Neal v. Department of Corrections

• Decision Date: 05 June 1998
• Docket Number: Docket No. 198616
• Citation: 232 Mich.App. 730,592 N.W.2d 370
• Parties: Tracy NEAL, Helen Gibbs, Stacy Barker, Ikemia Russell, Berth Clark, Linda Nunn, and Jane Doe,on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Director of Michigan Department of Corrections, Joan Yukins, Sally Langley, Carol Howes, Robert Salis, Cornell Howard, Officer Portman, and Officer Robey, Defendants-Appellants (On Rehearing), and Officer Tate, Officer Ellison, and Officer Gallagher, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 370

592 N.W.2d 370

232 Mich.App. 730

Tracy NEAL, Helen Gibbs, Stacy Barker, Ikemia Russell, Berth Clark, Linda Nunn, and Jane Doe,on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Director of Michigan Department of Corrections, Joan Yukins, Sally Langley, Carol Howes, Robert Salis, Cornell Howard, Officer Portman, and Officer Robey, Defendants-Appellants (On Rehearing) and Officer Tate, Officer Ellison, and Officer Gallagher, Defendants.

Docket No. 198616.

Court of Appeals of Michigan.

Submitted Sept. 4, 1997, at Grand Rapids.

Decided June 5, 1998, at 9:15 a.m.

Submitted on Rehearing Sept. 23, 1998.

Decided on Rehearing Nov. 24, 1998, at 9:20 a.m.

Released for Publication Feb. 23, 1998.

Law Offices of Deborah LaBelle (by Deborah LaBelle, Richard A. Soble and Molly Reno ), Ann Arbor, Goodman, Eden, Millender & Bedrosian (by Mary P. Minnet )Detroit, and Gail A. Grieger, Livonia, for the plaintiffs.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Lisa C. Ward, Assistant Attorney General, for the defendant.

Before O'CONNELL, P.J., and MacKENZIE and GAGE, JJ.

ON REHEARING

MacKENZIE, J.

This is a class-action suit brought, in relevant part, under the Civil Rights Act, M.C.L. § 37.2101 et seq.; MSA 3.548(101) et seq., by female prisoners housed in facilities operated by the Michigan Department of Corrections (MDOC). Defendants are the department, its director, and several wardens, deputy wardens, and corrections officers employed by the MDOC. Defendants appeal by leave granted from a circuit court order denying their motion for summary disposition pursuant to MCR 2.116(C)(4), (7), and (8). We affirm.

The case arises out of allegations that male corrections personnel have systematically engaged in a pattern of sexual harassment of female inmates incarcerated by the MDOC. Specifically, plaintiffs' complaint alleged that the MDOC assigns male officers to the housing units at all women's facilities without providing any training related to cross-gender supervision; that women are forced to dress, undress, and perform basic hygiene and body functions in the open with male officers observing; that defendants allow male officers to observe during gynecological and other intimate medical care; that defendants require male officers to perform body searches of women prisoners that include pat-downs of their breasts and genital areas; that women prisoners are routinely subjected to offensive sex-based sexual harassment, offensive touching, and requests for sexual acts by male officers; and that there is a pattern of male officers requesting sexual acts from women prisoners as a condition of retaining good-time credits, work details, and educational and rehabilitative program opportunities. The complaint also alleged that the inmates were subject to retaliation for reporting this gender-based misconduct. Plaintiffs claimed that these actions, and defendants' failure to protect female inmates from this misconduct through adequate training, supervision, investigation, or discipline of MDOC employees, constitute gender-based discriminatory conduct, sexual harassment, and retaliation in violation of the Civil Rights Act. They sought injunctive and declaratory relief, their initial claim for monetary damages having been ordered dismissed.

I

The purpose of the Civil Rights Act is to prevent discrimination directed against a person because of that person's membership in a certain class and to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. Noecker v. Dep't of Corrections, 203 Mich.App. 43, 46, 512 N.W.2d 44 (1993). The act is remedial and must be liberally construed to effectuate its ends. Reed v. Michigan Metro Girl Scout Council, 201 Mich.App. 10, 15, 506 N.W.2d 231 (1993).

Article 3 of the Civil Rights Act prohibits discrimination in public accommodations and public services. Subsection 302(a) states:

Except where permitted by law, a person shall not:

(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status. [MCL 37.2302(a); MSA 3.548(302)(a) ].

