ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DISMISSING PLAINTIFF'S COMPLAINT WITH PREJUDICE

DAVID M. LAWSON, U.S. District Judge.

This matter is before the Court on the Report and Recommendation of Magistrate Judge Charles E. Binder that the defendants' motions to dismiss or for summary judgment be granted, and the plaintiffs complaint dismissed. The plaintiff timely filed objections to the Report and Recommendation, and defendants Accident Fund Company, United Auto Workers, and Celia Ontiveros have replied to those objections. After conducting a de novo review of the record, the Court concludes that the Magistrate Judge correctly determined and applied the applicable law to the facts of this case. Accordingly, the Court will grant the defendants' motions and dismiss the complaint with prejudice.

I.

This pro per civil rights action was filed by the plaintiff, Corinne S. Williams, on March 26, 2001. As explained by the Magistrate Judge, the plaintiff, who has been employed by the Michigan

Family Independence Agency ("FIA") since 1977, alleges "multiple counts of ongoing and continuous discrimination, harassment, intimidation, interference, coercion, sex harassment, sex discrimination, unfair labor practice, selective enforcement, selective prosecution, abusive use of authority, and retaliation/reprisal." Compl. ¶ 9. The plaintiffs complaint is structured as a rough chronology of events which have transpired in the plaintiffs employment since approximately the fall of 1999, when Longino Gonzales became the new director of Saginaw County's FIA office.

The parties have not objected to the Magistrate Judge's very thorough summation of the facts in this case, although they do dispute the legal implications of those facts. Rather than repeat the Report's summation verbatim, this Opinion incorporates that section of the Report by reference, and will reference relevant facts within the context of each count alleged.

A motion for summary judgment under Fed.R.Civ.P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted).

The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Personal Care Home, Inc. v. Hoover Univ., Inc., 276 F.3d 845, 848 (6th Cir. 2002). The party opposing the motion then may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J. C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23.

The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991).

II.

Defendants FIA, Bachman, Gonzales, Breen, Johnson, Michigan Department of Consumer Industry Services, and the Bureau of Worker's Disability Compensation filed a motion to dismiss on all claims alleged again them.

A.

The plaintiff first alleges that these defendants have committed ongoing and continuous acts of discrimination, harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act. The Magistrate Judge correctly found that the plaintiff was not entitled to bring an action under either statutory scheme because she had not filed her claims with the Equal Employment Opportunity Commission (EEOC), and thus failed to obtain the required right-to-sue letter. See E.E.O.C. v. Frank's Nursery Crafts, Inc., 177 F.3d 448, 456 (6th Cir. 1999) (Title VII); Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 309 (6th Cir. 2000).

In her objections to this finding, the plaintiff argues that exhaustion is not required to procure a right-to-sue letter under the Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101, or federal constitutional provisions. The first argument is correct. Elliott-Larsen, however, is a separate, Michigan statutory scheme. In order to bring her complaints under Title VII and the ADA as well, the plaintiff must timely file her complaint with the EEOC, which she has failed to do. The plaintiffs argument about her constitutional rights under this subsection is misdirected: the Magistrate Judge correctly limited his analysis of the exhaustion requirement to the plaintiffs statutory claims under Title VII and the ADA, not to the plaintiffs constitutional claims.

The plaintiffs Title VII and ADA claims will therefore be dismissed without prejudice.

B.

The plaintiff also alleges three due process claims arising under the Fourteenth Amendment. The Magistrate Judge correctly noted that despite the plaintiffs failure to invoke 42 U.S.C. § 1983 specifically, that statute is the necessary vehicle for the plaintiff to vindicate her rights against the defendants under the Fourteenth Amendment. See Majeske v. Bay City Bd. of Educ., 177 F. Supp.2d 666, 670-71 (E.D. Mich. 2001). The plaintiffs due process allegations will be addressed in turn.

1.

