Opinion
NO. 01-CV-10093-BC
July 12, 2002
I. RECOMMENDATION
For the reasons set forth below, IT IS RECOMMENDED that the Defendants' motions for summary judgment be GRANTED and that the case be DISMISSED.
II. REPORT
A. INTRODUCTION AND BACKGROUND
Pending, pursuant to an Order of Reference issued May 20, 2002, under 28 U.S.C. § 636(b)(1)(13) by United States District Judge David Lawson (Dkt. 73), are the above entitled motions for summary judgment, filed after the close of discovery in this case. Plaintiff has filed a response to both motions (Dkt. 48), and Defendants have filed replies. (Dkts. 53 54.) Oral argument was heard on May 22, 2002, and these motions are now ready for Report and Recommendation.
Plaintiffs complaint was filed February 27, 2001, alleging claims of sexual harassment, sex discrimination, and retaliation. Specifically, Plaintiff claims that while she was providing janitorial services at the Ogemaw County Building, Defendant Ronald Knight, an Ogemaw County Commissioner, used his position of power to attempt to advance a sexual relationship with Plaintiff. Plaintiff claims that Defendant Knight made crude and explicit comments to her of a sexual nature, and physically touched her without her consent. (Compl., Dkt. 1 at ¶¶ 12-13.)
In October 2000, Plaintiff initiated a complaint with the Michigan Department of Civil Rights ("MDCR") regarding Defendant Knight. ( Id. at ¶ 27.) After the MDCR forwarded correspondence to the county clerk regarding Plaintiff's claim of sexual harassment against Defendant Knight, Plaintiff alleges that she was approached by another county commissioner, Defendant Clyde Sheltrown, who threatened that if she didn't drop her charges against Knight, her contract to clean the county building would not be renewed. ( Id. at ¶ 33.)
Defendant Sheltrown's name is apparently misspelled as "Sheltron" on this Court's docket.
Plaintiff contends that these actions violated the Equal Protection Clause to the Fourteenth Amendment, the Michigan Elliott-Larsen Civil Rights Act, and the Michigan Whistleblower Protection Act. She also alleges that the County of Ogemaw is liable because it knew of Defendant Knight's harassment and was tolerant of it. ( Id. at ¶ 21.) Additionally, Plaintiff claims that the County is liable based on the theory of respondeat superior. ( Id. at ¶ 37.) Plaintiff claims that she suffered nervousness, humiliation, embarrassment, and mental anguish as a result of these incidents, and seeks in excess of $75,000 in compensation therefore. ( Id. at ¶ 38.)
B. LAW AND ANALYSIS
1. Motion Standards
A motion for summary judgment will be granted under Rule 56(c) where "there is no genuine issue as to any material fact and. . . the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). All facts and inferences must be viewed in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-movant's case. See Street v. J. C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In determining whether the moving party has met its considerable burden, a court may consider the plausibility of the moving party's evidence. See Matsushita, 475 U.S. at 587-88.
Summary judgment is also proper where the moving party shows that the nonmoving party is unable to meet its burden of proof. See Celotex, 477 U.S. at 326. However, to defeat the motion, the non-moving party cannot rest merely on the pleadings alone. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 191 L.Ed.2d 202 (1986). The non-moving party has an obligation to present affirmative evidence in order to defeat a properly supported motion for summary judgment. See Celotex, 477 U.S. at 324. After examining the evidence, the court then determines "`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.'" Booker v. Brown Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 251-52). Summary judgment will not be granted "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
2. Federal Court Jurisdiction and Capacity
The complaint states that "jurisdiction is founded on the existence of a question arising from the Equal Protection Clause to the Fourteenth Amendment of the United States Constitution." (Compl., Dkt. 1 at ¶ 5.) The Fourteenth Amendment to the United States Constitution provides that "[n]o state shall. . . deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend XIV. It is well established in this circuit that sexual harassment by a state actor can constitute a violation of the Equal Protection Clause. See Poe v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988).
Denials of equal protection by a municipal entity or any other person acting under color of state law are actionable under 42 U.S.C. § 1983, the statute that provides a procedural vehicle to bring into federal court allegations of deprivations of federal constitutional rights committed by state actors. See generally Lugar v. Edmonson Oil Co., 457 U.S. 922, 924, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Although the complaint does not cite § 1983, Plaintiff clarified in her response to Defendants' summary judgment motions that her equal protection claims are being raised under § 1983. (Dkt. 48 at 3.)
