Bremiller v. Cleveland Psychiatric Institute, 1:94CV1151.

• Citation: 879 F. Supp. 782
• Decision Date: 12 January 1995
• Docket Number: No. 1:94CV1151.,1:94CV1151.
• Parties: Susan BREMILLER, Plaintiff, v. CLEVELAND PSYCHIATRIC INSTITUTE, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

879 F. Supp. 782

Susan BREMILLER, Plaintiff, v. CLEVELAND PSYCHIATRIC INSTITUTE, et al., Defendants.

No. 1:94CV1151.

United States District Court, N.D. Ohio, Eastern Division.

January 12, 1995.

COPYRIGHT MATERIAL OMITTED

Howard A. Schulman, Schulman, Schulman & Meros, Karen Marie Crist, Cleveland, OH, for plaintiff.

Franzetta D. Turner, Employment Law Section, Office of the Asst. Atty. Gen., Cleveland, OH, Robert L. Griffin, Mary Beth Foley, Office of the Atty. Gen., Employment Law Section, Columbus, OH, for defendants.

MEMORANDUM AND ORDER

OLIVER, District Judge.

This memorandum and order addresses defendant's motion to dismiss plaintiff's complaint. Plaintiff filed this complaint against several defendants. These defendants include the Cleveland Psychiatric Institute ("CPI"), Michael Hogan, the Director of the Ohio Department of Mental Health in his individual capacity, Sandra Rahe the Acting Chief Executive Officer of CPI in her individual capacity, Douglas Aaron an employee of CPI and John Doe co-conspirators whose identities are unknown to the plaintiff. Plaintiff alleges various violations of employment law, civil rights law and pendent state law claims. More specifically, plaintiff alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq. for sex discrimination, creation of hostile work environment/sexual harassment and retaliatory discharge. Plaintiff also brings this action under of 42 U.S.C. §§ 1983 and 1985 for violations of the 5th and 14th Amendments to the United States Constitution. Finally, plaintiff asserts several state law claims including violation of O.R.C. § 4112 (the state anti-discrimination in employment statute), public policy retaliatory discharge, defamation and tortious interference with contract, intentional infliction of emotional distress, assault and battery, and false imprisonment.

I. FACTS

Plaintiff's claims stem from her employment as a nurse at CPI. In that capacity, plaintiff asserts that male colleagues subjected her and other female staff members to continuous sexual harassment from the first day of her employment in August of 1991 until her termination in June of 1993. According to plaintiff, this harassment included, inter alia, verbal threats, physical intimidation, sexual jokes, and unwanted touching and groping. According to plaintiff, most of this harassment came from the male Therapeutic Program Workers ("TPWs"), but also from the interim head of security Mr. David Sladewski and part-time police officers at CPI.

Plaintiff claims that nurses constantly reported this behavior to their supervisors and to Sandra Rahe the acting CEO for CPI, but no one ever took any action to stop the harassment. In fact, plaintiff contends that Sandra Rahe instructed Bonnie Ameche, the nurse educator, not to discuss sexual harassment during nurse orientation. Consequently, plaintiff alleges, CPI never addressed the issue, not even during plaintiff's EEO orientation.

Finally, just prior to her termination, on June 5, 1993, plaintiff alleges that defendant Aaron held her at gun point in a room at CPI for over an hour and a half and during that time he fondled her, exposed himself to her and masturbated in front of her. Plaintiff immediately reported this incident to the State Highway Patrol, whose jurisdiction included CPI. The next day, she filed a police report with the Cleveland Police Department. Finally, she reported the incident to her nurse supervisor and the personnel director at CPI. On June 7, 1993, plaintiff met with Sandra Rahe and Marie deBrossard to discuss the attack. At that time, Sandra Rahe terminated plaintiff on the basis that it was easier to terminate plaintiff, a non-union employee, than to terminate defendant Aaron, a union employee.

Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") against CPI on December 1, 1993. She received her right to sue letter on May 6, 1994. According to plaintiff, between March 29, 1994 and April 11, 1994, while the EEOC was conducting its investigation into plaintiff's complaint, defendants Hogan and Rahe conspired to terminate Ruth Spencer who maintained possession and control over the documents relevant to plaintiff's claims. Plaintiff alleges that upon terminating Ruth Spencer, defendants Hogan and Rahe further conspired to enter Ruth Spencer's office and removed and destroyed all documents relevant to plaintiff's complaint.

