Pettinato v. Professional Parent Care et al

Filing 18

ORDER GRANTING DEFENDANT SANFORD LINDEN'S MOTION FOR PARTIAL DISMISSAL[#10] AND CANCELING THE HEARING AND SCHEDULING CONFERENCE SCHEDULED FOR JULY 17, 2017. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ALLISON PETTINATO,
Plaintiff,
Case No.: 16-cv-14419
Honorable Gershwin A. Drain

v.

PROFESSIONAL PARENT CARE, a
Michigan Corporation, et al.,
Defendants.
___________________________/
ORDER GRANTING DEFENDANT SANFORD LINDEN’S MOTION FOR
PARTIAL DISMISSAL[#10] AND CANCELING THE HEARING AND
SCHEDULING CONFERENCE SCHEDULED FOR JULY 17, 2017
I.

INTRODUCTION
On February 2, 2017, Allison Pettinato (“Plaintiff”) filed an amended

complaint for damages against Professional Parent Care (“PPC”), a Michigan
company, Sanford Linden (“Linden”), and Morris Huppert (“Huppert”). Plaintiff
asserts that all three Defendants violated Title VII of the Civil Rights Act of 1964.
Presently before the Court is Linden’s Motion for Partial Dismissal. This matter is
fully briefed and a hearing is scheduled for July 17, 2017. Upon review of the
parties’ submissions, the Court concludes that oral argument will not aid in the
disposition of this matter. Accordingly, the Court will cancel the hearing and

resolve the instant motion on the briefs. See E.D. Mich. L.R. 7.1(f)(2). For the
reasons that follow, the Court will grant Linden’s Motion for Partial Dismissal.
II.

FACTUAL BACKGROUND
On October 14, 2015, Plaintiff began her employment as a Direct Service

Provider (“caregiver,”) for Defendant PPC, a home health care provider. Pl.’s
Compl. Pg. ID 41. A caregiver’s duty is to provide personal care to PPC’s clients
and assist them through daily living activities. Id.at Pg ID 40. Defendant Linden
is the owner/CEO of PPC.
On November 9, 2015, Linden assigned Plaintiff to the home of Defendant
Huppert, an elderly man. Id. at Pg ID 41. Neither Linden nor anyone at PPC
informed Plaintiff that Huppert has a history of sexual harassment towards his
caregiver. Id. at Pg ID 56. Almost immediately upon the start of her service at the
Huppert home, Huppert repeatedly kissed and hugged the Plaintiff. Id. at Pg ID
41-42. Huppert also grabbed the Plaintiff’s breasts and buttocks. Id. Huppert
continued these actions despite clear objections by the Plaintiff. Id. at Pg ID 43.
On November 19, 2015, Plaintiff reported Huppert’s conduct to her PPC
supervisor. Id. The supervisor relayed the report to Linden. Id.
However, Plaintiff’s assignment at Huppert’s home was not changed. Id. at
Pg ID 44. During her shift at Huppert’s home on November 28, 2015, Huppert
informed the Plaintiff that he has a personal relationship with Linden and that he
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could have her fired if he wanted. Id. On or about December 1, 2015, Huppert
offered the Plaintiff money for sexual favors. Id. at Pg ID 46. He then told her
that he made similar arrangements with his previous caregivers. Id. The following
day, Plaintiff told PPC’s manager that she would not be returning to Huppert’s
home and that she wanted to meet with Linden to discuss the inappropriate conduct
she had endured working for PPC in the Huppert home. Id. at Pg ID 48.
Linden thereafter contacted Plaintiff by phone to discuss why she did not
want to go back to the Huppert home. Id. When Plaintiff informed Linden began
to explain why she did not want to return to the Huppert home, Linden interrupted
her and said, “I assume this is about the inappropriate touching.” Id. at Pg ID 4849. Linden explained “that there were a few complaints” about Huppert’s conduct
from other former PPC employees from over “one-half years” ago. Id. at Pg ID
49.
Following that conversation, Plaintiff met with Linden to discuss in detail
the harassment she was enduring at the Huppert home. Id. After Plaintiff was
finished, Linden assured her that she would not be losing her job; he would
investigate the situation and would report his findings to her; and that he would
transfer her to another PPC facility (Pine Ridge) where she would retain her fulltime hours. Id. Linden also told Plaintiff that she was being considered for a
promotion to a managerial position with PPC. Id. at Pg ID 50.
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Several days after their meeting however, Linden informed the Plaintiff that
she was not being considered as a candidate for the managerial position. Id.
Additionally Plaintiff’s full-time schedule was reduced to nine hours per week. Id.
at Pg ID 54.

Plaintiff was also removed from a client’s home without an

explanation. Id. at Pg ID 53. Plaintiff tried to reach Linden regarding these issues,
but Linden never returned her calls. Id. at Pg ID 54-55.
Plaintiff ultimately experienced an anxiety attack as a result of these
circumstances. Id. at Pg ID 53.
distress.

Id.

