Oviatt v. University of Michigan Regents et al

Filing 18

ORDER dismissing obstruction of justice claim, denying plaintiff's request for entry of default, denying 16 MOTION for Sanctions filed by Jill S. Oviatt, denying 15 MOTION for Sanctions filed by Jill S. Oviatt and ORDER for Jill S. Oviatt to Show Cause why case should not be dismissed for failure to state a claim. Show Cause Response due by 7/27/2018. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JILL S. OVIATT,
Case No. 18-11819
Plaintiff,
v.

SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

UNIVERSITY OF MICHIGAN REGENTS,
ET AL.,

U.S. MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendants.
/
ORDER DISMISSING OBSTRUCTION OF JUSTICE CLAIM, DENYING PLAINTIFF’S
REQUEST FOR ENTRY OF DEFAULT, DENYING PLAINTIFF’S MOTIONS FOR
SANCTIONS [15, 16], AND DIRECTING PLAINTIFF TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED FOR FAILURE TO STATE A CLAIM
Pro se Plaintiff Jill S. Oviatt filed a Complaint [Dkt. #1] on June 7, 2018
against the University of Michigan (“U of M”) Regents, the former president of U of
M Lee C. Bollinger,1 and Associate General Counsel with the U of M Office of the
Vice President and General Counsel Richard Brandon. That same day, Plaintiff filed a
Notice of Service [6] in which she claimed to have served Defendants.2 One week
later, Plaintiff filed a document labeled “Certified Mail return cards” [7].
Plaintiff filed an Amended Complaint [8] on June 18, 2018, as well as two
Notices of Service [9, 10], in which she again claimed to have served Defendants. As
1

The Court’s research revealed that Mr. Bollinger is currently the president of Columbia
University. See Office of the President, COLUMBIA.EDU,
https://president.columbia.edu/content/about-president (last visited July 10, 2018).
2
Fed. R. Civ. P. 4(c)(2) prohibits the service of a summons and complaint by a party.

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of the date of this Order, Defendant Bollinger is the only party who has not appeared
in this action.
On July 3, 2018, Plaintiff filed an Order for Entry of Default [13]. That same
day, Defendants Richard Brandon and U of M, through counsel, filed an Objection to
Plaintiff’s Request for Entry of Default [12].
On July 10, 2018, Plaintiff filed two Motions for Sanctions [15, 16], as well as
a document titled “Amnesty Affidavit” [17].
Plaintiff’s filings are hard to decipher. It appears that Plaintiff asserts a claim
for hostile work environment based on sexual harassment. She also brings claims for
disparate treatment and obstruction of justice. (Am. Compl. at 2, 5-7).
“[T]he allegations of a complaint drafted by a pro se litigant are held to less
stringent standards than formal pleadings drafted by lawyers in the sense that a pro se
complaint will be liberally construed in determining whether it fails to state a claim
upon which relief could be granted.” Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.
1991). That said, “pro se status does not exempt the plaintiff from the requirement
that he comply with relevant rules of procedural and substantive law.” Weron v.
Cherry, 2008 WL 4614335, at *2 (E.D. Tenn. Oct. 14, 2008). The Court “need not
accept as true legal conclusions or unwarranted factual inferences.” Montgomery v.
Huntington Bank, 346 F.3d 693, 698 (6th Cir. 2003) (quoting Morgan v. Church's
Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987)). In other words, “the lenient treatment
generally accorded to pro se litigants has limits,” and they are “not automatically

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entitled to take every case to trial.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.
1996).
For the reasons discussed below, the Court will dismiss Plaintiff’s obstruction
of justice claim. To the extent Plaintiff requests entry of default, that request is
DENIED. Plaintiff’s Motions for Sanctions [15, 16] are DENIED. Plaintiff is also
directed to SHOW CAUSE why the case should not be dismissed against Defendants
for failure to state a claim upon which relief can be granted.
I.

Sexual harassment/hostile work environment claim
Plaintiff seems to allege that Brandon’s conduct created a hostile work

environment, and that the University knew of and condoned such conduct. It is
unclear whether Plaintiff brings this claim under Michigan’s Elliot Larsen Civil
Rights Act (“ELCRA”) or Title VII, 42 U.S.C. § 2000e, et seq. Accordingly, the
Court will examine Plaintiff’s claims under both statutes.
To establish a prima facie case of hostile work environment sexual harassment
under Title VII, Plaintiff must show that
(1) she belonged to a protected group; (2) she was subjected to unwanted
harassment; (3) the harassment was based upon her protected status; (4) the
harassment affected a term, condition, or privilege of employment; and (5) the
defendant knew or should have known about the harassing conduct but failed to
take any corrective or preventive actions.
Michael v. Caterpillar Financial Services Corp., 496 F.3d 584, 600 (6th Cir. 2007)
(internal quotations omitted).

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Similarly, under the ECLRA, Plaintiff “must demonstrate the first four
elements in addition to showing that the conduct or communication was actually
sexual in nature (not simply based on gender) as well as respondeat superior.”
Marotta v. Ford Motor Co., 119 F.Supp.3d 676, 688 (E.D. Mich. 2015) (citing Haynie
v. State, 468 Mich. 302 (2003)). “By contrast, under Title VII, the alleged conduct or
communication need not be overtly sexual, so long as it stems from an ‘anti-female
animus’; put differently, it suffices that the employee would not have suffered such
conduct but for the fact that she is female.” Id. at 688-89 (citing Williams v. Gen.
Motors Corp., 187 F.3d 553, 565-66 (6th Cir. 1999)).
Plaintiff states that Defendant Richard Brandon “made a pursuit of [her]” as
follows:
a) as a domination Master creating a unilateral contract performance between
his Dominant and the target submissive employee Plaintiff, and
b) as a Game player with standing recognized by University, making move
scores upon employee Plaintiff as money and injury source.
(Am. Compl. at 3).
Plaintiff also claims that Brandon “solicited [her] to enter a Master-submissive
domination relationship of sexual nature” and that the “University made a GLAAD3
game hiring of Richard Brandon in order to subordinate [her] into a gay, unilateral
Master relationship.” Id. at 3, 5.
In addition to the fact that Plaintiff’s allegations are incoherent and confusing,
she provides no evidence that any alleged harassment occurred “because of” her sex.
3

GLAAD is the Gay Lesbian Alliance Against Defamation.

