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As illustrated by the reported federal court opinion described below, with the benefit of 20/20 hindsight, one might speculate that better communication and public relations in addressing an upset parent’s concerns about a public recreation program may have avoided the significant ongoing cost and time associated with defending a subsequent lawsuit in federal court.

In the case of Viau v. City of Troy, (E.D. Mich. 6/10/2022) 2022 U.S. Dist. LEXIS 114509, plaintiff Tennille Viau (Viau) filed a federal civil rights complaint on behalf of her child, “K.V.,” against the defendants City of Troy, Michigan, city employees Elaine Bo and Scott Mercer, as well as two city agents identified as John and Jane Doe who jointly administered a summer soccer camp with the city. In her complaint, Viau subsequently added the Troy School District as a defendant.

“Bomb the Country” Game

On July 10, 2019, Viau alleged her 10-year-old child, K.V., was enrolled in the City of Troy Recreation Department’s summer sports camp for soccer, which was “jointly administered” by John Doe and Jane Doe. John Doe was K.V.’s soccer coach. He allegedly had told K.V. and the other children that they were going to play a game, called “Bomb the Country.” According to the complaint, John Doe asked all the non-white children, including K.V., who is biracial, what country they were from. Doe then placed all the white children on Team America and all the non-white children on other teams designated by their respective national origins and/or races.

Viau claimed “one Asian-American child indicated that her family was from China, and the coach instructed her that she would be on Team China,” while an “Argentine-American child indicated that her family was from Argentina, and the coach instructed her that she would be on Team Argentina.” Allegedly, K.V. was placed on Team Argentina, even though she had told the coach she was from the United States.

Viau further alleged that “none of the white children were asked what country they were from, and all were placed on Team America.” In addition, Viau alleged that John Doe then had the children play the “Bomb the Country” game, “pitting” the white children against the non-white children.

On July 11, 2019, Viau complained about the practice to the City of Troy Recreation Department Director Bo and to Troy Recreation Supervisor Mercer, as well as another Troy official who was not a named defendant. In response, Mercer informed Viau that “the game had been played for ‘years’ and the children loved it and requested it.” Mercer, however, allegedly had admitted that the game might need a “name change.” In response to her complaint, Viau claimed no one addressed the alleged segregation of the children by race and/or ethnicity.

Viau further alleged that, on July 12, 2019, soccer coach Jane Doe informed the children that they were going to play a game, called “Cowboys and Indians.” According to the complaint, Viau also complained to Troy officials that this game was inappropriate because of its “us versus them” environment. In addition, Viau notified Troy city officials that children had been segregated by national origin, race and/or color on July 10, 2019. Bo had allegedly responded by saying, “good to know.” Viau then “promptly” pulled K.V. and another child of hers out of the remainder of the summer sports camp programs.

Plausible Claim in Complaint

On October 18, 2021, in response to Viau’s lawsuit, the City of Troy, Director Bo and Supervisor Mercer (collectively the City Defendants) filed motions for dismissal and a pretrial summary judgment. These pretrial motions based upon Viau’s complaint, if granted, would have effectively dismissed Viau’s lawsuit. Viau, however, had argued “the City Defendants’ motion for summary judgment is premature,” because “she should have the opportunity to depose Mercer and Bo before the Court considers their request to have the claims against them dismissed.”

As noted by the federal district court, “a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests a complaint’s legal sufficiency”:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

The plausibility standard…simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal conduct. Put another way, the complaint’s allegations must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.

Further, pursuant to Federal Rule of Civil Procedure 56, the federal district court would grant summary judgment if “the movant [i.e., each city defendant] shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

The federal district court would, therefore, reject the City Defendants’ motions to dismiss and summary judgment if Viau had alleged sufficient facts in her complaint to set forth a “plausible” claim. In so doing, the court acknowledged it was required to “accept the factual allegations in the complaint as true.”

Section 1983 Municipal Liability

In her lawsuit, Viau brought a Section 1983 claim against the City of Troy. As cited by the court, to state a Section 1983 claim, “a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law.” In so doing, the court noted “the first step in an action under Section 1983 is to identify the specific constitutional right allegedly violated,” because “Section 1983 is a method for vindicating federal rights, not a source of substantive rights itself.”

In her complaint, Viau had alleged “the City Defendants violated K.V.’s rights under the Fourteenth Amendment’s Equal Protection Clause by discriminating against her on the basis of race, color, and/or national origin.” The court, however, noted that “a municipality faces Section 1983 liability only when its official policy or custom directly causes the plaintiff’s injury”:

A plaintiff seeking to impose liability on a municipality under Section 1983 must identify a municipal “policy” or “custom” that caused the plaintiff’s injury. To do this, the plaintiff must plead sufficient facts to show a direct causal link between the policy and the alleged constitutional violation such that the municipal policy can be deemed the moving force behind the violation.