The essential elements of a claim under 42 U.S.C. § 1983 are that the conduct complained of (1) was committed by a person acting under color of state law, and (2) deprived the Plaintiff of rights, privileges, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). "Absent either element, a section 1983 claim will not lie." Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).
In the Sixth Circuit, a "§ 1983 plaintiff must clearly notify defendants of the potential for individual liability. . . ." Moore v. City of Harriman, 272 F.3d 769, 773 (6th Cir. 2001). In this case, however, the complaint does not specifically state the capacity in which Defendants Knight and Sheltrown are being sued. At oral argument, Defendant Knight's counsel as well as Defendant Sheltrown's counsel claimed to understand the complaint to name their clients only in their official capacities as county commissioners. Plaintiff's counsel contended that the failure to explicitly address capacity in the complaint was merely a technicality, and that the wording of the allegations clearly indicate that Defendants Knight and Sheltrown are being sued in both their official and individual capacities. Counsel for Defendant Knight countered that, had he understood this to be a personal capacity suit, he would have defended it differently, although he did not explain what he would have done differently.
When a § 1983 plaintiff has failed to affirmatively plead capacity in the complaint, the court is to look to the "course of proceedings" to determine whether the defendants received proper notice. Moore, 272 F.3d at 773. The course of proceedings test "considers such factors as the nature of the plaintiff's claims, requests for compensatory or punitive damages, and the nature of any defenses raised in response to the complaint, particularly claims of qualified immunity, to determine whether the defendant had actual knowledge of the potential for individual liability." Id. at 772 n. 1, Courts may also consider whether subsequent pleadings, such as a response to a motion for summary judgment, put the defendant on notice of the capacity in which he is being sued. See Abdur-Rahman v. Michigan Dep't of Corrections, 65 F.3d 489, 491 (6th Cir. 1995).
In Moore, the Sixth Circuit reversed the district court's dismissal of the individual capacity claims based on the presence of the following factors: the caption of Moore's complaint listed only the officials' names, not their titles; the body of the complaint referred to "`the individual defendants'"; the complaint averred that the "`said officers, acting for themselves and for the City,' behaved `with malice. . . and violated the plaintiff's civil rights'"; compensatory and punitive damages were sought against "`each of the defendants'"; and Moore's response to a defense motion to dismiss specifically clarified that the defendants were being sued in their individual capacities. Moore, 272 F.3d at 773-74.
In this case, like in Moore, the caption of the complaint lists the defendants as the County of Ogemaw, Ronald Knight, and Clyde Sheltrown. (Compl., Dkt. 1.) The fact that the complaint does not label Defendants Knight and Sheltrown as County Commissioner Ronald Knight and County Commissioner Clyde Sheltrown is one factor in favor of a finding that these defendants were on notice that they were being sued in their personal capacities. A second factor indicating individual capacity is that, in the complaint, Plaintiff avers that "at all times material hereto Defendant, Ronald Knight, is a resident of the County of Ogemaw, State of Michigan." ( Id. at ¶ 2.) Plaintiff makes the same assertion regarding Defendant Sheltrown. ( Id. at ¶ 3.) The issue of a person's residency is an individual matter, and would not be included, it would seem, if Plaintiff were proceeding solely on a theory of official capacity in a federal question case.
A third and key factor indicating notice of individual capacity is that both Defendants Knight and Sheltrown have raised the defense of qualified immunity. (Dkt. 41 at 15; Dkt. 54 at 2-3.) Qualified immunity is a defense that is only available to defendants being sued in their individual capacities. Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Hall v. Tollett, 128 F.3d 418, 430 (6th Cir. 1997). Moreover, in the case of Defendant Knight, the brief in support of his motion argues that "Defendant Knight cannot be individually liable to Plaintiff for any alleged denial of benefit. . . [because] Defendant Knight had no Authority or power, acting alone, to renew or not renew Plaintiff's contract." (Dkt. 41 at 15 (emphasis added).) Finally, with regard to Defendant Knight, I note that he is not represented by the attorney who represents the County of Ogemaw, but rather has retained his own counsel.
In light of these factors, I suggest that the course of proceedings indicates that Defendants Knight and Sheltrown were on notice that they were being sued in their individual as well as official capacities.
3. Sexual Harassment Claims Under the Equal Protection Clause
For over twenty years, the protection afforded under the Equal Protection Clause has been held to proscribe any purposeful discrimination by state actors, be it in the workplace or else-where, directed at an individual solely because of the individual's membership in a protected class. See Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). A claim of sexual harassment under the Equal Protection Clause is essentially a claim that a plaintiff was discriminated against because of her status as a female, i.e., a claim of gender discrimination. Under the Supreme Court's equal protection jurisprudence, gender discrimination is recognized as discrimination against members of a quasi-suspect class. See United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).