Plaintiff filed this lawsuit on June 3, 1994. Defendants filed a motion to dismiss plaintiff's complaint on August 4, 1994. Defendants raise several arguments in their motion to dismiss. First, CPI is a state agency and as such is entitled to immunity from suit under sections 1983 and 1985 by the Eleventh Amendment. Second, the individual Title VII claims against the state officials must be dismissed. Third, this court lacks jurisdiction over certain of plaintiff's Title VII claims which were untimely filed. Fourth, punitive damages under Title VII are not statutorily permissible against a government agency. Fifth, this court lacks subject matter jurisdiction over the state law claims brought against defendants Rahe, Aaron and Hogan. Sixth, the conspiracy cause of action must be dismissed. Seventh, the section 1983 claims against the individual defendants must be dismissed. Eighth, defendant Hogan is entitled to dismissal as no factual allegation was made against him in the complaint. Ninth, individual defendants are entitled to qualified immunity from damages for alleged violations of the Constitution. The court addresses each claim separately.

II. LAW

A motion to dismiss may only be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Ang v. Procter and Gamble Co., 932 F.2d 540 (6th Cir.1991).

A. A State Agency Is Entitled To Immunity From Suit Under Sections 1983 And 1985 By The Eleventh Amendment.

The Eleventh Amendment bars suits against a state by its own citizens. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). When an action is brought against a public agency or institution, and/or officials thereof, the application of the Eleventh Amendment turns on whether said agency or institution can be characterized as an arm or alter ego of the state, or whether it should be treated as a political subdivision of the state. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572-73, 50 L.Ed.2d 471 (1977). Municipalities, counties and other political subdivisions are not covered by the state's Eleventh Amendment immunity. Id. Therefore, the question here is whether CPI can be considered an "arm" or "alter ego" of the State of Ohio, entitled to the immunity afforded by the Eleventh Amendment, or whether it is merely a political subdivision which enjoys no such immunity.

In answering this question, the Sixth Circuit employs a nine-point analysis: (1) local law and decision defining the status and nature of the agency involved and its relation to the sovereign; (2) will the payment of judgment have to be made out of the state treasury; (3) whether the agency has the funds or the power to satisfy the judgment; (4) whether the agency is performing a governmental or proprietary function; (5) whether the agency has been separately incorporated; (6) the degree of autonomy over its operations; (7) whether it has the power to sue and be sued and to enter into contracts; (8) whether its property is immune from state taxation; and (9) whether the sovereign has immunized itself from responsibility for the agency's operations. See Hall v. Medical College of Ohio at Toledo, 742 F.2d 299 (6th Cir.1984).

The Ohio Constitution compels that "Institutions for the benefit of the insane ... shall always be fostered and supported by the state; and be subject to such regulations as may be prescribed by the general assembly." Ohio Const. art. VII, § 1. Accordingly, O.R.C. § 121.02(L) creates the Department of Mental Health ("DMH"), which is administered by the director of mental health. O.R.C. § 5119.02(A) requires that "the department of mental health shall maintain, operate, manage, and govern all state institutions for the care and treatment of mentally ill persons." Id. Furthermore, O.R.C. § 5119.03 states that "the department of mental health shall operate, and with the approval of the governor, designate the purpose of institutions ... and may change, with the approval of the governor, these designations when necessary." Id.

In addition to these statutes, other statutes vest control of DMH funds with the state treasury. For instance, O.R.C. § 5119.161 states "unless otherwise specifically provided by law, all moneys received by the department of mental health from the sale of goods and services ... shall be paid into the state treasury...." Id. In another example, O.R.C. § 5119.33 says, "the Treasurer of state shall have charge of all funds under the jurisdiction of the department of mental health and shall pay out the same only in accordance with this chapter." Id.

Finally, O.R.C. § 5119.30 declares that "the attorney general shall attend to all suits instituted on behalf of or against any institution under the jurisdiction of the department of mental health and the managing officer thereof...." Id.

These statutes as applied to CPI suggest that it is an "arm" or "alter ego" of the state as opposed to a political subdivision. The Ohio Constitution commands the state to provide mental health facilities, state statutes create a Department of Mental Health for this purpose and another state statute gives the DMH authority to create state institutions to serve this purpose. It appears that the state created CPI pursuant to its constitutional and statutory mandate.

Additionally, CPI maintains no control over its funds. So, CPI must satisfy any adverse judgment against it out of state funds because...