Upsher v. Grosse Pointe Public School System
| Decision Date | 04 April 2002 |
| Docket Number | No. 00-1765.,No. 00-1763.,No. 00-1764.,00-1763.,00-1764.,00-1765. |
| Citation | 285 F.3d 448 |
| Parties | Jesse UPSHER; Annie Abraham; Edward Brodzik; Jeanette Brodzik; Henry Huczek; Aurelia Huczek; Stephen Kalmus; Catherine Kalmus; Karen Kohl; Tracy Thacker; John O'Loughlin, Plaintiffs-Appellants, v. GROSSE POINTE PUBLIC SCHOOL SYSTEM; Grosse Pointe Board of Education; Suzanne Klein; Christian Fenton; Timothy Howlett; Paul Pagel; Carl Anderson; Jack Ryan; John Mills; Cynthia Pangborn; Sears Taylor; Mary Beth Herman; Jay Jeffries; Steve Matthews; Ed Shine; Larry Yankauskas, individually and in their respective capacities, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Philip E. Chaffee (argued and briefed), Law Office of Philip E. Chaffee, Grand Rapids, Michigan, for Plaintiffs-Appellants.
Timothy D. Wittlinger (argued and briefed), Evelyn L. Sullen (briefed), Clark Hill PLC, Detroit, Michigan, for Defendants-Appellees.
Before RYAN and GILMAN, Circuit Judges; POLSTER, District Judge.*
Jesse Upsher, Annie Abraham, Edward Brodzik, Henry Huczek, Stephen Kalmus, Karen Kohl, Tracy Thacker, and John O'Loughlin (hereinafter collectively referred to as "the plaintiffs") are custodians employed by the Grosse Pointe Public School System. They brought a 42 U.S.C. § 1983 action against the Grosse Pointe Public School System, the Grosse Pointe Board of Education, and various individually named defendants (hereinafter collectively referred to as "the defendants") for alleged injuries from exposure to friable asbestos during a carpet removal job at Grosse Pointe's South High School. Their spouses also brought derivative claims. The district court entered summary judgment for the defendants from which the plaintiffs now appeal.
We must decide whether the plaintiffs' evidence establishes material issues regarding the defendants' liability under both 42 U.S.C. § 1983 and the intentional tort exception to the Michigan Worker's Disability Compensation Act, MICH. COMP. LAWS ANN. § 418.131(1) (MWDCA). We conclude that it does not and therefore we will affirm the judgment of the district court.
Plaintiffs Annie Abraham, Edward Brodzik, Henry Huczek, Stephen Kalmus, Karen Kohl, and Tracy Thacker were custodians employed by the Grosse Pointe Public School System in Grosse Pointe, Michigan. Plaintiffs Jesse Upsher and John O'Loughlin were students at South High School and were employed as temporary custodians. Plaintiff Stephen Kalmus was the foreman and supervised the other custodians. Plaintiffs Jeanette Brodzik, Aurelia Huczek, and Catherine Kalmus are spouses of the allegedly injured custodians who asserted derivative claims of loss of consortium.
The individually named defendants are: Dr. Suzanne Klein (assistant superintendent for the School System during the summer of 1995); Christian Fenton (assistant superintendent for business and support services and designated asbestos coordinator for the School System); Paul Pagel (assistant principal at South High School and administrative supervisor of custodians); Mary Beth Herman (principal at South High School); Jay Jeffries (head engineer at South High School); Dr. Edward Shine (Dr. Klein's predecessor); Larry Yankauskas (supervisor of buildings and grounds for the School System); and named, past and present Grosse Pointe school board members: Timothy Howlett, Carl Anderson, Jack Ryan, John Mills, Cynthia Pangborn, Sears Taylor, and Steve Matthews.
In early 1995, Grosse Pointe's South High School determined that it would replace the carpeting located in the main office area. Assistant principal Pagel solicited bids from a number of carpeting suppliers and ultimately selected New York Carpet World to remove, replace, and install the new carpeting. After performing initial tests on the vinyl floor tile located beneath the carpeting, New York Carpet World informed Pagel that it refused to complete the project because the machine scrapers it used to remove the carpet might disturb the underlying asbestos-containing tiles. Thereafter, Pagel met with custodial foreman Kalmus, and head engineer Jeffries, and instructed them that South High's custodial staff would complete the carpet removal.