"Sexual harassment can violate the Fourteenth Amendment right to equal protection of the laws thus triggering a § 1983 cause of action." Lankford v. City of Hobart, 73 F.3d 283 (10th Cir. 1996). To be liable for sexual harassment under § 1983, the defendant must have violated the plaintiff's rights while acting under color of law. "It is firmly established that a defendant in a § 1983 suit acts under color of law when he abuses the position given to him by the State." Griffin v. City of Opa-Locka, 261 F.3d 1295, 1305 (11th Cir. 2001) (finding that city manager was acting under color of law when he raped a city employee in her apartment, where he utilized his authority to create the opportunity to facilitate a sexual assault).
a. Factual Background
Plaintiff testified at her deposition that in the early months of 1997, she began doing custodial work for Crystal Clean Janitorial Services. As part of her job, she performed janitorial services after regular business hours in the Ogemaw County Building. (Dkt. 41, Ex. 1 at 11-12.) Plaintiff claims that Defendant County Commissioner Knight, who had a master key to the building and was a member of the building and grounds committee which oversaw the janitorial services, began subjecting her to unwelcome and inappropriate sexual advances during the first month she worked there, including vulgar comments, gestures, and unwanted physical touching. (Dkt. 48 at 4; Pl.'s Dep., Dkt. 41, Ex. 1 at 60.) The record contains many specific examples of Defendant Knight's alleged conduct, such as one incident in January 1998 where he lunged his lower body against Plaintiff from behind and grabbed her breasts (Pl.'s Dep. at 64), and another in March 1998 where Defendant Knight instructed Plaintiff to unlock an office and then proceeded to force himself upon Plaintiff and lick her face with his tongue. (Dep. at 78.) On yet another occasion in 1998, Defendant Knight allegedly stated to Plaintiff, "Go to the UP with me while I buy some used cars, we'll come back, we'll get. . . something to eat and then I will lick you up and down like a Popsicle." (Dep. at 124.)
In 1997, Plaintiff reported her concerns about Defendant Knight's behavior to her boss, the owner of Crystal Clean, and his response was, "Cheryl, you can handle yourself. You got four brothers, don't worry about it." (Dep. at 61.) It was not until 1999 that Plaintiff reported Defendant Knight's conduct to the Michigan Department of Civil Rights. She explained that, until then, she attempted to live with it and handle it herself because she needed the work.
In approxinmtely April of 1999, the owner of Crystal Clean decided not to seek renewal of his contract with Ogemaw County, and encouraged Plaintiff herself to bid for the contract to provide janitorial services at the Ogemaw County Building. (Dkt. 48 at 5.) Plaintiff established an entity known as Cheryl's Cleaning Company, and submitted a bid to the County. Plaintiff registered the name of the business as a "d/b/a." During the seven-week period between Plaintiff's submission of her bid and the county commission's vote to award the contract, Plaintiff asserts that the following incident occurred:
The contract at issue provided for payment of $66,000.00 to perform one year of cleaning services at the Ogemaw County Courthouse, and specifically stated that "the parties intend that an independent contractor-employer relationship will be created" between the County and the service provider. (Def. Knight's Br. in Supp. of Mot., Dkt. 41 at 2; Contract, Dkt. 41 at Ex. 3.) The contract also stated that it "shall be terminable by either party, with or without cause, upon thirty (30) days written notice to the other. . . ." (Dkt. 41 at Ex. 3.)
In July of `99, I passed Ron Knight in the hall. It was early afternoon. The employees were still working in the building, the County Building. It was about 4:20 in the afternoon. And I saw him walking and I was going to approach him, [and ask] do you guys know anything about my bid, have you heard. And right in the hallway, people on both sides, people still working, he says — before I could ever really finish my sentence, he says you have no idea how big my dick is.
* * *
And I walked 10 steps to the clerk's office right then.
* * *
I was appalled. I thought that I was going to die. That is why I went immediately to Gary Klacking's [the county clerk] office. . . . I told him what happened, what was said, and I said, but I don't want anything done, I just want it on record because I want to keep working.
(Pl.'s Dep. at 56-58.) Plaintiff explained that, at that point, she wanted Mr. Knight's behavior "on record," and she "assumed that the Clerk of Court, maybe, he could help me." ( Id. at 59.) Plaintiff stated that her "main focus was to work and make a living, an honest living. And I just wanted to work without having to be grabbed from behind for once in my life at the County Building." ( Id. at 60.)
