STATE OF MICHIGAN COURT OF APPEALS

Transcription

1 STATE OF MICHIGAN COURT OF APPEALS BRANDON BRIGHTWELL, Plaintiff-Appellee, UNPUBLISHED April 9, 2009 v No Wayne Circuit Court FIFTH THIRD BANK OF MICHIGAN, LC No CZ Defendant-Appellant. SHARON CHAMPION, Plaintiff-Appellee, v No Wayne Circuit Court FIFTH THIRD BANK OF MICHIGAN, LC No CZ Defendant-Appellant. Before: Talbot, P.J., and Bandstra and Gleicher, JJ. PER CURIAM. In these consolidated appeals arising from race discrimination claims brought under the Elliott-Larsen civil rights act (CRA), MCL et seq., defendant appeals by leave granted two circuit court orders denying its motions to change venue from Wayne County to Oakland County. We reverse, deciding this appeal without oral argument pursuant to MCR 7.214(E). Plaintiffs worked for defendant at different locations in Wayne County. Defendant terminated plaintiffs employment on May 16, Both plaintiffs retained the same counsel, who filed separate lawsuits on their behalf in the Wayne Circuit Court. Plaintiffs complaints allege that defendant fired them in violation of the CRA. Defendant filed change of venue motions in both cases, alleging that proper venue existed only in Oakland County. Different circuit court judges denied the motions, finding that plaintiffs had properly laid venue in Wayne County. This Court granted defendants applications for leave to appeal, and consolidated the appeals. -1-

2 If the venue of a civil action is improper, the court must order a change of venue at the plaintiff s cost upon the timely motion of a defendant. MCR 2.223(A)(1) and (B)(1). Where a defendant challenges venue as improperly laid, the plaintiff has the burden to establish that the county he chose is a proper venue. Johnson v Simongton, 184 Mich App 186, 188; 457 NW2d 129 (1990). The plaintiff must present some credible factual evidence showing that the venue chosen is proper because the choice of venue must be based on fact, not mere speculation. Marsh v Walter L Couse & Co, 179 Mich App 204, 208; 445 NW2d 204 (1989). This Court reviews for clear error a circuit court s ruling regarding a motion to change venue. Dimmitt & Owens Financial, Inc v Deloitte & Touche (ISC), LLC, 481 Mich 618, 624; 752 NW2d 37 (2008). Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. The Court considers de novo questions involving construction of Michigan s venue statutes. Id. An action under the CRA may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil complaint is filed resides or has his principal place of business. MCL (2). Defendant s principal place of business is in Kent County, but it maintains a regional office for southeast Michigan in Oakland County. Because defendant s principal place of business is not in Wayne County, venue is proper in that county only if the alleged violation occurred there. This Court has held that the alleged violation of the CRA is the action which gives rise to liability under the act, i.e., the corporate decision affecting the plaintiff s employment. Thus, the place of corporate decision making is an appropriate venue, not the place where the effects of the alleged violation are felt or where damages accrue. Barnes v Int l Business Machines Corp, 212 Mich App 223, 226; 537 NW2d 265 (1995). Defendant presented evidence to show that the decision to terminate plaintiffs employment was made at its regional office in Oakland County. Although plaintiffs worked in bank branches in Wayne County, they have not provided any credible factual evidence to show that the allegedly discriminatory decision to terminate their employment was made in Wayne County. In that regard, this case is different from Keuhn v Michigan State Police, 225 Mich App 152; 570 NW2d 151 (1997), upon which our dissenting colleague relies. There, final approval of the allegedly discriminatory promotional decision was made by the defendant in the county where the plaintiff brought suit. Id. at 155. We note that our dissenting colleague s opinion rests on Dimmitt, supra, which construed MCL In contrast to MCL (2), which is at issue here, MCL provides that venue can be properly laid in the county in which the original injury occurred. MCL (1)(b). This is significantly different than the county where the alleged violation occurred, the language in the statute at issue here. According to Random House Webster s College Dictionary (1992), a violation is: 1. the act of violating or the state of being violated. 2. a breach or infringement, as of a law or promise. In contrast, an injury is defined as: 1. harm or damage done or sustained, esp. bodily harm a particular form or instance of harm.... Id. Plaintiffs may well have experienced an injury in Wayne County when they were discharged. But that does not change the fact that defendant s alleged violation occurred in Oakland County where it made the decision to terminate plaintiffs employment. This is not to say, of course, that a CRA cause of action can arise from a mere violation by a defendant, without any resulting injury to a plaintiff. As the dissent points out and as is -2-

