Vermett v. Hough, No. G 82-55.

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Writing for the CourtENSLEN
Citation606 F. Supp. 732
PartiesElizabeth VERMETT, Plaintiff, v. Gerald L. HOUGH, Director of the Michigan Department of State Police; The Michigan Department of State Police; Harold Morrison, Captain; Lt. James Fries; Lt. James Haydon; Lt. William Tomczyk; Lt. Francisco Deon; Sgt. Earl Raczkowski; Sgt. Thomas Jefferson; and all officers and employees of the Michigan Department of State Police; and David R. Haire, individually and as a trooper in the Michigan Department of State Police, Defendants.
Decision Date08 March 1984
Docket NumberNo. G 82-55.

606 F. Supp. 732

Elizabeth VERMETT, Plaintiff,
v.
Gerald L. HOUGH, Director of the Michigan Department of State Police; The Michigan Department of State Police; Harold Morrison, Captain; Lt. James Fries; Lt. James Haydon; Lt. William Tomczyk; Lt. Francisco Deon; Sgt. Earl Raczkowski; Sgt. Thomas Jefferson; and all officers and employees of the Michigan Department of State Police; and David R. Haire, individually and as a trooper in the Michigan Department of State Police, Defendants.

No. G 82-55.

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

March 8, 1984.


606 F. Supp. 733
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606 F. Supp. 734
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606 F. Supp. 735
Marjorie Schaafsma, Evanston, Ill., Jean L. King, Ann Arbor, Mich., for plaintiff

Deborah Devine, Asst. Atty. Gen., State Affairs Div., Lansing, Mich., for defendants.

OPINION ON DEFENDANTS' MOTION TO DISMISS COMPLAINT OR FOR SUMMARY JUDGMENT

ENSLEN, District Judge.

This case involves alleged sex based discrimination in employment; specifically, allegations of sexual harassment, sex discrimination, and constructive discharge brought by a female State Trooper against the Michigan Department of State Police and named officials and police officers. Plaintiff's Complaint, filed February 5, 1982 and amended September 19, 1983, is in seven counts. It states that it is brought to enforce civil and constitutional rights pursuant to 42 U.S.C. § 1983, the Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), and the Michigan Elliott-Larsen Civil Rights Act (M.C.L.A. 37.2101 et seq.). Counts sounding in retaliation, breach of contract (settlement agreement and consent agreement), assault and intentional infliction of emotional distress are also included. Jurisdiction in this Court is purported to be based upon 28 U.S.C. § 1331, 28 U.S.C. § 1343(3), 28 U.S.C. § 1343(4), and this Court's pendent jurisdiction over state law claims. Injunctive and monetary relief are requested. Presently before the Court is Defendants' Motion to Dismiss Complaint or for Summary Judgment.

I. Factual Background

Plaintiff, in her Complaint, recites the following chronology of events leading to the filing of this lawsuit:

She was an employee of the Michigan Department of State Police (the Department), having been originally hired on or about February 19, 1978. Following completion of recruit training, Plaintiff was assigned as a trooper to the Sault Ste. Marie Post (Sault) on or about May 26, 1978. On approximately February 6, 1979, Plaintiff was discharged from her employment with the Department. She subsequently filed a complaint with the Michigan Department of Civil Rights (MDCR) and the Federal Equal Employment Opportunity Commission (EEOC), complaining that the Department and its employees had discriminated against her on the basis of sex, in violation of Title VII and the Elliott-Larsen Civil Rights Act. On approximately May 13, 1979, Plaintiff was reinstated and reassigned to the Fourth Squad at the Northville Post (Northville), where she

606 F. Supp. 736
worked under the supervision of Defendants Raczkowski and Jefferson

During the course of her employment at Northville, it is alleged that Plaintiff was repeatedly subjected to offensive verbal and physical conduct by Defendant Trooper Haire and commanding officers. This conduct was, Plaintiff contends, intentional, deliberate, and purposeful discrimination and harassment based on her sex. She asserts that this conduct unreasonably interfered with her work and created an unsuitable work environment. As a proximate result, Plaintiff states that she suffered depression, mental anguish, emotional distress, humiliation, embarrassment, outrage, loss of professional standing and status, impairment of earning capacity, and loss of capacity for enjoyment of life.