Plaintiff claims that after the July 1999 incident and her report to the county clerk, Defendant Knight's behavior changed from attempts to establish a sexual relationship to hostility toward her and efforts to sabotage her work. In early September 1999, the Ogemaw County Board of Commissioners voted 5-2 in favor of awarding the contract to Plaintiff. Defendant Knight cast one of the two "no" votes. (Def. Knight's Br. in Supp., Dkt. 41 at 2.)
Soon after Plaintiff was awarded the contract, she claims she had her first encounter with Defendant Clyde Sheltrown, also an Ogemaw County Commissioner:
. . . [R]ight after I was awarded the contract, maybe a few days after, Clyde came up to me and said, I don't know you but I think that you are being treated very poorly. These guys, the Building and Grounds Committee, do not want you here. I do not know why. I think that it's a personal thing, and I want you to know that I am fighting for you because I think you deserve a chance. And then he quoted that Ron Knight will be out to make my life hell.
(Pl.'s Dep. at 55.)
Later that month, on September 30, 1999, Plaintiff submitted a complaint alleging sexual harassment by Defendant Knight to Congressman Dave Camp. The congressman forwarded the complaint to the Michigan Department of Civil Rights. ( Id. at 150.)
Defendant Knight's attempts to "sabotage" Plaintiff allegedly continued. Plaintiff relates incidents which occurred for which she suspected Defendant Knight as the culprit, such as urine on the floor of the men's room shortly after Plaintiff had cleaned it, and coffee spilled on rugs that had just been cleaned. Plaintiff claims that her "suspicions were confirmed on September 16, 2000, when Plaintiff observed Defendant Knight entering the male employee restroom after she had already cleaned it and upon Defendant Knight leaving the restroom, the Plaintiff entered the restroom and observed urine all over the floor." (Dkt. 48 at 6-7.)
When Plaintiff's contract expired in September 2000, she asked to be placed on the agenda of the Ogemaw County Board of Commissioners' meeting because she wanted to find out if they were going to renew it for another year. At the meeting, Plaintiff claims that Defendant Knight stated that he'd like to get union employees in to do the cleaning. When the vote was taken, however, her contract was renewed by a 5-2 vote. Defendant Knight voted against the renewal. According to Plaintiff, Defendant Knight "threw his books and papers and stormed out of the room." (Pl.'s Dep. at 26.)
A few months later, at the end of November 2000, Plaintiff alleges that Defendant Sheltrown threatened her. She stated that she encountered Defendant Sheltrown in one of the hallways of the County Building, and he placed his hand "firmly on [her] shoulder, squeezing." ( Id. at 47-50.) There were nine or ten other people in the area, and she saw and made eye contact with some of them. Plaintiff claims that Defendant Sheltrown
said, if you don't drop this civil rights complaint with Ron Knight, your contract will never be renewed, and I said, but how can you do that? That is not right. He said, we will never bid it out again to no one. You will miss that big money that you were making. And his voice was quivering and shaking. . .
(Pl.'s Dep. at 53.)
Plaintiff filed the complaint in the instant action in February 2001, approximately six months into the second year of her contract with the County. The term of the second year of the contract expired on September 9, 2001. On September 12, 2001, the Ogemaw County Board of Commissioners voted to no longer solicit or accept bids for janitorial services, but rather to begin immediately to have union employees of the County perform the work. Plaintiff alleges that she was notified by telephone one and a half hours before she was to report to work on September 12th that she was out of a job. She believes she was entitled to thirty days' notice so that she and her employees could look for other work.
Plaintiff contends that "Defendants have deprived the Plaintiff of her position with Ogemaw County which resulted in substantial economic losses on the part of the Plaintiff" and that the "reasons given by the individual Defendant commissioners is a pretext [for] the true reason which was to discriminate against the Plaintiff." (Dkt. 48 at 10.)
b. Official Capacity Claims Against Defendant Knight and Defendant Sheltrown
In an official capacity suit against a local governmental official, the real party in interest is not the named official, but the local governmental entity. Hafer v. Melo, 502 U.S. 21, 25 (1991). In the case at bar, Plaintiff has sued both Ogemaw County and two of its commissioners. To the extent that the complaint asserts claims against Defendants Knight and Sheltrown in their official capacities, such claims are duplicative of the suit against the County of Ogemaw, and accordingly I suggest that they be dismissed. See Gonser v. Twiggs County, 182 F. Supp.2d 1253 (M.D. Ga. 2002) (dismissing claims against county commissioners in their official capacities as duplicative of plaintiff's action against the county).
