STATE OF MICHIGAN COURT OF APPEALS CONNIE RUSSELL, Plaintiff-Appellee, UNPUBLISHED May 23, 2006 v No. 263903 Wayne Circuit Court PBG MICHIGAN, LLC, LC No. 04-427528-CZ Defendant-Appellant. Before: Cooper, P.J., and Jansen and Markey, JJ. PER CURIAM. In this action alleging discrimination 1 under the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq., defendant appeals by leave granted the trial court s order denying its motion for summary disposition. We reverse and remand for entry of judgment in favor of defendant. We review de novo a trial court s decision on a motion for summary disposition. Spiek v Dep t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Defendant moved for summary disposition under MCR 2.116(C)(7) and (10). In reviewing a motion under MCR 2.116(C)(7), this Court accepts the contents of the complaint as true unless they are directly contradicted. Pusakulich v City of Ironwood, 247 Mich App 80, 82; 635 NW2d 323 (2001). We consider the pleadings, affidavits, depositions, admissions, and other admissible documentary evidence. Id. In the absence of a disputed fact, we review de novo whether a claim is barred by the applicable statute of limitations. Doe v Roman Catholic Archbishop of the Archdiocese of Detroit, 264 Mich App 632, 638; 692 NW2d 398 (2004). An action under the CRA must be brought within three years. MCL 600.5805(1), (10); Garg v Macomb Co Community Mental Health Services, 472 Mich 263, 266; 696 NW2d 646 (2005), amended 473 Mich 1205 (2005). Defendant argues that the trial court erroneously denied its motion for summary disposition because plaintiff suffered no discriminatory action within the three years immediately before she filed her complaint. In contrast, plaintiff cites 1 Plaintiff asserts two claims of racial discrimination, based on theories of hostile work environment and discrete race discrimination. Plaintiff voluntarily dismissed her sexual harassment and gender discrimination claims, which are not at issue in this appeal. -1-
Magee v DaimlerChrysler Corp, 472 Mich 108; 693 NW2d 166 (2005), for the proposition that her claims accrued on her last day of active employment. We agree with defendant. In Magee, supra, the plaintiff went on medical leave on September 12, 1998, and without returning to work resigned her employment on February 2, 1999. Id. at 109-110. She filed an action under the CRA on February 1, 2002, alleging that she had been unlawfully discriminated against and harassed during most of her twenty-two years at DaimlerChrysler. Id. at 110. She alleged that the harassment continued until September 12, 1998, her last day of active employment. Id. The trial court granted DaimlerChrysler s motion for summary disposition based on the statute of limitations. Id. at 111. On appeal, our Supreme Court stated: To determine whether Magee s claims were timely filed, we look to MCL 600.5805(10), which establishes that the applicable period of limitations is three years from the date of injury. Because Magee alleged no discriminatory conduct occurring after September 12, 1998, the period of limitations on Magee s claims expired, at the latest, three years from that date, or by September 12, 2001. Accordingly, as the trial court held, Magee s February 1, 2002, complaint was not timely filed. [Id. at 113.] Plaintiff in the instant case interprets Magee as holding that her claims accrued on her last day of active employment. Contrary to plaintiff s argument, the Magee Court did not rely on the date of September 12, 1998, to hold that the claims in that case had accrued on the plaintiff s last day of work. Instead, the Court simply measured the limitations period from the plaintiff s last day worked because the plaintiff did not allege any discriminatory conduct occurring after that day. The Magee Court stated that the statute of limitations had expired at the latest three years from the plaintiff s last day of work. Thus, the Magee Court made clear that a CRA claim is not timely filed if no instance of alleged discriminatory conduct occurs within the three-year period immediately preceding the filing of the complaint. [P]laintiff s claims were not filed within the limitations period because none of the alleged discriminatory or retaliatory conduct occurred within the three years that preceded the filing of the complaint. Id. at 109. Because one of the claims raised by the plaintiff in Magee was based on a theory of hostile work environment, that case is particularly pertinent to the instant action. 2 Id. at 110. In her complaint, plaintiff set forth a hostile-work-environment claim based on race. Our Supreme Court has not specifically addressed whether the CRA encompasses hostile-workenvironment claims that are premised on discriminatory conduct of a non-sexual nature. Haynie v Michigan State Police, 468 Mich 302, 319 n 18; 664 NW2d 129 (2003); Quinto v Cross & Peters Co, 451 Mich 358, 368; 547 NW2d 314 (1996). However, this Court has recognized that 2 Our Supreme Court subsequently reaffirmed the holding of Magee, again ruling that all CRA claims are governed by the three-year limitations period of MCL 600.5805(1) and (10). Garg, supra at 282-284. However, unlike the plaintiff in Magee, the plaintiff in Garg did not assert a hostile-work-environment claim. -2-
