Kennedy v. R.W.C., Inc.

• Decision Date: 16 March 2005
• Docket Number: No. 04-10281-BC.,04-10281-BC.
• Citation: 359 F.Supp.2d 636
• Parties: Frederick Allen KENNEDY, Plaintiff, v. R.W.C., INC., Dwight A. McCulloch, Lyle Biniecke, Robert Hanson, Jr., Donald Lester, Roger C. Pajot, and Edmund Nogaski, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

359 F.Supp.2d 636

Frederick Allen KENNEDY, Plaintiff, v. R.W.C., INC., Dwight A. McCulloch, Lyle Biniecke, Robert Hanson, Jr., Donald Lester, Roger C. Pajot, and Edmund Nogaski, Defendants.

No. 04-10281-BC.

United States District Court, E.D. Michigan, Northern Division.

March 16, 2005.

Manda L. Westervelt, Victor J. Mastromarco, Jr., Mastromarco & Jahn, Saginaw, MI, for Plaintiff.

Deborah L. Brouwer, Linda G. Burwell, Thomas Schramm, Nemeth Burwell, Bruce A. Miller, Miller Cohen, Detroit, MI, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTIONS TO STRIKE CONCURRENCE AND TO SUPPLEMENT RESPONSE

LAWSON, District Judge.

This matter is before the Court on a motion by some of the individual defendants for judgment on the pleadings that they have converted to a motion for summary judgment, and the plaintiff's motions to strike a document purporting to concur in the motion by another individual defendant and the corporate defendant and to supplement his response to the defendants' motion. The plaintiff filed a complaint under the Title VII of the Civil Rights Act of 1964 and the Michigan Civil Rights Act against his former employer and former co-employees alleging that he was sexually harassed by his former co-workers. He also pleaded claims of assault and battery and conspiracy under state law. After the defendants filed their motion, the plaintiff conceded that he has no claim under Title VII or the Michigan Civil Rights Act against the individual defendants, but he disputes the argument that his claim for assault and battery is barred by the Michigan Workers Disability Compensation Act. The Court heard the arguments of the parties in open court on March 14, 2005, and now finds that the plaintiff's claims under Title VII and the Michigan statute must be dismissed against the individual defendants, but his claims for assault and battery and conspiracy may proceed with an amendment to the complaint.

I.

Defendant R.W.C., Inc. employed the plaintiff, Frederick Allen Kennedy, beginning July 10, 1995; he worked under the supervision of the defendant Lyle Biniecke. The remaining defendants, whom the plaintiff claims are known as the "wolf pack," Dwight A. McCulloch, Robert Hanson, Jr., Donald Lester, Roger C. Pajot, and Edmund Nogaski, worked alongside the plaintiff as machine builders. The plaintiff alleges this group of co-workers during working hours "would systematically harass the plaintiff in violation of his Civil Rights for purposes of gratifying themselves sexually," Second Amend. Compl. ¶ 11, and they "grop[ed] and grab[bed] him in the genital region and buttocks region using broom sticks, their fingers, a set of truck keys, a tuning fork, and a piece of pipe." He specifically alleges one or more of the co-worker defendants acted to sneak up behind him and prod or "goose" him once on each date from January 28, 2002 through February 1, 2002. He further alleges the defendants'"actions were intentional, willful, malicious, reckless and caused injury to the plaintiff." Second Amend. Compl. ¶ 47.

The plaintiff contends that he was seriously injured by this conduct when, following surgery in October 2000, the defendants' physical assaults, described above, caused a re-injury to his back when the various "gropes," "grabs," or "gooses" caused the plaintiff to "jerk upright." Second Amend. Compl. ¶¶ 18-22. As a result, the plaintiff contends, he was required to undergo further surgery consisting of fusion of vertebrae and installation of surgical hardware, and he says he is totally disabled. Second Amend. Compl. ¶¶ 14, 29.