c. Ogemaw County's Motion for Summary Judgment
Although a municipality may be held liable under § 1983 if the municipality itself caused the constitutional deprivation, a municipality does not incur § 1983 liability for an injury inflicted solely by its agents or employees. Monell v. Department of Social Servs., 436 U.S. 658, 690-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In other words, municipalities are not liable under a theory of respondeat superior. A municipality can only be held liable when the injury is caused by the "execution of the government's policy or custom." City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (quotation omitted). A policy is made when "a `decisionmaker possess[ing] final authority to establish municipal policy with respect to the action' issues an official proclamation, policy, or edict." Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (citations omitted)). See also City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1987).
In this case, Defendant County of Ogemaw argues that it is entitled to summary judgment because Plaintiff has not asserted that any policy or custom of the County violated her equal protection rights, and further, that the County cannot be held liable for any alleged acts of sexual harassment by Defendant Knight because he is not a final policymaker for Ogemaw County. (Dkt. 45 at 13-14.)
Regarding official policy, Plaintiff cites no ordinance or regulation promulgated by the Defendant County as the basis for her equal protection claim. The County's ultimate decision not to renew Plaintiff's contract for a third year, I suggest, cannot qualify as "policy" under these circumstances. First, this action was within the Authority of the Ogemaw Board of County Commissioners. Plaintiff makes no claim that the action was done in violation of the rules governing the commission's deliberations. Second, it was an action taken by the entire commission, not merely the two individual commissioners Plaintiff has elected to name in her complaint. On this record, I therefore suggest that Plaintiff cannot identify any policy upon which she can rest a civil rights claim.
Next, I suggest that the Defendant County cannot be held liable for any "custom" based upon the alleged acts of sexual harassment by Defendant Knight because he is not a final policymaker for Ogemaw County. According to Michigan law, "[t]he county board of commissioners of a county shall act by the votes of a majority of the members present. However, the final passage or adoption of a measure or resolution or the allowance of a claim against the county shall be determined by a majority of the members elected and serving." MICH. COMP. LAws § 46.3(2). Defendant Knight, whose position entitles him to just one vote, is therefore not a final policymaker. Accord Suber v. Seminole County, Florida, 78 F. Supp.2d 1298 (M.D. Fla. 1999) (finding that particular members of the board of county commissioners could not have established county policy or custom where state law gave final policymaking authority to the entire board and there was no indication that authority had been delegated to one individual commissioner).
Accordingly, no genuine issue of material fact exists as Plaintiff has not brought forth any evidence to show that the alleged constitutional violations were the result of any governmental policy or custom. I therefore suggest that Defendant Ogemaw County is entitled to summary judgment.
d. Defendant Knight's Motion for Summary Judgment
Defendant Knight argues that he is entitled to qualified immunity for any claims made against him in his individual capacity. Defendant Knight claims he is qualifiedly immune because "[n]o legal principles have been developed which `clearly establish' that independent contractors are protected from sexual harassment under the equal protection clause." (Br. in Supp. of Mot., Dkt. 41 at 15.)
i. The Doctrine of Qualified Immunity
The defense of qualified immunity provides that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The rationale underlying the doctrine is that "an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to `know' that the law forbade conduct not previously identified as unlawful." Id.
The Sixth Circuit has attempted to explain the "sometimes confusing doctrine" of qualified immunity:
The confusion in this area is generated in part by carrying over an absolute immunity construct into a qualified immunity analysis. When an official is cloaked with absolute immunity, it matters not what he did, when he did it or what the state of the law was then and now. Such is not the case with qualified immunity.Kain v. Nesbitt, 156 F.3d 669, 672 n. 5 (6th Cir. 1998). The court then explained:
When making a qualified immunity analysis, it is important to remember that the defendant is, in essence, saying: "If the plaintiff's version is credited, what I did, judged today, arguendo would be wrongful, but at the time I acted, no reasonable officer would have known he was acting wrongfully." See Berryinan v. Rieger, 150 F.3d 561, 562 (6th Cir. 1998) ("the defendant must be prepared to overlook any factual dispute and to concede an interpretation of the facts in the light most favorable to the plaintiff's case"). If an officer committed no wrong, then qualified immunity is not implicated.Kain, 156 F.3d at 671-72.
