Hubbard v. City of Middletown

• Decision Date: 05 December 1990
• Docket Number: No. C-1-88-0229.,C-1-88-0229.
• Citation: 782 F. Supp. 1573
• Parties: Lori HUBBARD, et al., Plaintiffs, v. CITY OF MIDDLETOWN, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

782 F. Supp. 1573

Lori HUBBARD, et al., Plaintiffs, v. CITY OF MIDDLETOWN, et al., Defendants.

No. C-1-88-0229.

United States District Court, S.D. Ohio, W.D.

December 5, 1990.

COPYRIGHT MATERIAL OMITTED

Alphonse Adam Gerhardstein, Cincinnati, Ohio, for plaintiffs.

Brian Edward Hurley, Crabbe, Brown, Jones, Potts & Schmidt, Michael Edward Maundrell, Rendigs, Fry, Kiely & Dennis, Cincinnati, Ohio, Roger B. Turrell, Turrell & Phillips Co., L.P.A., Dayton, Ohio, Robert Joseph Gehring, Robert J. Gehring Co., LPA, Cincinnati, Ohio, for defendants.

ORDER DENYING IN PART AND GRANTING IN PART MOTIONS BY DEFENDANT CITY OF MIDDLETOWN AND DEFENDANT ERNEST HOWARD FOR SUMMARY JUDGMENT

SPIEGEL, District Judge.

This matter is before the Court on defendant City of Middletown's motion for summary judgment (doc. 101) to which plaintiffs have responded (doc. 110) and the City has replied (doc. 114). Also before this Court is defendant Ernest Howard's motion for partial summary judgment (doc. 105) to which plaintiffs have responded (doc. 111) and Howard has replied (doc. 113). Further, plaintiffs have moved to file a supplemental memorandum opposing summary judgment (doc. 136) to which defendants voiced no objections at the hearing. Therefore, the motion to file the supplemental memorandum is granted. A hearing on all of these matters was held on October 26, 1990. For the following reasons, we conclude that both motions for summary judgment must be denied in part and granted in part.

BACKGROUND

Lori Hubbard (Hubbard) is a twenty-three-year-old woman who was employed by the City of Middletown Police Department from May, 1986 to April, 1987. Gary Hubbard is Lori Hubbard's husband. Maronda Moneyham (Moneyham) is an eighteen year old woman who is not and has never been employed by the City of Middletown. Frank and Gail Moneyham are Moneyham's parents.

Russell Dwyer (Dwyer) is the former Chief of Police for the City of Middletown. Dwyer resigned his post July 2, 1987. Ernest Howard (Howard) is a police officer holding the rank of Major in the City of Middletown Police Department.

In August or September of 1987, Dwyer allegedly called Hubbard into his office and made sexual suggestions, and threats. Hubbard and Dwyer allegedly engaged in sexual relations between eight and twelve times over approximately a three to four month period. At no time was Hubbard's involvement voluntary. Hubbard repeatedly told Dwyer that she did not want to have a sexual relationship with him. Hubbard's last sexual contact with Dwyer was late January or early February, 1987. Hubbard was never again called into Dwyer's office after that meeting.

In April, 1987, Hubbard met with two police officers, Howard and Sergeant Henson, on an unrelated matter. During this meeting, Hubbard told the officers of her problems with Dwyer. Howard allegedly suggested that she resign. There is a dispute as to whether Howard offered to take appropriate action. Hubbard resigned on April 14, 1987. One month later, the city manager began an investigation of Dwyer which culminated in Dwyer's resignation.

In early 1987, Dwyer met with sixteen-year-old Maronda Moneyham in his office. There is a dispute as to why the meeting took place, but it appears that Moneyham received a note from Dwyer to excuse her from school. Moneyham then took a bus to Dwyer's office to meet with him. Dwyer and Moneyham engaged in an ongoing sexual relationship through May, 1987.

Hubbard now alleges violations of 42 U.S.C. § 1983 in that she was deprived of her right to liberty, substantive due process, privacy, and bodily integrity, and § 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, as amended, in that she was discriminated against based upon her sex, against Dwyer, Howard, and the City. Hubbard further alleges pendent state claims for intentional infliction of emotional distress and assault and battery against Dwyer and the City, and a violation of Ohio Revised Code § 4112.99, against Dwyer, Howard and the City. Gary Hubbard alleges violations of 42 U.S.C. § 1983 for loss of his right to associate with his wife as protected by the Fourteenth Amendment, and under state law for loss of consortium and companionship.

