Harassment Cases

Temporary Restraining Order—Preliminary Injunction—Motion for Directed Verdict—Abuse of Process. Plaintiffs (collectively, ART) provided training, seminars, and business support software for healthcare professionals specializing in "active release techniques." ART's owner hired Xtomic, LLC to manage ART's information technology (IT) services and provide IT support. Years later, a co-owner of Xtomic and a former employee of ART, among others, formed Select Seminar Services, LLC to market seminar training for a different soft tissue technique than that offered by ART, using software programs that Xtomic had developed, including a program that ART also used. ART petitioned for a temporary restraining order and preliminary injunction and asserted several claims. Xtomic asserted counterclaims, including, as relevant here, a claim for abuse of process. Xtomic argued that ART had an ulterior motive to use the lawsuit as a means to harass Xtomic and run it out of business. ART moved for a directed verdict, which the court denied, relying primarily on (1) ART's settlement with the former employee (2) ART's reputation for filing lawsuits to control the behavior of former associates and business partners and (3) letters that ART sent to numerous individuals who were not directly involved in the litigation to preserve various documents. A jury found in favor of Xtomic. On appeal, ART contended that the trial court erred by denying its motion for a directed verdict on Xtomic's abuse of process counterclaim. The abuse of process tort was developed as a remedy for the filing of what could be a meritorious action that is manipulated to obtain an improper advantage unrelated to the substance of the action. Abuse of process focuses not on the alleged wrongdoer's motivations or intentions, but on whether the legal system was used for its intended purpose. Here, ART's settlement with the former employee was not evidence of abuse of process because the settlement was used as intended, t

Emma Gyulakian vs. Lexus of Watertown, Inc., & another. Middlesex. March 10, 2016. August 24, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Employment. Sexual harassment. Anti-Discrimination Law. Sex, Attorney’s fees. Practice. Civil. Judgment notwithstanding verdict. Damages. Punitive. In a civil action alleging that the plaintiff employee had been subjected to a sexually hostile or offensive work environment, the evidence was sufficient to permit the jury to conclude that the behavior to which the plaintiff had been subjected was subjectively offensive, in that it was sufficiently pervasive to alter the conditions of her employment, causing her to suffer emotional distress and interfering with her work performance; and objectively offensive, in that the behavior to which she had been subjected would have interfered with a reasonable person’s work performance [295-296]; further, the judge did not err in instructing the jury regarding compensatory damages [297]. In a civil action, the defendant did not waive the opportunity to challenge the imposition of punitive damages, where the defendant’s motion for a directed verdict, which challenged the sufficiency of the evidence as to a finding of liability, encompassed the potential for punitive damages. [299-300] In a civil action alleging that the plaintiff employee had been subjected to a sexually hostile or offensive work environment, the imposition of punitive damages was appropriate, where the employer was on notice of the harassment, in that members of the employer’s senior management were aware of the sexually hostile or offensive work environment at the organization, and in that the employer was directly put on notice when the plaintiff, on the day of her termination, informed senior management about her supervisor’s conduct [300-301]; where the employer failed to take steps to investigate and remedy the situation, in that there was sufficient evidence on which the jury could find that members of the employer’s management failed to conduct an adequate investigation after being made aware of the supervisor’s reported harassment [301-304]; and where the employer’s failure to take adequate remedial measures after being notified of the harassing conduct was outrageous or egregious, in that, independent of the supervisor’s conduct, the employer acted intentionally or with reckless disregard for the employee’s rights under the discrimination laws [304-305], This court, having reinstated an award of punitive damages in a civil action alleging sex discrimination in employment, concluded further that the trial judge, in granting a motion for judgment notwithstanding the verdict on the issue of punitive damages, had erred in reducing the plaintiff employee’s award of attorney’s fees. [305] Civil action commenced in the Superior Court Department on January 10, 2013. The case was tried before Kimberly S. Budd, J., and postverdict motions for relief were considered by her. The Supreme Judicial Court granted an application for direct appellate review. Robert S. Mantel1 (Lori A. Jodoin also present) for the plaintiff. Christopher J. Sullivan (Tory A. Weigand also present) for the defendants. The following submitted briefs for amici curiae: Rebecca Pontikes, Katherine Skubecz, Michaela C. May & Chetan Tiwari for Massachusetts Employment Lawyers Association & others. Afton M. Templin for Women’s Bar Association of Massachusetts. Ben Robbins & Martin J. Newhouse for New England Legal Foundation & another. Elizabeth S. Dillon for Massachusetts Defense Lawyers Association. Post Motors, Inc., doing business as Lexus of Watertown. Justice Cordy participated in the deliberation on this case and authored this opinion prior to his retirement. Justices Spina and Duffly participated in the deliberation on this case prior to their' retirements. Cordy, J. In December, 2014, a jury rendered a verdict in favor of the plaintiff, Emma Gyulakian, finding that she had been subjected to a sexually hostile or offensive work environment, in violation of G. L. c. 15IB (c. 15 IB), § 4 (§ 4). The jury, having heard evidence tending to establish that Gyulakian suffered relentless sexual harassment by her direct supervisor, Emmanuel Ferreira, found that the defendants, Lexus of Watertown, Inc., and Post Motors, Inc. (collectively, Lexus), were liable for $40,000 in compensatory damages for emotional distress, and, concluding that Lexus acted intentionally or with reckless disregard for Gyu-lakian’s rights under the discrimination laws, also awarded Gyulakian $500,000 in punitive damages. Lexus filed a motion for judgment notwithstanding the verdict (judgment n.o.v.), or, in the alternative, for a new trial or a remittitur. A judge of the Superior Court allowed the defendant’s motion for judgment n.o.v. in part, denying the motion with respect to the jury’s imposition of compensatory damages but allowing it as to the award of punitive damages. Gyulakian appealed on the issue of punitive damages, and Lexus cross-appealed from the award of compensatory damages. We allowed Gyulakian’s application for direct appellate review and affirm the award of compensatory damages. We also reverse the trial judge’s ruling as to the punitive damages award, because, based on the evidence at trial, the jury could have found that, independent of the conduct of harassment engaged in by its supervisory employee, Lexus failed to take adequate remedial measures after being put on notice of a sexually hostile or offensive work environment, and that that failure was outrageous or egregious. The jury’s award of punitive damages is reinstated, and the matter remanded for consideration of Lexus’s motion for re-mittitur. 1. Factual and procedural background. The jury could have found the following., a. Gyulakian’s employment. Gyulakian was an employee of Lexus from 2003 through January 4, 2012, when her employment was terminated. Between June, 2010, and the end of her employment at Lexus, Gyulakian acted as a finance manager, during which time Ferreira was her direct supervisor. Ferreira, Lexus’s finance director, was responsible for assigning hours, vacations, and work flow, and would carry out performance evaluations for all of the finance managers. Ferreira recommended Gyulakian for the finance manager position, and was included in the decision to fire her. Despite Gyulakian’s success in her role as finance manager, her employment at Lexus was terminated at a meeting on January 4, 2012, because, as Vincent Liuzzi, Lexus’s general manager, testified, Gyulakian’s relationship with her coworkers had deteriorated. While in that meeting, Gyulakian reported to Liuzzi and Michael O’Connell, Lexus’s general sales manager, that, during her tenure in the finance department, Ferreira sexually harassed her and cultivated a sexually hostile or offensive work environment. Gyulakian also reported the same conduct to human resources manager Tammy Grady-Brown later that day. Prior to the day on which her employment was terminated, Gyulakian had not reported the harassment to Liuzzi or Grady-Brown. She had, however, informed Tony Bruno, an assistant general sales manager and Ferreira’s supervisor, on multiple occasions about various sexually offensive incidents over the course of the previous eighteen months. After Gyulakian was terminated, Lexus purportedly conducted an investigation, which uncovered no corroboration of her allegations, and Ferreira was not disciplined. b. The sexual harassment policy. At all relevant times, Lexus had a sexual harassment policy in place, and held trainings for employees and supervisors on that policy. The policy read: “Any employee that feels that (s)he is a victim of sexual harassment should immediately report such actions in accordance with the following procedure. All complaints will be promptly and thoroughly investigated.” The reporting guidelines instruct employees to “report the situation to either [Liuzzi] ... or [Grady-Brown].” The policy allows that “[i]f an employee prefers not to discuss the matter with these individuals, (s)he may go directly to any other member of management.” There is no definition in the policy regarding who qualifies as “any other member of management.” c. The alleged discrimination. The jury heard evidence that Ferreira had, since Gyulakian became a finance manager, habitually and graphically sexually harassed her, and that she was working in an otherwise sexually hostile or offensive work environment. By way of example, Ferreira would often comment on Gyulakian’s “nipples,” “boobs,” and “ass.” Ferreira asked Gyu-lakian if they would one day sleep together so he could actually see her breasts. At a sexual harassment training, Ferreira commented to Gyulakian about how harassment sounds like “her ass.” Gyulakian testified that the sexually charged comments would come on an almost daily basis. The assaults were also physical in nature, as Ferreira once violated Gyulakian’s personal “no touching” rule by touching her