actionable hostile-work-environment claims may be based on discriminatory conduct concerning any statutorily protected classification. Downey v Charlevoix Co Bd of Co Rd Comm rs, 227 Mich App 621, 626-627; 576 NW2d 712 (1998); see also Malan v Gen Dynamics Land Systems, Inc, 212 Mich App 585, 586-587; 538 NW2d 76 (1995). In order to establish a prima facie case of hostile work environment, a plaintiff must prove: (1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of the protected status; (3) the employee was subjected to unwelcome conduct or communication on the basis of the protected status; (4) the unwelcome conduct or communication was intended to, or in fact did, interfere substantially with the employee s employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior. [Downey, supra at 629.] Under Magee, in order for plaintiff s complaint to be timely, the alleged discriminatory conduct on which plaintiff relies must have occurred within the three-year period immediately preceding the filing of plaintiff s complaint. Magee, supra at 109. Of note, plaintiff filed her complaint on September 3, 2004. Plaintiff has failed to produce evidence that any conduct occurring on or after September 3, 2001, contributed to the alleged hostile work environment. 3 The only arguably wrongful conduct occurring after September 3, 2001, was the issuance of a work performance notice by plaintiff s supervisor on September 6, 2001. However, this notice concerned plaintiff s apparent refusal to train a coworker, and plaintiff presented no admissible evidence that the notice was issued for racial or otherwise-discriminatory reasons. In fact, plaintiff testified that her supervisor never said anything inappropriate about her race, and when asked why she had refused to sign the notice, plaintiff merely stated that she believed the notice was untimely under company policy and that certain factual details contained in the notice were inaccurate. Plaintiff never indicated as a reason for refusing to sign the notice that she believed it was motivated by discrimination. In sum, there is no genuine question of fact regarding whether the September 6, 2001 work performance notice was issued for discriminatory reasons, or whether it contributed to the racially charged hostile work environment. Because plaintiff has not identified any discriminatory conduct occurring on or after September 3, 2001, her hostile-work-environment claim was time-barred by the three-year period of limitations. 4 3 On appeal, plaintiff suggests that certain discriminatory conduct may have occurred after September 3, 2001. However, we will not consider evidence that is presented for the first time in this Court. Our review is limited to the record established in the trial court, and an appellant may not expand the record on appeal. Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002). 4 We acknowledge plaintiff s argument that unlike a CRA claim based on discrete discrimination, a CRA claim based on a hostile work environment does not accrue until the last (continued ) -3-
Plaintiff also set forth a claim of discrete race discrimination in her complaint. Review of this claim is arguably unpreserved because the trial court did not decide it. McKusick v Travelers Indemnity Co, 246 Mich App 329, 341; 632 NW2d 525 (2001). Nonetheless, we will consider the matter because it presents a question of law and the facts necessary for resolution are not in dispute. Poch v Anderson, 229 Mich App 40, 52; 580 NW2d 456 (1998). A CRA claim based on discrete discrimination is subject to the same three-year period of limitations as a hostile-work-environment claim. Garg, supra. Therefore, in light of plaintiff s failure to identify any specific discriminatory incident occurring on or after September 3, 2001, her racediscrimination claim was time-barred as well. Plaintiff argues that the statute of limitations was tolled because of insanity. Plaintiff s insanity argument is wholly based on the fact that she was admitted to a psychiatric hospital shortly after she left work on September 14, 2001, and that she was later declared disabled because of her mental condition. MCL 600.5851(1) provides in relevant part: Except as otherwise provided... if the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run. [Emphasis added.] Under MCL 600.5827, a claim accrues at the time the wrong upon which the claim is based was done regardless of the time when the damage results. Thus, in order for plaintiff to successfully invoke the insanity tolling provision, she must show that she was insane at the time the alleged discriminatory conduct occurred. The discriminatory conduct that occurred closest in time to the filing of plaintiff s complaint involved the discovery of a noose, found at plaintiff s worksite on May 9, 2001, and damage to plaintiff s car, which occurred