NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 12a0514n.06
Nos. 11-1092; 11-1699 FILED May 18, 2012 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
KRISTY J. DOWNING, ) ) Plaintiff-Appellant, ) On Appeal from the United States ) District Court for the Eastern v. ) District of Michigan ) LIFE TIME FITNESS, ) AMENDED ) Defendant-Appellee. )
Before: BOGGS, SUHRHEINRICH, and COOK, Circuit Judges.
Kristy J. Downing appeals the district court’s orders denying her motion for a
preliminary injunction, rejecting her objections to a protective order, and denying her motion to stay,
as well as its summary judgment in favor of Life Time Fitness, Inc. (LTF). For the reasons set forth
below, we affirm.
I.
LTF operates health clubs. In August 2008, Downing, an attorney who is representing
herself in this action, became a member of LTF and began using its facilities in Canton and Novi,
Michigan. In November 2009, Downing underwent fitness assessments at LTF. Shortly thereafter,
Downing filed a complaint in small claims court against LTF, claiming harassment. Downing
specifically alleged that LTF provided her with fraudulent fitness advice and directed its employees Nos. 11-1092; 11-1699 Downing v. Life Time Fitness, Inc.
to stalk her while she worked out and to aggressively greet her so as to intimidate her. Downing
removed her lawsuit to the Wayne County Circuit Court and amended her complaint to allege race
and gender discrimination under state and federal law. LTF removed the case to the district court.
In the meantime, LTF terminated Downing’s membership. Downing continued to come onto LTF’s
premises and refused to leave, resulting in her arrest by the Canton Police Department for trespass.
Downing’s third amended complaint asserted nine claims against LTF: (1) race and
gender discrimination in provision of services, facilities, and accommodations; (2) false arrest, false
imprisonment, and malicious prosecution; (3) intentional and reckless infliction of emotional
distress; (4) negligence; (5) defamation and invasion of privacy; (6) breach of contract; (7) fraud;
(8) due-process and First Amendment violations; and (9) civil stalking. She sought injunctive and
declaratory relief, damages in the amount of $631,550, attorney’s fees, and costs.
The district court denied Downing’s motion for a preliminary injunction, and she
appealed (No. 11-1092). The district court subsequently rejected Downing’s objections to a
protective order with respect to the deposition of a witness and denied as moot her motion to stay
the proceedings pending resolution of her objections. After granting LTF’s motion for summary
judgment, the district court entered a judgment dismissing Downing’s claims, and she appealed (No.
11-1699). We consolidated Downing’s cases for submission.
II.
A. Protective Order
Downing sought to take the deposition of Sandy Schmidt, the general manager of
LTF’s club in Novi. LTF moved for a protective order, asserting that Schmidt would not be
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available at any time in the near future due to a serious medical condition, and submitted a letter
from Schmidt’s doctor to the magistrate judge for in camera review. After reviewing the doctor’s
letter and conducting a hearing, the magistrate judge granted the protective order, but provided that
LTF could not use Schmidt’s testimony at trial until she was made available for a deposition.
Downing objected to the protective order and moved to stay the proceedings pending resolution of
her objections. After reviewing the doctor’s letter and hearing oral argument, the district court
rejected Downing’s objections, finding that Schmidt was unable to testify and that the condition on
the use of her testimony at trial represented a fair balancing of Downing’s discovery needs against
the burden such discovery would impose. The district court denied as moot Downing’s motion to
stay.
“The decision to grant a protective order will be disturbed on appeal only upon a
finding of an abuse of discretion.” Samad v. Jenkins, 845 F.2d 660, 663 (6th Cir. 1988). Downing
argues that in camera review of the doctor’s letter was inappropriate under HIPAA regulations, but
the regulation that she cites has no bearing on this issue. Downing does not cite any authority
entitling her to the specifics of Schmidt’s medical condition. Downing also contends that Schmidt
has personal knowledge of information relevant to her claims, but fails to show any prejudice at this
stage in the litigation. The summary-judgment rules required that the district court view the facts
in the light most favorable to Downing, who did not file a Rule 56(d) affidavit asserting that facts
necessary to oppose LTF’s summary judgment motion were unavailable to her. We can find no
abuse of discretion, particularly in light of the protective order’s condition on the use of Schmidt’s
testimony at trial.
