Opinion
5:99-CV-126
February 6, 2001
OPINION
This matter is before the Court on Defendants' Motion for Summary Judgment as to Count III. The Motion has now been fully briefed by the parties. Upon inspection of the briefing, the Court determines that the Motion will be resolved without oral argument since oral argument would not materially assist in the resolution of the Motion.
FACTUAL BACKGROUND
Plaintiff Deborah M. Layman filed this suit on or about October 25, 2000 in the Circuit Court for the County of Ingham. Plaintiff alleges legal claims in three counts: Count I for intentional discrimination on the basis of family and marital status in violation of Michigan's Elliott-Larsen Civil Rights Act ("MELCRA"), Michigan Complied Laws Sections 37.2201 et seq.; Count II for retaliatory discharge in violation of MELCRA; and Count III for violation of 42 U.S.C. § 1983 and her constitutional rights of intimate association, privacy and equal protection.
On or about November 16, 1999, the suit was removed by Defendants to this Court. On November 15, 2000, Defendants filed the instant Motion. The evidence filed in connection with the Motion, to the extent relevant, is explained below.
Plaintiff has been employed with the Ingham County Sheriff's Department since 1991. Since then, she has had a mixed record of service-i.e., some commendations and some reprimands. Plaintiff received a reprimand in July 1997 from Captain Fitzgerald for the making of excessive personal telephone calls. (Plaintiff's Response, Exhibit 6.) Plaintiff filed a grievance concerning this reprimand based upon her claim that she was treated more harshly than male officers. (Id.) The appeal of the grievance was handled in part by Defendant Undersheriff Matthew Myers. His response indicated that he was confused about the paperwork, but further indicated that he believed that she was counseled and not reprimanded. (Plaintiff's Response, Exhibit 8.) His response further indicated that he had concerns about statements she was alleged to have made to the effect that the Perry Police Department and Ingham County Sheriff's Department were "going to pay" for her summer and winter homes. (Id.) Following this response, the Union filed an unfair labor practice grievance relating to the August 1, 1997 response by Myers. This was resolved by an administrative decision, which determined that the counseling/discipline was unfair and that the August 1, 1997 memorandum should be removed from her personnel file. (Plaintiff's Response, Exhibit 10.)
Plaintiff has also complained concerned the Department's treatment of her requests for additional uniforms in April and May of 1998 (Plaintiff's Response, Exhibits 11 and 12.) Defendant Myers was not involved in these complaints. (Id.)
On or about February 9, 1999, Plaintiff was separated from her then husband and Sheriff's Deputy, Scott Polhemus. (Defendants' Motion, Exhibit 4.) Scott Polhemus was then residing with Sheriff's Deputy Brian Ellis. (Id.) Ellis complained on February 9, 1999 to Sheriff's Sergeant.
Estrada and later made formal complaints to the Sheriff's Department and the County Prosecutor concerning Plaintiff's leaving abusive and profane telephone messages for him and Scott Polhemus, and for trespass and stalking. (Id. Seealso Defendants' Motion, Exhibit 3.) Some of the telephone calls were recorded and contained abusive and profane language by Plaintiff. (Defendants' Motion, Exhibit 3.) Sergeant Estrada then ordered Plaintiff to suspend contact with Ellis and Polhemus. (Id. at 2.) Later that evening, Plaintiff contacted Polhemus by use of his pager. (Id Seealso Plaintiff's Response at 7.) She also contacted Polhemus the following day by telephone, according to her for the purpose of discussing their child's asthma attack. (Plaintiff's trial testimony at 46.) According to the officers who investigated this matter, she stated that she made contacts in part because she believed that the order by Sgt. Estrada was invalid.
On or about February 9, 1999, Plaintiff made several telephone calls to Polhemus' girlfriend, Kimberly Ellickson, which she admitted to officers were inappropriate. (Id.) Ellickson made a criminal complaint concerning the telephone calls, but later withdrew her criminal complaint. (Plaintiff s Response, Exhibit 13.)
During the investigation of the these criminal complaints, Plaintiff was charged with two misdemeanors-for harassing telephone calls and stalking. When Plaintiff was formally arrested by the Sheriff's Department she was handcuffed at the direction of Defendant Myers. (Plaintiff's Trial Transcript at 255, 446.) The charges were subsequently dismissed at the request of the County Prosecutor. (Plaintiff's Response, at 8.)