Moneyham now alleges a violation of 42 U.S.C. § 1983 in that she was deprived of her right to liberty, substantive due process, privacy, and bodily integrity against Dwyer and the City. Moneyham further alleges pendent state claims for intentional infliction of emotional distress and assault and battery against Dwyer and the City. Frank and Gail Moneyham allege violations of 42 U.S.C. § 1983 for loss of their right to associate with their daughter as protected by the Fourteenth Amendment, and under state law for loss of relationship.

Jurisdiction over the Title VII claim is conferred on this Court by § 706(f)(3) of Title VII, 42 U.S.C. § 2000e-5(f)(3). Jurisdiction over the § 1983 claim is conferred on this Court by 28 U.S.C. § 1343(a)(3). This Court has pendent jurisdiction over the state law claims.

PARTIES' ASSERTIONS

Defendant City of Middletown alleges that it is entitled to summary judgment on the following claims for the following reasons: (1) Plaintiffs' § 1983 claims must be dismissed because the City is not liable for Dwyer's actions as Dwyer did not possess the final decision making authority regarding sexual harassment of employees in the City police department nor did the City have a custom or usage of permitting sexual harassment; (2) Hubbard's and Moneyham's § 1983 claims must be dismissed because they have not established constitutional deprivations; (3) Gary Hubbard's and Frank and Gail Moneyham's § 1983 claims must be dismissed because they have not established constitutional deprivations; (4) All § 1983 claims must be dismissed because the plaintiffs have not alleged that state law is inadequate; (5) Hubbard's claim for injunctive relief must be denied as Dwyer was the cause of her problems and he is no longer employed by the City; (6) Hubbard's Title VII claim must be dismissed because Dwyer acted on his own and not for the benefit of the City and upon discovery of the incidents the City promptly investigated the allegations; (7) Hubbard's Title VII claim must be dismissed because her claim was not filed with the EEOC within 300 days after the alleged unlawful employment practice occurred; (8) The state law claims must be dismissed because the City is not liable under respondeat superior for Dwyer's intentional acts which are outside the scope of Dwyer's employment and were stimulated by Dwyer's exclusively personal motives; and (9) Hubbard's assault and battery claim is barred by the statute of limitations.

The Plaintiffs respond to these arguments as follows: (1) Dwyer possessed final decision making authority for the City in this case; (2) the City acquiesced in Dwyer's policy of harassing women at the Middletown Police Department; (3) Hubbard has established a constitutional claim for violation of her right to equal protection; (4) Moneyham has established a constitutional claim for invasion of her right to privacy and substantive due process; (5) Frank and Gail Moneyham and Gary Hubbard have established unconstitutional deprivations of substantive rights of association; (6) Plaintiffs are entitled to injunctive relief; (7) The City is liable for Dwyer's actions under Title VII because Dwyer had the final authority over working conditions for Hubbard and because city officials knew or reasonably should have known of this harassment; (8) The Title VII claim was timely filed with the EEOC because Hubbard was constructively discharged and was still in fear of Dwyer at the time of her discharge which was within 300 days of the filing with the EEOC; and (9) There is a question of fact as to whether Dwyer's actions were "expectable in view of the duties of the servant."

Defendant Howard alleges that he is entitled to partial summary judgment on the following claims for the following reasons: (1) Hubbard has failed to establish a violation of her constitutional rights; (2) Gary Hubbard has failed to establish a violation of his constitutional rights; (3) Howard is entitled to qualified immunity from liability from the Hubbards' § 1983 claims; and (4) The Hubbards are not entitled to recover punitive damages against Howard.

The plaintiffs respond to these arguments as follows: (1) There are disputed questions of fact that preclude summary judgment on the Hubbards' § 1983 claims; and (2) Howard is not entitled to qualified immunity as he directly participated in the harassment by encouraging Hubbard to leave city employment rather than investigating her charge of harassment.

STANDARD

In considering a motion for summary judgment, the narrow question we must decide is whether there is "no genuine issues as to any material fact and whether the moving party is entitled to judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The Court cannot try issues of fact on a Rule 56 motion, but is empowered to determine only whether there are issues to be tried. In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982). The moving party "has the burden of showing conclusively that there exists no genuine issues as to a material fact and the evidence together with all inferences to be drawn therefrom must be read in the light most favorable to the party opposing the motion." Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.) (emphasis in original), cert. denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979). And, "while the movant's papers are to be closely scrutinized, those of the opponent are to be viewed indulgently." Id. at 63. "The District Court is obligated to consider not only the materials specifically offered in support of the motion, but also all `pleadings, depositions, answers to interrogatories, and admissions' properly on file and thus properly before the court." Id. (quoting rule 56(c), Fed.R.Civ.P.). Summary judgment "must be used...