GARG v. MACOMB COUNTY COMMUNITY MENTAL HEALTH SERVICES
Case Details
- Citation
- 472 Mich. 263
- Judge(s)
- Taylor, C.J., and Corrigan and Young, JJ., concurred with MARKMAN, J.; KELLY, J., concurred with CAVANAGH, J.; KELLY, J., concurred with WEAVER, J.
- Procedural Posture — the stage the case had reached
- appeal
- State
- Michigan
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Michigan Supreme Court reversed the jury's retaliation verdict, finding insufficient evidence that plaintiff opposed sexual harassment or that retaliation was based on filing a grievance. The court overruled the continuing violations doctrine and remanded for entry of judgment in favor of defendant.
Excerpt
GARG v MACOMB COUNTY COMMUNITY MENTAL HEALTH SERVICES Docket No. 121361. Argued November 9, 2004 (Calendar No. 1). Decided May 11, 2005. Amended 473 Mich 1205. Sharda Garg, a person of Asian Indian ancestry, brought an action in the Macomb Circuit Court against Macomb County Community Mental Health Services, her employer, alleging violations of the Civil Rights Act, MCL 37.2101 et seq., specifically that she was denied promotions and subjected to poor treatment because of national-origin discrimination and in retaliation for engaging in activities protected by the act. A jury awarded damages, finding retaliation but not discrimination. The court, Roland L. Olzark, J., entered a judgment consistent with the verdict and denied the defendant’s motion for judgment notwithstanding the verdict or a new trial. The Court of Appeals, Griffin, EJ, and Meter and Kelly, JJ., affirmed in an unpublished opinion per curiam, issued March 29, 2002 (Docket No. 223829). The Supreme Court granted the defendant’s application for leave to appeal. 469 Mich 1042 (2004). In an opinion by Justice Markman, joined by Chief Justice Taylor, and Justices Corrigan and Young, the Supreme Court held: The plaintiff failed to present sufficient evidence that she was subjected to retaliation either for her alleged opposition to sexual harassment or for filing a grievance claiming national-origin discrimination. The judgment of the Court of Appeals must be reversed and the matter must be remanded to the trial court for entry of a judgment in favor of the defendant. 1. There is insufficient evidence either that plaintiff opposed sexual harassment or that defendant knew that plaintiff was engaged in opposition to sexual harassment in the workplace. The plaintiff claimed that she observed a supervisor sexually harass women in the workplace and that she engaged in activity protected by the Civil Rights Act by opposing such harassment in striking an unknown person who had touched her back and who turned out to be the same supervisor. However, the supervisor was not sexually harassing the plaintiff when she struck him, the plaintiff never characterized her reaction to the touching as opposing sexual harassment until she filed her action, and the plaintiff never told or gave any indication to the supervisor or anyone else that striking the supervisor was an act of opposing sexual harassment. 2. The “continuing violations” doctrine of Sumner v Goodyear Tire & Rubber Co, 427 Mich 505 (1986), which allows consideration of acts falling outside the three-year limitations period of MCL 600.5805(1) and (10) applicable to actions under the Civil Rights Act, is inconsistent with the statute of limitations and must be overruled. 3. The plaintiff engaged in activity protected by the Civil Rights Act in filing a grievance alleging violation of the act. The defendant was aware of this activity. However, absent evidence of acts occurring outside the period of limitations, the plaintiff failed to establish a causal link between the filing of the grievance and the subsequent alleged adverse employment actions. There is no evidence to suggest any distinction between denials of promotion by the supervisor who received the grievance and by other supervisors who were not aware of the grievance. Also lacking was evidence that the plaintiff was treated any differently at work by the supervisor who received the grievance and by other supervisors who were not aware of the grievance. Reversed and remanded to the circuit court. Justice Cavanagh, joined by Justice Kelly, dissenting, agreed with the majority’s conclusion that there was insufficient evidence of retaliation based on the plaintiffs alleged opposition to the sexual harassment of her coworkers, but disagreed with the conclusion that the plaintiff presented insufficient evidence that she was retaliated against for filing a grievance. Further, Sumner should not be overruled and the continuing violations doctrine should not be abolished. The majority also erred in concluding that because the continuing violations doctrine no longer applies, evidence of prior acts must be excluded from consideration. In this case, the continuing violations doctrine should be applied and should result in a conclusion that all of the adverse employment actions taken by the defendant against the plaintiff are actionable. A review of the four principles to be considered before established precedent is overruled, as detailed in Pohutski v City of Mien Park, 465 Mich 675, 694 (2002), shows that none of the factors weighs in favor of overruling Sumner and abolishing the continuing violations doctrine. Even if Justice Cavanagh were to agree with the majority that the continuing violations doctrine is no longer viable, the natural consequence of abolishing that doctrine is not to exclude untimely acts from consideration. Rather, abolishing the doctrine simply means that untimely acts are not actionable. Justice Weaver, joined by Justice Kelly, dissenting, agreed with the reasoning and conclusions in Justice Cavanagh’s dissenting opinion. She wrote separately to state that she is not persuaded that the unanimous adoption of the continuing violations doctrine in Sumner v Goodyear Tire & Rubber Co, 427 Mich 505 (1986), was unwarranted or that the doctrine should be abandoned. 1. Civil Rights — Employment Discrimination — Retaliation. A plaintiff seeking to establish a prima facie case of unlawful employment-related retaliation under the Civil Rights Act must show that the plaintiff engaged in a protected activity, that this was known by the defendant, that the defendant took an employment action adverse to the plaintiff, and that there was a causal connection between the protected activity and the adverse employment action (MCL 37.2701). 2. Civil Rights — Employment Discrimination — Limitation of Actions — Continuing Violations Doctrine. The continuing violations doctrine announced in Sumner v Goodyear Tire & Rubber Co, 427 Mich 505 (1986), which allows consideration of acts falling outside the three-year limitations period of MCL 600.5805(1) and (10) applicable to actions under the Civil Rights Act, is inconsistent with the language of the statute of limitations and may no longer be applied. Pitt, Dowty, McGehee, Mirer & Palmer, PC. (by Beth M. Rivers and Robert W. Palmer), and Monica Farris Linkner and Allyn Carol Ravitz for the plaintiff. Kitch Drutchas Wagner DeNardis & Valitutti (by Susan Healy Zitterman and Karen B. Berkery) for the defendant. Amici Curiae: Michael A. Cox, Attorney General, and Susan I. Leffler, Ron D. Robinson, and Suzanne D. Sonneborn, Assistant Attorneys General, for the Michigan Civil Rights Commission and the Department of Civil Rights. Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Patrick J. O’Brien and Heather S. Meingast, Assistant Attorneys General, for the Attorney General. Sachs Waldman, PC. (by Mary Katherine Norton), for the Michigan State AFL-CIO, the Michigan Trial Lawyers Association, and the Michigan Employment Lawyers Association. MARKMAN, J. We granted leave to appeal to consider whether there was sufficient evidence to support plaintiffs 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 period is removed from consideration, there was insufficient evidence of retaliation based on either plaintiffs 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 for entry of a judgment in favor of defendant. In so holding, we 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 plaintiffs cross-appeal. i. pacts and procedural history Plaintiff Sharda Garg is of Asian Indian ancestry. She began her employment as a staff psychologist with 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 where plaintiff worked, had during 1981 engaged in what plaintiff characterized as “sexually harassing” behavior with female coworkers. Specifically, plaintiff observed Habkirk pull one coworker’s bra strap and snap the elastic panties 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 an office corridor, felt someone’s hand touch her upper back, near her shoulder. Plaintiff reacted as follows: “I felt somebody touching me, and I just turned around and swung at him.” She farther observed, “it was a very automatic reaction on my part.” It was only after she hit this person that she realized it was Habkirk whom she had hit. She and Habkirk stared at each other for a moment before she proceeded into her office. Plaintiff did not 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 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,” plaintiffs 1983 performance review was downgraded to “satisfactory.” It was also at this point that plaintiff applied for several job promotions, in each case unsuccessfully. The 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 unsuccessfully for four more promotions. Plaintiff was denied a total of eighteen promotion opportunities, including eleven during the period of 1983 through 1987. During this period, Habkirk always served in plaintiffs chain of command. Once at a dinner party with plaintiffs immediate supervisor, Robert Slaine, plaintiffs husband asked why plaintiff had not been promoted. Slaine responded that, in his opinion, it was because Habkirk did not like plaintiff. Slaine denied making this statement, and Habkirk denied telling Slaine that he disliked plaintiff. In 1986, Kent Cathcart was chosen by Habkirk as the new program director in plaintiffs facility. However, little changed for plaintiff because she failed to receive any of the next three promotions for which she applied. In December 1986, she was denied a promotion in favor of a contract employee with less seniority. Following this rejection in February 1987, plaintiff filed her first promotion-related grievance with the 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 promotion-related 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 Cathcart, and was denied without investigation. Plaintiff 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. Specifically, she claims that Cathcart, and the two supervisors who succeeded Cathcart after plaintiff was transferred to defendant’s First North facility in 1995, treated her “in a degrading and humiliating manner.” Plaintiff claims that Cathcart would criticize her for not participating in agency activities, but would then deny her requests to participate in meetings, conferences, and 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.” Plaintiff also testified that Cathcart once chastised 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. Cathcart also refused to give her keys to the facility. Finally, when she moved to First North, plaintiff was given an office that was formerly a storage closet. The office was uncarpeted and had no windows. In addition, it was located next to a bathroom, forcing plaintiff to hear “people defecating and urinating” throughout the day. Plaintiff was assigned to this office despite her seventeen years of seniority and the 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 plaintiffs 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 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. Cathcart denies making any of these 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 national-origin discrimination and were in retaliation for engaging in activities protected by the aGt. 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. MCL 600.5805(1) and (10). Defendant moved for partial summary disposition on that 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. However, the jury also found that defendant had retaliated against plaintiff because she “opposed sexual harassment or because she filed a complaint or charge about being discriminated against.” The jury awarded plaintiff $250,000 in damages. Defendant filed a motion for judgment notwithstanding the verdict or a new trial. The trial court noted that “physical acts can convey a message better than words,” and that plaintiffs physical response to the touching by Habkirk was sufficient to inform defendant that she opposed Habkirk’s sexually harassing behavior. The trial court further held that sufficient evidence was presented to allow a reasonable juror to find a causal connection between plaintiffs 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. Unpublished opinion per curiam of the Court of Appeals, issued March 29, 2002 (Docket No. 223829). The Court of Appeals held that the “continuing violations” doctrine allowed the introduction of factual allegations going back more than three years before plaintiff filed her lawsuit and thus the statute of limitations was not a bar to the facts plaintiff presented to the jury. With regard to the merits, the Court of Appeals held that when plaintiff struck Habkirk, a reasonable juror could have concluded that she “ ‘raise[d] 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 such argument, we granted defendant’s application for leave to appeal, directing briefing 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). Reversal is permitted only if the evidence, while viewed 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 review de novo. Jenkins v Patel, 471 Mich 158, 162; 684 NW2d 346 (2004). 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. Instead, the issue is whether defendant retaliated against plaintiff specifically for conduct on her part protected by the Civil Rights Act. MCL 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 Plaintiffs first theory is that defendant retaliated against her because she 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 ba
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