Reed v. City of Detroit

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CHARLETTA REED, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellant, and SERGEANT RONALD GIBSON, Defendant.

Nos. 362551, 362600

Court of Appeals of Michigan

November 9, 2023

UNPUBLISHED

Wayne Circuit Court LC No. 22-005267-CZ

Before: Cavanagh, P.J., and Riordan and Patel, JJ.

Per Curiam.

In this consolidated appeal,^[1] in Docket No. 362551, defendant City of Detroit ("Detroit") appeals as of right the trial court's order denying its motion for summary disposition pursuant to MCR 2.116(C)(7) on the basis of governmental immunity. In Docket No. 362660, Detroit appeals by leave granted the same order denying its motion for summary disposition pursuant to MCR 2.116(C)(7) on the basis that plaintiff Charletta Reed ("plaintiff") failed to establish that she has a claim for sexual harassment under the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq., and alternatively, that her claim is barred by collateral estoppel.

Briefly stated, defendant Sergeant Ronald Gibson ("Gibson") began a sexual relationship with plaintiff after meeting her while performing his duties as a Detroit Police Officer in December 2017. The relationship ended in February 2018. Plaintiff subsequently sued Detroit, its police department and Gibson in federal district court, alleging that Gibson coerced her into the sexual relationship by abusing his authority as a police officer and, consequently, that these defendants violated federal and state laws, including ELCRA. The federal court dismissed the federal claims on the basis that Gibson did not act "under color of state law" because the sexual relationship was private and unrelated to his duties as a police officer. The federal court declined to exercise jurisdiction over the state claims.

After the federal case was dismissed, plaintiff filed the instant action in Wayne Circuit Court, seeking to pursue her ELCRA claims against Detroit and Gibson. Detroit argued that it was entitled to summary disposition under MCR 2.116(C)(7), and we agree with Detroit that the doctrine of collateral estoppel bars the instant action. Therefore, we reverse the trial court and remand to that court for entry of summary disposition in favor of Detroit.

I. BACKGROUND FACTS

On May 4, 2022, plaintiff filed her complaint in Wayne Circuit Court against Detroit and Gibson, alleging as follows. On December 25, 2017, the father of plaintiff's children caused a domestic incident with plaintiff. Gibson was one of the police officers who responded to the incident. He personally conversed with plaintiff and, after learning that she was "working to get a cabaret license," informed her that he could assist her in that regard. About one hour after leaving plaintiff's home, Gibson called plaintiff and told her that she had an outstanding warrant from 2010. Plaintiff was "extremely concerned" and accepted Gibson's offer to come to her house the following day to discuss the outstanding warrant. When he did so, he informed plaintiff that he could resolve her warrant and domestic-dispute issues. During this conversation, Gibson began rubbing plaintiff's shoulders. "Plaintiff felt like she was unable to leave and when she told Defendant Gibson that she did not want to engage with him sexually, he said that it was the only way she would not be arrested because of her warrant and domestic dispute issues." Plaintiff eventually complained to a Detroit Police Department lieutenant about the matter but, nonetheless plaintiff alleged "Defendant Gibson continued to unlawfully detain Plaintiff and tell her that if she did not engage with him sexually that she could still be arrested for the outstanding warrant." Plaintiff accordingly alleged that Detroit and Gibson violated ELCRA by depriving her of "public services . . . based on her sex," and she sought damages for such issues as "[p]ain and suffering."

On May 23, 2022, Detroit filed its motion for summary disposition pursuant to MCR 2.116(C)(7) in lieu of an answer. Detroit argued that (1) it is protected by governmental immunity from ELCRA claims seeking monetary damages, (2) plaintiff does not have an ELCRA claim "because she was not denied a public accommodation due to discrimination or due to sexual harassment,"^[2] and (3) collateral estoppel bars the instant action because "the federal court determined that Plaintiff and Defendant Gibson engaged in a consensual sexual relationship that did not involve Gibson's official duties as a police officer."

