NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 16a0467n.06

Case No. 15-2203

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DIANE CANNON,

Plaintiff-Appellant,

v.

CANTEEN SERVICES OF NORTHERN 

MICHIGAN; LAKE COUNTY; LAKE 

COUNTY SHERIFF,

Defendants-Appellees.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE WESTERN DISTRICT OF 

MICHIGAN

BEFORE: SILER, GIBBONS, and KETHLEDGE, Circuit Judges.

SILER, Circuit Judge. Plaintiff Diane Cannon appeals the district court’s dismissal of her 

race-based hostile environment claims against Defendants Lake County, the Lake County Sheriff 

(collectively, “Lake County”), and Canteen Services of Northern Michigan Inc. (“Canteen,” all 

together, “Defendants”). For the following reasons, we AFFIRM.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Cannon, an African American female, was a line cook employed by Canteen—a food 

service vendor contracted with Lake County—and her assigned duty station was the Lake 

County Jail. During her time working at the jail, Cannon allegedly suffered persistent racial 

discrimination and antagonism from white officers, administrators, and inmates. After Canteen 
Case No. 15-2203

Diane Cannon v. Canteen Servs. of Northern MI, et al.

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terminated Cannon’s employment—which came in response to Lake County’s revoking its 

permission to have Cannon on the premises of the jail—she sued the Defendants for race-based

employment discrimination.

The case was referred to a magistrate judge, who—after the parties’ additional briefing 

brought up joint ownership and hostile environment issues—submitted a report and 

recommendation (“R&R”) concluding that Cannon had asserted potentially viable joint 

ownership and hostile work environment claims. The district court adopted the R&R and 

established a supplemental case management schedule for the resolution of the claims. 

Ultimately, the district court adopted the magistrate judge’s subsequent R&R recommending that

Cannon’s claims be dismissed on the grounds that (1) Lake County did not qualify as a joint 

employer and (2) Cannon failed to exhaust her administrative remedies as to her hostile work 

environment claim against Canteen.

STANDARD OF REVIEW

“We review the district court's grant of summary judgment de novo, using the same 

standard of review applicable in the district court.” Gecewicz v. Henry Ford Macomb Hosp. 

Corp., 683 F.3d 316, 321 (6th Cir. 2012).

DISCUSSION

I. The Joint Employer Doctrine

As to Lake County, Cannon insists that “[t]here is absolutely no question that the Joint 

Employer Doctrine is the law of the Sixth Circuit,” and asserts that the magistrate judge’s R&R 

“explains clearly why Lake County should be held liable under the Joint Employer Doctrine.” 

Neither Defendants nor the district court disputed the legitimacy of the joint employer theory of 
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liability, however, and the magistrate judge’s discussion of the doctrine does not support 

Cannon’s position as she seems to believe.

Contrary to Cannon’s mistaken impression, the R&R merely frames and tees up the joint 

employment question—it does not purport to provide an answer. The magistrate judge simply 

found that there was “a legitimate ‘joint employer’ theory to be considered” that was potentially 

“viable in this case.” Moreover, although he initially ventured that “there appear[ed] to be 

genuine issues of material fact outstanding,” in his subsequent R&R he determined that—as in 

the case of Knitter v. Corvias Military Living, LLC, 758 F.3d 1214 (10th Cir. 2014)1—“no 

reasonable jury could find the relationship between Canteen . . . and Lake County . . . to be other 

than vendor and client.” Other than a single unavailing reference to the food services contract 

between Canteen and Lake County, Cannon fails to point to any evidence that would create a 

dispute of material fact as to whether Lake County exercised sufficient control over her to be 

deemed a joint employer. Repetitious, off-base recitation of an R&R’s framing of an issue is no 

substitute for the argument and analysis required for a party to have a colorable claim on appeal.

Because the district court correctly ruled that Lake County was not Cannon’s joint 

employer, we need not consider how Cannon’s other claims might pertain to Lake County.

