               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0467n.06

                                       Case No. 15-2203

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                               FILED
                                                                         Aug 12, 2016
DIANE CANNON,                                      )
                                                                     DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellant,                        )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE WESTERN DISTRICT OF
CANTEEN SERVICES OF NORTHERN                       )      MICHIGAN
MICHIGAN; LAKE COUNTY; LAKE                        )
COUNTY SHERIFF,                                    )
                                                   )
       Defendants-Appellees.                       )


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.

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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Case No. 15-2203
Diane Cannon v. Canteen Servs. of Northern MI, et al.

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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Case No. 15-2203
Diane Cannon v. Canteen Servs. of Northern MI, et al.

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 failure-

to-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,2 it 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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Case No. 15-2203
Diane Cannon v. Canteen Servs. of Northern MI, et al.

but she even included the following passage regarding her employer near the end of her twenty-

page 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.
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