Preview:

Michigan Supreme Court Lansing, Michigan

Opinion
SHARDA GARG, v

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED MAY 11, 2005

Plaintiff-Appellee/Cross-Appellant, No. 121361

MACOMB COUNTY COMMUNITY MENTAL HEALTH SERVICES, Defendant-Appellant/Cross-Appellee. _______________________________ BEFORE THE ENTIRE BENCH MARKMAN, J. We granted leave to appeal to consider whether there was sufficient evidence to support plaintiff's claims of retaliatory discrimination and whether the "continuing

violations" doctrine of Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986), should be preserved, modified, or abrogated in light of the language of the statute of limitations, MCL 600.5805(1). The jury found

that plaintiff was not discriminated against on the basis of national origin, but was retaliated against on the basis of either her opposition to sexual harassment or because she filed a grievance claiming national-origin

discrimination.

The Court of Appeals affirmed.

Because we

conclude that, once evidence of acts that occurred outside the statute of limitations there was period is removed evidence from of

consideration,

insufficient

retaliation based on either plaintiff's alleged opposition to sexual harassment or her filing of a grievance, we

reverse the judgment of the Court of Appeals and remand to the trial court In for so entry of we a judgment in favor of

defendant.

holding,

overrule

the

"continuing

violations" doctrine of Sumner, supra, as inconsistent with the language of the statute of limitations, MCL 600.5805(1) and (10). As a result, we do not reach the other issues

raised on appeal or the issues raised in plaintiff's crossappeal. I. Facts and Procedural History Plaintiff She began her Sharda Garg is as of a Asian staff Indian ancestry. with

employment

psychologist

defendant Macomb County Community Mental Health Services in 1978. Plaintiff testified that Donald Habkirk, the

director of defendant's disability section, which included the facility in where what plaintiff worked, had during as 1981

engaged

plaintiff

characterized

"sexually

harassing" behavior with female coworkers.

Specifically,

plaintiff observed Habkirk pull one coworker's bra strap and snap the elastic panties 2
of another. Plaintiff

acknowledges that she herself was never treated in this manner or otherwise sexually harassed, and that she never reported to anyone the incidents she allegedly observed. Habkirk denied engaging in such conduct. At "around the same time," plaintiff, while walking down upper an office corridor, her felt someone's hand touch reacted her as

back,

near

shoulder.

Plaintiff

follows: "I felt somebody touching me, and I just turned around and swung at him." She further observed, "it was a It was only after she

very automatic reaction on my part."

hit this person that she realized it was Habkirk whom she had hit. She and Habkirk stared at each other for a moment Plaintiff did not

before she proceeded into her office.

file a grievance, tell anyone about the incident, or offer any explanation to anyone regarding why she had struck

Habkirk.

In response to a question concerning whether the

touching was "improper," plaintiff did not characterize it as such. While Habkirk never took any formal action against

plaintiff for striking him, and indeed testified that he could not even remember the incident, plaintiff claims that her formerly cordial relationship with Habkirk deteriorated as he became increasingly cold and distant. While

plaintiff generally enjoyed a good employment relationship with defendant and its management initially, she asserted 3


that she began to perceive changes in this relationship following the touching incident. After six years of being

rated as either "outstanding" or "very good," plaintiff's 1983 performance review was downgraded to "satisfactory." It was also at this point that plaintiff applied for The

several job promotions, in each case unsuccessfully.

first position she applied for in 1983 was given to someone from outside the organization, despite a general

inclination by defendant in favor of internal promotions. Two other promotion applications in 1983 were also

rejected.

Over the next three years, plaintiff applied for four of more promotions. promotion Plaintiff was

unsuccessfully denied a

total

eighteen

opportunities,

including eleven during the period of 1983 through 1987. During this period, Habkirk always served in plaintiff's chain of command. immediate asked why Once at a dinner party with plaintiff's Robert had Slaine, been plaintiff's promoted. husband Slaine

supervisor, plaintiff

not

responded that, in his opinion, it was because Habkirk did not like plaintiff. and Habkirk denied Slaine denied making this statement, telling Slaine that he disliked

plaintiff. In 1986, Kent Cathcart was chosen by Habkirk as the new program director in plaintiff's facility. However,

little changed for plaintiff because she failed to receive 4


any of the next three promotions for which she applied.

In

December 1986, she was denied a promotion in favor of a contract rejection employee in with less 1987, seniority. plaintiff the Following filed her this first

February

promotion-related

grievance

with

union

representing

defendant's employees.

