RYMAL v. BAERGEN
Case Details
- Citation
- 262 Mich. App. 274
- Judge(s)
- Before: KELLY, PJ., and MURPHY and NEFF, JJ.; Neff, J., concurred.
- Procedural Posture — the stage the case had reached
- appeal
- State
- Michigan
- Circuit
- 6th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Court of Appeals reversed in part the trial court's summary judgment for defendants on plaintiff's sexual harassment and retaliation claims, finding genuine issues of material fact sufficient to survive summary disposition. The court held that a supervisor can be individually liable for retaliation under the CRA, though not for sexual harassment claims. The court also reversed the disqualification of Clark's counsel, finding no conflict of interest.
Excerpt
RYMAL v BAERGEN Docket Nos. 243795, 248124. Submitted March 9, 2004, at Detroit. Decided June 8, 2004, at 9:05 A.M. Penny Rymal brought an action against Herman Baergen, MTD Systems, Inc., Clark Products, Inc., and Clark Foodservice, Inc., in the Macomb Circuit Court, alleging quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliation in violation of the Civil Rights Act (cra), MCL 37.2101 et seq., as well as a claim for wrongful withholding of sales commissions, MCL 600.2961. At the time of the alleged conduct, the plaintiff and Baergen were employed by Clark Products and Clark Foodservice (collectively Clark), and Baergen was her supervisor. Also, during that time, the plaintiff and Baergen were working for MTD, and Baergen was the plaintiffs supervisor. Clark entered into a financial settlement with the plaintiff with respect to all claims. Baergen and MTD, however, filed a motion for summary disposition with respect to all the plaintiffs claims. The circuit court, Mary A. Chrzanowski, J., granted summary disposition in favor of Baergen on the basis that there could not be individual, supervisor liability for sexual harassment, sex discrimination, or retaliation under the cra, and the plaintiff failed to establish her retaliation claim against MTD because she failed to show that she engaged in a protected activity and that, if she did participate in a protected activity, the plaintiff failed to show that there was a causal connection to MTD’s employment action against her. Regarding the claims of sexual harassment and hostile work environment against MTD, the court held that the plaintiff failed to show that her rejection of defendant Baergen’s sexual proposition was a factor in MTD’s employment action against the plaintiff or that the rejection created an intimidating, hostile, or offensive work environment. Finally, with respect to the wrongful withholding of sales commissions claim, the court ruled that the plaintiff failed to prove she acted as a sales representative for MTD. The plaintiff appealed only the court’s rulings on her quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliation claims. As a related matter, before the settlement between Clark and the plaintiff, Baergen and MTD brought a cross-motion against Clark that sought to disqualify Clark’s counsel for a conflict of interest. Baergen and MTD claimed that during the initial procedural aspects of the litigation, Clark’s counsel also represented Baergen and MTD, and that subsequent events established that Clark’s interests were materially adverse to those of Baergen and MTD, and Clark’s counsel used privileged information obtained during the common representation against the defendants with respect to Clark’s cross-claim against Baergen and MTD. Therefore, a conflict of interest existed, which Baergen and MTD did not waive, and required the disqualification of Clark’s counsel. After an evidentiary hearing, the court granted Baergen and MTD’s cross-motion. Clark filed an appeal. The plaintiffs appeal and Clark’s appeal were consolidated. The Court of Appeals held: 1. The circuit court erred, in part, in ruling on the basis of the decision in Jager v Nationwide Truck Broker, Inc, 252 Mich App 464 (2002), that the CRA precludes any claim of individual liability under the CRA. The Jager ruling must be kept in its context. To the extent that Jager addressed specifically the antidiscrimination provision in the CRA, MCL 37.2202, along with MCL 37.2103(i), and considered the terms “employer” and “agent” to reach the conclusion that the CRA provides only for employer liability, and that a supervisor engaging in prohibited activity could not be held individually liable for violating a plaintiffs civil rights, that decision supports the circuit court’s ruling that Baergen could not be held individually hable for sexual harassment claims asserted by the plaintiff. The Jager decision does not extend to support the circuit court’s decision that Baergen could not be held individually hable for retaliation under the CRA, MCL 37.2701, because the Jager Court did not address the unambiguous language used in that section, and that Court’s broad brush language is not implicated with respect to the antiretabation provision, § 2701. Section 2701 clearly prohibits a “person” from retaliating against another person who opposes a violation of the CRA, and MCL 37.2103(g), for purposes of the entire CRA, defines a “person” to include an “individual” like Baergen. 