Section 103 of the act, M.C.L. § 37.2103; MSA 3.548(103), declares that sexual harassment is a form of sex discrimination.

Section 301 defines "place of public accommodation" and "public service" as those terms are used in subsection 302(a). It states:

(a) "Place of public accommodation" means a business, or an educational, refreshment, entertainment, recreation, health, or transportation facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public....

(b) "Public service" means a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of the state, a political division, or an agency thereof, or a tax exempt private agency established to provide service to the public. [MCL 37.2301; MSA 3.548(301) ].

Finally, § 303 of the act creates an exemption under article 3 for private clubs:

This article shall not apply to a private club, or other establishment not in fact open to the public, except to the extent that the goods, services, facilities, privileges, advantages, or accommodations of the private club or establishment are made available to the customers or patrons of another establishment that is a place of public accommodation or is licensed by the state.... [MCL 37.2303; MSA 3.548(303) ].

In denying defendants' motion for summary disposition with respect to plaintiffs' Civil Rights Act claim, the trial court ruled that the MDOC is a "public service" agency prohibited from engaging in gender-based discrimination or harassment under subsection 302(a) of the act. The court further noted that the act does not specifically exclude prisoners from its coverage and declined to read such an exclusion into the act.

II

The narrow issue before us is whether the MDOC correctional facilities are places of "public service" in which discrimination against inmates, based on sex, is prohibited. The United States Supreme Court's recent decision in Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998), leads us to conclude that the MDOC facilities are places of "public service" within the meaning of subsection 301(b).

The question in Yeskey was whether a state prisoner could maintain a claim against a state department of corrections under another civil rights statute, the Americans with Disabilities Act of 1990(ADA), title II of which prohibits discrimination by a "public entity" against individuals with a disability. 42 USC 12132. The statutory definition of "public entity" at issue in Yeskey is similar to the definition of "public service" set forth in subsection 301(b): "any department, agency, special purpose district, or other instrumentality of a State or States or local government." 42 USC 12131(1)(B). Writing for a unanimous Supreme Court, Justice Scalia held that "the statute's language unmistakably includes State prisons and prisoners within its coverage." 118 S.Ct. at 1954. Emphasizing the broad statutory language, the Court stated that "the ADA plainly covers state institutions without any exception that could cast the coverage of prisons into doubt." Id. The Court therefore concluded that "[s]tate prisons fall squarely within the statutory definition of 'public entity'...." Id.

The Supreme Court's reasoning in Yeskey applies equally to this case. Under subsection 301(b), a "public service" includes "a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of the state...." The MDOC is a state agency, and this state's correctional facilities are operated by it. Any "exception that could cast the coverage of prisons into doubt," 118 S.Ct. at 1954, is conspicuously absent from the unambiguous statutory language of the Civil Rights Act. Thus, under the plain language of subsection 301(b), the MDOC clearly falls within the broad statutory definition of a "public service." Defendants essentially concede as much.

Defendants argue that even if the MDOC is a "public service," its prisons are nevertheless not required to comply with subsection 302(a) of the Civil Rights Act because they fall within the § 303 exemption for "private club [s], or other establishment[s] not in fact open to the public." We reject this argument. The fact that the MDOC operates buildings that are not fully open to the public does not mean that the MDOC itself is a "private club or other establishment" not open to the public. There is a distinction between a state agency and the buildings that house that state agency. There are presumably many departments of state government (this Court included) that operate facilities that members of the public may not enter at their will. This, however, does not mean that those departments themselves are private establishments not open to the public; it merely means that the physical structures used by those departments are not fully accessible to the public.

Moreover, "[r]esident inmates are obviously members of the public in a general sense." Martin v. Dep't of Corrections, 424 Mich. 553, 565, 384 N.W.2d 392 (1986) (Cavanagh, J., dissenting). Our Supreme Court has held that prisoners are members of the public for purposes of the governmental tort liability act, M.C.L. § 691.1401 et seq.; MSA 3.996(101) et seq. Green v. Dep't of Corrections, 386 Mich. 459, 464, 192 N.W.2d 491 (1971). The Supreme Court has also held that prisoners are members of the public for purposes of the Administrative Procedures Act, M.C.L. § 24.201 et seq.; MSA 3.560(...