Benedict v. Michigan Department of Corrections et al

Filing 25

Memorandum and Order Granting in Part and Denying in Part Defendants' 14 21 Motions to Dismiss. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ASHLEY BENEDICT,
Plaintiff,
vs.

Case No. 14-13668
HON. AVERN COHN

WILLIAM RHULMAN, THERESA PEIFFER,
LORI GIDLEY, DAVID BERGH, and
FRANK BERNSTEIN, individually,
Defendants.
_____________________________________/
MEMORANDUM AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO
DISMISS (Docs. 14, 21)
I. Introduction
This is an employment and 42 U.S.C. § 1983 civil rights case. Plaintiff, Ashley
Benedict is suing defendants William Rhulman, Teresa Peiffer, Lori Gidley, David
Bergh, and Frank Bernstein1 making claims under state and federal law related to her
employment with the Michigan Department of Corrections (MDOC) Thumb Correctional
Facility. Peiffer, Bernstein, and Rhulman are corrections officers. Bergh is the Warden
at the Thumb Correctional Facility and Gidley is the Deputy Warden.

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Benedict initially also sued the Michigan Department of Corrections and named
all the individual defendants in their official and individual capacities. The Michigan
Department of Corrections and all official capacity claims were subsequently dismissed
on stipulation of the parties. (Doc. 12).

The First Amended Complaint, the governing complaint, asserts the following
claims:
Count I:

Violation of the Michigan (ELCRA) – Hostile Work Environment

Count II:

Violation of the Michigan ECRLA – Disparate Treatment

Count III:

Violation of the Michigan ELCRA – Unlawful Retaliation for
Engaging in a Protected Activity

Count IV:

Equal Protection Violation under 42 U.S.C. § 1983,
Fourteenth Amendment

Count V:

Substantive Due Process Violation under 42 U.S.C. § 1983,
Fourteenth Amendment

Before the Court is Peiffer, Bergh, Gidley and Bernstein’s partial motion to
dismiss under Fed. R. Civ. P. 12(b)(6). (Doc. 14). The motion addresses only
Benedict’s federal claims, contending that she has failed to allege plausible claims
against them under federal law. They further ask that the Court decline to exercise
supplemental jurisdiction over Benedict’s state law claims.
Rhulman, proceeding pro se, has also filed a motion to dismiss. (Doc. 21).2

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Rhulman previously filed an answer. (Doc. 13). Although Benedict argues that
Rhulman’s motion to dismiss must be denied because he already filed an answer, the
Court treats the motion to dismiss as a motion for judgment on the pleadings under Fed.
R. Civ. P. 12(c). See Satkowiak v. Bay Cnty. Sheriff's Dep't, 47 F. App’x 376, 377 n. 1
(6th Cir.2002); Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436, n. 1 (6th
Cir.1988) (construing post-answer Rule 12(b)(6) motion as a Rule 12(c) motion);
Wagner v. Higgins, 754 F.2d 186, 188 (6th Cir. 1985) (holding that “where the
substance of the motion is plain,” it is proper to treat a motion styled as one under Rule
12(b)(6) as if it were brought under Rule 12(c)); see also Fed.R.Civ.P. 12(h) (a Rule
12(b)(6) failure to state a claim defense and a Rule 12(b)(7) failure to join a party
defense can be raised in a pleading, in a rule 12(c) motion, or even at trial).
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For the reasons that follow, Peiffer, Bergh, Gidley and Bernstein’s motion will be
granted in part and denied in part. Benedict’s claims against Bergh and Peiffer will be
dismissed. Rhulman’s motion will be denied.
II. Background
As alleged in the First Amended Complaint, Benedict, a female, began working
for the MDOC on March 12, 2006. First Amended Complaint (FAC) at ¶ 13-14.
Beginning in 2009, Benedict says she was sexually harassed by Rhulman, the MPRI
coordinator at the Thumb Correctional Facility. Id. at ¶ 16. She says Rhulman would
send sexually explicit e-mails, Facebook messages, and text messages. Rhulman
would also request sexual favors, which Benedict expressly opposed. Id. Benedict
alleges that as a result, she was transferred from the Essex Unit and passed over for
mandatory overtime in retaliation for opposing Rhulman’s advances. Id. at ¶ 22, 23.
Benedict also says she was retaliated against for reporting the sexual
harassment to Bernstein, a Lieutenant Corrections Officer at the Thumb Correctional
Facility, who allegedly told Benedict not to repeat the same or he would “have to report
it.” Id. at ¶ 24. Soon after, Benedict was issued “lost time” for missing work due to
illness by Gidley. Id. at ¶ 25. On February 5, 2013, after she reported the sexual
harassment, Benedict was issued an Employee Disciplinary Report and a three day
suspension. Id. at ¶ 27. Benedict alleges that Defendants “retaliated against [her] for
reporting and/or opposing sexual harassment and/or gender discrimination by
threatening to discipline her for her alleged subordination, unjustifiably investigating her,
unlawfully suspending her numerous times without pay, denying her overtime and
subsequently terminating her employment on...October 27, 2014.” Id. at ¶ 30.
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III. Legal Standard
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint. To
survive a Rule 12(b)(6) motion, the complaint’s “factual allegations must be enough to
raise a right to relief above the speculative level on the assumption that all of the
allegations in the complaint are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545
(2007); see also Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545,
548 (6th Cir. 2007). The court is “not bound to accept as true a legal conclusion
couched as factual allegation.” Ashcroft v. Iqbal, _____ U.S. _____, 129 S.Ct. 1937,
1950 (2009) (internal quotation marks and citation removed). Moreover, “[o]nly a
complaint that states a plausible claim for relief survives a motion to dismiss.” Id. Thus,
“a court considering a motion to dismiss can choose to begin by identifying pleadings
that, because they are no more than conclusions, are not entitled to the assumption of
truth. While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they plausibly give rise
to an entitlement of relief.” Id. In sum, “[t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state a claim for relief that is
plausible on its face.” Id. at 1949 (internal quotation marks and citation omitted).
“[D]etermining whether a complaint states a plausible claim is context-specific, requiring
the reviewing court to draw on its experience and common sense.” Id. at 1940.