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B. Summary Judgment
We review de novo the district court’s decision to grant summary judgment in favor
of LTF. Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 723 (6th Cir. 2012). Summary judgment
is appropriate “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 court must view the
evidence and draw all reasonable inferences in favor of the non-movant 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); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
1. Negligence and Defamation
As an initial matter, Downing’s opening brief does not address the dismissal of her
negligence and defamation claims. We consider those claims abandoned. See Hills v. Kentucky, 457
F.3d 583, 588 (6th Cir. 2006); Turner v. City of Taylor, 412 F.3d 629, 639 (6th Cir. 2005).
2. Discrimination and Retaliation
Downing claimed race and gender discrimination in violation of the Elliott-Larsen
Civil Rights Act, Mich. Comp. Laws §§ 37.2101–.2804, the Civil Rights Act, 42 U.S.C. §§ 1981 and
2000a, and Michigan common law. Because Downing presented no direct evidence of race or
gender discrimination, the district court properly analyzed her claims under the burden-shifting
framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). To
demonstrate a prima facie case under that framework, Downing must show that: (1) she belongs to
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a protected class; (2) she “sought to make a contract for services ordinarily provided by the
defendant”; and (3) she was “denied the right to enter into a contract for such services while similarly
situated persons outside the protected class were not” or she was “treated in such a hostile manner
that a reasonable person would find it objectively discriminatory.” Keck v. Graham Hotel Sys., Inc.,
566 F.3d 634, 639 (6th Cir. 2009).
At the hearing on LTF’s summary judgment motion, Downing conceded that she
could not name any non-protected person who was treated differently. Downing also failed to
demonstrate “markedly hostile” conduct on the part of LTF—conduct that “is (1) so profoundly
contrary to the manifest financial interests of the merchant and/or [its] employees; (2) so far outside
of widely-accepted business norms; and (3) so arbitrary on its face, that the conduct supports a
rational inference of discrimination.” Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 871 (6th Cir.
2001) (quoting Callwood v. Dave & Buster’s, Inc., 98 F. Supp. 2d 694, 708 (D. Md. 2000)). As
evidence of LTF’s discriminatory harassment, Downing asserted that: LTF’s employees frequently
asked how she was doing in a “sarcastic” manner and made “degrading” remarks about her going
through a lot or “hanging in by a thin thread,” giving her “negative energy”; employees laughed or
looked at her when she passed by; employees positioned themselves so as to place themselves in her
line of sight or to force an interaction with her; a male African-American employee in plainclothes
watched her swim; a male African-American employee texted her late at night to invite her to play
basketball; a male African-American employee told her that he was an assassin; and when she
purchased a fitness assessment, LTF provided her with “illegitimate” results and advice,
undermining her efforts to lose weight. We agree with the district court that, viewing the facts in
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the light most favorable to Downing, LTF’s alleged conduct could not support a rational inference
of race or gender discrimination. While Downing herself disliked interacting with LTF’s employees
and disagreed with their fitness recommendations, a reasonable person would not find their conduct
so contrary to LTF’s financial interests, so outside of business norms, or so arbitrary that it was
objectively discriminatory.
Downing also claimed that LTF terminated her membership in retaliation for filing
this lawsuit and reporting race discrimination. To maintain such a claim under Michigan’s
Elliott-Larsen Civil Rights Act, Downing must show: “(1) that [s]he engaged in a protected activity;
(2) that this was known by the defendant; (3) that the defendant took an . . . action adverse to [her];
and (4) that there was a causal connection between the protected activity and the adverse . . . action.”
Garg v. Macomb Cty. Cmty. Mental Health Servs., 696 N.W.2d 646, 653 (Mich. 2005). “The
conduct of [a plaintiff] cannot be opposed to a violation of the CRA unless it refers to some action
of the [defendant] that the [plaintiff] reasonably believes is unlawful.” Gray v. Mich. Minority Bus.
Dev. Counsel, No. 276693, 2008 WL 4276618, at *1 (Mich. Ct. App. Sept. 18, 2008); see also
Burkhardt v. Blue Cross Blue Shield of Mich., No. 197988, 1999 WL 33455100, at *1 (Mich. Ct.