2. The circuit court erred by granting summary disposition of plaintiffs claims of sexual harassment and hostile work environment against MTD and of her claim of retaliation against Baergen on the basis of an insufficiency in the documentary evidence. The plaintiff submitted sufficient documentary evidence to show a significant causal connection between a protected activity and the alleged quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliatory acts. In this regard, Baergen’s actions toward the plaintiff while at Clark is circumstantial evidence available to support her claims against the defendants because Baergen was the significant actor for both Clark and MTD, and work for MTD was conducted on Clark premises, using Clark assets and employees, and while on the clock for Clark. The documentary evidence showed that the plaintiff and Baergen worked together, in an employee-supervisor relationship, at Clark, that they worked together to launch and run MTD, that Baergen propositioned the plaintiff, that the plaintiff rejected the sexual advance, and that Baergen, after the rejection of the sexual advance, initiated a campaign of hostility towards the plaintiff and made adverse decisions with respect to the plaintiffs job duties, responsibilities, and pay. Further, the plaintiff complained to a Clark executive that Baergen was harassing her and being abusive and discriminatory, but the executive failed to meet with the plaintiff as he had promised. 3. There is a factual issue with respect to the plaintiffs claim of quid pro quo sexual harassment against MTD sufficient to survive summary disposition, in particular, whether the plaintiffs rejection of Baergen’s advances was a significant factor in the adverse employment decisions respecting the plaintiff. The documentary evidence shows that there was a close temporal proximity between the rejection of the sexual overture and the reduction of the plaintiffs duties for MTD and pay. Also, there was extensive evidence showing a significant causal connection between the verbal abuse after the rejection, a letter written by Baergen that could be construed as threatening, and Baergen’s adverse employment actions against the plaintiff with respect to her work for MTD. 4. There is a factual issue, sufficient to survive a motion for summary disposition, with respect to the plaintiffs claim of a hostile work environment at MTD. There is sufficient evidence to show a hostile environment based on the abusive behavior closely following the plaintiffs rejection of Baergen’s unwelcome communication and based on Baergen’s numerous sexually oriented comments and questions directed at the plaintiff. For the purpose of establishing a hostile MTD work environment, evidence of Baergen’s conduct and communications that occurred on Clark premises could be considered because there was evidence that MTD work was regularly conducted on Clark premises, and Baergen was the significant supervisory actor for both Clark and MTD. 5. There is sufficient evidence to survive summary disposition in regard to the plaintiffs retaliation claim against Baergen and MTD. With respect to Baergen, there was a close temporal proximity between the plaintiffs complaint to the Clark executive and Baergen’s verbal abuse and adverse employment actions directed at the plaintiff, whether related to MTD or Clark, which together with Baergen’s letter threatening retribution provided circumstantial evidence of a significant causal connection to the adverse employment actions sufficient to show that any reasons for those employment decisions were a pretext. Similarly, with respect to MTD, although the evidence is more attenuated, when the totality of the circumstances are considered, there is a connection between the complaint to the Clark executive and the reduction in the plaintiffs MTD duties and pay. 6. The plaintiffs complaint to the Clark executive was a protected activity under the CRA even though she did not specify the sexual nature of Baergen’s conduct. Regardless of the plaintiffs failure to formally invoke the protection of the cra, her claims of demeaning conduct, harassment, and discrimination by a male boss when made to the executive, who was an attorney, created a factual issue concerning whether she raised the specter of a discrimination complaint and was engaged in protected activity. 7. Clark has standing to challenge the circuit court’s order disqualifying its counsel on the basis of a conflict of interest. Although Clark settled the litigation with the plaintiff, Clark’s right to select counsel has been invaded and therefore it is an aggrieved party to the circuit court’s order. The order of disqualification was not limited just to the current litigation, but precluded counsel from representing Clark in any matter against the defendants. Consequently, if Clark failed to challenge the order, the doctrine of collateral estoppel would require in any future litigation that Clark’s counsel be disqualified. 8. Clark’s counsel limiting its representation of the defendants to filing an answer and affirmative defenses was proper. MRPC 1.2(b). 