IV. Analysis

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A. Equal Protection Claim
1. Legal Standard
“The Equal Protection Clause prohibits discrimination by government which either
burdens a fundamental right, targets a suspected class, or intentionally treats one
differently than others similarly situated without any rational basis for the difference.”
Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673, 681–82 (6th Cir. 2011). Here,
Benedict alleges that she was a target of discriminatory treatment because she is a
member of a suspect class.
“[I]n order to establish a prima facie case, the plaintiff must set forth the following
elements: 1) he was a member of a protected class; 2) he was subject to an adverse
employment action; 3) he was qualified for the job; and 4) for the same or similar
conduct, he was treated differently from similarly situated [non-female] employees.”
Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir.2000).
Benedict alleges she is a member of a protected or suspect class because she is
a female. She also alleges she was discriminated against in a number of ways because
of her membership in this class. She also alleges an adverse action was taken against
Benedict on the basis of her gender that were not taken against similarly situated
employees who were not of the same gender as Benedict. FAC at ¶ 53-54. Thus, she
has alleged the requisite elements of a claim. However, whether or not she has alleged
a plausible claim against each defendant is discussed in turn below.

2. Defendants

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a. Rhulman
Benedict alleges that beginning in 2009, Rhulman subjected her to “numerous
incidents of unwanted sexual harassment in the form of sexually explicit e-mails,
Facebook messages, and text messages and requests for sexual favors.” FAC at ¶ 16.
Benedict further alleges that on September 23, 2011, Rhulman sent Benedict a sexually
explicit image of his genitals and left a voicemail on her phone expressing to her that he
was masturbating. Id. at ¶ 17. When Benedict expressly opposed Rhulman’s numerous
acts, she was transferred from the Essex Unit and passed over for mandatory overtime .
Id. at 22.
Benedict’s allegations, examined in their most favorable light, are sufficient to set
forth a prima facie equal protection violation against Rhulman. The FAC contains
detailed factual allegations, which, if true, show that she was the target of intentional
discrimination by Rhulman because she was a female. Thus, Benedict’s claim against
Rhulman survives dismissal.
b. Bernstein and Gidley
Benedict alleges that she reported Rhulman’s acts of sexual harassment against
her to Defendant Bernstein and that instead of taking action, Bernstein informed her not
to repeat the same or he would “have to report it.” FAC at ¶ 24.Benedict further alleged
that despite her requests and granted approval for sick time for work days December
15th and 16th of 2012, Gidley issued Benedict “lost time” for missing work due to illness
and Benedict was not paid for the same. FAC at ¶ 25.
Despite their argument to the contrary, the FAC contains detailed factual
allegations, which, if true, show that Benedict was the target of intentional discrimination
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by Bernstein because she is a female who was reporting sexual harassment against a
male counterpart. Benedict’s Complaint also contains detailed factual allegations that
Gidley intentionally discriminated against Benedict when Gidley issued Benedict “lost
time” in retaliation for reporting the sexual harassment against Defendant Rhulman.
And, despite Defendants' statement to the contrary, Benedict does not rely on
conclusory legal statements, but rather cites a direct exchange with Defendant
Bernstein that, if taken as true, demonstrates an unwillingness to protect Benedict.
Viewing the allegations in the FAC most favorably to Benedict, Benedict has
alleged a plausible equal protection claim against Bernstein and Gidley.
c. Bergh and Peiffer
Benedict, however, has not made any factual allegations that Bergh and Peiffer
were personally involved in or knowingly acquiesced or approved of the alleged
discriminatory actions. Indeed, other than to identify them as defendants, the FAC
makes no other specific mention of them whatsoever. Absent such allegations, she has
not stated a plausible claim for relief against either of them. See Leach v. Shelby Cnty.
Sherriff, 891 F.2d 1241, 1246 (6th Cir.1989). Therefore, Benedict’s equal protection
claim against Bergh and Peiffer must be dismissed.
B. Substantive Due Process Claim
1. Legal Standard
Benedict claims that Defendants violated her substantive due process rights
under § 1983. In order to state a substantive due process claim, Benedict must state
facts to show that Defendants interfered with a fundamental right or liberty interest that