When plaintiff was again denied a

promotion in early 1987, this time in favor of a person from outside the company, she filed a second promotionrelated grievance with the union in June 1987, alleging that the denial was due to discrimination based on her national origin and color. The grievance was forwarded to Plaintiff

Cathcart, and was denied without investigation.

next applied for a promotion in 1989, but was again denied. Plaintiff was denied seven promotions during the period of 1989 through 1997. Plaintiff claims that the "retaliation" against her for filing these grievances also took the form of poor overall treatment by defendant. that Cathcart, after and the two was Specifically, she claims supervisors transferred who to succeeded defendant's

Cathcart

plaintiff

First North facility in 1995, treated her "in a degrading and humiliating manner." would criticize her for Plaintiff claims that Cathcart not participating in agency

activities, but would then deny her requests to participate in meetings, conferences, and 5
committees. In addition,

plaintiff testified that Cathcart would reprimand her for being even two minutes late for work, but would let her coworkers "come and go as they pleased." testified that Cathcart once chastised Plaintiff also her for going

outside to look at a rainbow, but that her coworkers were routinely allowed to go outside for cigarette breaks on company time. the facility. Cathcart also refused to give her keys to Finally, when she moved to First North,

plaintiff was given an office that was formerly a storage closet. addition, plaintiff The office was uncarpeted and had no windows. it to was located next to a bathroom, and In

forcing

hear

"people

defecating

urinating"

throughout the day. despite her

Plaintiff was assigned to this office years of seniority and the

seventeen

availability of more desirable office spaces. Plaintiff also claims that Cathcart demonstrated a

predisposition against "people of color" during the period that she was employed by defendant under his supervision. Specifically, plaintiff testified regarding four separate displays of this predisposition. First, when Cathcart

learned that plaintiff's son had been accepted to medical school, he allegedly stated that "there are enough Indian doctors already." Second, Cathcart allegedly complained

about the accent of an Indian psychiatrist, stating that "these people have been here long enough, they ought to 6


speak good English."

Third, Cathcart allegedly stated that

he would not have hired an African-American nurse if a white candidate had been available. Finally, Cathcart

allegedly used a racially derogatory term when referring to African-Americans. statements. On July 21, 1995, plaintiff brought this action under the Civil Rights Act, MCL 37.2101 et seq., claiming that her promotion denials and poor treatment were due to Cathcart denies making any of these

national-origin discrimination and were in retaliation for engaging in activities protected by the act. Plaintiff

originally claimed retaliatory discrimination based solely on the union grievance claiming national-origin

discrimination.

She later amended her complaint to allege

that she was also retaliated against for opposing sexual harassment. Defendant denied the allegations and asserted

that some of the allegations were barred by the three-year period of limitations. moved for partial MCL 600.5805(1) and on (10). that

Defendant

summary

disposition

basis, but the trial court denied the motion, citing the "continuing violations" doctrine adopted in Sumner. Following a three-week trial, the jury found that

plaintiff was not discriminated against because of national origin or color. had However, the jury also found because that she

defendant

retaliated

against 7


plaintiff

"opposed sexual harassment or because she filed a complaint or charge about being discriminated against." awarded plaintiff $250,000 in damages. Defendant filed a motion for judgment notwithstanding the verdict or a new trial. The trial court noted that The jury

"physical acts can convey a message better than words," and that plaintiff's physical response to the touching by

Habkirk was sufficient to inform defendant that she opposed Habkirk's further allow a sexually that harassing sufficient juror to behavior. evidence find a The was trial court to

held

presented

reasonable

causal

connection

between plaintiff's striking Habkirk and her failure to be promoted. Because the evidence supported at least one of

the retaliation theories, defendant's motion was denied. In an unpublished opinion, the Court of Appeals affirmed the jury's verdict. Court of Appeals, Unpublished opinion per curiam of the issued March 29, 2002 (Docket No.

223829).

The Court of Appeals held that the "continuing

violations" doctrine allowed the introduction of factual allegations plaintiff going filed back more than and three thus years before of

her

lawsuit

the

statute

limitations was not a bar to the facts plaintiff presented to the jury. Appeals held With regard to the merits, the Court of that when plaintiff struck Habkirk, a

reasonable juror could have concluded that she "'raise[d] 8


the specter,'" quoting Mitan v Neiman Marcus, 240 Mich App 679, 682; 613 NW2d 415 (2000), that she was opposing

Habkirk's sexual harassment.