Accordingly, Viau had alleged “the City of Troy had a custom and practice of allowing segregation based on race, color and/or national origin as evidenced by Mercer admitting that the segregation practice had been going on ‘for years.’” Moreover, Viau alleged Bo’s position as recreation department director and Mercer’s position as recreation supervisor “reasonably suggests each had authority over the adoption and implementation of the alleged policy.”

Taking the allegations in the complaint in a “light most favorable” to Viau’s claims, the federal district court found “sufficient factual matter” in the complaint to satisfy the “facial plausibility” standard for a Section 1983 violation against the City of Troy. The court, therefore, denied the City of Troy’s motion for summary judgment on Viau’s Section 1983 claim.

Equal Protection Claim

As described by the court, the Equal Protection Clause is “essentially a direction that all persons similarly situated should be treated alike.” Accordingly, to state an equal protection claim, the court would require Viau’s complaint to adequately plead that “the government treated K.V. disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis.”

In her complaint, the court found Viau had alleged that “K.V. was intentionally segregated, based on her race and/or ethnicity, while she participated in a summer sports camp run by the City of Troy.” In so doing, Viau claimed the following alleged facts in the complaint had demonstrated “a facially discriminatory policy or practice”:

Soccer coach John Doe deliberately assigned children to different groups based on race or ethnicity, with only white children being assigned to Team America. All non-white children and those who advised they had national origins outside the United States were assigned to play for different “countries.”

As cited by the court: “Courts have recognized that the segregation of school-aged children based on race or ethnicity during extracurricular activities is prima facie evidence of an equal protection violation.”

Similarly, in this particular instance, the court found Viau’s complaint had adequately alleged “a prima facie [i.e., legally sufficient on its face] case of an equal protection violation based on a facially discriminatory policy or practice.” Given alleged evidence of an equal protection violation, the court acknowledged “the burden of justifying the classification shifts to the defendant, and the justification must be ‘exceedingly persuasive.’”

As described by the court, an exceedingly persuasive justification would require the City Defendants to “show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Absent such a showing at this preliminary stage of the proceedings, the court found dismissal of Viau’s Equal protection claim against the City of Troy was “not warranted.”

Section 1983 Supervisory Liability

Having addressed the City of Troy’s motion for summary judgment on Viau’s Section 1983 claim, the court then considered the claims against the individual defendants, Mercer and Bo. In the absence of an official policy or custom, the court acknowledged “a municipality, like the City of Troy, may not be held vicariously liable [i.e., legally responsible] for the actions of its employees under Section 1983.”

In her complaint, Viau did not allege that Mercer or Bo were directly involved in “the segregation of K.V. or the other children participating in the soccer camp.” Instead, Viau had claimed “Mercer and/or Bo should be held liable based solely on their supervisory roles.” The court rejected this argument.

According to the court, “supervisory liability cannot attach under Section 1983 where the allegation of liability is based upon a mere failure to act.” On the contrary, the court found “supervisory liability under Section 1983 requires a plaintiff to show that the supervisor encouraged or condoned the specific incident of misconduct or in some other way directly participated in it”:

At a minimum, then, a Section 1983 plaintiff must show that a supervisory official implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.

Since “each defendant is liable only for his or her own conduct,” the federal district court would, therefore, “analyze Mercer’s and Bo’s potential Section 1983 liability separately.”

Recreation Supervisor

Viau alleged that she had complained to Mercer in his capacity as “Recreation Supervisor” regarding “the practice” of dividing the children based on race. In response, Viau claimed Mercer had informed her that “the game had been played for ‘years’ and the children loved it and requested it.” In so doing, Mercer also had allegedly admitted that the game might need a “name change.” Based upon these allegations in Viau’s complaint, the court found “it can reasonably be inferred that Mercer knew of the practice, approved of it and acquiesced in it.”

In his sworn affidavit, Mercer claimed “he first became aware that Bomb the Country was being played when he reviewed a July 11, 2019 email from Viau that she had sent to the Troy Recreation Department.” As a result, Mercer contended “he neither knew of, approved, or acquiesced the alleged practice and/or John Doe’s act of dividing children based on their race and ethnicity.”

Mercer further claimed Viau’s email did “not complain that there was any discrimination or segregation based on race or national origin.” Instead, in Mercer’s view, Viau’s email “was only complaining about the violent implications of playing a game, called Bomb the Country,” not a complaint about “any discrimination or segregation based on race or national origin.”