shortly thereafter. Excluding the noose incident and the damage to plaintiff s car, plaintiff could not recall any other racially discriminatory incidents that occurred before she took medical leave in September 2001. Because plaintiff does not argue that she was insane at the time of the noose incident or the damage to her automobile, MCL 600.5851(1) did not toll the statute of limitations with respect to plaintiff s CRA claims. Plaintiff cannot avail herself of the insanity tolling provision in this case. Because plaintiff presented no evidence of discriminatory conduct that occurred within three years immediately preceding her complaint, defendant was entitled to summary disposition ( continued) day of active employment. Because of the apparent distinctions between discrete discrimination claims and hostile-work-environment claims, we might otherwise be inclined to agree with plaintiff s contention. However, plaintiff s argument quite simply runs afoul of Magee. Even after Magee, it appears that a hostile-work-environment claim is timely so long as any single incident that contributed to the hostile environment occurred within the three years immediately preceding the complaint. However, under Magee a plaintiff must identify at least one such incident that occurred within the statutory three-year period. Here, plaintiff has failed to identify any specific racially charged incident that occurred within that statutory three-year period. -4-
of the hostile-work-environment claim under MCR 2.116(C)(7). For the same reason, defendant was entitled to summary disposition of the race-discrimination claim as well. Reversed and remanded for entry of judgment in favor of defendant. We do not retain jurisdiction. /s/ Kathleen Jansen /s/ Jane E. Markey -5-
STATE OF MICHIGAN COURT OF APPEALS CONNIE RUSSELL, Plaintiff-Appellee, UNPUBLISHED May 23, 2006 v No. 263903 Wayne Circuit Court PBG MICHIGAN, L.L.C., LC No. 04-427528-CZ Defendant-Appellant. Before: Cooper, P.J., and Jansen and Markey, JJ. COOPER, P.J. (dissenting). Defendant appeals by leave granted from an order denying its motion for summary disposition in this action alleging racial and sexual harassment, racial discrimination and gender discrimination. 1 The majority finds the lower court erred, but I must respectfully dissent because I do not believe that a claim for an ongoing hostile work environment should be subject to the same time of the wrong analysis as a claim for discrimination stemming from a specific event. Defendant argues and the majority agrees that the trial court erred when it allowed the plaintiff to proceed with her claim of a racially hostile work environment, arguing the complaint for a violation of CRA must be brought within three years, as provided by MCL 600.5805(1) and 1 Plaintiff alleged that she was subjected to a racially hostile work environment throughout her employment at defendant s Detroit facility. At her deposition, plaintiff testified that between 1992 and 2001, specific racially inappropriate incidents and a general overtone of racial tension contributed to a hostile work environment. The specific incidents alleged included comments about the KKK, use of racial epithets in written messages left in the work area, prank telephone calls to her home, nails in her car tires in the parking area, scratches to her car, and a noose in the production area. Plaintiff s co-workers corroborate her sense of the general atmosphere of racial tension; news reports corroborate specific events such as the noose hung in the work area. When the noose was found, plaintiff broke down and cried, and less than four months later went on disability because of medical problems associated with the stress that she endured in the hostile environment. She was admitted to a psychiatric hospital shortly after her last day of active employment and was declared mentally disabled by the Social Security Administration. -1-
(10). Garg, supra, 472 Mich at 266, 272; Magee, supra, 472 Mich at 113. MCL 600.5801(1) provides: A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section. The general three-year limitations period under MCL 600.5805(10) applies to CRA actions. Garg, supra at 266, 272; Magee, supra at 113. MCL 600.5827 states that a claim accrues at the time the wrong upon which the claim is based was done regardless of the time when the damage results. Defendant argues that the trial court erroneously denied its motion for summary disposition because plaintiff suffered no discriminatory action within three years before she filed her complaint. I disagree because I believe that a claim of hostile work environment creates a cause of action against an employer for the work environment, not against specific individuals for discrete acts of discrimination or harassment. The environment that allows persons predisposed to racist acts to actually act on those impulses is itself the cause of action. On these facts, for example, the noose event is a product of the overall environment of racial tension and if not overt acceptance of racist attitudes, at