First, the plaintiff alleges that her due process rights were violated by the "arbitrary and unreasonable action" of her supervisor, defendant Gonzales, who called her into his office and expressed concerns about her management style without disclosing to her the sources of the complaints made against her. The Magistrate Judge concluded that regardless of how offensive this may have been to the plaintiff, it simply did not constitute "oppressive" or "conscience-shocking" behavior sufficient to implicate the plaintiffs due process rights. See Howard v. Ginage, 82 F.3d 1343, 1349 (6th Cir. 1996).

In her objections, the plaintiff responds that she was denied representation at her meeting with defendant Gonzales, and that the meeting caused her "to feel terrorized, threatened, stressed, and under extreme duress." Pl.'s Obj. at 10. She further avers that Gonzales's actions were an illegal abuse of his power as supervisor. Id. The Sixth Circuit has recognized that deliberate actions taken by the state can violate substantive due process rights, provided a fundamental right is implicated. Examples of fundamental rights include "the rights to marry, to have children, to direct the education and upbringing of one's children. to marital privacy, to use contraception, to bodily integrity, to terminate one's pregnancy, and possibly the right to refuse unwanted lifesaving medical treatment." Seal v. Morgan, 229 F.3d 567, 574-75 (6th Cir. 2000). The plaintiff does not allege that any of these rights were implicated by the actions of defendant Gonzales, nor does she allege that Gonzales's actions lack a rational basis. See id. (holding that in the absence of fundamental right being implicated, the Court looks only to whether the governmental activity had a rational basis for occurring). As a result, the Court concludes that whatever else defendant Gonzales's behavior on February 28, 2000 may have caused, a violation of the plaintiffs substantive due process rights was not among them.

2.

Second, the plaintiff alleges that she was denied due process on November 5, 1999 when she was scheduled for a conference with defendant Gonzales alone. "The aforementioned caused Plaintiff to dissolve into tears from the SHOCK HUMILIATION AND DISBELIEF; and forced Plaintiff into a severe state of duress." Compl. at ¶¶; 33-35.

The Magistrate Judge found that a procedural due process claim was not stated because the plaintiff has no protected liberty interest in facing her superiors with representation, legal or otherwise. R R at 19. The Magistrate Judge similarly found the failure to accord representation at an internal meeting is not conscience-shocking behavior. The Court agrees. In her objections, the plaintiff claims only that she "perceived" she would lose her job and her ability to sustain life, liberty, and property, and that this perception of injury led her to take medical leave. The plaintiff, however, cites no authority for the proposition that her own fears of being deprived of life, liberty, or property are equivalent to actually having them stripped without due process. The plaintiff also reiterates that the "harassment" she suffered in the meeting was conscience-shocking, but fails to explain once again how this implicates a fundamental right or constitutes patently irrational behavior. In fact, the plaintiffs complaint does not appear to be that the defendants' positions were irrational, but that they simply handled matters in an insensitive way. Be that as it may, the courtesy or lack thereof exhibited by fellow government employees does not implicate the plaintiffs substantive or procedural due process rights.

3.

Third, the plaintiff complains that the decisionmakers in the Michigan Civil Service Commission's grievance procedure were biased, violating her procedural due process rights. This claim will be addressed later on the Civil Service Commission's motion to dismiss.

C.

Next the plaintiff alleges violations of her Fifth, Eighth, and Thirteenth Amendment rights under the United States Constitution. The Magistrate Judge found no allegations anywhere in the complaint stating a claim under these constitutional provisions. The plaintiff elaborates on these theories in her objections. Specifically, she claims her Fifth Amendment due process rights were denied in her meetings with the County Director of FIA, her Eighth Amendment rights were violated by the retaliation and harassment she experienced from her managers and supervisors, and that her Thirteenth Amendment rights were violated when the defendants placed her in "involuntary servitude" by transferring her from the Saginaw to Flint without her consent.