On February 22, 1999, Defendant Myers conducted a pre-determination hearing on the issue of whether Plaintiff should receive discipline for the February 9-10, 1999 conduct. After the hearing, Defendant Myers determined in writing that Plaintiff would be terminated based upon her conduct. (Defendants' Motion, Exhibit 3.)
Plaintiff filed a grievance concerning the termination. The grievance resulted in an appeal to the Ingham County Circuit Court, which tried the matter. At conclusion of the bench trial, the Circuit Court determined that the discipline imposed was excessive, but did not determine whether lesser discipline was appropriate (leaving that issue to the parties). (Defendants' Motion, Exhibit 3 at 12-13.) Subsequently, Defendant Myers imposed the following lesser discipline:
1. A verbal reprimand . . . for your telephone calls to Ms Erickson.
2. A verbal reprimand . . . for your telephone calls to Mr. Ellis.
3. A one day suspension . . . for your confrontation at the Ellis residence.
4. A one day suspension . . . for your failure/refusal to obey Sergeant Estrada's order to you on February 8, 1999."
(Defendants' Motion, Exhibit 1.) This lesser discipline also resulted in a grievance, but according to information supplied by the parties, the grievance process has not, as of this date, altered the lesser discipline.
Defendant Myers divorced his former wife Marla Myers in January 1999. Marla Myers has testified at deposition that at some time prior to their divorce Defendant Myers pointed out Deborah Polhemus to her at a Fraternal Order of Police Christmas Party in the Fraternal Order of Police Hall and said that she was "sleeping around" with another officer and that this was not acceptable. (M Myers Dep., Defendants' Reply, Exhibit 5, at 5-16.) This testimony appears fabricated for several reasons. The last Sheriffshristmas party at the Fraternal Order of Police Hall occurred in 1993, which is long before Plaintiff began her relationship with Scott Layman. (Affidavit of Matthew Myers, Defendants' Reply, Exhibit 3.) Furthermore, even if the conversation occurred in 1997, it occurred long before Defendant Myers acted to terminate the Defendant. This testimony is also subject to the marital communication privilege and, therefore, cannot be considered against the Defendant absent his waiver of the privilege. See United States v. Porter, 986 F.2d 1014, 1018. (6th Cir. 1993).
Defendant Myers is the keeper of the personnel and disciplinary records for the Ingham County Sheriff's Department. In this capacity, he has provided his affidavit that between 1992 and 1999 the Department terminated eight male employees for a variety of misconduct including excessive personal telephone calls, lying, perjury, theft, insubordination and firearms rules violations. (M Myers Affidavit.) He has also stated in his affidavit that between 1992 and 1999 the Ingham County Sheriff's Office arrested three other employees (some of whom were male) and that those individuals were handcuffed in connection with their arraignment and/or detention. (Id.)
STANDARD FOR SUMMARY JUDGMENT
Under the language of Federal Rule of Civil Procedure 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with 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. The initial burden is on the movant to specify the basis upon which summary judgment should be granted and to identify portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden then shifts to the non-movant to come forward with specific facts, supported by the evidence in the record, upon which a reasonable jury could find there to be a genuine fact issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). If, after adequate time for discovery on material matters at issue, the non-movant fails to make a showing sufficient to establish the existence of a material disputed fact, summary judgment is appropriate. Celotex Corp., 477 U.S. at 323.
Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences are jury functions. Adams v Metiva, 31 F.3d 375, 382 (6th Cir. 1994). The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in the non-movant's favor. Celotex Corp., 477 U.S. at 323 (quoting Anderson, 477 U.S at 255). The factual record presented must be interpreted in a light most favorable to the non-movant. Matsushita Elec. Indus Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Rule 56 limits the materials the Court may consider in deciding a motion under the rule: "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits." Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir 1995) (quoting Federal Rule of Civil Procedure 56(c)). Moreover, affidavits must meet certain requirements:
[A]ffidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith Fed.R.Civ.Proc. 56(e) (emphasis added). The Sixth Circuit has held "that documents submitted in support of a motion for summary judgment must satisfy the requirements of Rule 56(e); otherwise, they must be disregarded." Moore v. Holbrook, 2 F.3d 697, 699 (6`h Cir. 1993). Thus, in resolving a Rule 56 motion, the Court should not consider unsworn or uncertified documents, id., unswom statements, Dole v. Elliot Travel Tours, Inc., 942 F.2d 962, 968-969 (6th Cir. 1991), inadmissible expert testimony, North American Specialty Ins. Co. v. Myers, 111 F.3d 1273, 1280 (6th Cir. 1997), hearsay evidence, Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996), or inadmissible privileged evidence, Trebor Sportswear Co. v. The Limited Store, Inc., 865 F.2d 506, 510 (2nd Cir. 1989); Motor Carriers Labor Advisory Council v. Trucking Management, Inc., 711 F. Supp. 216, 234 (E.D.Pa. 1989)
LEGAL ANALYSIS
Plaintiff's claims as to Count III are alleged pursuant to 42 U.S.C. § 1983. According to the United States Supreme Court and the Sixth Circuit Court of Appeals to prevail under Section 1983 a plaintiff must establish: (I) that she was deprived of a right, privilege or immunity secured by the Constitution or laws of the United States; and (2) that the deprivation was caused under color of state law. Flagg Brothers v. Brooks, 436 U.S. 149,155-57 (1978); Brock v. Mcnerter, 94 F.3d 242, 244 (6th Cir. 1996). In this case, there is no real dispute about the second element since various employees including Defendant Myers acted as employees of Ingham County. Therefore, the following legal analysis will focus on the alleged constitutional deprivations. Plaintiff alleges essentially two constitutional deprivations: (1) that Defendants deprived her of her rights of privacy and free association by discriminating against her because of her relationship with Scott Layman; and (2) that Defendants denied her equal protection of the law by treating her more harshly than male officers. The Court will first discuss the issue of the Ingham County Sheriffs Department's liability as to Count III and then will discuss the constitution deprivations in the context of Plaintiff's Count III claims against Defendant Myers.Liability of the Ingham County Sheriffs Department
Although neither of the parties have briefed the issue, it is clear to the Court that the allegations of Plaintiff against the "Ingham County Sheriff's Department" are fatally flawed in that the "Ingham County Sheriff's Department" (unlike Ingham County or the Ingham County Sheriff) is not a recognized legal entity. See Vine v. County of Ingham, 884 F. Supp. 1153, 1157-58 (W.D.Mich 1995) (holding that under Michigan law the "Ingham County Sheriff's Department" is not a recognized legal entity subject to suit); Hughson v. County of Antrim, 707 F. Supp. 304, 306 (W.D.Mich. 1988) (holding that under Michigan law the "Antrim County Sheriff's Department" is not a recognized legal entity subject to suit); Sumner v. Wayne County, 94 F. Supp.2d 822, 827 (E.D.Mich 2000) (holding that under Michigan law the "Wayne County Sheriff's Department" is not a recognized legal entity subject to suit). See also Haverstick Enterprises, Inc. v. Financial Credit Inc., 32 F.3d 989, 992 n. 1 (6th Cir. 1994) (holding that under Michigan law a "city police department" was not a recognized legal entity subject to suit); Miller v. Dowagiac Police Dept., 125 F.3d 855, 1997 WL 640127 (6th Cir. Oct. 14, 1997) (unpublished decision) (holding that under Michigan law the "Cass County Sheriff's Department" is not a recognized legal entity subject to suit). Accordingly, the Court determines that the allegations against the Ingham County Sheriff's Department are legally insufficient in that they are made against an entity which is not legally recognized as subject to suit.
Furthermore, assuming for the purposes of argument that Plaintiff were to amend her allegations to state them against Ingham County or the Ingham County Sheriff, the allegations and proofs are still insufficient. Defendant has argued at some length the Department cannot be liable under Section 1983 based merely upon respondeat superior under the rule in Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694 (1978) and McMillian v. Monroe County, Ala., 520 U.S. 781, 784-85 (1997). That is, unless the negative actions taken against the Plaintiff were caused by the official policy of the County or Sheriff, those entities cannot be liable under Section 1983. Id.