On October 13, 2004, the plaintiff filed a complaint against the defendants alleging four counts: (1) a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1); (2) a violation of the Elliot Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2101 et seq.; (3) assault and battery; and (4) conspiracy to commit the civil rights violations and assault and battery. The complaint further alleges that R.W.C., Inc. is vicariously liable for the assault and battery. The plaintiff then filed a motion to amend the complaint along with a proposed first amended complaint, which the Court denied on December 2, 2004. On December 15, 2004, defendants McCulloch, Hanson, Lester, Pajot, and Nogaski, filed a motion for judgment under Federal Rules of Civil Procedure 12(b)(6) and 56(c) on grounds that the plaintiff did not exhaust the administrative remedies under Title VII as to them, they cannot be held individually liable as co-employees for violations of Title VII or the ELCRA, and the Michigan Workers Compensation Act provides the exclusive remedy for the plaintiff's assault and battery claim. These defendants also seek summary judgment on the conspiracy count. The Court held a scheduling conference on December 16, 2004 and allowed the plaintiff to file an amended complaint by December 30, 2004. The plaintiff then filed a second amended complaint dated December 27, 2004 containing the same counts and premised on the same incidents as in the original filed complaint. In his response to the defendants' motion, the plaintiff agrees that his co-workers are not individually liable under Title VII and the ELCRA. He contends, however, that his claims against all defendants for assault and battery and conspiracy should proceed.

On January 27, 2005, defendants R.W.C., Inc. and Biniecke filed a response to the motion by the co-defendants purporting to concur in their motion. The plaintiff disputes that his civil rights claims against his supervisor Biniecke and his employer R.W.C., Inc. should be dismissed. He also alleges that the response should be stricken as untimely filed. Defendants R.W.C., Inc. and Biniecke then agreed to withdraw their concurrence, although no order to that effect was entered by the Court.

In addition, the plaintiff filed a motion following the March 14, 2005 hearing requesting the Court allow supplement to his response to the defendants' motion for judgment on the pleadings and summary judgment. He seeks to submit an affidavit in support of his claims.

II.

The purpose of a motion under Rule 12(b)(6) is to test the legal sufficiency of the complaint, not the probability of success on the merits. Ecclesiastical Order of the Ism of Am, Inc., v. Chasin, 653 F.Supp. 1200, 1205 (E.D.Mich.1986). In considering a motion to dismiss under Rule 12(b)(6), the allegations in the complaint are taken as true and are viewed in the light most favorable to the non-moving party. Herrada v. City of Detroit, 275 F.3d 553, 556 (6th Cir.2001). The Court may consider only whether the allegations contained in the complaint state a claim for which relief can be granted. Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir.1983). The motion may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Buchanan v. Apfel, 249 F.3d 485, 488 (6th Cir.2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). However, "the complaint is not to be dismissed because the plaintiff has misconceived the proper theory of the claim, if he is entitled to any relief under any theory." Myers v. United States, 636 F.2d 166, 169 (6th Cir.1981) (quotations and citations omitted).

If matters outside the pleadings must be considered in ruling on the merits of the claim, as here, the motion more properly should follow the standards and procedures of Rule 56, and reviewing courts generally will treat the motion as one for summary judgment. Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 533 (6th Cir.2002) (quoting Soper v. Hoben, 195 F.3d 845, 850 (6th Cir.1999)). The defendants have filed a supplement to their motion that contains excerpts from testimonial hearings and have made liberal and frequent references to them at oral argument. The plaintiff has not suggested that he will suffer prejudice, and the Court believes, therefore, that the defendants' motion ought to be adjudicated as a motion for summary judgment.

Summary judgment is appropriate "if 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." Fed.R.Civ.P. 56(c). The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quotation and citation omitted).

A.

The defendants first allege that the plaintiff failed to exhaust administrative remedies by first presenting his claim to the Equal Employment Opportunity Commission and obtaining a right to sue letter. It is well established that "[t]he Title VII plaintiff satisfies the prerequisites to a federal action (1) by filing timely charges of employment discrimination with the EEOC, and (2) receiving and acting upon the EEOC's statutory notice of the right to sue." Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1486 (6th Cir.1989) citing 42 U.S.C. § 2000e-5(f)(1); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). After these defendants filed their motion for summary judgment, the plaintiff filed a second amended complaint containing an EEOC right-to-sue letter dated September 3, 2004. The...