1

 The Court dismissed the state district court and defendants in their official

capacities for lack of jurisdiction (doc. 15).

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARQUETTA DUDLEY and

PERCY DUDLEY,

Plaintiffs,

Case No. 08-14017

-vs- HON. AVERN COHN

PRESTON THOMAS and

JUDITH GRACEY,

Defendants.

___________________________________________/

MEMORANDUM AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR PARTIAL DISMISSAL

I. INTRODUCTION

This is an employment discrimination case. Plaintiff Marquetta Dudley (Dudley)

worked as a secretary in Michigan’s 50th District Court in Pontiac. She says defendant

Chief Judge Preston Thomas (Thomas) wrongfully terminated her on the basis of

unlawful sex discrimination and along with defendant Court Administrator Judith Gracey

(Gracey) violated her due process rights and defamed her. She sues both in their

individual, personal capacities.1

Dudley’s first amended complaint is in seven counts:

(I) Violation of Due Process (Fourteenth Amendment) as to both defendants;

(II) Violation of Elliott Larsen Civil Rights Act [ELCRA, MCL §§ 37.2101 et

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 Dudley mistakenly captioned this Count “Race Discrimination” but the

allegations concern sex discrimination.

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seq.] for Sex Discrimination as to Thomas;

(III) Sex Discrimination2 in Violation of 42 U.S.C. § 1981 as to Thomas

(Disparate Treatment and Intentional Discrimination);

(IV) Wrongful Discharge—Breach of Implied Contract and Legitimate

Expectations as to Thomas;

(V) Defamation as to both defendants;

(VI) Loss of Consortium by Dudley’s husband Percy as to both defendants;

and

(VII) Gross Negligence as to both defendants.

Before the Court is defendants’ motion for partial dismissal of plaintiffs’ first

amended complaint under Fed. R. Civ. P. 12(b)(6). Defendants ask for dismissal of

Gracey as a defendant in Counts I and VI because she had no authority to terminate

Dudley; dismissal of the defamation claim because it was not pled with sufficient

specificity; and dismissal of the gross negligence claim because it is fully premised on

claims of intentional torts. They also raise three other issues that Dudley in response

voluntarily dismisses: the Title VII claim and the City of Pontiac as a defendant, both

mentioned in Count II, and a claim for racial discrimination Dudley mistakenly made in

the caption of Count III. For these and the following reasons, the motion is GRANTED

IN PART and DENIED IN PART.

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 Presumably the Michigan Unemployment Insurance Agency.

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II. FACTS

The amended complaint alleges the following facts:

— Dudley became employed as a court secretary with the Michigan 50th District

Court in 2001. She was promoted to probation secretary in late 2005.

— As chief judge, Thomas had final supervisory authority over Dudley.

— Gracey also had supervisory authority over Dudley.

— Gracey accused Dudley of falsifying court documents.

— Gracey accused Dudley without an investigation and without just cause.

— Gracey “communicated to . . . Thomas that [Dudley] and Samantha Smith had

violated Court policies and falsified Court documents.”

— On September 19, 2007, Thomas and Gracey terminated Dudley and Smith in

a meeting called for that purpose.

— Dudley was not given a reason for her termination.

— The allegations that Dudley falsified court documents or conspired with Smith

to falsify court documents are untrue.

— Defendants “promulgated and carried out the official policies, orders and

directives described . . . intentionally and deliberately, with wanton and reckless

disregard for the civil and constitutional rights, privileges and sensibilities of [Dudley].”

— On October 8, 2007, Gracey communicated to the unemployment insurance

agency3 that Dudley had violated court policy, and on or about February 1, 2008,

Gracey testified to the same at an unemployment insurance agency hearing.

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— During September 2007, Gracey communicated to another employee that

Dudley had been terminated for falsifying court documents.

— The accusations were false and malicious.

— Defendants knew the accusations were false or misleading and published

them to third parties with knowledge of falsity or in reckless disregard for their truth or

falsity.

— The statements were not privileged, they amount to gross negligence, and

they constitute defamation per se. 

III. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a “complaint must contain

either direct or inferential allegations respecting all the material elements to sustain a

recovery under some viable legal theory.’” Advocacy Org. for Patients & Providers v.

Auto Club Ins. Ass’n, 176 F.3d 315, 319 (6th Cir. 1999) (quoting Scheid v. Fanny

Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)). “[W]e do not require

heightened fact pleading of specifics, but only enough facts to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

IV. ANALYSIS

A. Defendant Gracey in Counts I and VI

“State officials, sued in their individual capacities, are ‘persons’ within the

meaning of [42 U.S.C.] § 1983. The Eleventh Amendment does not bar such suits, nor

are state officers absolutely immune from personal liability under § 1983 solely by virtue

of the ‘official’ nature of their acts.” Hafer v. Melo, 502 U.S. 21, 31 (1991).

