Lipkovitch v. Cnty. of Wayne

TIFFANY LIPKOVITCH, Plaintiff,

v.COUNTY OF WAYNE, POLICE OFFICERS ASSOCIATION OF MICHIGAN, and BENNY N. NAPOLEON, Defendants.

Case No. 10-13961-DT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: September 30, 2012

HONORABLE DENISE PAGE HOOD

OPINION AND ORDER REGARDING DISPOSITIVE MOTIONSAND

ORDER DISMISSING ACTION

I. BACKGROUND/FACTS

On October 4, 2010, Plaintiff Tiffany Lipkovitch ("Lipkovitch") filed the instant action against Defendants County of Wayne ("Wayne County"), the Police Officers Association of Michigan ("POAM") and Benny N. Napoleon ("Napoleon"). Lipkovitch alleges in her Complaint: Violation of 42 U.S.C. § 1981, Race Discrimination in Enforcement of Employment Contract (Count I); Violation of 42 U.S.C. § 1983 (Count II); Violation of the Michigan Elliott-Larsen Civil Rights Act (Count III); Breach of Duty under Art. 1, § 17 of State of Michigan Constitution to Conduct Fair and Just Investigation (Count IV); Violation of Plaintiff's Liberty and Property Interest in Violation fo the 14th Amendment (Count V); Abuse of Discretion in Discriminatory Selective Enforcement of Progressive Disciplinary Policy (Count VI); Breach of Duty of Fair Representation against the POAM (Count VII); and, Failure to Investigate against the POAM (Count VIII).

Since March 4, 1996, Lipkovitch had been a deputy sheriff with the Wayne County Sheriff's Department. Lipkovitch's employment relationship was governed by a Collective BargainingAgreement ("CBA") between Wayne County and the POAM. Lipkovitch was terminated effective May 24, 2010 due to a series of misconduct charges, including a charge of fraternization with known felons who were inmates housed at the Michigan Department of Corrections ("MDOC"). The MDOC submitted a complaint to the Wayne County Sheriff Internal Affairs alleging:

It was discovered while listening to Jackson 36626 4, Davis 598803 and Moore 471608 phone calls that they were involved in a smuggling scheme with the assistance of a female Wayne County Deputy Sheriff, who is employed at the Wayne County Jail in Detroit, Michigan. The Sheriff used two cell phones with numbers (313) 804-0274 and 734 444-9282, to link the prisoners on conference calls with each other at the SCF and WHV correctional facilities. Jackson or Moore would call from WHV and approximately 3 or 5 minutes later, Davis would call the exact same cell phone number that the sheriff would use to link them to the conference call. They used their cell phone conference call system to circumvent the phone policy and set up a smuggling business with the help of a Wayne County Deputy Sheriff. The prisoners smuggled commissary items and illegal drugs by using transferring prisoners from each institution. The transferring prisoners would place the items in their duffle bags or footlockers to transport to their destination. Once they arrived at the facility, the items were given to Inmates Jackson, Davis or Moore to distribute or retain. The Sheriff also assisted the prisoners in depositing money into other prisoners accounts, purchasing cell phones, passing messages for other prisoners or civilians to other prisoners, giving information about other prisoner s cases, allowing civilians to come to her home to speak with the prisoners on cell phones, sending money to civilians for the prisoners and sending mail and cards to prisoners for Jackson 366264. The Sheriff was also involved with prisoners Charles Meadows-117829-Mound Correctional Facility; Earle Poncietta 425456-Camp White Lake and Natasha Nichols 383030-Wayne/Detroit/Prob/ Par/REP. One or both of the 2 cell phone numbers show on all of the above mentioned prisoners phone list per Embarg prisoner phone services. These numbers have been on some of their phone lists since March 2006. Prisoners Jackson, Davis and Moore were all found guilty of smuggling by major court on April 23rd.