3 unremarkable, both are necessary. Nonetheless, the appropriate venue for a CRA cause of action, assuming both a defendant s violation of the statute and a plaintiff s resultant injury, depends on where the defendant s violation occurred, not where the plaintiff was injured. That is what the clear language of the statute applicable here requires. The trial courts clearly erred in denying defendants motions to change venue to Oakland County. Venue was improperly laid in Wayne County. We reverse. /s/ Richard A. Bandstra -3-

4 STATE OF MICHIGAN COURT OF APPEALS BRANDON BRIGHTWELL, Plaintiff-Appellee, UNPUBLISHED April 9, 2009 v No Wayne Circuit Court FIFTH THIRD BANK OF MICHIGAN, LC No CZ Defendant-Appellant. SHARON CHAMPION, Plaintiff-Appellee, v No Wayne Circuit Court FIFTH THIRD BANK OF MICHIGAN, LC No CZ Defendant-Appellant. Before: Talbot, P.J., and Bandstra and Gleicher, JJ. TALBOT, J. (concurring). While I concur with the outcome recommended by the majority, I write separately because I believe the reasoning underlying this decision requires further elaboration. The issue before the Court pertains to whether proper venue exists in Wayne County or Oakland County in these employment discrimination claims. Although the trial judges retained venue in Wayne County where the complaints were filed, we reverse those rulings and find that venue is proper in Oakland County as the situs of the alleged violations or where the decisions were made to terminate plaintiffs respective employment. In taking this position, the majority relies on the specific statutory provision relating to venue in CRA cases, MCL (2), and Barnes v Int l Business Machines Corp, 212 Mich App 223; 537 NW2d 265 (1995). The dispute distills essentially to an interpretation of MCL , which provides: (1) A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both. -1-

5 (2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil complaint is filed resides or has his principal place of business. (3) As used in subsection (1), damages means damages for injury or loss caused by each violation of this act, including reasonable attorney's fees. [Emphasis added.] As noted by the majority, this statutory provision was interpreted in Barnes, which held in relevant part: [T]he civil rights statute clearly provides that venue is proper where the alleged violation occurred, not where its effects were felt or where the damages accrued. The violations alleged are adverse employment decisions. Although plaintiff performed some work in Wayne County, he has provided no credible factual evidence that any of the allegedly discriminatory decisions were made in Wayne County, as distinguished from their effects being felt here. [Barnes, supra at 226 (internal citations omitted).] This ruling is distinguishable from the other predominantly cited published case dealing with interpretation of the CRA venue provision, Keuhn v Michigan State Police, 225 Mich App 152; 570 NW2d 151 (1997). Unlike the plaintiff in Barnes, Keuhn demonstrated to this Court s satisfaction that discriminatory decisions pertaining to the plaintiff occurred in more than one county. Notably, this Court opined that venue was proper in Livingston County because the allegedly discriminatory promotional process included decisions made in that county, not merely because damages from the discrimination resulted in that county. Id. at 155. In her dissent, Judge Gleicher, relies on the concurring opinion in Barnes and the tort venue statute, MCL , as recently interpreted by our Supreme Court in Dimmitt & Owens Financial, Inc v Deloitte & Touche (ISC), LLC, 481 Mich 618; 752 NW2d 37 (2008). Judge Gleicher opines that venue is proper in Wayne County as this is where plaintiffs were notified of the decision to terminate their employment and where actual termination occurred. Specifically, Judge Gleicher relies on the concurring opinion of Judge White in Barnes, which disputed venue is proper only in the county where the discriminatory decision is made. However, this reliance is misplaced, as a concurring opinion does not constitute binding authority on this Court. Judge Gleicher additionally cites to the recent holding of our Supreme Court in Dimmitt, interpreting MCL Several difficulties ensue in trying to extrapolate the reasoning in 1 MCL provides, in relevant part: (1) Subject to subsection (2), in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, all of the following apply: (continued ) -2-