 

1 Knitter involved a handyman employed by a contractor that assigned her to work at a 

certain client location. When the client requested that she not return on the grounds that she “was 

uncooperative, untimely, and had billed [the client] for work she had not performed,” she was 

terminated by the contractor—who claimed to have no other available work assignments. 758 

F.3d at 1223. The Tenth Circuit found that, since the client did not have the authority to 

terminate her employment, pay her directly, or supervise and discipline her, the relationship 

amounted to that of vendor-client and not employer-employee. Id. at 1227-31.

Although Cannon “attempt[ed] to discredit Knitter” in her briefing before the district 

court, she does not even attempt to contest its applicability in her briefing on appeal.
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Diane Cannon v. Canteen Servs. of Northern MI, et al.

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II. Exhaustion of Administrative Remedies

The district court also concluded that Cannon “did not exhaust a racially hostile work

environment claim against Canteen before the EEOC, and that Canteen did not waive or

otherwise forfeit its right to rely on an exhaustion defense.” Again offering very little in the way 

of argument or authority, Cannon contends that “Canteen never pled the defense of exhaustion of 

remedies and thus waived it,” and that the documents she submitted to the EEOC sufficiently 

exhausted her administrative remedies.

On her first point, it is unsurprising that Canteen’s initial pleadings did not raise a failureto-exhaust defense in response to Cannon’s hostile environment claim, since that claim was not 

injected into the proceedings until midway through the litigation. Specifically, Cannon first 

raised the claim in the unsigned declaration she submitted in response to Defendants’ original

dispositive motions. Canteen’s reply brief promptly asserted that she failed to exhaust her 

administrative remedies as to her newly raised allegations, and Canteen has steadfastly 

reasserted the defense in its briefing ever since. Moreover, as the district court aptly observed, 

“Canteen had no obligation to anticipate all possible defenses to claims that plaintiff had 

inadequately articulated in the first round of pleadings and briefing.” Thus, Cannon’s suggestion 

that Canteen waived this defense is meritless.

As to her second point, even with the magistrate judge’s generous reading of Cannon’s 

filings before the EEOC,2it is clearly evident that she did not exhaust her hostile environment 

claim against Canteen—setting aside her allegations regarding Lake County and its personnel. 

Not only did she not allege before the EEOC that Canteen created the hostile work environment, 

 

2 He did not strictly construe the literal words of her twenty-page account of her 

workplace complaints—which contained few explicit references to race—but instead, he 

permitted the overarching claim of racial discrimination to permeate the entire account.
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but she even included the following passage regarding her employer near the end of her twentypage filings:

About my Canteen boss Pam Bower

Pam Bower has always been fair towards me. When one of the canteen 

workers Kat who’s husband is also a officer{guard} at our sight came in 

drunk oneday and used profane language towards me in front of the 

inmates and Pam. -Pam reminded the higher ups that I did not swear back 

at her Pam commented me later for staying calm through the whole thing. 

Pam did see to it that Kat was fired.

Almost every other day Pam was in Dagon’s office always taking up for 

me. Pam offen Reminded the others that my training was no different then 

anyone else. Canteen offen reminded the workers that they made constant 

major mistakes,

Canteen was very sad to see me go but, still there was nothing that they 

could do about it[.]

Overall, Cannon’s EEOC filings make it clear that Bower was ardently responsive to 

Cannon’s difficulties, and there is no indication that either Canteen as an organization or Bower

as Cannon’s supervisor had any hand in the alleged hostile work environment that Cannon 

experienced at Lake County Jail.3 Accordingly, the district court correctly concluded that she 

failed to exhaust her administrative remedies as to this claim against Canteen.

AFFIRMED.

 

3

The only case that Cannon cites on this issue, Mach Mining, LLC v. E.E.O.C., 135 S. 

Ct. 1645 (2015), is inapplicable, given that it concerns not exhaustion, but judicial review of the 

EEOC’s own “statutory obligation to attempt conciliation before filing suit” against an employer. 

Id. at 1649.