Sixth Circuit Revives Hostile Work Environment Claim Against Local Judge

In August, the federal Court of Appeals affirmed in most part the dismissal of an employment retaliation and harassment complaint filed against five local municipal court judges and a court employee on the grounds that the allegations were too vague to support an actionable claim, but reversed the dismissal of the hostile work environment allegations made against one of the judges because sufficiently specific allegations had been made against him.  Boxill v. O’Grady, No. 18-3385 (6^th Cir. Aug 16, 2019).  To survive dismissal at this early stage, the complaint must state more than conclusory allegations against the defendant as a group and must allege that any alleged retaliation was based on personal knowledge of the protected conduct.


According to the Court’s opinion, the plaintiff alleged that the defendants formed a conspiracy in 2007 to intimidate complaining female employees, but that she did not suffer any abusive treatment until one of the judges made hostile comments to her in 2011 which she indicated were racist and sexist.  She claimed to have reported his “harassment” to several of the defendants through 2013, but no action was taken and in 2013 one of her male subordinates was given a substantial raise (that impliedly she did not similarly receive).  


In 2014, the plaintiff alleged that another judge took up her cause and drafted a letter expressing concerns with the behavior of the judge who she claimed was behaving inappropriately to her.   Her supervisor revised the letter, which indicated that the judge’s behavior could result in litigation and lead to potential liability for hostile work environment.  Importantly, there was no allegation that the allegedly hostile judge knew about the letter or that the plaintiff was the source of the allegations.  Nonetheless, a week later, she was demoted and she alleged that the allegedly hostile judge recruited other judges to monitor her and her staff and they began bypassing her to go directly to her staff.  She resigned in 2014.  She filed suit seeking relief under §§ 1981 and 1983 for hostile work environment and retaliation, but not Title VII or state law.


With respect to her retaliation claims (under the First Amendment and §1981/1983), the Court found that her complaints of discrimination were matters of public concern, although it did not address the issue that her complaints were about her own personal situation.  It also found that her demotion and reduction in responsibilities would deter a reasonable person from exercising their protected rights.  However, her claims against four of the defendants failed because she failed to make any allegations that they were aware of her complaints or individually took any adverse action against her.  “Summary reference to a single, five-headed “Defendants” does not support a reasonable inference that each Defendant is liable for retaliation.”  While her allegations against the fifth judge were more detailed about his adverse actions against her, she never alleged that he was aware of her complaints against him.  Accordingly, the retaliation claims were properly dismissed.


With respect to her §1983 civil conspiracy claims, she similarly failed to make any individual allegations against four of the defendants that they participated in the alleged conspiracy, shared a conspiratorial objective, or committed any specific acts to further the alleged conspiracy.  Her reliance on the awareness of two of the defendants of the draft letter and revising the letter was misplaced because “letter’s open recognition of concerns about” the allegedly hostile judge  “undercut the claim that [they]  worked to conceal complaints against him.” While her complaints against the allegedly hostile judge were specific, she failed to allege that he knew about any of her complaints against him. He “could not have conspired to retaliate against [her] on the basis of complaints he knew nothing about.”


With respect to her hostile work environment claim, she again failed to allege that four of the defendants knew anything about her complaints and failed to take action.  On the contrary, the fact that the letter about the fifth judge’s behavior was being circulated and discussed, show that they were taking proactive steps to address the situation.  Nonetheless, her “vague reference to the Defendants’ “facilitati[on]” of “a continuing hostile work environment”  . . .  is not enough to state a plausible claim against any of these Defendants.  Nor is [her] conclusory allegation that [the fifth judge] was “hostile and intimidating to [her] personally.”  Accordingly, those allegations against four of the defendants were similarly dismissed.


The Court reversed dismissal of the hostile work environment claim against the fifth judge because the allegations against him were sufficient to proceed to the discovery phase of the litigation.  The plaintiff alleged “that shortly after his election to the bench in 2011, ‘[he] began making hostile comments’ that ‘mirrored sexist and racist allusions [he] had directed at [her] when he had been Bailiff’ at the same courthouse in the past.”  She had complained that he was interfering with her ability to work and the other judges recognized that his behavior had become enough of a problem that they felt the need to document their concerns.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Employment Claims Brought by Independent Contractor Surgeon

Last week, the Sixth Circuit affirmed the summary judgment dismissal of Title VII and §1981 claims brought by a surgeon after her surgical privileges were revoked by a hospital after she injured a patient.  Brintley v. St. Mary Mercy Hospital, No. No. 12-2616  (6^th Cir. 11-15-13).  After she had used a particular surgical technique which may caused significant complications for a young patient following a routine procedure, the Hospital’s Chief of Surgery for the defendant hospital requested that the plaintiff surgeon remove herself from the emergency call list and to cease using that surgical technique.  An investigation revealed that in the 13 months she had been on staff, six of her patients had suffered avoidable complications compared to one avoidable complication during the same period for the remaining nine surgeons combined.  The hospital’s executive committee recommended that the plaintiff undergo a proctorship where all of her surgeries would be supervised.  However, when the plaintiff objected to the proctors’ directions, and continued to perform the problematic surgical technique, the Executive Committee voted to suspend her medical privileges.   She brought suit for racial discrimination under Title VII and §1981. 

The Court found that she was not covered by Title as an independent contractor.  She paid her own taxes, licensing fees and malpractice insurance premiums and billed her own patients.  She held privileges at other medical facilities which were not supervised or controlled by the Hospital. She never filed tax returns claiming to be an employee of the hospital.

The Court likewise affirmed the dismissal of her §1981 claim on the grounds that the medical bylaws did not constitute a contract. Section 1981 “protects the equal right of all persons . . . to make and enforce contracts without respect to race.”  The Plaintiff claimed that the hospital violated this statute when it revoked her medical privileges.  The Plaintiff did not have an independent contractor agreement or other contract with the hospital. 

 

Brintley contends that St. Mary’s bylaws created such a contract. But she does not explain which of the bylaws’ provisions create a contract with her, much less how any provision does so. And the bylaws themselves appear primarily, if not exclusively, to describe St. Mary’s self governance and organization. Nothing in them speaks to or creates a contractual relationship with Brintley.

While the bylaws did not explicitly state that they were not a contract, the Court did not find this to be controlling.  The Court did not discuss any quid pro quo which flowed from the hospital to the plaintiff or visa versa.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.