, 568 (1984);Ledsinger v. Burmeister. 114 Mich. App. 12, 19, 318 NW 2d 558, 561 (1982). It is significant to the determination if there is an "abuse of a relationship which puts the defendant in a position of actual or apparent authority over a plaintiff or gives a defendant power to affect a plaintiff's interest."Margita. 406 NW 2d at 272.
The defendant in Margita was accused of continuous harassment by letters and telephone calls over a two-year period attempting to collect a debt that was not overdue. The court found that dismissal was not appropriate and the case should be submitted to a jury.Id., 406 NW 2d at 269-72. The Rosenberg defendant attempted on 26 instances to coerce plaintiff, a widow, into selling her deceased husband's share of a family owned partnership to the defendant at a reduced price. The plaintiff depended on the defendant for income and record keeping. Defendant's conduct coupled with plaintiff's financial dependency on the defendant supported a claim for intentional infliction of emotional distress. Id., 351 NW 2d at 567-69. The court in Atkinson. 171 Mich. App. 784, 431 NW 2d 95, 96-98 (Mich.App. 1988) found plaintiff's allegations created a question of fact as to whether the alleged conduct amounted to extreme and outrageous behavior. Plaintiff alleged that the defendant engaged in a pattern of harassment by threatening to terminate and finally terminating plaintiff's workers' compensation benefits, reducing benefits to a minimal amount in violation of the Workers' Compensation Appeals Board, and demanding that plaintiff pay it a large sum of money that it knew plaintiff did not owe.
In this case, Plaintiffs claim that Dr. Peterson found each of them unfit for duty although there was no medical basis for either diagnosis. According to Plaintiffs, Dr. Peterson intended to find them unfit before he ever interviewed them and regardless of what the interviews revealed. As a result of Dr. Peterson's findings, their former co-workers believe they have mental problems, they have lost their jobs and the chance to continue to work in law enforcement, and have suffered significant financial losses as well as extreme emotional distress. Dr. Peterson was clearly in a position to affect the Plaintiffs' interests. Plaintiffs had no control over the situation or any alternatives that could avoid any misuse of Dr. Peterson's position. Assuming Plaintiffs' allegations are true and Dr. Peterson intentionally found them unfit for duty knowing his findings were erroneous and had no objective basis, and knowing his findings would cause each Plaintiff to lose her job, his conduct would amount to more than an indignity, annoyance or petty oppression. Reasonable triers of fact could differ as to whether it amounted to extreme and outrageous conduct.
Dr. Peterson has cited the following cases where the courts found that the defendant's conduct did not meet the "extreme and outrageous" standard: Selph v. Gottlieb's Financial Services, Inc.. 35 F. Supp.2d 564, 569 (W.D. Mich. 1999) (co-workers acted inappropriately by leaving notes on plaintiff's desk, kissing her, and calling her at home);Hartliep v. McNeilab, Inc.. 83 F.3d 767, 777 (6th Cir. 1996) (co-worker threatened plaintiffs job, pressured her to enter into a relationship with him, and discussed his fantasies about her with other co-workers); Marquis v. Tecumseh Products Co.. 206 F.R.D. 132, 190-91 (E.D. Mich. 2002) (co-workers and supervisor subjected plaintiffs to sexually derogatory comments, inappropriate touching, biting and kissing, death threats, demotions and unwanted propositions). In each of these cited cases the defendants were the plaintiffs' co-workers or immediate supervisors, which put the defendants in a much different relationship with the plaintiffs than the relationship Dr. Peterson had with Denhof and LeClear.
Plaintiffs have pleaded a prima facie case of intentional infliction of emotional harm. Accordingly, the court denies Dr. Peterson's motion under FED. R. CIV. P. 12(b). Because, based upon the current record, there are material facts at issue, the court also denies the motion for summary judgment under FED. R. Civ. P. 56.
V.
For the reasons discussed, the court GRANTS Dr. Peterson's Motion to Dismiss pursuant to FED. R. CIV. P. 12(b)(6) as to Plaintiffs' claim under Michigan's Elliott-Larsen Civil Rights Act (Count Five), and DENIES the motion as to Plaintiffs' claim for Intentional Infliction of Emotional Distress.So ordered this 12th day of December, 2003.