The primary documentary evidence that Detroit attached to its motion and brief was a 47-page Internal Affairs Report dated February 11, 2020, concerning the matter. The report explains that on February 16, 2018, plaintiff contacted Internal Affairs to report that Gibson "had coerced her into having sex with him, by telling her that she had warrants for her arrest." It further explains that on April 4, 2018, a warrant request identifying Gibson was sent to the Wayne County Prosecutor's Office, Domestic Violence Unit, for review as to whether he should be charged. On June 1, 2018, the warrant request was denied "because Ms. Reed failed to co-operate with the investigation and refused to be interviewed by both the prosecutor and I [the author of the Internal Affairs Report]." The warrant request was then immediately referred to the Public Integrity Unit of the same office, and it was again denied on August 1, 2019.

The report concluded that "[t]he text messages between Sergeant Gibson and Ms. Reed showed a consensual relationship between them. Both Ms. Reed and Sergeant Gibson initiated text messaging between each other, and on more than one occasion Ms. Reed told Sergeant Gibson that she loved him and asked him to be with her." The report further concluded:

The investigation revealed no evidence to show that Sergeant Gibson manipulated or forced Ms. Reed into a relationship with him. There was no evidence to show that he exchanged sex for not arresting her on her outstanding warrants. The investigation revealed that Ms. Reed made numerous attempts for Sergeant Gibson to clear up her warrants but he did not assist her in any way.

Thus, the report found that the allegation of sexual assault was "UNFOUNDED." However, the report found that there was "SUSTAINED MISCONDUCT" concerning allegations that Gibson falsified his activity logs to indicate that he was performing his duties when, in fact, he was with plaintiff. Gibson ultimately resigned in lieu of being fired because he falsified his activity logs to conceal his relationship with plaintiff.

Detroit also included with its motion and brief for summary disposition the opinion of the federal district court in the previous litigation involving these parties. In its opinion, the federal court explained that plaintiff maintained the following three claims against the defendants: (1) a 42 USC 1983 claim for violation of her constitutional rights, i.e., a claim that the defendants violated her constitutional rights while acting under color of state law; (2) a Monell^[3] claim against Detroit for maintaining an improper policy or custom; and (3) ELCRA claims. The federal court first concluded that the 42 USC 1983 claim against Gibson failed as a matter of law because he was not acting under color of state law, reasoning as follows:

Conduct occurs under color of state law when the actor intends to act in an official capacity or to exercise official responsibilities pursuant to state law. Courts must consider the totality of the circumstance in determining whether an officer was acting under color of law at the time of the alleged constitutional violation. The fact that a police officer is on or off duty, or in or out of uniform is not controlling. It is the nature of the act performed which determines whether the officer has acted under color of law. For that reason, acts of police officers in the ambit of their personal, private pursuits fall outside of 42 U.S.C. § 1983.

As the Sixth Circuit put it, a defendant's private conduct, outside the course or scope of his duties and unaided by any indicia of actual or ostensible state authority, is not conduct occurring under color of state law. Thus, if the challenged conduct is not related in some meaningful way to the actor's governmental status or to the performance of his duties, then the act was not under the color of state law. Here, even if Gibson were to force Plaintiff to have a sexual relationship with him, his conduct would not occur under the color of state law for three reasons.

First, the only time that Gibson went to Plaintiff's house on official police business was the first night-December 26-in response to the domestic disturbance call. Plaintiff admitted that Gibson made no sexual pass that night. It follows that no sexual act occurred when Gibson went to her house on official police business.

Second, all the other alleged sexual acts occurred outside Gibson's official police business. Admittedly, Gibson was on duty and in his uniform when the alleged sexual acts occurred. But merely being on duty and in uniform is not enough to create a genuine issue about whether Gibson, while under the color of state law, forced Plaintiff to do sexual acts with him. Without more, no genuine issue exists about whether the alleged sexual acts related to Gibson's official police duties.

As the body camera video showed, Plaintiff made no complaint about the domestic disturbance on December 26. Gibson's official police duty to Plaintiff- to respond to her domestic disturbance call-thus ended after he left her house that night. Gibson's warrant search and later call to Plaintiff about her outstanding warrants were unrelated to his official police duties. For one, without a complaint from Plaintiff, the Police Department had no

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