App. Jan. 22, 1999). Likewise, under Title VII, “[a] plaintiff must demonstrate that her opposition
was reasonable and based on a good-faith belief that the [defendant] was acting in violation of [the
federal civil rights statute,] Title VII.” Barrett v. Whirlpool Corp., 556 F.3d 502, 516 (6th Cir.
2009); see also McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012) (Garland, J.); Johnson
v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (“In short, the only qualification that is
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placed upon [a plaintiff’s] invocation of protection from retaliation under Title VII’s opposition
clause is that the manner of his opposition must be reasonable.”).
This limiting principle dooms Downing’s retaliation claim. As we observed earlier,
the record is devoid of evidence that could lead a rational person to believe that race or gender
discrimination occurred. Downing, therefore, cannot establish a prima facie case of retaliation. Our
analysis is not precisely the same as the district court’s, but we must affirm if the lower court’s
decision was “correct for any reason, including a reason not considered by the lower court.” Russ’
Kwik Car Wash, Inc. v. Marathon Petroleum Co ., 772 F.2d 214, 216 (6th Cir. 1985).
3. False Arrest, False Imprisonment, and Malicious Prosecution
In support of her false-arrest, false-imprisonment, and malicious-prosecution claims,
Downing alleged that LTF caused her to be arrested for “unmerited claims of trespass.” Under
Michigan law, to prevail on any of these claims, Downing must show a lack of probable cause. See
Matthews v. Blue Cross & Blue Shield of Mich., 572 N.W.2d 603, 610 (Mich. 1998); Peterson
Novelties, Inc. v. City of Berkley, 672 N.W.2d 351, 362 (Mich. Ct. App. 2003). “[T]he question of
probable cause is an objective test that involves only the conduct of a reasonable man under the
circumstances” and requires “such reasonable ground of suspicion, supported by circumstances
sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the person
arrested is guilty of the offense charged.” Matthews, 572 N.W.2d at 614 (internal quotation marks
and footnote omitted).
We agree with the district court that the facts, viewed in the light most favorable to
Downing, establish that LTF’s employees had probable cause to believe that Downing was
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trespassing. After LTF informed Downing that her membership had been terminated and that she
was no longer permitted to enter LTF’s premises, she attempted to use the facilities. Under these
circumstances, a reasonable person would have believed that Downing was trespassing. Summary
judgment on Downing’s false-arrest, false-imprisonment, and malicious-prosecution claims was
appropriate.
Downing alleged that LTF pursued the trespassing claims against her in retaliation
for this lawsuit. According to the Michigan courts, however, “[i]f probable cause is found, the actual
motive behind the complaint may not be relevant,” as “[w]ant of probable cause may not be inferred
from malice.” Id. at 610 n.14 (internal quotation marks omitted).
According to Downing, the trespass ordinance’s prohibition on entering or remaining
on the premises of another “without lawful authority” is unconstitutionally vague. Downing did not
make this argument below, and we therefore deem it forfeited. Downing instead argued that, under
Bouie v. City of Columbia, 378 U.S. 347 (1964), criminal trespass requires a breach of the peace.
The district court correctly rejected this argument because Bouie held that a state could not change
its longstanding interpretation of its criminal trespass law—an interpretation requiring a breach of
the peace—without violating due process. See id. at 354–55 (“When a[n] . . . unforeseeable
state-court construction of a criminal statute is applied retroactively to subject a person to criminal
liability for past conduct, the effect is to deprive him of due process of law in the sense of fair
warning that his contemplated conduct constitutes a crime.”). In assessing the state’s evolving
definition of criminal trespass, the Bouie Court noted the traditional, common-law distinction
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between criminal and civil trespass: a breach of the peace. See id. at 357–58. It did not hold that
states’ criminal trespass laws must always require a breach of the peace.