There are two steps that a district court must take when qualified immunity is raised in a pre-trial motion. First, the court must determine, as a purely legal matter, if the "allegations state a claim of violation of clearly established law[.]" Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); see also Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Second, the court must decide if "the public official acted `objectively unreasonable in light of [the] established constitutional right.'" Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998) (quoting Adams v. Metiva, 31 F.3d 375, 387 (6th Cir. 1994)). This determination is necessary because it answers the "legal question of whether the defendant should have known that his alleged acts violated clearly established rights at the time." Dominque v. Telb, 831 F.2d 673, 677 (6th Cir. 1987).
To find a clearly established constitutional right, a district court in the Sixth Circuit must find binding precedent "from the Supreme Court, the Sixth Circuit, or from itself." Cagle v. Gilley, 957 F.2d 1347, 1348 (6th Cir. 1992). A district court may look finally to the decisions of other circuits. See Buckner v. Kilgore, 36 F.3d 536 (6th Cir. 1994). A violation of a state statute or state administrative provision alone does not serve to destroy an official's qualified immunity and subject him to liability for damages. See Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984).
The Supreme Court has explained that the constitutional right an official has allegedly violated must have been clearly established in a particularized sense. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). This ensures that government officials can reasonably "anticipate when their conduct may give rise to liability for damages." Id. at 639 (citing Davis, 468 U.S. at 195).
ii. Clearly Established Law
In 1980, the Sixth Circuit first held that an employee may sue a public employer under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (1976), and 42 U.S.C. § 1983 when the § 1983 violation rests on a claim of infringement of rights independently guaranteed by the United States Constitution. See Grano v. Dep't of Develop., City of Columbus, 637 F.2d 1073 (6th Cir. 1980). In 1988, the Sixth Circuit held that a claim of sexual harassment in employment, which had recently been declared by the U.S. Supreme Court to be actionable sex discrimination under Title VII, see Mentor Savings Bank, FSB v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 91 L.Ed.2d 48 (1986), could also be a violation of the Equal Protection Clause of the Fourteenth Amendment and therefore actionable under 42 U.S.C. § 1983. Poe v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988)("sexual harassment by government employers would violate the rights protected by the equal protection clause").
Title VII makes it unlawful for an employer to take any action on the basis of sex that "discriminate[s] against any individual with respect to his compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1).
Since that time, the federal courts have of course adjudicated numerous sexual harassment claims, including those brought under Title VII as well as § 1983. The Ninth Circuit has stated that
Title VII cases are relevant to the discussion of when the constitutional right to be free of sexual harassment became clearly established because Title VII and equal protection cases address the same wrong: discrimination. Title VII case law establishes that sexual harassment is prohibited sex discrimination, and it reflects our collective understanding of what conduct violates a person's rights. Indeed, our cases "indicate that there is a very close relationship between [Title VII and equal protection]. . . . claims," and, not surprisingly, case law on equal protection tracks case law on Title VII. See Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 472 (9ffi Cir. 1991); Sischo-Nownejad, 934 F.2d at 1112-13.Bator v. State of Hawaii, 39 F.3d 1021, 1028 n. 7(9th Cir. 1994). The court went on to explain the differences between sexual harassment claims brought under the Equal Protection Clause via § 1983 and those brought under Title VII:
Certainly Title VII and equal protection claims of sexual harassment differ. For example, a plaintiff must show intentional discrimination and state action for equal protection claims (but not for Title VII claims), and Title VII requires exhaustion of administrative remedies. These differences, however, do not detract from the relevance of Title VII cases to equal protection claims.Id.
Despite these differences, the Sixth Circuit has stressed the similarities: "The showing a plaintiff must make to recover on an employment discrimination claim under Title VII mirrors that which must be made to recover on an equal protection claim under section 1983." Morris v. Oldham County Fiscal Court, 201 F.3d 784, 794 (6th Cir. 2000) (citing Risinger v. Ohio Bureau of Workers' Compensation, 883 F.2d 475, 483-84 (6th Cir. 1989)). Accord Klemencic v. Ohio St. Univ., 10 F. Supp.2d 911, 915 (S.D. Ohio 1998)("The Title VII framework likewise applies to equal protection claims brought pursuant to 42 U.S.C. § 1983.").