6 Dimmitt and its discussion of an unrelated statutory provision to the CRA venue statute. The tort venue statute is not so similar to the CRA venue statute to make them interchangeable for purposes of application and interpretation. The most obvious distinction is that according to the CRA venue provision in evaluating the factual continuum that encompasses the occurrence of a violation to the manifestation of damages, we are to focus on where the alleged violation occurred. In contrast, MCL seeks to focus on where the original injury occurred. As noted by the majority, this language is distinguishable based on the difference in definition between the terms violation and injury making a strict extrapolation inappropriate because the terms are not synonymous. As such, determination of the situs of a violation under the CRA can be differentiated from that of an injury in tort. This discrepancy in the language of the two statutes indicates that the range of potential or appropriate venues available under MCL is broader and more encompassing than MCL While these discrepancies in statutory language can result in confusion in application, I believe we are constrained and must follow the more specific venue provision as delineated in MCL and its subsequent interpretation in Barnes, which has precedential value. While the Court s reasoning in Dimmitt is in conflict with rulings pertaining to the CRA statutory venue provision, this is irrelevant for determination in this case. The only pertinent question to be resolved is whether plaintiffs have demonstrated, pursuant to Kuehn, that any of the alleged violations occurred in any county other than Wayne County. Judge Gleicher contends that neither the employment-related investigation nor the decisions to terminate plaintiffs employment constitute adverse employment actions or violations of the CRA. However, I believe Judge Gleicher incorrectly focuses on the location of the effectuation of the adverse employment decision rather than on the events and factors comprising the procedure leading to the alleged discriminatory actions. Our primary goal when interpreting a statutory provision is to give effect to the intent of the Legislature. Diamond v Witherspoon, 265 Mich App 673, 684; 696 NW2d 770 (2005). The relevant provisions of the CRA, as applied to plaintiffs claims of discrimination, are clear with regard to their intent. Article 2, pertaining to employers, employment agencies and labor organizations, specifically forbids these entities from making decisions regarding the hiring, firing, compensation, or other terms of employment because of religion, race, color, national origin, age, sex, height, weight, or marital status. MCL (1). In addition, these entities are also precluded under the CRA from using discriminatory practices because of religion, race, color, national origin, age, sex, height, weight, or marital status. MCL ; MCL Hence, at its most basic level, the CRA precludes decision makers from using characteristics such as race, sex and gender, as determining factors in decisions impacting employment. See ( continued) (a) The county in which the original injury occurred and in which either of the following applies is a county in which to file and try the action: (i) The defendant resides, has a place of business, or conducts business in that county. (ii) The corporate registered office of a defendant is located in that county. 2 Further, MCL (1) allows for either damages or injunctive relief. The availability of injunctive relief lends further credence to the more restricted interpretation of MCL

7 Alspaugh v Comm on Law Enforcement Standards, 246 Mich App 547, 563; 634 NW2d 161 (2001); Town v Michigan Bell Tel Co, 455 Mich 688, 706; 563 NW2d 64 (1997); Matras v Amoco Oil Co, 424 Mich 675, ; 385 NW2d 586 (1986). To follow Judge Gleicher s reasoning and require that venue be established where a decision was effectuated rather than the situs where the decision, impacted by discriminatory animus, occurred would render the intent and purpose underlying the CRA irrelevant. The majority position is also consistent with opinions of our Supreme Court discussing establishment of a prima facie case of discrimination in employment actions using either a direct evidence test or the burden shifting analysis of McDonnell Douglas 3, which require a plaintiff to demonstrate a causal link between the discriminatory animus and the adverse employment decision. Sniecinski v Blue Cross and Blue Shield of Michigan, 469 Mich 124, ; 666 NW2d 186 (2003) (emphasis added). Hence, for purposes of MCL , venue is appropriate where the CRA was violated through the use of improper characteristics in making an employment decision. /s/ Michael J. Talbot 3 McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). -4-

8 STATE OF MICHIGAN COURT OF APPEALS BRANDON BRIGHTWELL, Plaintiff-Appellee, UNPUBLISHED April 9, 2009 v No Wayne Circuit Court FIFTH THIRD BANK OF MICHIGAN, LC No CZ Defendant-Appellant. SHARON CHAMPION, Plaintiff-Appellee, v No Wayne Circuit Court FIFTH THIRD BANK OF MICHIGAN, LC No CZ Defendant-Appellant. Before: Talbot, P.J., and Bandstra and Gleicher, JJ. GLEICHER, J. (dissenting). I respectfully dissent. In my view, proper venue lies in Wayne County. The lead opinion concludes that defendants alleged [Civil Rights Act] violation occurred in Oakland County where it made the decision to terminate plaintiff s employment. Ante at 3. But a decision to terminate a plaintiff s employment does not suffice to create a claim under the Civil Rights Act (CRA). Simply put, a claim for discriminatory discharge cannot arise until a claimant has been discharged. Collins v Comerica Bank, 468 Mich 628, 633; 664 NW2d 713 (2003). In Collins, our Supreme Court held that a CRA claimant s cause of action did not arise on the day that the defendant suspended her, but only when it terminated or discharged her. Id. at