9. The circuit court erred by finding that there was a conflict of interest. Clark’s counsel obtained Baergen and MTD’s consent to continue representing Clark after consultation in accordance with MRPC 1.9. Clark’s counsel fully explained the nature of the limited representation and that continuing representation required a lack of any conflict of interest with Clark. Baergen signed an agreement providing that if a conflict were discovered, counsel could continue to represent Clark. While the consent was given before the conflict was discovered, the agreement fully anticipated that event. Also, although counsel did not discuss any specific conflict of interest, Baergen was aware of MTD and its activities and his noncompete agreement with Clark when he executed the agreement approving Clark’s continued representation by counsel in the event of a conflict. Finally, there was no evidence that counsel used confidential information obtained during the limited representation to the disadvantage of Baergen and MTD because Clark’s cross-claim against them was filed several months after the limited representation ceased and after Baergen’s deposition testimony. Therefore, Baergen and MTD failed to meet their burden of proving grounds for disqualification. Affirmed in part, reversed in part, and remanded for further proceedings. Kelly, J., concurred in part and dissented with respect to the majority’s decision that the circuit court erred in granting summary disposition of the plaintiffs retaliation claim against Baergen and MTD. The plaintiffs fairly cursory complaint used the term “retaliation” merely to describe the sexual discrimination that violated the CRA. Although there is no requirement that a complaint contain a specific statutory reference to MCL 32.2701 in order to put the defendants on notice of a retaliation claim, the plaintiff failed to allege that she engaged in a protected activity or that there was a causal connection between that activity and the adverse employment action. With respect to MTD, the plaintiffs contact with the Clark executive was not protected activity. She never indicated that she was being sexually harassed, and generic nonsex-based allegations are insufficient to raise the specter of unlawful discrimination under the CRA. The plaintiff also failed to show that her participation in a protected activity was a significant factor in the adverse employment action. Baergen’s conduct, which had preceded the plaintiffs contact with the Clark executive and which had begun after the plaintiffs rejection of defendant Baergen’s sexual proposition, merely continued in a similar and like fashion after that contact. Thus, the evidence indicates that the adverse employment action was directly attributable to the rejection. In the context of employment discrimination, articles 2 and 7 of the CRA do not permit actions for retaliation against an individual. The Jager decision affects the application of article 7 of the CRA within the context of employment discrimination. The use of the term “person” in MCL 37.2701 must be viewed in light of its purpose in the CEA as a whole. Article 7 uses the term “person” because it protects people in pursuance of claims brought under the other articles of the CRA, i.e., against employers, places of accommodation, educational institutions, persons engaged in real estate transactions, etc. Therefore, the use of the term “person” in article 7 in relation to a claim brought under article 2, which prohibits employers from discriminating, must be construed to apply only to an employer. This conclusion is buttressed by the observation that, in the context of this case, a retaliation claim cannot exist independently of a discrimination claim brought under article 2. Because article 2 does not permit a sexual harassment claim against an individual, article 7 likewise cannot provide a cause of action for retaliation against an individual. Civil Rights - Civil Rights Act - Retaliation - Employer and Individual Liability. The antiretaliation provision of the Civil Rights Act defines the term “person” to include an individual; therefore, a plaintiff can bring a cause of action against her supervisor, individually, for retaliation for the plaintiffs opposition to a violation of the act, or for making a charge, filing a complaint, testifying, assisting, or participating in an investigation, proceeding, or hearing under the act (MCL 37.2701). Mazur, Morgan, Meyers & Kittel, PLLC (by Linda M. Galante and Courtney E. Morgan, Jr.), for Penny Rymal. Vercruysse Murray & Calzone, PC. (by Daniel J. Bernard and Susan Hartmus Hiser), for Herman Baergen and MTD Systems, Inc. Butzel Long, EC. (by Marcia L. Proctor) and Kienbaum, Opperwall, Hardy & Pelton, P.L.C. (by Elizabeth Hardy and Robert Bruce Brown), for Clark Products, Inc., and Clark Foodservice, Inc. Before: KELLY, PJ., and MURPHY and NEFF, JJ. MURPHY, J. In Docket No. 248124, plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendants Herman Baergen and MTD Systems, Inc., with respect to plaintiffs claims of sexual harassment and