The law is clear that Title VII only applies to employer-employee relationships, and not to independent contractors. Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 380 (7th Cir. 1991). See also Minnis v. McDonnell Douglas Technical Services Co., 162 F. Supp.2d 718, 732 (E.D. Mich. 2001) (citing Falls v. Sporting News Pub. Co., 834 F.2d 611, 613 (6th Cir. 1987)). In this case, I suggest that the Plaintiff's deposition testimony (Dkt. 41 at Ex. 1) demonstrates that she was an independent contractor, not an employee, of Ogemaw County. Plaintiff testified that after forming Cheryl's Cleaning Company and ultimately successfully receiving the bid for services at the County Building, she hired as many as five employees. Plaintiff obtained workers compensation insurance for her employees and decided which employees would be working at any given time and what their assignments were to be. The contract Plaintiff entered into with the County of Ogemaw (Dkt. 41 at Ex. 3) was for a period of one year commencing on September 9, 1999, and was terminable by either party with or without cause upon 30 days' notice. Plaintiff represented in the contract that "all personnel employed to provide services hereunder are completely trained, fully qualified to provide such services." Paragraph 7 reads:
Whether a person is an employee or an independent contractor is determined by the "economic realities" of the employment relationship. The Sixth Circuit has indicated that the question is governed by the thirteen factors set forth by the U.S. Supreme Court in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). Jackson v. Roadway Package System, Inc., No. 97-1731, 1998 WL 739821(6th Cir. Oct. 6, 1998)(unpublished). The factors include: "`the hiring party's right to control the manner and means by which the product is accomplished[;]. . . the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.'" Darden, 503 U.S. at 323-24(quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989)).
The parties intend that an independent contractor-employer relationship will be created by this contract. The COUNTY is interested only in the results to be achieved, and the conduct and control of the work subject to the conditions stated herein, will lie solely with the CONTRACTOR. CONTRACTOR is not to be considered an agent or employee of the COUNTY. It is understood that CONTRACTOR is free to contract for similar or other services to be performed for other entities while under contract with this COUNTY.
(Dkt. 41, Ex. 3 at ¶ 7.) This document was signed by Plaintiff and Michael Colclasure, Maintenance Superintendent for Ogemaw County.
Plaintiff further testified in her deposition that she made use of a CPA to assist her in the financial dealings of the business. She also withheld and paid social security for herself and for her employees, compensated her employees by issuing checks every two weeks, and received an IRS Form 1099 on an annual basis reflecting the payments made to her by the County of Ogemaw. Plaintiff testified that she did not advertise for other janitorial jobs, but she did acknowledge that Cheryl's Cleaning Company also performed work for one of the other townships within the County.
In light of these facts as acknowledged by Plaintiff, I suggest that Plaintiff was clearly an independent contractor, and that no reasonable trier of fact could find otherwise. Although it is clearly established under law that independent contractors are not covered under Title VII, Plaintiff has not directed the Court's attention to a single case allowing an independent contractor to bring forward a sexual harassment claim under the Equal Protection Clause via § 1983, nor has research uncovered one. Other than public employees, the only plaintiffs that have successfully brought claims of sexual harassment under the Equal Protection Clause have been public school students. See, e.g., Parks v. Wilson, 872 F. Supp. 1467, 1469 (D.S.C. 1995)(teacher's sexual harassment of student can violate student's rights protected by the Equal Protection Clause, based upon teacher's position of authority over student, where teacher's conduct rises to the level of a constitutional violation).
A review of case law has further revealed that the cases where plaintiffs other than employees and students have successfully raised constitutional claims of sexual harassment under § 1983 against state actors were brought pursuant to the Fourteenth Amendment's substantive due process protection. See Fontana v. Haskin, 262 F.3d 871, 882(9th Cir. 2001) ("Most cases that involve unwanted sexual contact or harassment by public officials have been analyzed under the substantive due process right to be free from violations of bodily integrity under the Fourteenth Amendment. Cases involving rape and sexual harassment by police officers are usually analyzed in this manner.") (collecting cases). See also Hubbard v. City of Middletown, 782 F. Supp. 1573, 1579(S.D. Ohio 1990) (denying summary judgment to police chief charged with sexual harassment by eighteen-year-old high school student, who was never employed by the city, because "there is authority that sexual assault by a government agent in a position of relative authority violates the victim's fourteenth amendment right to substantive due process"). Plaintiff here has not claimed a violation of her substantive due process rights, but specifically of her equal protection rights. However, even if she had raised this claim under the rubric of substantive due process, I nevertheless would suggest that the law was not clearly established at the time of Defendant's alleged conduct, given the absence of any case establishing such a right from the Supreme Court, the Sixth Circuit, or a federal court in Michigan, and the dearth of cases nationwide.