9 Here, defendant s Oakland County personnel investigated plaintiffs and ultimately elected to terminate plaintiffs Wayne County employment. 1 But these Oakland County actions did not violate the CRA, and are not the focus of plaintiffs complaints. Rather, plaintiffs CRA claims arise from their actual employment discharge, which occurred in Wayne County. Accordingly, I believe that the circuit courts correctly denied defendant s change of venue motions. The venue provision of the CRA sets forth that an action seeking damages for racial discrimination may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil complaint is filed resides or has his principal place of business. MCL (2). This Court first considered the CRA s venue provision in Barnes v Int l Business Machines, 212 Mich App 223; 537 NW2d 265 (1995). The plaintiff in Barnes performed some work in Wayne County. Id. at 226. But because the plaintiff failed to demonstrate that any of the allegedly discriminatory decisions were made in Wayne County, this Court held that venue was properly laid in Oakland County, the location of the defendants Michigan corporate headquarters. Id. at In her concurring opinion, Judge Helene White observed, in relevant part, I join in the opinion per curiam but write separately to state that I do not do so on the basis that venue of a civil rights action is proper only in the county where the discriminatory decision is made. Discrimination also occurs, MCL , in the county where the decision is implemented and the discrimination is inflicted. [Id. at 227.] Judge White further explained that because Wayne County was not the locus of the plaintiff s employment, the defendants discriminatory decisions were not implemented there and no discrimination was inflicted in that county. Id. This Court next considered the CRA s venue provision in Keuhn v Michigan State Police, 225 Mich App 152; 570 NW2d 151 (1997). The plaintiff in Keuhn worked for the Michigan State Police in Livingston County, and he filed suit there alleging that the defendant failed to promote him based on his race. Id. at 153. Relying on Barnes, the defendant sought a change of venue to Ingham County, the location of its headquarters. Id. at The circuit court denied the defendant s motion to change venue to Ingham County, and the defendant appealed. This Court rejected the defendant s claim that venue was proper only in Ingham County, noting that the defendant s promotional process incorporated decisions made at the Livingston County state police post and at the defendant s Ingham County headquarters. We distinguished the plaintiff in Keuhn from the plaintiff in Barnes as follows: 1 Defendant maintains a regional office in Oakland County. Its principal place of business is located in Kent County. -2-

10 Here, plaintiff contends that venue is proper in Livingston County because the allegedly discriminatory promotional process included decisions made in that county, not merely because damages from the discrimination resulted in that county. Indeed, plaintiff s complaint is not limited to allegations of discrimination against him alone but alleges that defendant engaged in a pattern or practice of discriminating against white males. Therefore, the actions giving rise to the alleged liability in this matter include both the recommendation made by the post commander in Livingston County and the final approval given in Ingham County. Accordingly, given these facts, venue in Livingston County is proper. [Id. at 155.] In both Barnes and Keuhn, this Court determined venue by identifying the county in which an allegedly discriminatory decision had been made. Notably, however, in neither case did this Court critically examine whether venue might have been proper in the county where the alleged [CRA] violation occurred. MCL (2). In my view, this Court s previous decisions construing the CRA s venue provision, including Barnes and Keuhn, have not strictly adhered to the clear, unambiguous statutory text, which requires that venue lie in the county where the alleged violation occurred. MCL (2). By concluding that venue may properly lie in a county that contains neither the defendant s principal place of business, the location in which the plaintiff actually worked, or the site of the adverse employment action, the instant majority also fails to conform its analysis to the statutory language. Our Supreme Court provided the appropriate analytical framework in an analogous case involving venue, Dimmitt & Owens Financial, Inc. v Deloitte & Touche (ISC), LLC, 481 Mich 618; 624; 752 NW2d 37 (2008). Dimmitt involved MCL (1), a venue statute applicable in tort actions. The Supreme Court instructed in Dimmitt that in construing a venue provision, our primary obligation is to discern legislative intent as reflected in the plain language of the statute. Id. at 624. The statutory language construed in Dimmitt permits venue in the county where the original injury occurred. MCL (1)(a), (b). In reaching its decision, the Supreme Court in Dimmitt closely examined the original injury language selected by the Legislature, and painstakingly distinguished an injury from a breach of the standard of care. Dimmitt teaches that we must follow the basic rules of statutory interpretation, focusing carefully on the statutory text, when construing venue statutes. When the language of a statute is unambiguous, the Legislature s intent is clear, and judicial construction is neither necessary nor permitted. Id. The plain language of the CRA s venue provision permits a plaintiff to file suit where the alleged violation occurred. The venue statute at issue here thus requires this Court to apply the term violation, and not decision or potential violation. The CRA directs that an employer shall not discharge or otherwise discriminate against an individual with respect to employment because of race[.] Therefore, a violation of the CRA occurs only when a plaintiff suffers an adverse employment action under circumstances giving rise to an inference -3-