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is accorded special constitutional protection. See Washington v. Glucksberg, 521 U.S.
702, 719–20 (1997). Fundamental rights protected by the Due Process Clause include
the right to marry, to have children, to direct the education and upbringing of one's
children, to marital privacy, to use contraception, and to bodily integrity. Id. at 720.
The Sixth Circuit recognizes two types of substantive due process violations: “(1)
official acts that are unreasonable and arbitrary and may not take place no matter what
procedural protections accompany them, and (2) official conduct that ‘shocks the
conscience .” Harris v. City of Akron, 20 F.3d 1396, 1405 (6th Cir.1994) (citations and
internal quotation marks omitted).“Actions meet this high standard if they are an
‘egregious abuse of governmental power.’ ” Kinross Charter Twp. v. Osborn, No.
06–CV–245, 2007 WL 4284861, at *16 (W.D. Mich. Dec. 3, 2007) (quoting Shehee v.
Luttrell, 199 F.3d 295, 301 (6th Cir.1999)).
A public employee's interest in continued employment is not a fundamental
interest protected by substantive due process. Sutton v. Cleveland Bd. of Educ., 958
F.2d 1339, 1351 (6th Cir.1992).
Again, Benedict’s claim as to each defendant is examined in turn below.
2. Defendants
a. Rhulman
Benedict has plead a plausible substantive due process claim against Rhulman.
The allegations of his conduct, set forth above, state that Rhulman subjected Benedict
to sexually explicit behavior and requested sexual favors, Benedict has plead a
plausible claim that her constitutional right to bodily integrity was violated. Therefore,
her claim against Rhulman survives dismissal.
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b. Bernstein and Gidley
Benedict has also sufficiently pled a substantive due process claim against
Bernstein. Benedict alleges that she reported Rhulman’s sexual harassment to
Bernstein, and therefore Bernstein was on notice that Benedict’s bodily integrity had
been compromised. Benedict further alleges that instead of reporting the harassment,
Bernstein threatened Benedict not to repeat the report. Bernstein’s conduct may be
construed as further perpetuating the sexual harassment and compromising Benedict’s
bodily integrity and/or may “shock the conscience.” Either way, Benedict has pled
sufficient factual allegations against Bernstein to survive dismissal.
The same is true with respect to Gidley. Benedict alleges that Gidley issued
Benedict “lost time” instead of “sick time,” despite the fact that Benedict’s sick time had
been previously approved and granted. FAC at ¶ 25. Benedict also alleges that Gidley
issued the lost time in retaliation to Benedict reporting Rhulman’s sexual harassment.
Assuming these allegations are true, it is plausible that Gidley’s actions “shock the
conscience.”
c. Bergh and Peiffer
Like her equal protection claim, Benedict has not made factual allegations that
Bergh and Peiffer were personally involved in, or knowingly acquiesced or approved of,
the alleged substantive due process violations in the FAC. Bergh’s status as Warden
alone is insufficient in alleging he is liable for Benedict’s substantive due process claims.
Likewise, the FAC contains no allegations that Peiffer contributed to the substantive due
process violation. Benedict’s substantive due process claims against Defendants Bergh
and Peiffer, examined in their most favorable light cannot possibly “shock the
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conscience.” The absence of any allegations that either Bergh or Peiffer affirmatively
deprived Benedict of her constitutional right to bodily integrity defeats a substantive due
process claim.
C. Qualified Immunity
Defendants also argue that even if Benedict has plead viable federal claims
against them, they are entitled to qualified immunity. This argument is premature. For
purposes of the analysis in a motion to dismiss, the factual allegations are taken as true
and meet the plausibility requirement sufficient to allow the parties to engage in
discovery. To adopt the Defendants’ argument that the conduct alleged does not violate
Benedict’s rights would be to engage in impermissible fact-finding which is premature at
this stage of the litigation. See Grose v. Caruso, 284 F. App’x 279, 283–84 (6th Cir.
2008) (challenges based upon qualified immunity usually the subject of summary
judgment motions as the analysis is usually fact-dependent and requires development
of the record).

D. State Law Claims
Defendants contend that because Benedict’s federal claims are subject to
dismissal, the Court should decline to exercise supplemental jurisdiction over her state
law claims, resulting in dismissal of the FAC. In light of the Court’s conclusion that
some of Benedict’s claims survive dismissal, this argument is moot.
VI. Conclusion

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For the reasons stated above, Peiffer, Bergh, Gidley and Bernstein’s motion to
dismiss is GRANTED IN PART AND DENIED IN PART. Benedict’s claims against
Bergh and Peiffer are DISMISSED. Rhulman’s motion to dismiss is DENIED.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: April 14, 2015

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, April 14, 2015, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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