In this case, Plaintiff has failed to respond to Defendants' Monell argument and has failed to provide an evidentiary basis from which this Court could conclude that negative actions were caused by an official policy of the Sheriff or County Accordingly, even were the Sheriff or County correctly named by the Plaintiff, summary judgment would be appropriate as to the Count III claims against the Sheriff or County Rights of Privacy and Free Association.
Defendant Myers has argued that he cannot be liable for violating the Plaintiff's constitutional rights of privacy and free association with respect to her intimate dating relationship with Scott Layman because those rights were not "clearly established" at the time of alleged violations. The doctrine of "qualified immunity" provides a form of immunity for state actors engaged in discretionary actions. The doctrine of qualified immunity was recently explained by the Sixth Circuit Court of Appeals in Seal v. Morgan, 229 F.3d 567, 580-581 (6th Cir. 2000) as follows:
The doctrine of qualified immunity generally shields government officials from civil liability for performing discretionary functions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998) ( quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)); see also Malley v Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ("As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law."). In determining whether an official is entitled to qualified immunity, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Daughenbaugh v. Tiffin, 150 F.3d 594, 602-03 (6th Cir. 1998) (citation and internal quotation marks omitted). Id
In response to this argument, Plaintiff notes that the Sixth Circuit in Littlejohn v. Rose, 768 F.2d 765, 668 (6th Cir. 1985) recognized that the constitutional rights of privacy and free association were violated by discrimination based upon an "impending divorce" and that Defendant Myers's conduct as testified to by his wife is akin to the illegal discrimination forbidden in Littlejohn.
The doctrine of qualified immunity as it relates to the constitutional rights of privacy and free association was explained by the Sixth Circuit Court of Appeals in Cameron v Seitz, 38 F.3d 264, 275-276 (6th Cir. 1994). It held that because case law had not clearly established constitutional rights to engage in intimate dating or engaged relationships qualified immunity protected state officers who had allegedly discriminated on that basis.
In this case, the cases cited by Plaintiff as a basis for her constitutional rights were for the most part the same cases cited in Cameron. Furthermore, Plaintiff has cited no case law since the decision in Cameron on the issue of her alleged constitutional rights to privacy and free association.
Therefore, the Court is constrained to conclude, like the Sixth Circuit in Cameron, that because Plaintiff's constitutional rights to engage in an extra-marital dating relationship with another Sheriff's deputy were not clearly established at the times of the negative employment actions by Defendant Myers he is protected by qualified immunity. The Court also believes that the evidence offered to support the conclusion that Defendant Myers took action on this basis is insufficient as a matter of law to support that conclusion.
Accordingly, Defendant Myers is entitled to summary judgment on these claims.
Equal Protection Claim
Based on the above rulings, the only remaining claims made in Count III are against Defendant Myers for denial of Plaintiff's rights to equal protection of the laws. The Equal Protection Clause of the Fourteenth Amendment requires that state actors apply the law equally and without discrimination of persons Accordingly, the Sixth Circuit Court of Appeals has described the proofs necessary to sustain an Equal Protection claims brought pursuant to 42 U.S.C. § 1983 as follows:
To state a claim under § 1983, a plaintiff must plead and prove that she has been deprived of a right secured by the Constitution or federal laws, by one acting under color of state law. See 42 U.S.C. § 1983; Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1202 (6th Cir. 1984). To establish an equal protection claim against a public employer under § 1983, the "plaintiff must show that the employer made an adverse employment decision `with discriminatory intent and purpose.'" Boger v. Wayne County, 950 F.2d 316, 324-25 (6th Cir. 1991) (quoting Charles v. Baesler, 910 F.2d 1349, 1356-57 (6th Cir. 1990)); Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988) (the plaintiff must prove by a preponderance of the evidence that she was the victim of "intentional and purposeful discrimination"); see also Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (holding that in order to prove an equal protection violation, the plaintiff must demonstrate that the defendant acted with discriminatory intent); see generally Annis v. County of Westchester, 36 F.3d 251, 254-55 (2d Cir. 1994) (observing that every circuit to have addressed the issue, including the Sixth Circuit, has held that Title VII is not the exclusive remedy for discrimination against state employers when those claims derive from violation of constitutional rights). The plaintiff may not simply introduce evidence of discriminatory intent and suggest that "`such intent could have played a role in an adverse employment decision. Rather, a plaintiff is required to demonstrate that the adverse employment decision would not have been made "but for" her [membership in the protected class].'" Boger, 950 F.2d at 325 (quoting Gutzwiller, 860 F.2d at 1325)Weberg v. Franks, 229 F.3d 514, 522 (6th Cir. 2000).