retaliation in the workplace brought pursuant to the Civil Rights Act (CRA), MCL 37.2101 et seq. In Docket No. 243795, defendants Clark Products, Inc., and Clark Foodservice, Inc., (hereinafter collectively referred to as Clark) appeal by leave granted an order disqualifying Clark’s counsel for a conflict of interest. Because there exists genuine issues of material fact in regard to all of plaintiffs claims against defendants Baergen and MTD, and because Baergen can be held individually liable solely for the retaliation claim in spite of this Court’s decision in Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464; 652 NW2d 503 (2002), we affirm in part and reverse in part the grant of summary disposition in Docket No. 248124 and remand for further proceedings. Because there was a lack of evidence showing a conflict of interest or improper use of confidential information requiring disqualification, and because Baergen expressly consented to counsel’s continued participation should a conflict be discovered, we reverse the order disqualifying Clark’s counsel in Docket No. 243795. I. FACTUAL ALLEGATIONS and PROCEDURAL HISTORY A. PLAINTIFF’S COMPLAINT On July 26, 2001, plaintiff filed a two-count complaint against all defendants. The complaint alleged that plaintiff commenced her employment with Clark in 1983 as an accounts receivable manager. She later became an office manager, assistant division manager, acting division manager, and subsequently, in 1993, a sales manager. Baergen was an employee-supervisor of Clark having authority over plaintiff. During plaintiffs and Baergen’s tenure with Clark, they formed MTD Systems, which plaintiff refers to as her employer, along with Clark. MTD is in the business of picking up movies from distribution points and delivering the movies to various theaters. Plaintiff alleged that in October 1999, Baergen propositioned plaintiff to have a sexual relationship, and she declined. Shortly thereafter, Baergen asked plaintiff to sign a noncompete agreement that would reflect a promise not to engage in any business that was competitive with Clark. Plaintiff alleged that the request was an act of harassment and was made because of plaintiffs refusal to comply with Baergen’s sexual advances. Plaintiff did not sign the noncompete agreement. Further, plaintiff averred that, beginning in November 1999, Baergen started reassigning plaintiffs duties to other persons. These duties included creation of advertisements, approval of vacation requests, and assignment of new account leads to sales people. Additionally, plaintiff alleged that Baergen removed her as liaison with several customers, thereby interfering with sales commissions, questioned her about her work hours, and pressured plaintiff to relinquish her management position. Moreover, Baergen became verbally abusive and once became so enraged, because he thought plaintiff was on the phone too long, that he punched a wall in plaintiffs office, requiring him to seek medical attention. Plaintiff averred that Baergen started accusing her of having sexual relations with customers to obtain their business and that she spent her lunch hours having sex with various men. The complaint alleged that in January 2000, plaintiff demanded a sales review and a formal description of her job duties and responsibilities in response to a complaint that she was inadequately performing, but Baergen refused. It was asserted that plaintiff contacted a Clark executive about her ongoing problems with Baergen and that the executive promised to, but did not, meet with plaintiff. After this failed attempt by plaintiff to rectify the situation, Baergen refused to pay an expense voucher for plaintiff and removed her expense account entirely. Her duties were lowered to those of an administrator. Plaintiff additionally averred that the claimed reasons for these actions were that, on March 1, 2000, she had been demoted to a sales person. In July 2000, Baergen informed plaintiff that the sales manager job was given to a male. Plaintiff alleged that she left her employment on July 27, 2000, as she had been constructively discharged. We note that with respect to the alleged retaliatory actions, discriminatory practices, and other events, plaintiffs complaint does not distinguish whether the actions were in the context of her employment with Clark or MTD Systems. Count I of the complaint, which is fairly cursory, asserted a cause of action predicated on the CRA. The count provided, in relevant part: 22. Plaintiff was sexually harassed and retaliated against by defendants’ agent and employee, Defendant Baergen, throughout the course of her employment. 23. This sexual harassment and retaliation included, but is not limited to, unwelcome comments and conduct of an offensive and sexual nature directed at plaintiff, the creation of a hostile work environment, as described herein[,] and constructively terminating plaintiff s employment and withholding pay commissions due to her, based on her refusal to engage in a sexual relationship .... Count II of the complaint alleged violations of
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