The Court of Appeals also

determined that there was sufficient evidence to allow a reasonable juror to conclude that plaintiff established

both of her retaliation claims. After this Court directed the parties to present oral argument on whether to grant leave to appeal or take other action permitted by MCR 7.302(G)(1), 469 Mich 983 (2003), and having heard for such leave argument, to we granted defendant's briefing

application

appeal,

directing

regarding whether the "continuing violations" doctrine of Sumner was consistent with the statute of limitations, MCL 600.5805(1). 469 Mich 1042 (2004). II. Standard of Review The denial of a motion for judgment notwithstanding the verdict is subject to review de novo. Sniecinski v

Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003). evidence, while viewed Reversal is permitted only if the in a light most favorable to

plaintiff, fails to establish a claim as a matter of law. Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000). Whether the "continuing violations" doctrine is consistent with MCL 600.5805(1) and (10) is a question of law that we

9


review de novo. NW2d 346 (2004).

Jenkins v Patel, 471 Mich 158, 162; 684

III. Analysis The issue in this case is not whether plaintiff was treated poorly or insensitively by defendant. Nor is it

whether defendant "retaliated" against plaintiff for her conduct in hitting Habkirk. defendant retaliated against Instead, the issue is whether plaintiff specifically for MCL

conduct on her part protected by the Civil Rights Act. 37.2701 provides, in pertinent part: Two or more persons shall not conspire to, or a person shall not: (a) Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act. To establish a prima facie case of

retaliation,

a

plaintiff must show: (1) that he engaged in a protected activity; (2) that this was known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. [DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 436; 566 NW2d 661 (1997).]

A. RETALIATION BASED

ON

OPPOSITION

TO

SEXUAL HARASSMENT

Plaintiff's first theory is that defendant retaliated against her because she 10
opposed Habkirk's sexual

harassment.

At

"around

the

same

time"

that

plaintiff

allegedly observed sexually harassing behavior by Habkirk toward female employees, she felt someone touch her on the back, near her shoulder, while she was walking that "I near felt

Habkirk's

office.1

Plaintiff

testified

somebody's hand touching me, and I turned around and hit the person." She noted further that "it was a very

automatic reaction on my part.

I felt somebody touching

me, and I just turned around and swung at him." We conclude there is insufficient evidence for a juror reasonably to conclude that by striking Habkirk under these circumstances plaintiff was opposing sexual harassment,

i.e., engaging in a "protected activity" under the Civil Rights Act. First, plaintiff acknowledged that Habkirk was

not sexually harassing her at the time she hit him so that it is difficult to view her conduct as responsive to

"protected activity." acknowledgment her. Second, that

This is underscored by plaintiff's Habkirk is no had never sexually that, her harassed this in

there

evidence to

before

lawsuit,

plaintiff

ever

sought

cast

conduct

Plaintiff argued at oral argument before this Court that it was significant that she was passing a room Habkirk had just occupied, because it demonstrates that she "knew" it was Habkirk who touched her. However, she testified several times that she felt "somebody" touch her back, that she "didn't know who was in behind [her]," and that she simply "swung at whoever it was behind [her]." (Emphasis added.) 11

1

hitting Habkirk in terms of opposing sexual harassment at defendant's communicated workplace. to the alleged Such a message of was never sexual

victims

Habkirk's

harassment or to fellow employees, much less to Habkirk, management, union representatives, or public agencies.

Third, plaintiff testified that she did not even know it was Habkirk who touched her shoulder until after she struck him. That is, because plaintiff in her "automatic"

response to the touching could just as likely have struck out at any one of her coworkers as at Habkirk, it is

difficult to conclude that her action was somehow intended to communicate a principled opposition to prior incidents of supervisory misconduct. connection here between That is, there is simply no cause--the alleged sexual

harassment--and effect--plaintiff's striking Habkirk.2 Moreover, although it is not necessary to our analysis in this case, even if plaintiff were indisputably

responding to past sexual harassment by hitting Habkirk, we are not prepared to conclude that any response to conduct

This lack of connection is underscored by plaintiff's own testimony that the incidents of sexual harassment that allegedly prompted her opposition occurred only at "about the same time" that she struck Habkirk. Although we acknowledge that a reasonable juror would be entitled to conclude that this characterization is compatible with incidents of sexual harassment preceding plaintiff's hitting Habkirk, the lack of a clear temporal relationship between the cause and the effect does not well serve plaintiff's argument. 12

2

prohibited by the Civil Rights Act, no matter how excessive or inappropriate the response, including assaultive An employee

behavior, falls within the act's protections.

is not immunized for any type of responsive conduct, no matter how outrageous or disproportionate, simply because it is connected with opposition to discrimination.

Obviously, no employee would be protected under the act from all "retaliation" by an employer for criminal, or

sabotaging, or destructive activities simply because these occurred in response to perceived employer discrimination. For purposes of analysis under

Download SHARDA GARG V MACOMB CO COMM MENTAL HEALTH.pdf

Michigan Law