Defendant Myers has argued in his briefing that the proofs are insufficient to establish an Equal Protection claims pursuant to 42 U.S.C. § 1983. Plaintiff has failed to respond to this argument in her briefing. Nevertheless, the Court has assessed the evidence filed in connection with the Motion to assess whether there is a genuine issue of material fact regarding Plaintiff's Equal Protection claim. On review of the evidence, the Court determines that Defendant Myers is entitled to summary judgment on this claim. Overall, the only evidence suggesting that Defendant Myers considered Plaintiff s gender or personal relationships in his discipline decision was the testimony of Defendant's ex-wife, which is inadmissible because of privilege and which appears fabricated and wholly unreliable. The timing of the discipline indicates that it was prompted only by the events of February 1999 and not by any discriminatory animus of the Defendant. The basis for the discipline-that Plaintiff made harassing telephone calls and contacted her husband after receiving a direct order not to do so-was admitted in significant part by the Defendant in her own explanations of her conduct (though she characterized that conduct as reasonable in light of past abuse and because of medical problems of her children). While the Department initially responded by termination (which was determined to be excessive by a state court judge), the discipline was subsequently reduced to a two-day suspension and reprimand. The only evidence of record relating.
The arbitration decision is given preclusive effect in light of the Sixth Circuit's decision in Ryan v. City of Shawnee, 13 F.3d 345, 347 (6th Cir. 1993), which determined that arbitration decisions reviewed in state court are entitled the same preclusive effect as afforded in state court. However, since the state court at issue here only determined that the initial termination was excessive, it fails to address the issue pertinent to this suit whether the revised discipline was discriminatory or irrational.
The arbitration decision is given preclusive effect in light of the Sixth Circuit's decision in Ryan v. City of Shawnee, 13 F.3d 345, 347 (6th Cir. 1993), which determined that arbitration decisions reviewed in state court are entitled the same preclusive effect as afforded in state court. However, since the state court at issue here only determined that the initial termination was excessive, it fails to address the issue pertinent to this suit-whether the revised discipline was discriminatory or irrational to the Department's history of disciplining officers, which was supplied by Defendants, indicates that the reduced discipline was proportionate and equivalent to the discipline imposed as to male officers for insubordination and rules violations. Accordingly, summary judgment shall enter in favor of Defendant Myers as to the Equal Protection claim.
State Law Claims
This leaves unresolved Plaintiff's claims in Counts I and II As to those claims, the Court has supplementary jurisdiction pursuant to 28 U.S.C. § 1367. Nevertheless, since the only federal law count, Count III, shall be dismissed, Section 1367(c)(3) authorizes this Court to decline to exercise jurisdiction over the state law claims. The Court believes that the interests of justice would be best served by the state court's resolution of the remaining state law issues and therefore declines to exercise jurisdiction over the remaining claims. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 357 (1988); Long v Bando Mfg. of America, Inc., 201 F.3d 754, 761 (6th Cir. 2000) Accordingly, consistent with precedent, the remaining claims shall be remanded to the Circuit Court for the County of Ingham, Michigan.
CONCLUSION
For the reasons stated, the Court will enter a Partial Judgment and Order of Remand, which will grant summary judgment to Defendants as to Count III and remand Counts I and II to the Circuit Court for the County of Ingham, Michigan.
PARTIAL JUDGMENT AND ORDER OF REMAND
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment as to Count III (Dkt. No. 32) is GRANTED and summary judgment is entered in favor of Defendants as to Count III.
IT IS FURTHER ORDERED that, all federal claims in this suit having been resolved, the remaining state law claims (Counts I and II) are remanded to the Circuit Court for County of Ingham, Michigan pursuant to 28 U.S.C. § 1367(c)(3).