On or about June 19, 1981, Plaintiff filed a complaint with the MDCR and the EEOC complaining of unlawful employment practices and conduct. She filed a second complaint on July 30, 1981, complaining of unlawful employment practices and acts of retaliation. Plaintiff has requested that the EEOC issue a right to sue letter. The instant lawsuit ensued.

II. Standard of Review

Defendants bring this motion pursuant to Federal Rule of Civil Procedure (FRCP) 12(b)(6) (dismissal for failure to state a claim upon which relief can be granted), and in the alternative for summary judgment pursuant to Rule 56 (no genuine issue as to any material fact). Since some of the issues involve matters outside of the pleadings, while others do not, the standard of review for both types of motions will be outlined.

A. Motion to Dismiss

Defendants assert that their Motion to Dismiss is brought pursuant to FRCP 12(b)(6). However, this provision applies only when a Motion to Dismiss for Failure to State a Claim is made before a responsive pleading has been filed. Since Defendants have filed answers to both Plaintiff's original and amended complaints, this motion will be treated as if brought pursuant to FRCP 12(c) (Motion for Judgment on the Pleadings). See FRCP 12(h)(2). The same standard will be applied for granting the appropriate relief as would have been employed had the motion been brought properly under Rule 12(b)(6). See Wright & Miller, Federal Practice & Procedure, Vol. 5 § 1367.

In applying Rule 12(b)(6), the Court is to take as true the allegations of Plaintiff's Complaint and then determine whether the statements are sufficient to make out a right to relief. The issue is not whether the Plaintiff will ultimately prevail, but whether she is entitled to offer evidence to support her claims. Because dismissal on the basis of a failure to state a claim is disfavored, the standard by which the rule is applied is that:

in appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted).

The question, therefore, is whether in the light most favorable to Plaintiff, and with every doubt resolved in her behalf, the Complaint states any valid claim for relief. Wright & Miller, supra at § 1357. Motions to dismiss complaints brought under the civil rights acts are, of course, scrutinized with special care. See, Lucarell v. McNair, 453 F.2d 836 (CA 6 1972); Westlake v. Lucas, 537 F.2d 857 (CA 6 1976).

B. Motion for Summary Judgment

In considering those portions of Defendants' motion which direct the Court to materials outside the pleadings, the standard of review applicable to Motions for Summary Judgment will be applied. See FRCP 12(b) and (c) and FRCP 56.

To warrant the grant of summary judgment, the moving party bears the burden of establishing the non-existence of any genuine issue of fact that is material to a judgment in its favor. Adickes v. S.H.

606 F. Supp. 737
Kress & Company, 398 U.S. 144, 147, 90 S.Ct. 1598, 1602, 26 L.Ed.2d 142 (1970); United States v. Articles of Device ... Diapulse, 527 F.2d 1008, 1011 (CA 6 1976). If no genuine issue as to any material fact is established, the moving party is entitled to judgment as a matter of law. Chevez v. Noble Drilling Company, 567 F.2d 287 (CA 5 1978); Irwin v. United States, 558 F.2d 249 (CA 5 1977)

In determining whether or not there are issues of fact requiring a trial, "the inferences to be drawn from the underlying facts contained in the affidavits, attached exhibits, and depositions must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corporation v. Storm King Corporation, 303 F.2d 425 (CA 6 1962). Even if the basic facts are not disputed, summary judgment may be inappropriate when contradictory inferences may be drawn from them. United States v. Diebold, supra; EEOC v. United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, Local 189, 427 F.2d 1091, 1093 (CA 6 1970). In making this determination, the Court must make reference to the entire record and all well pleaded allegations are to be accepted as true. Dayco Corporation v. Goodyear Tire and Rubber Company, 523 F.2d 389 (CA 6 1975); Holmes v. Insurance Company of North America, 288 F.Supp. 325 (D.C.Mich.1968).

It is with these principles in mind that I will now address the issues involved herein.