Accordingly, I suggest that Defendant Knight is entitled to qualified immunity on this claim because there is no clearly established law holding in any particularized sense that independent contractors are protected from sexual harassment by the Equal Protection Clause. Analogizing such a claim to one brought under Title VII and applying that law's framework, which the Sixth Circuit frequently does, would indicate that independent contractors are not protected because of the lack of an employee-employer relationship. Therefore, Defendant Knight "could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to `know' that the law forbade conduct not previously identified as unlawful." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
e. RETALIATION CLAIM UNDER § 1983 AGAINST DEFENDANT SHELTROWN
Plaintiff claims that Defendant Sheltrown retaliated against her in violation of the Fourteenth Amendment's Equal Protection Clause, Michigan's Elliott Larsen Civil Rights Act, and Michigan's Whistleblower Protection Act when he threatened her that her contract with the County would not be renewed in 2001 if she proceeded with the civil rights complaint she filed with the Michigan Department of Civil Rights in October of 2000. (Compl., Dkt. 1 at ¶¶ 32-33.) Regarding the federal aspect of this claim, Defendant Sheltrown argues that he is entitled to summary judgment because Plaintiff has not stated a constitutional violation. (Dkt. 54 at 3.)
I suggest that Defendant Sheltrown is entitled to summary judgment on the federal claim of retaliation. In Day v. Wayne County Board of Auditors, 749 F.2d 1199 (6th Cir. 1984), the court held that Congress did not intend for a violation of Title VII's prohibition on retaliation for filing a charge of discrimination with the EEOC to provide the basis for a § 1983 claim, because the right to be free from such retaliation does not-emanate from the Constitution, but rather from the statute itself. If plaintiffs could sue under § 1983 for violations of Title VII's anti-retaliation provisions, the reasoning goes, plaintiffs would in effect have an avenue to "bypass all of the administrative processes of Title VII and go directly into court under § 1983." Id. at 1204. Accordingly, Title VII was held to provide the exclusive remedy for claims of retaliation in violation of that statute. Id.
I suggest that this same reasoning applies here. Plaintiff's claim that she was retaliated against for filing a complaint with the Michigan Department of Civil Rights does not state a constitutional claim under § 1983 claim because the alleged conduct was in violation of a Michigan statute, not the Equal Protection Clause of the U.S. Constitution.
Section 701 of the Elliott Larsen Civil Rights Act, MICH. COMP. LAWS § 37.2701, provides, in part: "[A] person shall not: (a) Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act."
Alternatively, I suggest that Defendant Sheltrown is entitled to qualified immunity on this claim, for the same reasons as expressed with regard to Defendant Knight. The law is not clearly established that independent contractors are protected from sexual harassment, including claims of retaliation, by the Equal Protection Clause.
4. Pendent State Claims
Plaintiff's complaint raises pendent state law claims of retaliation in violation of the Michigan Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS § 37.2101, and the Michigan Whistleblower's Protection Act, MICH. COMP. LAWS § 15.362. Because I suggest that Defendants are entitled to summary judgment on the federal claims, I further suggest that the Court not exercise its discretion to entertain the state claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (noting that generally "if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well.")
Alternatively, I suggest that Defendants are entitled to summary judgment on these claims as well, because neither of these statutes apply to independent contractors. See Falls v. Sporting News Publishing Co., 834 F.2d 611(6th Cir. 1987) (Elliott Larsen Civil Rights Act does not apply to independent contractors); Chilingirian v. City of Fraser, 194 Mich. App. 65, 486 N.W.2d 347(1992), opinion on remand, 200 Mich. App. 198, 504 N.W.2d 1 (1993) (independent contractors not covered under Whistleblower's Protection Act).
Michigan also uses a multi-factor test for determining whether a person is an employee or an independent contractor. Michigan's "economic reality test" involves four basic factors: "(1) control of the worker's duties; (2) payment of wages; (3) the right to hire, fire, and discipline; and (4) performance of the duties toward the accomplishment of a common goal." Meridian Mut. Ins. Co. v. Wypij, 226 Mich. App. 276, N.W.2d 320, 322 (1998). "In applying these factors, the totality of the circumstances surrounding the work must be examined, with no single factor controlling." Id. I suggest that Plaintiff would also be characterized as an independent contractor under the Michigan test.
III. REVIEW
The parties to this action may object to and seek review of this Report and Recommendation within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Sec'y of Health Human Serv's., 932 F.2d 505(6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are advised that making some objections, but failing to raise others, will not preserve all the objections a party may have to this Report and Recommendation. See Willis v. Sec'y of Health Human Serv's., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373(6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.