(Doc. No. 20, Ex. 3)

The Wayne County Sheriff's Office thereafter initiated its own investigation by summoningLipkovitch and her union representative from the POAM, Corporal Richard Perkins, for an Internal Affairs interview on March 25, 2010. Lipkovitch was given her Garrity Rights and then examined regarding the allegations of the MDOC complaint. Lipkovitch admitted knowing inmate Jackson and facilitating calls between Jackson and other inmates. Lipkovitch denied having any involvement with any smuggling scheme or illegal activity between the inmates and denied acceptance of any bribes or contraband. (Lipkovitch Dep., pp. 21-24; Doc. No. 20, Ex. 4, Tr. of 3/25/10 Interview) Lipkovitch admitted that she had knowledge of contraband transported by prisoners. (Doc. No. 20, Ex. 4, Tr. 3/25/10 Interview, p. 11) Lipkovitch also admitted that she contacted Jackson's lawyer on behalf of Jackson; she sent money orders to Jackson; received cigarettes for sending the money orders to Jackson; used the Sheriff's Department to look up information regarding other inmates for Jackson including on the website sugardaddies.com; maintained a relationship with Jackson for three years. (Id., pp. 10-12, 16, 23-24, 29) Lipkovitch submitted a handwritten statement on March 25, 2010. (Doc. No. 20, Ex. 5)

Following the IA interview, Lipkovitch was charged with violating the Wayne County Sheriff's Departments policies and rules based on the MDOC complaint:

1. Code of Ethics

2 Violation of Rules (GM 99-3 Zero Tolerance Incidents and 2003-13 Cell Phones)

3. Abuse of Position

4. Conduct

5. Confidentiality/Dissemination of Information

6. Conformance to Laws

7. Contraband

8. Enforcement of Laws and Ordinances

9. Fraternization With Persons In Custody and Association

10. Personal Associations

11. Social Conduct-On Duty

12. Unsatisfactory Performances

13. Gifts/Guaranties/Bribes/Rewards

14. Personal Integrity

15. Personal Responsibilities

(Doc. No. 20, Ex. 8)

The Administrative Review and Determination ("ARD") Hearing on the charges was held on May 24, 2010. Officer Gerard Grysko, the Disciplinary Deputy Chief ("Grysko"), conducted the hearing. Second Vice President of POAM, Corporal Deborah Martin ("Martin"), represented Lipkovitch at the hearing. Lipkovitch offered no opposition to the charges at the ARD Hearing. At the conclusion of the hearing, Grysko found Lipkovitch guilty as charged and her employment was terminated. (Doc. No. 20, Exs. 10-11)

At Step 4 of the grievance procedure process, Local Union President Gregory Hattway met with the Wayne County Labor Relations Division to present Lipkovitch's case. On June 7, 2010, the grievance was denied by Labor Relations Analysis Yvonne Holiday-Mickens. (Doc. No. 17, Ex. 8) Martin presented the documents regarding Lipkovitch's disciplinary and grievance proceedings to the POAM for evaluation and determination to proceed to arbitration. (Doc. No. 17, Ex. 5) On July 29, 2010, Marha M. Champine, Assistant General Counsel for the POAM, informed Martin that after reviewing the materials submitted as to Lipkovitch's documents, the POAM declined to pursue Lipkovitch's grievance to arbitration. (Doc. No. 17, Ex. 1)

Lipkovitch thereafter filed the instant lawsuit. Before the Court are various motions, including Motions for Summary Judgment filed by the Wayne County Defendants and POAM, a Motion to Dismiss the state law claims under Rule 41 filed by Plaintiff and Motion to Remand filed by Plaintiff. After the dispositive motions were filed by Defendants, Lipkovitch filed a second lawsuit involving the same Defendants before the Wayne County Circuit Court on October 24, 2011. The Wayne County Defendants removed the matter to this Court on November 17, 2011, Case No.11-15081. A Motion to Remand is pending in that case filed by Lipkovitch, which will be addressed in a separate order. Briefs have been filed on the pending motions in this case and a hearing held on the matter.

II. ANALYSIS

A. Summary Judgment Standard of Review

Rule 56(a) of the Rules of Civil Procedures provides that the court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Although the court must view the motion in the light most favorable to the nonmoving party, where "the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A court must look to the substantive law to identify which facts are material. Anderson, 477 U.S. at 248. C. Wayne County Defendants' Motion for Summary Judgment

The Wayne County Defendants move to dismiss the claims against them filed by Lipkovitch, Counts I to VI. Lipkovitch agrees that Counts I to VI are alleged against the Wayne County Defendants only.

1. Count 1, 42 U.S.C. § 1981

The Wayne County Defendants argue that Lipkovitch has no claim under 42 U.S.C. § 1981 since the exclusive remedy against municipalities and their employees regarding race discrimination is found under 42 U.S.C. § 1983. Lipkovitch...