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Gracey asks the Court to dismiss her from Counts I, violation of due process, and

VI, a derivative claim for loss of consortium. She argues that to establish liability under

§ 1983, Dudley must plead and prove that she was “personally involved” in the activity

that forms the basis of the complaint. In support she cites, with no pincite or discussion,

Hays v. Jefferson County, Ky., 668 F.2d 869 (6th Cir. 1982). Hays dealt with negligent

supervision of police officers who allegedly damaged property and struck demonstrators

and passers-by with riot sticks during a protest of court-ordered busing for school

desegregation. Id. at 870–71. The Sixth Circuit held that simple negligence is not

enough to support a civil rights action under § 1983. Id. at 873–74.

Although failing to appreciate the relevance of Hays to Gracey’s assertions on

this issue, the Court accepts for the sake of argument Gracey’s proposition that Dudley

must plead and eventually prove that she was personally involved in Dudley’s

termination. Dudley does so plead: the complaint alleges Gracey’s (1) initiation of the

accusations against Dudley, (2) communication of the accusations to Thomas, and

(3) participation in Dudley’s termination in a meeting called for that purpose.

Gracey points out that Michigan Court Rule 8.110(C)(3) gives a chief judge

control over all court personnel with authority to supervise performance and to make all

personnel decisions to hire, discipline, and discharge (with the exception of another

judge’s secretary and law clerk). She says that Dudley admits Thomas had the sole

authority to terminate her. However, Dudley alleges that Gracey also had supervisory

authority over her and Gracey acknowledges this fact at the beginning of the motion. 

Moreover, Gracey cites no authority for the notion that only a supervisor with authority

to terminate can be found liable under § 1983. 

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B. Defamation

Dudley must plead with specificity the elements of defamation: (1) a false and

defamatory statement about plaintiff, (2) unprivileged communication to a third party, (3)

negligence by the publisher, and (4) defamation per se or special harm caused by the

publication. Gonyea v. Motor Parts Fed. Credit Union, 192 Mich. App. 74, 76–77

(1991).

Defendants say Dudley’s defamation claim does not rise to the requisite level of

specificity because she “fail[s] to plead anything with respect to the publication of the

defamatory word” and “only make[s] a general allegation.” This is incorrect.

Dudley pleads with sufficient specificity as to Gracey. She alleges that Gracey

communicated to Thomas and to another employee that Dudley falsified court

documents, and to the unemployment insurance agency that she had violated court

policies. She alleges exact dates of publications to the agency and the month and year

of publication to the employee. She further alleges the accusations were false;

“defendants” published them with knowledge or reckless disregard; and the statements

were not privileged, amount to gross negligence, and constitute defamation per se.

On the other hand, Dudley alleges no facts on the claim of defamation as to

Thomas. 

C. Gross Negligence

In tort, employers generally owe two duties to employees: a safe workplace and

safe and effective instruments with which to work. See White v. Chrysler Corp., 421

Mich. 192, 199 (1985); Overstreet v. Norman, 314 S.W. 2d 47, 50 (Tenn. Ct. App.

1958); see also 27 Am. Jur. 2d Employment Relationship § 193. The tort of negligent

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 Moreover, as a judge, Thomas is immune from tort liability when acting within

the scope of his judicial authority. MCL 691.1407(5).

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supervision applies to the liability of an employer for a threat of physical injury by an

employee to a third person. Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 443

(Minn. Ct. App. 1996) (rejecting claim for gross negligence by plaintiff who brought

action against employer for wrongful termination).

This case was brought for employment discrimination. Dudley creatively alleges

six “ministerial duties” defendants owed her “notwithstanding their standard duty of

care.” However, she cites no law in support of the existence of these alleged duties. 

She therefore fails to state a claim for gross negligence upon which relief can be

granted.4

V. CONCLUSION

For the reasons above, the Title VII, racial discrimination, and gross negligence

claims are dismissed; the City of Pontiac is dismissed as a defendant; and Thomas is

dismissed as a defendant in the defamation claim.

The remaining claims continue in the case as follows:

• Violation of Due Process (Fourteenth Amendment) as to Thomas and Gracey;

• Sex Discrimination as to Thomas in violation of ELCRA, MCL §§ 37.2101 et

seq., and 42 U.S.C. § 1981;

• Wrongful Discharge—Breach of Implied Contract and Legitimate Expectations as to Thomas;

• Defamation as to Gracey; and

• Loss of Consortium by Dudley’s husband Percy as to Thomas and Gracey.

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SO ORDERED.

 s/ Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: June 9, 2009

I hereby certify that a copy of the foregoing document was mailed to the attorneys of

record on this date, June 9, 2009, by electronic and/or ordinary mail.

 S/J ulie Owens 

Case Manager, (313) 234-5160

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