4. Intentional or Reckless Infliction of Emotional Distress
To establish a claim for intentional or reckless infliction of emotional distress under
Michigan law, Downing must demonstrate four elements: (1) extreme and outrageous conduct;
(2) intent or recklessness; (3) causation; and (4) severe emotional distress. Roberts v. Auto-Owners
Ins. Co., 374 N.W.2d 905, 908 (Mich. 1985). Downing’s allegations amount to “mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities” to which liability does not
extend. Id. at 909 (quoting Restatement (Second) of Torts § 46 cmt. d). In addition, Downing’s
embarrassment does not rise to the level of severe emotional distress necessary to support a claim
for intentional or reckless infliction of emotional distress. See id. at 912. Summary judgment on this
claim was appropriate.
5. Invasion of Privacy
To state a claim for invasion of privacy based on an intrusion upon her seclusion,
Downing must show: “(1) an intrusion by defendant; (2) into a matter which plaintiff has a right to
keep private; (3) by the use of a method which is objectionable to the reasonable person.” Lewis v.
Dayton Hudson Corp., 339 N.W.2d 857, 859 (Mich. Ct. App. 1983). Downing alleged in her
complaint that LTF “used devices to surveillance [sic] Plaintiff while at their centers without
Plaintiff’s knowledge or permission,” but failed to present any evidence calling into question LTF’s
representation that no audio or video recording devices were used at the Canton club while Downing
was a member. In her appellate brief, Downing asserts that LTF’s employees took her cell phone
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from her locker and deleted text messages while she was working out. Downing offers no evidence,
only speculation, in support of this allegation. Accordingly, the district court properly granted
summary judgment in favor of LTF on Downing’s invasion-of-privacy claim.
6. Breach of Contract
Downing alleged that LTF breached the Member Usage Agreement by terminating
her membership in bad faith. The agreement stated: “Life Time Fitness may terminate my
membership or any member at any time for failure to comply with any of the rules and regulations
adopted by Life Time Fitness or for conduct Life Time Fitness determines to be improper or contrary
to the best interests of Life Time Fitness.” Downing conceded that this language could be interpreted
to give LTF “unbridled discretion” in terminating her membership, but asserted that LTF was
required to do so in good faith. Although Michigan law does not recognize an independent cause
of action for breach of the implied duty of good faith, see Belle Isle Grill Corp. v. City of Detroit,
666 N.W.2d 271, 279 (Mich. Ct. App. 2003), a party can breach its contractual obligations by
performing in bad faith, see Lowe’s Home Ctrs., Inc. v. LL & 127, LLC, 147 F. App’x 516, 523-24
(6th Cir. 2005) (collecting Michigan authority recognizing an implied duty of good faith in the
performance of a contract, despite the absence of an independent cause of action). Given Downing’s
documented hostile relationship with LTF and the absence of evidence indicating that LTF acted in
bad faith when it terminated her membership, we agree with the district court that she has not
presented a genuine issue of fact of LTF’s bad faith.
Downing also alleged that LTF breached an oral agreement to provide fitness
assessments by giving her inaccurate results and advice. In support of her allegations, Downing
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submitted “Plaintiff’s Memorandum on Defendant’s Fitness Exams,” which set forth her own
analysis of the fitness assessment reports provided by LTF and her own conclusions that LTF
provided incredible information and advice with respect to those assessments. The district court
sustained LTF’s objection to Downing’s memorandum, noting that Downing, as a lay witness, could
not give an opinion “based on scientific, technical, or other specialized knowledge,” Fed. R. Evid.
701(c), and that she failed to show that she possessed expertise in performing or analyzing the fitness
assessments at issue to qualify as an expert, see Fed. R. Evid. 702.
We review the district court’s decision to exclude Downing’s memorandum for an
abuse of discretion. Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 668 (6th Cir. 2010). Federal Rule
of Evidence 702 provides that “[a] witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion.” At the hearing on LTF’s
summary-judgment motion, Downing pointed to her college mathematics courses and mechanical
engineering degree, but failed to present any evidence of her specialized knowledge with respect to
fitness assessments. Accordingly, the district court did not abuse its discretion in excluding
Downing’s memorandum. And with no other evidence that the results of Downing’s fitness
assessments were inaccurate, summary judgment in favor of LTF on this breach-of-contract claim
was appropriate.