All three contentions plainly lack merit. First, the Fifth Amendment applies only to the federal government, not to state or local governments. Scott v. Clay County, Tenn., 205 F.3d 867, 873 n. 8 (6th Cir. 2000) (holding invocation of Fifth Amendment against local entity to be both improper and duplicative of due process claim under Fourteenth Amendment). The proper avenue for complaints against state or local governments is the due process clause of the Fourteenth Amendment, and those claims have already been addressed. Second, the Eighth Amendment's prohibition of "cruel and unusual punishment" only concerns those who have been criminally prosecuted. Ingraham v. Wright, 430 U.S. 651, 669-71 (1977). The Eighth Amendment offers no solace to those protesting generally against perceived conditions of "confinement." Finally, the plaintiffs Thirteenth Amendment claim offers no basis for relief. In order to implicate the Thirteenth Amendment, the employer's actions must provide the employee with no choice other than to work involuntarily. See Watson v. Graves, 909 F.2d 1549, 1552 (5th Cir. 1990). When an employee has a choice in the matter, albeit a painful one, the Thirteenth Amendment simply is not implicated. Id. The plaintiffs suggestion that the defendants' involuntary transfer of her to another duty station violates the Thirteenth Amendment is therefore patently frivolous. The plaintiff was obviously free to quit the job if she disliked it and look for another one with a different employer. Although that choice may have been a "painful" one, the option was still present. Because the plaintiff has not alleged that the FIA forbade her from quitting the agency, she states no claim under the Thirteenth Amendment. See Sanders v. Prentice-Hall Corp. Sys., Inc., 969 F. Supp. 481, 484 (W.D. Tenn. 1997).

Accordingly, the Magistrate Judge properly recommended that the plaintiffs Fifth, Eighth, and Thirteenth Amendment claims be dismissed.

D.

The Magistrate Judge also found that the Michigan state defendants would all be entitled to Eleventh Amendment immunity. Because the Court finds that the plaintiff has not made a prima facie case for relief against these defendants under any federal statute or constitutional provision, it need not reach the issue of Eleventh Amendment immunity.

E.

Lastly, the Magistrate Judge found that in the absence of any federal claims against these defendants, the remaining state claims against defendants FIA, Bachman, Gonzales, Breen, Johnson, Michigan Department of Consumer Industry Services, and the Bureau of Worker's Disability Compensation should be dismissed. The Court concurs and will dismiss the plaintiffs state-law claims against these defendants, including her Elliott-Larsen civil rights claims, without prejudice. See Long v. Bando Mfg. Of Amer., 201 F.3d 754, 761 (6th Cir. 2000).

III.

Next, defendant Michigan Civil Service Commission moves for dismissal pursuant to Rule 12(b)(6). The plaintiff claims that her due process rights were violated by this defendant's "bias" against her in the grievance proceedings she placed before it. The only facts in the complaint which seem to relate to this claim would be the decision of Hearing Officer Hutchens, who denied the plaintiffs fourth-step appeal and who characterized the plaintiffs motion for immediate ex parte relief as "arrogant" and stated that "courtesy and civility are solely [sic] lacking in this case." Compl. Ex. 11 at 2. The Magistrate Judge found that the plaintiff had demonstrated no bias in the Civil Service proceeding. An adverse decision by itself is not evidence of bias, see In re Golant, 239 F.3d 931, 938 (7th Cir. 2001), and the Supreme Court has found that mere "hostile feelings" toward a grievant are not enough to disqualify an adjudicator for perceived bias. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986).

The plaintiffs only response to this contention is that the Magistrate Judge failed to appreciate that the Michigan Civil Service Commission had been properly joined by Fed.R.Civ.P. 18 and 19 and Article 2 of the Elliott-Larsen Civil Rights Act. In other words, the plaintiff does not object to the Magistrate Judge's finding that she cannot state a claim for bias in the administrative review process, only that he failed to consider the import of other laws and court rules. This is not sufficient. The

Federal Rules of Civil Procedure permit joinder of additional parties on the basis that there is some point to them being involved in the case — i.e., at least one current party states a claim against the proposed additional party for which relief could be granted. If the plaintiffs claims lack merit, then the defendants against whom those claims are alleged have no reason to be involved in this litigation. As for the Elliott-Larsen Civil Rights Act claim, that is a state-law claim over which the Court will decline to exercise its supplemental jurisdiction. See 28 U.S.C. § 1367 (c)(3). Because the plaintiff does not object to the magistrate judge's findings with regard to her allegations of bias, and because the alternative "factors" the plaintiff advances lack merit, the Court will grant the Commission's motion and dismiss the claims filed against it.