Upon reviewing Viau’s email, Mercer further stated he had “forwarded it to Brian Zawislak with the Troy School District since he was the person most familiar with the coaches and lesson plans for the soccer camp.” In response, Zawislak had informed Mercer that “no person had ever complained about the game” before Viau’s email. While acknowledging the game “Bomb the Country” was “a camp favorite and had been played for many years and that kids requested it,” Zawislak informed Mercer “they could come up with a name change.” Mercer subsequently informed Viau of Zawislak’s response.

Based upon the following assertions in Viau’s email, the court found “one could reasonably reach the opposite conclusion” that Viau had indeed objected to “discrimination or segregation based on race or national origin,” not “the violent implications of playing a game called Bomb the Country”:

Children were put into groups and asked what country they were from. A child said she was from Argentina, so her group became Argentina. Another was from America, so that group became America and so forth.

While a portion of Viau’s email had criticized the violence implicit in the game, taken in the light most favorable to Viau, the court found Viau also had expressed shock that a government/city program would group “the children based on their national origin and race” in a game, which encouraged children “to pretend they are blowing up their own country and other countries with a soccer ball.”

Although Mercer claimed he “was not aware” of the Bomb the Country game until he reviewed Viau’s July 11, 2019 email, the court found Viau should be allowed to conduct discovery to obtain relevant documents to test the veracity and credibility of Mercer’s statements, in particular, his denial of knowledge of segregation in the soccer program.

Accordingly, given the reasonable inference from Viau’s allegations that Mercer “knew of the practice, approved of it and acquiesced in it,” the federal district court held “summary judgment in his favor is not appropriate at this time.”

Recreation Department Director

Similarly, the federal district court reviewed allegations in Viau’s complaint to determine whether summary judgment in favor of defendant Bo, the City of Troy’s recreation department director, was warranted at this preliminary stage of the proceedings.

In her complaint, Viau had alleged that Bo had responded, “good to know,” when she notified him that children had been segregated by race or ethnicity. As characterized by the court, Bo’s response “may merely reflect a lack of professionalism and sensitivity to Viau’s feelings.” On the other hand, the court found “one could also reasonably interpret it as being so callous that it indicates Bo knew of, approved of, or acquiesced in the alleged segregation of children on the basis of race and/or ethnicity.”

Accordingly, given the reasonable inference from Viau’s allegations that Bo “knew of the practice, approved of it and acquiesced in it,” the federal district court concluded summary judgment in favor of Bo was “not appropriate at this time.”

Full and Equal Enjoyment

Since K.V. had “still participated in soccer camp activities each day of the program,” the City Defendants also had argued John Doe’s alleged conduct had not denied K.V. “the full and equal enjoyment by K.V. of the soccer camp” under federal and analogous state law. Citing Supreme Court precedent regarding the applicable standard for evaluating protected class discrimination under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, the federal district rejected this argument:

[T]he City Defendants’ argument is precisely the type the United States Supreme Court rejected more than 65 years ago when it summarily upheld the trial court’s holding that racial segregation on busses violated the Fourteenth Amendment’s Equal Protection Clause despite the fact that all passengers rode the same bus to the same stops.

In this case, despite her ability to participate, the federal district court similarly found allegations in Viau’s complaint indicated K.V. was denied “full and equal enjoyment” in camp activities. In particular, the court found the following alleged facts in the complaint demonstrated K.V.’s “participation was marred by John Doe’s alleged race/national origin-based discriminatory conduct”:

The words and actions of soccer coach, John Doe, Troy Recreation Department and/or Troy School District’s agent, created an intimidating, hostile, and/or offensive public accommodations/public services environment…. K.V. felt offended, intimidated, alienated and stigmatized by being segregated based on her color and/or race.

Conclusion

Based upon the above-described facts alleged in Viau’s complaint, the federal district court found “one could reasonably conclude the City of Troy, Mercer, and Bo knew of, approved of, or acquiesced in the alleged wrongful conduct.” Accordingly, “without this case first proceeding through discovery,” the court concluded “summary judgment is not appropriate” in favor of any of the City Defendants at this preliminary stage of the proceedings.

The federal district court, therefore, denied the City Defendants’ motions for dismissal and for summary judgment. As a result, Viau’s lawsuit would be allowed to proceed to conduct discovery and take depositions to challenge Bo and Mercer’s statements disclaiming any knowledge of the alleged discriminatory practice in summer camp activities prior to Viau’s complaint.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Law review articles archive (1982 to present)