least a failure to address them on the part of the employer, here defendant Pepsi. At the same time, the noose event is a trigger for ongoing hostility, and defendant s response to it and the ensuing media circus accelerated rather than dissipated the hostile environment. Specific events therefore cannot define the appropriate time frame for accrual of this cause of action, because it was the surrounding circumstances, rather than any event, that gave rise to the cause of action. The climate after each event, where little or nothing was done to immediately address the problem, both encouraged future similar behavior from the perpetrators and reaffirmed the hostility of the work environment for the victims. This vicious cycle is the harm that plaintiff alleges, and for which defendant must respond. 2 In her complaint, plaintiff alleged a hostile work environment claim based on her race. This Court has previously recognized that conduct or communication regarding a protected classification that creates a hostile work environment is actionable. Downey v Charlevoix Co Bd of Co Rd Comm rs, 227 Mich App 621, 626-627; 576 NW2d 712 (1998). In order to establish a prima facie case of hostile work environment, a plaintiff must prove: (1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of the protected status; (3) the employee was subjected to unwelcome conduct or communication on the basis of the protected status; (4) the unwelcome conduct or 2 Plaintiff was not the only employee to feel the atmosphere was racially hostile. Defendant s production manager, Ehssan Jedeon, stated in his deposition regarding the ongoing mistreatment of African-Americans by Caucasian co-workers: As I worked in that facility there was that tension always there, feeling of tension. You can just feel it. -2-
communication was intended to, or in fact did, interfere substantially with the employee s employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior. [Id. at 629 (citations omitted).] In an action alleging racial harassment under Michigan s Elliot-Larson Civil Rights Act (CRA), the Court must consider the totality of circumstances to determine whether unwelcome conduct created a hostile work environment. Quinto v Cross & Peters Co, 451 Mich 358, 368-369; 547 NW2d 314 (1996), quoting Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993) (alteration in original). The standard is whether a reasonable person in the plaintiff s position would have perceived the conduct as creating a hostile environment. Id. The totality of the circumstances include the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee s work performance. Id. See also Chambers v Trettco Inc, 463 Mich 297, 319; 614 NW2d 910 (2000). The environment is hostile when it allows events to occur repeatedly over time such that an employee s work is interfered with, not simply when any single event disrupts the workplace. The environment is hostile because the employer s response to the events is insufficient to stop them from recurring. An employee has a right to a work environment free from racial hostility and intimidation, and when an employer cannot provide it, I would find that a cause of action accrues based on the period of employment, not on the specific dates of particular manifestations of hostility. Defendant argues Magee and Garg require specific discriminatory conduct within three years of the filing of a claim. Plaintiff concedes that the Garg decision bars claims based on discrete actions of racial discrimination which occurred beyond the three-year statute of limitations period, but argues Magee allows that a hostile work environment claim accrues on the last day of active employment. In Magee, supra at 109-110, the plaintiff, an employee of the defendant DaimlerChrysler Corporation, went on medical leave on September 12, 1998, and without returning to work resigned her employment on February 2, 1999. She filed an action under the CRA on February 1, 2002, alleging that she had been unlawfully discriminated against and harassed during most of her twenty-two years at DaimlerChrysler. Id. at 110. In her complaint, she alleged that the harassment continued until September 12, 1998, her last day of active employment. Id. The trial court granted DaimlerChrysler s motion for summary disposition based on the statute of limitations. Id. at 110-111. On appeal, this Court relied on Collins v Comerica Bank, 468 Mich 628; 664 NW2d 713, reh den 469 Mich 1223 (2003), and reversed the trial court s ruling, holding that the plaintiff s claims were timely because they were filed within three years after the date of the plaintiff s resignation. Id. at 111. The Supreme Court, however, held that this Court s reliance on Collins was misplaced given that the plaintiff did not allege discriminatory termination as the plaintiff in Collins had alleged. Rather, the Supreme Court noted that the plaintiff s claims were based on alleged discriminatory conduct that occurred before her leave of absence. Id. at 112. The Supreme Court stated: To determine whether Magee s claims were timely filed, we look to MCL 600.5805(10), which establishes that the applicable period of limitations is three years from the date of injury. Because Magee alleged no discriminatory conduct -3-