11 of discrimination, Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347, 359; 597 NW2d 250 (1999)(emphasis supplied). 2 Contrary to Judge Talbot s characterization of my reasoning, I do not rely on the holding in Dimmitt, the substance of the tort venue statute, or Judge White s concurring opinion in Barnes. Rather, I rely solely on the unambiguous language of MCL (2), construed in a manner consistent with the analytical method prescribed by our Supreme Court in Dimmitt. Our Legislature decreed that venue lies in the county where a CRA violation occurs. This Court and our Supreme Court have repeatedly emphasized that a CRA violation is an adverse employment action. 3 The adverse employment actions in these cases occurred in Wayne County. Although defendant apparently formulated its decision to terminate plaintiffs employment at its regional headquarters in Oakland County, it discharged plaintiffs in Wayne County. 4 The CRA simply does not proscribe the employment-related investigation defendant conducted in its Oakland County office, or the decisions made in the same location. These undertakings, standing alone, do not constitute adverse employment actions or violations of the 2 A review of this Court s decision in Wilcoxon exposes the majority s analytical error. The plaintiff in Wilcoxon asserted that considerations of race motivated the defendant employer s decision to transfer the plaintiff to a different job. This Court accepted as true the plaintiff s claim that her employer made a racially-motivated decision to effect a job transfer. But this Court held that the employer s transfer decision did not violate the CRA because the plaintiff could not prove that the transfer constituted an adverse employment action. Id. at 363. In Wilcoxon, this Court described that an adverse employment action is materially adverse in that it is more than mere inconvenience or an alteration of job responsibilities, and must exhibit some objective basis for demonstrating that the change is adverse that goes beyond subjective impressions. Id. at 364 (internal quotation omitted). Under Wilcoxon, the instant plaintiffs possess no cause of action based on their employers discussions, investigations or plans because those activities simply do not constitute adverse employment actions. 3 I respectfully disagree with Judge Talbot s analysis linking the statutory venue provision with the evidence necessary to establish a prima facie case of discrimination. The direct evidence test and a burden shifting analysis are evidentiary tools relating to proof of a CRA violation. But discriminatory animus, standing alone, does not violate the CRA, and neither does a decision to discriminate motivated by discriminatory animus. An employer violates the CRA only be effectuating an improperly motivated decision. An employer s discriminatory thoughts, ideas, plans, plots and conclusions fall entirely beyond the reach of the law until they are translated into an action that violates the CRA. 4 Regarding Brightwell, the circuit court found, Mr. Brightwell s permanent place of employment it appears was in the City of Detroit on Jefferson Avenue as an assistant bank manager and the termination, he was terminated from that position while there.... Plaintiffs counsel asserted that defendant fired Champion while she was at her home in Wayne County. Defendant s representative attested in his affidavit that defendant formulated its decisions to fire plaintiffs at its headquarters in Oakland County, but made no claim that defendant actually discharged plaintiffs there. -4-

12 CRA. Because defendant violated the CRA only by actually terminating plaintiffs, not by considering, discussing, or investigating their termination, venue properly rested in Wayne County, the location of both allegedly wrongful discharges. Consequently, the circuit courts did not clearly err by denying defendant s motions to change venue. I would affirm. /s/ Elizabeth L. Gleicher -5-