IV.

Next, defendants UAW Local 6000 and Celia Ontiveros have moved for dismissal. Although the claims against these defendants are difficult to derive from the complaint, the plaintiff seems to believe that the UAW and its steward, Celia Ontiveros, played an integral role in tracking down staff members who offered false criticisms of the plaintiff, and that these defendants also defamed her by reading the complaints aloud in grievance proceedings.

The Magistrate Judge found that the plaintiffs claims again lacked merit. First, the Magistrate Judge convincingly demonstrated that statements made in arbitration/grievance proceedings, which are often quasi-judicial in character, are absolutely privileged. See, e.g., Lettis v. United States Postal Serv., 39 F. Supp.2d 181, 205-06 (E.D.N.Y. 1998). Second, the Magistrate Judge suggested that the plaintiffs numerous tort allegations against these defendants are preempted by the Labor Management Relations Act, 29 U.S.C. § 185 et seq.

The plaintiff responds in her objections that she is not a member of any collective bargaining agreement, and thus her claims are not preempted by the LMRA. She also claims to have exhausted the administrative remedies afforded her via the Michigan Civil Service Commission. Finally, she claims that some of the statements made in the grievance proceedings were unrelated to the grievance and thus are not protected.

The plaintiff cites no authority for the proposition that an "unrelated" statement in a grievance proceeding is unprotected by absolute privilege. Although she apparently is not a union member and her claims would not in fact be preempted by the LMRA, she still, fundamentally, is complaining about the union's conduct in coordinating and handling a grievance filed against her by one of its members. As previously noted, any "defamation" committed by participants in a grievance proceeding is privileged. Id. at 206. The plaintiffs blanket "denial" of the Magistrate Judge's findings is not a sufficient objection. The claims against these defendants will be dismissed.

V.

Finally, the plaintiff has alleged that defendant Accident Fund Company, the third-party administrator of the FIA's self-insured workers' compensation program, improperly denied her workers' compensation claim and failed to provide a reasonable explanation for the denial. The plaintiff alleges bad faith denial. The Magistrate Judge correctly found that this Court lacks subject matter jurisdiction over this claim because complaints about the handling of a workers' compensation claim can only be brought to the Workmen's Compensation Bureau. Mich. Comp. Laws § 418.841(1).

In response, the plaintiff alleges that dismissal is improper once again because she has "joined" defendant Accident Fund Company as a defendant in this case, and because the plaintiff can state a claim under the Elliott-Larsen Civil Rights Act. These arguments are rejected for the same reasons as before; joinder rules do not provide an independent cause of action, and Elliott-Larsen alone does not compel this Court to exercise subject matter jurisdiction.

VI.

The Court has reviewed the complaint and motion papers in this case, as well as the Report and Recommendation of the Magistrate Judge. The Court finds that the plaintiff states no claims arising under the Constitution or laws of the United States upon which relief can be granted. The Court, therefore, will grant the defendants' motions to dismiss and dismiss the plaintiffs complaint. The plaintiffs state law claims will be dismissed without prejudice should the plaintiff wish to refile them in state court.

Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation is ADOPTED IN PART.

It is further ORDERED that the defendants' motions to dismiss [dkt #s 14, 15-1, 15-2, 16, 17, and 25] are GRANTED.

It is further ORDERED that the plaintiffs claims arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., are DISMISSED WITHOUT PREJUDICE. The remaining federal claims raised by the plaintiffs complaint are DISMISSED WITH PREJUDICE.

It is further ORDERED that any state-law claims not disposed of in this Order are DISMISSED WITHOUT PREJUDICE.