occurring after September 12, 1998, the period of limitations on Magee s claims expired, at the latest, three years from that date, or by September 12, 2001. Accordingly, as the trial court held, Magee s February 1, 2002, complaint was not timely filed. [Id. at 113.] In Magee, the claim alleging a hostile work environment could have accrued on the employee s last day of active employment, but not on the date of her resignation. Following this analysis, the hostile work environment itself may be sufficient discriminatory conduct to support a claim. The Court found only that the plaintiff in Magee could not support her allegation of discrimination beyond her last day of active employment. The Supreme Court reaffirmed the Magee holding in Garg, supra, 472 Mich at 284-285. In that case, the plaintiff filed suit alleging discrimination and retaliation. The defendant moved for partial summary disposition, arguing that some of the plaintiff s allegations were barred by the three-year limitations period under MCL 600.5805(1) and (10). The trial court denied the motion on the basis of the continuing violations doctrine of Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986), overruled in Garg, supra at 284. 3 Id. at 270. On appeal, the Court stated: MCL 600.5827 provides that a claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results. Thus, 5805 requires a plaintiff to commence an action within three years of each adverse employment act by a defendant. Section 5805 does not say that a claim outside this three-year period can be revived if it is somehow sufficiently related to injuries occurring within the limitations period. Rather, the statute simply states that a plaintiff shall not bring a claim for injuries outside the limitations period. Nothing in these provisions permits a plaintiff to recover for injuries outside the limitations period when they are susceptible to being characterized as continuing violations. To allow recovery for such claims is simply to extend the limitations period beyond that which was expressly established by the Legislature. [Id. at 282 (footnote omitted).] Accordingly, the Court overruled Sumner and held that an action under the CRA must be filed within three years of the date that the cause of action accrued. Id. at 284. In this case, plaintiff is not alleging continuing violations, but rather that the hostile work environment was itself a violation of her civil rights. In this light, specific events such as the noose event are triggering events that fuel the hostile work environment, not isolated or isolatable incidents the effects of which may be measured in a vacuum. The aftermath of each 3 The continuing violations doctrine allowed recovery for incidents occurring outside the applicable three-year limitations period where an employee challenges a series of allegedly discriminatory acts so sufficiently related as to constitute a pattern where only one of the acts occurred within the limitation period. Meek v Michigan Bell Tel Co, 193 Mich App 340, 344; 483 NW2d 407 (1992). -4-
such event, including the employer s response to it or lack thereof, is as much a part of the environment as each triggering event itself. That such events may happen and happen repeatedly evidences the ongoing nature of the racial tension in the workplace. As such, the hostile environment is one violation from the first day that a reasonable person in plaintiff s position, given the totality of the circumstances, would have felt the work environment was hostile or intimidating to the last day, which is this case was the last day of active employment. The discrete hostile acts in this case, including events so overtly racial as the display of a noose in the workplace, exemplify the work environment. The employer s response to such events defines the work environment. On these facts, daily interaction with the perpetrators of such conscience-shocking behavior may itself be event enough for a reasonable person to find his or her employment substantially interfered with, the very definition of a hostile work environment. The testimony of Mr. Jedeon indicates that there was a racial tension that always existed in defendant s plant. Plaintiff testified that the racially hostile work environment which she was subject to continued until her on-the-job mental breakdown which occurred on her last day of active employment. Taking the testimony in the light most favorable to the nonmoving party, the cause of action arose on the last day of her employment. Plaintiff s last day of active employment was September 14, 2001. Thus, the last day plaintiff was subjected to this hostile work environment was September 14, 2001. Plaintiff filed her complaint within three years of September 14, 2001; the trial court therefore correctly found the claim was timely filed. I would affirm. /s/ Jessica R. Cooper -5-