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In addition, there is no evidence in the record that shows that any “harassing behavior
was ‘severe or pervasive’ enough to create an environment that a reasonable person
would fine objectively hostile or abusive, and that [ ] she subjectively regarded the
environment as abusive.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 333 (6th
Cir. 2008).
II.

Quid Pro Quo Sexual Harassment
Title VII provides relief for quid pro quo sexual harassment. See Highlander v.

K.F.C. Nat. Mgmt. Co., 805 F.2d 644, 648 (6th Cir. 1986). The Sixth Circuit has
stated that
[w]hat is commonly known as quid pro quo sexual harassment, to be contrasted
with so-called hostile-work-environment sexual harassment, is anchored in an
employer’s sexually discriminatory behavior which compels an employee to
elect between acceding to sexual demands and forfeiting job benefits,
continued employment or promotion, or otherwise suffering tangible job
detriments.
Souther v. Posen Constr., Inc., 523 Fed. Appx. 352, 354 (6th Cir. 2013).
To succeed on such a claim, Plaintiff must prove that she
was subjected to unwelcome[ ] sexual harassment in the form of sexual
advances or requests for sexual favors and that submitting to these
demands or advances was an express or implied condition for receiving job
benefits, or that refusing to submit resulted in a tangible job detriment.
Id. (quoting Highlander, 805 F.3d at 648).
Plaintiff provides nothing but bare legal conclusions. She has not alleged
“factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
III.

Disparate treatment

To establish a prima facie case of gender-based disparate treatment, Plaintiff
must show that she: (1) is a member of a protected class; (2) was subjected “to an
adverse employment action”; (3) was “qualified for the job”; and (4) “treated
differently than similarly situated male employees for the same or similar conduct.”
Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir. 2004). Again, as stated above,
Plaintiff fails to set forth “factual assertions tying the misconduct to the defendants
sued.” Johnson v. Tennessee, 2012 WL 2064453, at *3 (E.D. Tenn. Jun. 6, 2012).
IV.

Obstruction of justice

Obstruction of justice is a criminal offense. Plaintiff, as a private citizen, “lacks
a judicially cognizable interest in the prosecution or nonprosecution of another.”
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Because this Court has no
authority to order the filing of a criminal complaint, it lacks jurisdiction over this
claim, and dismisses it accordingly. See Schied v. Daughtery, 2009 WL 818095, at *4
(E.D. Mich. Mar. 25, 2009).
V.

Motions for Sanctions
Plaintiff asks the Court to impose sanctions on Defendants. She claims that

defense counsel incorrectly asserted that he is not authorized to accept service on
behalf of Defendants Bollinger and Brandon. Furthermore, she claims that sanctions

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are warranted because Defendants have “pretend[ed] Plaintiff is a cooperative tool
and funding account within the institution, without actual life, serving their unilateral
court needs and death imagery productions.” (Dkt. 16).
In addition to the fact that Plaintiff’s positions are nonsensical and
incomprehensible, Plaintiff has presented no evidence indicating that Defendants, or
their counsel, have engaged in bad-faith conduct. See Plastech Holding Corp. v. WM
Greentech Automotive Corp., 257 F.Supp.3d 867, 872 (E.D. Mich. 2017). Neither
Defendants nor defense counsel have acted unreasonably or in violation of Fed. R.
Civ. P. 11. Albright v. Upjohn, 788 F.2d 1217, 1221 (6th Cir. 1986). Plaintiff’s
Motions for Sanctions are therefore DENIED.
CONCLUSION
Plaintiff’s complaint largely fails to plead facts sufficient to show that a legal
wrong has been committed for which the Court may grant Plaintiff relief. See
Dekoven v. Bell, 140 F.Supp. 2d 748, 755 (E.D. Mich. 2001). It’s worth noting, too,
that, given that Plaintiff appears to complain of conduct that occurred 16 years ago,
her claims are almost certainly time-barred.4 Accordingly,
IT IS ORDERED that Plaintiff’s claim for obstruction of justice is
DISMISSED.
4

There is a three year statute of limitations available under the ELCRA. Marin v. Bloom
Roofing System, Inc., 795 F.Supp.2d 634, 646 (E.D. Mich. 2011); M.C.L. § 600.5805(10).
“Title VII has an administrative exhaustion requirement as well as a shorter statute of
limitations period.” Schmitt v. Solvay Pharmaceuticals, Inc., No. 06-11791, 2007 WL
3173323, at *5 (E.D. Mich. Oct. 29, 2007).

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IT IS FURTHER ORDERED that Plaintiff must show cause as to why the
Court should not sua sponte dismiss the complaint for failure to state a claim upon
which relief can be granted against the Defendants. Plaintiff’s response must be filed
on or before Friday, July 27, 2018. The response shall identify how Plaintiff will
amend her complaint so as to state a viable claim against the Defendants and show
cause as to why this Court should not dismiss Plaintiff’s claims.
IT IS FURTHER ORDERED that, to the extent Plaintiff seeks entry of
default, that request is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motions for Sanctions [15, 16]
are DENIED.
SO ORDERED.

Dated: July 12, 2018

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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