III. Count I—Title VII

Defendants raise several issues regarding Plaintiff's Title VII claim. They will be discussed seriatim.

a. Statutory Requirements for Bringing a Title VII Action

1. Whether Plaintiff's Title VII Claim was the Subject of a Timely Filed Charge with Either the EEOC or MDCR

42 U.S.C. § 2000e-5(e) provides:

A charge under this section shall be filed within one hundred eighty days after the alleged unlawful employment practice occurred ..., except that in the case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ..., such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred,....

The United States Supreme Court has recently held that the timely filing of a charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but rather a requirement that, "like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). Nevertheless, Plaintiffs are required to prove that they have satisfied the...

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13 practice notes
  • Envirotech Sanitary Systems, Inc. v. Shoener, No. Civ. 90-0073.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • March 14, 1990
    ...against a State unless specifically overridden by act of Congress6 or unless the State has consented to be sued.7 Vermett v. Hough, 606 F.Supp. 732, 742 citing Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Fizpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d......
  • Smith v. Department of Public Health, Docket Nos. 71016
    • United States
    • Supreme Court of Michigan
    • October 12, 1987
    ...immunity of the states.' Thus neither states nor state agencies are 'persons' within the meaning of Sec. 1983"); Vermett v. Hough, 606 F.Supp. 732, 743 (W.D.Mich., 1984) ("Moreover, neither a state nor its departments and agencies are 'persons' within the meaning of Sec. 1983, and thus are ......
  • Vermett v. Hough, No. G 82-55.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • January 29, 1986
    ...28 U.S.C. § 1343(4), and this Court's pendent jurisdiction over state law claims. By Opinion and Judgment Order dated March 7, 1984, 606 F.Supp. 732, Defendants' Motion to Dismiss Complaint or for Summary Judgment was granted in part; denied in part. Plaintiff's claims under Title VII (incl......
  • Roybal v. City of Albuquerque, CV No. 85-1616 HB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 1, 1986
    ...Cir.1984); Meyett v. Coleman, 613 F.Supp. 39 (W.D.Wis.1985); Snell v. Suffolk County, 611 F.Supp. 521 (E.D.N.Y.1985); Vermett v. Hough, 606 F.Supp. 732 (W.D.Mich.1984); Zewde v. Elgin Community College, 601 F.Supp. 1237 (N.D.Ill.1984); Storey v. Board of Regents of the University of Wiscons......
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14 cases
  • Envirotech Sanitary Systems, Inc. v. Shoener, No. Civ. 90-0073.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • March 14, 1990
    ...against a State unless specifically overridden by act of Congress6 or unless the State has consented to be sued.7 Vermett v. Hough, 606 F.Supp. 732, 742 citing Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Fizpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d......
  • Smith v. Department of Public Health, Docket Nos. 71016
    • United States
    • Supreme Court of Michigan
    • October 12, 1987
    ...immunity of the states.' Thus neither states nor state agencies are 'persons' within the meaning of Sec. 1983"); Vermett v. Hough, 606 F.Supp. 732, 743 (W.D.Mich., 1984) ("Moreover, neither a state nor its departments and agencies are 'persons' within the meaning of Sec. 1983, and thus are ......
  • Cooper v. Pa. Human Relations Comm'n, Civil No. 1:19-CV-2230
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • January 5, 2022
    ...breach of the Settlement." Sherman v. Standard Rate Data Serv., Inc., 709 F. Supp. 1433, 1438 (N.D. Ill. 1989) (citing Vermett v. Hough, 606 F.Supp. 732, 745–46 (W.D. Mich. 1984) ).Indeed, case law has long recognized the importance of deferring to the EEOC when it comes to enforcement and ......
  • Vermett v. Hough, No. G 82-55.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • January 29, 1986
    ...28 U.S.C. § 1343(4), and this Court's pendent jurisdiction over state law claims. By Opinion and Judgment Order dated March 7, 1984, 606 F.Supp. 732, Defendants' Motion to Dismiss Complaint or for Summary Judgment was granted in part; denied in part. Plaintiff's claims under Title VII (incl......
  • Request a trial to view additional results

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