7. Fraud
Downing alleged in support of her fraud claim that LTF “purposefully provided
inaccurate results and advice” with respect to the fitness assessments. Like her breach-of-contract
claim, Downing’s fraud claim fails because she provides no admissible evidence that LTF’s results
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and advice were false. See Zaremba Equip., Inc. v. Harco Nat’l Ins. Co., 761 N.W.2d 151, 165
(Mich. Ct. App. 2008) (holding that fraud claim requires proof that the defendant made a material
representation that was false).
8. Freedom of Association and Due Process
In support of her constitutional claims, Downing asserted that LTF terminated her
membership and caused her to be arrested for trespass in violation of her right to freedom of
association under the First Amendment, and that LTF failed to provide her with a hearing before
terminating her membership, in violation of her right to due process under the Fifth and Fourteenth
Amendments. To state a constitutional claim under 42 U.S.C. § 1983, “a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United States, and must show that
the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins,
487 U.S. 42, 48 (1988). “A private party’s actions constitute state action under section 1983 where
those actions may be ‘fairly attributable to the state.’” Chapman v. Higbee Co., 319 F.3d 825, 833
(6th Cir. 2003) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 947 (1982)).
Downing alleged that LTF used the Canton Police Department to arrest her for
trespass. Reporting a crime to the police does not expose a private party to liability under § 1983.
Moldowan v. City of Warren, 578 F.3d 351, 399 (6th Cir. 2009); Benavidez v. Gunnell, 722 F.2d
615, 618 (10th Cir. 1983). In her appellate brief, Downing contends that LTF also acted with the
Canton Police Department in refusing to document her concerns about Jeff Morton, an LTF
employee. Downing, however, points to no evidence of LTF’s involvement in the police
department’s documentation of her complaint. Because there are no facts indicating that LTF acted
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“under color of state law,” the district court properly granted summary judgment in favor of LTF on
Downing’s constitutional claims.
9. Civil Stalking
Michigan Compiled Laws § 600.2954(1) provides a civil action for stalking.
“Stalking” is defined as “a willful course of conduct involving repeated or continuing harassment
of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated,
threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened,
intimidated, threatened, harassed, or molested.” Mich. Comp. Laws § 750.411h(1)(d).
In support of her civil-stalking claim, Downing alleged that LTF’s employees went
out of their way to follow her around the facilities and appear in her line of sight. We agree with the
district court that a reasonable person would not feel terrorized or intimidated by this conduct.
C. Preliminary Injunction
Downing moved for a preliminary injunction to prevent LTF from cancelling or
denying her membership, refusing to contract with her, pursuing criminal-trespass complaints against
her, and harassing her. The district court balanced the four traditional preliminary-injunction factors
in denying Downing’s motion: “(1) whether the movant has a strong likelihood of success on the
merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the
injunction would cause substantial harm to others; and (4) whether the public interest would be
served by the issuance of an injunction.” Bays v. City of Fairborn, 668 F.3d 814, 818-19 (6th Cir.
2012). We review the district court’s balancing of those factors and its ultimate determination for
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an abuse of discretion. Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511
F.3d 535, 541 (6th Cir. 2007).
The district court concluded that Downing failed to demonstrate a strong likelihood
of success on her breach-of-contract and retaliation claims. We review that conclusion de novo. Id.
As discussed above, Downing did not show a strong likelihood of success on her claims. We turn
to the remaining three factors. “A plaintiff’s harm from the denial of a preliminary injunction is
irreparable if it is not fully compensable by monetary damages.” Overstreet v. Lexington-Fayette
Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). While a plaintiff can demonstrate irreparable
harm if the plaintiff’s claim is based on a constitutional violation, see id., Downing’s constitutional
claims fail because LTF is not a state actor. Downing, who has since joined another fitness club,
failed to demonstrate that her alleged harm cannot be compensated by monetary damages. The
district court found that the risk of harm weighed in LTF’s favor. Given Downing’s extreme views
about what conduct constitutes harassment, LTF’s employees would be unable to do their jobs in her
presence. Finally, we agree with the district court that the public interest would not be served by a
preliminary injunction in this case. Consideration of these factors leads us to conclude that the
district court did not abuse its discretion in denying a preliminary injunction.
III.
For the foregoing reasons, we AFFIRM the district court’s orders in full.
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