Although the plaintiffs claim that they protested prior to beginning the work, they nevertheless started removing the carpet around July 19, 1995. When they started to remove the carpet, they noticed that some of the underlying vinyl floor tiles were sticking to the back of the old carpeting. To remove these tiles, the plaintiffs chiseled, chipped, pounded, pulverized, hammered, and jackhammered the tiles causing breakage, flying debris, and dust. The defendants did not provide the plaintiffs with particulate air vacuums to clean up the dust and debris or any protective clothing or respirators. All of the plaintiffs except the two student-plaintiffs had received two hours of asbestos awareness training, but none of them had received the additional 14 hours of training required by the Asbestos Hazard Emergency Response Act of 1986 (AHERA), 40 C.F.R. § 763.92(a)(2), before conducting activities that would result in the disturbance of asbestos-containing building materials (ACBM).
The plaintiffs allege that they suffer from respiratory irritations, posttraumatic stress disorder, and other physical and psychological problems resulting from their exposure to potentially harmful levels of friable asbestos. Subsequent testing conducted by EMSL, an accredited National Voluntary Laboratory Accreditation Program (NVLP) laboratory, located in Ann Arbor, Michigan, revealed that the tiles contained anywhere between 10-25% asbestos. Additionally, the plaintiffs' experts reported that as a result of exposure to the asbestos, the plaintiffs are at a significant increased risk of developing, inter alia, asbestosis, lung cancer, mesothelioma, kidney cancer, leukemia, and lymphoma — all requiring expensive medical monitoring.
The plaintiffs filed a complaint with the Michigan Department of Public Health, which resulted in citations for: (1) failure to perform exposure monitoring to determine the airborne concentrations of asbestos required by the Occupational Safety and Health Administration (OSHA) Asbestos Construction Standard, 29 C.F.R. § 1926.1101(f); and (2) failure to instruct employees in the recognition and avoidance of unsafe conditions involving asbestos and the specific asbestos regulations applicable to the worksite that have been established to control or eliminate the hazards associated with exposure to asbestos. On February 11, 1998, the Environmental Protection Agency (EPA) issued a similar notice of noncompliance pursuant to Section 15 of the Toxic Substances Control Act (TSCA), as amended, 15 U.S.C. §§ 2601-2629, for violations of 40 C.F.R. § 763, Subpart E.
The plaintiffs filed a complaint in the United States District Court for the Eastern District of Michigan alleging violations of: (1) the Asbestos Hazard Emergency Response Act of 1986 (AHERA), 15 U.S.C. §§ 2641-2656; (2) the Asbestos School Hazard Abatement Act of 1984 (ASHAA), 20 U.S.C. §§ 4011-4022; (3) Section 7003 of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6973; (4) the Clean Air Act (CAA), 42 U.S.C. §§ 7401-7671q; (5) the Solid Waste Disposal Act (SWDA), 42 U.S.C. §§ 6901-6992k; (6) the Civil Rights Act, 42 U.S.C. § 1983; (7) strict liability, gross negligence, and willful and wanton misconduct; (8) ultra-hazardous activity; (9) intentional misconduct; and (10) conspiracy. The defendants moved for partial summary judgment, following which, the district court dismissed the plaintiffs' environmental law claims, concluding that the plaintiffs had no private right of action and/or that the plaintiffs had not exhausted their administrative remedies. The court reserved its ruling on the plaintiffs' civil rights claim, the claim of intentional tort, and the accompanying derivative claims until after discovery. Following discovery and upon the defendants' renewed motion for summary judgment, the district court dismissed all of the plaintiffs' remaining claims. The plaintiffs appeal only the district court's grant of summary judgment to the defendants on their 42 U.S.C. § 1983 claim and the intentional tort exception to the MWDCA.
This court reviews a district court's grant of summary judgment de novo. Owens Corning v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 257 F.3d 484, 491 (6th Cir.2001). Summary judgment is proper "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 and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); see Nix v. O'Malley, 160 F.3d 343, 347 (6th Cir.1998). In reviewing a motion for summary judgment we draw all justifiable inferences in a light most favorable to the nonmoving party. Elwell v. Univ. Hosps. Home Care Servs., 276 F.3d 832, 837 (6th Cir.2002).
First, we review whether the district court erred when it concluded that the plaintiffs' evidence did not sufficiently establish a material issue of fact with regard to the defendants' liability under 42 U.S.C. § 1983. Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
42 U.S.C. § 1983 (West Supp.2001).
Consequently, to state a viable claim under 42...
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