She was hospitalized and treated for emotional

Plaintiff’s hospitalization resulted in her involuntary and/or

constructive discharge from her employment with PPC. Id. at Pg ID 55. Huppert
remained a client of PPC and sexually assaulted his next caregiver who was
assigned by Linden. Id. at Pg ID 56-57.
Plaintiff filed a discrimination charge with the EEOC, which provided her
with a right to sue letter. Id. at Pg ID 40. Plaintiff then timely filed the instant
civil rights lawsuit alleging: Count I (sexual harassment and/or discrimination or
retaliation in violation of Title VII); Count II (unlawful retaliation for engaging in
protected activity under Title VII); Count III (violation of Title VII – hostile work
environment); and Count IV (violation of the Michigan Elliot-Larson Civil Rights
Act).

Defendant Linden moves for the dismissal of Count I, II, and III of

Plaintiff’s complaint. Defendant Linden argues that there is no individual liability
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under Title VII, therefore Counts I-III fail to state a claim upon which relief may
be granted. Def.’s Mot. for Dismissal Pg ID 125.
III.

LAW & ANALYSIS
A.

Standard of Review

A Motion for Partial Dismissal is governed by Federal Rule Civil Procedure
12(b)(6), which empowers the court to dismiss a cause of action if there is a,
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). A cause of action survives Fed. R. Civ. P. 12(b)(6) when the, “plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 668 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). In determining whether a cause of action survives a Motion for Dismissal,
“a court must accept as true all of the allegations contained in a complaint . . . .”
Ashcroft, 556 U.S. at 678.

B.

Title VII Text

Title VII of the Civil Rights Act of 1964 states that, “[i]t shall be an
unlawful employment practice for an employer . . . to discriminate against any
individual with respect to [her] compensation, terms, conditions, or privileges of
employment because of such individual’s . . . sex . . . .” 42 U.S.C. § 2000e-2(a)(1)
(1964). An “employer” is defined as, “a person engaged in an industry affecting
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commerce who has fifteen or more employees for each working day in each of
twenty or more calendar weeks in the current or preceding calendar year, and any
agent of such person . . . .” 42 U.S.C. § 2000e(b) (1964). The term “agent” is not
defined in the statute, but courts have interpreted “agent” to mean, “an individual
who serves in a supervisory position and exercises significant control over the
plaintiff’s hiring, firing or conditions of employment.’” Pierce v. Commonwealth
Life Ins. Co., 40 F.3d 796, 803 (6th Cir. 1994) (quoting Sauers v. Salt Lake County,
1 F.3d 1122, 1125 (10th Cir. 1993)).
C.

Individual Liability under Title VII

In Wathen v. Gen. Elec. Co., the Sixth Circuit considered the issue of
whether an individual can personally be liable under Title VII. 115 F.3d 400 (6th
Cir. 1997). The Wathen court upheld the district court’s decision of summary
judgment in favor of the defendants, who were the plaintiff’s supervisors. Id. at
406. In doing so, the Sixth Circuit joined the majority of its sister circuits in
holding, “an individual employee/supervisor, who does not otherwise qualify as an
‘employer,’ may not be held personally liable under Title VII.” Id. at 405.
Here, Plaintiff brought a cause of action under Title VII against Linden in
his individual capacity. Plaintiff, just like the plaintiff in Wathen, read the
definition of “employer” in a literal manner to argue that an individual could be
liable under Title VII for being an “agent. Plaintiff’s support for this narrow view
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was Mengelkamp v. Lake Metro Housing Authority, 549 Fed.Appx. 323 (6th Cir.
2013). In Mengelkamp, the court found the plaintiff’s supervisor liable under the
definition of “employer” in §2000e(b). Id. at 335 ([defendant] is appropriately
considered an employer for purposes of Title VII liability. An individual qualifies
as an employer under Title VII if he (1) serves in a supervisory position, (2) has
significant control over plaintiff's hiring, firing, or conditions of employment,” and
(3) is the ultimate authority over [the plaintiffs] employment and working
conditions.”)(internal citation and quotation marks omitted).
The Wathen court did acknowledged this interpretation, “[w]e concede that a
narrow, literal reading of the agent clause in §2000e(b) does imply that an
employer’s agent is a statutory employer for purposes of liability.” Id. at 405
(citations and internal quotations omitted). The court rejected this interpretation,
“[h]owever, it is well-settled that in expounding a statute, we must not be guided
by a single sentence or member of a sentence, but look to the provisions of the
whole law, and to its object and policy.” Id. (internal citations and quotations
marks omitted).
The Wathen court then decided on the provisions of §2000e(b) by looking at
the legislative history and the case law. Id. at 405-06. Looking at case law, the
majority of courts addressing this issue concluded that, “[t]he obvious purpose of
this agent provision was to incorporate superior liability in to the statute.” Id.
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(quoting Miller v. Maxwell’s Int’l, Inc., 911 F.2d at 587 (internal quotation marks
omitted)). The court then looked at the legislative history of Title VII. Id. at 406.
The court found Title VII’s remedial provisions also leads to the conclusion that an
individual cannot be liable under Title VII. The court found that in the early stages
of the Act that, “a successful Title VII plaintiff was limited to reinstatement and
back pay—remedies only from an employer.” Id. (citing Tomka v. The Seller
Corporation, 66 F.3d 1295, 1314 (2nd Cir. 1995), and that, “[t]his limitation on the
available remedies suggests that Congress did not intend to allow recoveries
against individual employees . . . .” Id. In 1991 Congress enacted The Civil
Rights Act, 42 U.S.C. § 1981a, which added compensatory and punitive damages
for discrimination under Title VII. Id. However, the court notes that, “[t]he statute
contains no provisions for damages to be paid by individuals, further evidencing a
lack of congressional intent to hold individuals. Id. See Miller, 991 F.2d at 588 n.
2. (“[If] Congress had envisioned individual liability under Title VII for
compensatory or punitive damages, it would have included individuals in this
litany of limitations . . . .”).
The court concluded that, “the legislative history and the case law support
the conclusion that Congress did not intend individuals to face liability under the
definition of ‘employer’ it selected for Title VII,” and that an individual is not
liable under Title VII. Id. at 405-06. Mengelkamp is an unpublished opinion and
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therefore not binding, whereas Wathen is a published opinion and thus our Court is
bound to its decision.
Plaintiff cites to Williams v. General Motors Co., to establish that Linden
has an affirmative duty to prevent sexual harassment within the workplace. 187
F.3d 553 (6th Cir. 1999). Williams is distinguishable from our case for two
reasons. The Williams court said that in the wake of the Supreme Court decisions
of Faragher v. City of Boca Raton, 524 U.S. 2275 (1998), and Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), “it is no longer enough for an
employer to take corrective action; employers now have an affirmative duty to
prevent sexual harassment by supervisors.”

Williams 187 F.3d at 561.

In

Williams, the plaintiff was being harassed be her supervisors, whereas here,
Plaintiff was harassed by Huppert, a client not a supervisor. Employers have
greater control over their supervisors. There is usually an application process for
supervisors where the employer can look at the characteristics of a possible
supervisor and decide to hire them or not based on his own judgment. While the
employer picks his supervisors, usually the client that decides which employer he
wants.

Because of market competition and the need to create revenue, most

employers do not have the luxury to pick its clients. Because the employer has
greater control over its supervisors, it makes sense that they have more liability
over its supervisors’ actions as compared to a client.
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Williams is also

distinguishable because the company was the only defendant. The fact that the
court consistently referenced General Motors as the employer regarding Title VII
instead of its CEO or owner, only strengthens Linden’s argument that he cannot be
liable under Title VII.
Plaintiff also brings the same claims against Linden in his official capacity.
With regards to official capacity under Title VII, the Sixth Circuit held, “
While the law is clear that a supervisor cannot be held
liable in his or her individual capacity for violations of
Title VII, there is support for the proposition that a
supervisor may be held liable in his or her official
capacity upon a showing that he or she could be
considered the “alter ego” of the employer.
Little v. BP Exploration &Oil Co., 265 F. 3d 357,362.

n.2 (6th Cir. 2001).

However, “when a corporate employer is already being sued under Title VII an
official capacity adds nothing to the litigation.” Maudlin v. Inside Out Inc., 2014
WL 1342883, at *3 (S.D. Ohio 2014)(citing Campbell v. Korleski, 2011 WL
27486411 at *3 (S.D. Ohio 2009)). To the courts, it does not make sense to
include both entities as it is just redundant. Maudlin, 2014 WL at *4 (“allowing a
suit to continue against [individual] [d]efendant is redundant when [his company]
is already a named [d]fendant.”), See Busby v. City of Orlando, 931 F.2d 764, 772
(“individual capacity suits under Title VII are [] inappropriate. The relief granted
under Title VII is against the employer, not individual employees whose actions

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would constitute a violation of the Act.”); see also Campbell, 2011 WL at *3
(“such unnecessary private employer official capacity claims are wholly
duplicative of the Title VII claims against [his company] and add nothing to this
litigation . . . dismissal of the redundant claims is permissible.”); see also Miller v.
Rudd, 2001 WL 242588, at *11 (“although [p]laintiff may assert Title VII claims
against [individuals] in their official capacities as agents of OSAC, the claims are
actually claims against OSAC, [p]laintiff’s employer, and any recovery will run
against OSAC only.”). Here, PPC is Plaintiff’s employer and so bringing a claim
against Linden, the owner of PPC, and PPC is redundant.
Because Linden, as an individual, is not liable under Title VII in this,
Plaintiff has failed to assert a plausible cause of action against Linden. Therefore,
the Court should grant Linden’s Motion for Partial Dismissal under Fed. Civ. P. 12
(b)(6).
IV.

CONCLUSION
For the reasons discussed herein, Defendant Linden’s Motion for Partial

Dismissal [#10] is GRANTED. Counts I, II and III are hereby dismissed as to
Defendant Sanford Linden only.
SO ORDERED.
Dated: July 10, 2017

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 10, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk 

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