buttocks, and, on other occasions, Ferreira would attempt to throw coins down Gyulakian’s blouse. At one point, Gyulakian witnessed Ferreira, O’Connell, and Bruno looking at naked photographs of Gyulakian’s coworker on the coworker’s cellular telephone. On another occasion, Robert Silvester, the former Lexus office manager, circulated a memorandum regarding Ferreira’s inappropriate behavior after he heard Ferreira discussing anal intercourse in the office. d. Procedural background. Gyulakian commenced this action against Lexus on January 10, 2013, asserting four claims under G. L. c. 15IB, §4, for harassment based on sex and national origin, on the grounds that she was subjected to a hostile work environment because of her (1) sex and (2) national origin; (3) retaliation and unlawful threats for complaining of that hostile work environment; and (4) termination on an impermissible basis. At the close of Gyulakian’s evidence, Lexus unsuccessfully moved for a directed verdict. The motion did not specifically challenge the imposition of punitive damages. Over Lexus’s objection, the special verdict slip presented to the jury included a punitive damages question. The jury returned a verdict in favor of Gyulakian on the sexually hostile or offensive work environment claim, awarding Gyulakian $40,000 in compensatory damages and $500,000 in punitive damages. The jury returned verdicts in favor of Lexus on the remaining claims. Lexus filed a motion for judgment n.o.v. or, in the alternative, for a new trial or a remittitur, requesting, among other things, that the judge set aside or decrease the awards of compensatory and punitive damages. The motion for judgment n.o.v. was allowed as to the award of punitive damages and denied as to the compensatory damages. The judge concluded that an employer “may not be vicariously liable for punitive damages” under G. L. c. 15 IB based purely on the actions of its supervisory personnel, and that the jury were not provided with sufficient evidence of outrageous or egregious behavior by Lexus. Gyulakian appealed from the judge’s decision to set aside the award of punitive damages, and Lexus cross-appealed, arguing that the evidence did not support a finding of any liability and its motion for judgment n.o.v. should have been allowed as to the award of compensatory damages. 2. Discussion. a. Lexus’s cross appeal. Lexus argues that Gyulakian’s evidence was insufficient to warrant compensatory damages because it did not show that her work performance suffered as a result of the harassment or that the harassment altered the conditions of her employment. Lexus also argues that the judge erred in failing to include a question on the special verdict form asking whether the plaintiff’s suffering was caused by the harassment. We are not persuaded by either contention. i. Sufficiency of the evidence. It is unlawful ‘“[f]or an employer, personally or through its agents, to sexually harass any employee.” G. L. c. 15 IB, § 4 (16A). Sexual harassment is defined as ‘“sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” G. L. c. 15 IB, § 1 (18), as amended through St. 1987, c. 473, § 2. Chapter 15IB, § 4 (1), “applies not only to hiring, firing, and compensation, but also to the ‘terms, conditions or privileges of employment.’ ” College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 162 (1987) (College-Town). Compensatory damages incurred based on the actions of supervisory personnel who create a sexually hostile or offensive work environment can be imputed to the employer. See id. at 165-166. To prevail on a claim of sexual harassment based on the creation of a sexually hostile or offensive work environment, the plaintiff bears the burden of establishing that the conduct alleged was both “subjectively offensive” and “sufficiently severe and pervasive to interfere with a reasonable person’s work performance.” Dahms v. Cognex Corp., 455 Mass. 190, 205 (2009), quoting Muzzy v. Cahillane Motors, Inc., 434 Mass. 409, 411, 412 n.2 (2001). See College-Town, 400 Mass. at 162. A sexually hostile or offensive work environment is one that is “pervaded by harassment or abuse,” resulting in “intimidation, humiliation, and stigmatization” that poses a “ ‘formidable barrier’ to the plaintiff’s full participation in the workplace” (citation omitted). Pelletier v. Somerset, 458 Mass. 504, 523-524 (2010). Considering the evidence in the light most favorable to the plaintiff, the record is rife with evidence from which the jury could have concluded that the behavior to which Gyulakian was subjected was both objectively and subjectively offensive. Ferreira’s unwanted sexual attention came on a daily basis and to such a degree that during her tenure under Ferreira, Gyulakian was forced to implement a “no-touching” rule in order to keep her supervisor at bay. From this evidence, the jury could infer that Ferreira’s conduct, over a period of eighteen months, “was sufficiently pervasive to alter the conditions of [Gyulakian’s] employment, and thus created a sexually harassing working environment.” College-Town, 400 Mass. at 162. In any event, the evidence was sufficient to support a finding that the discrimination to which she was subjected caused her to suffer emotional distress, interfered with her work performance, and would have interfered with a reasonable person’s work performance, thus resulting in a “formidable barrier” to her full participation in the workplace. See Esler v. Sylvia-Reardon, 473 Mass. 775, 780 (2016), quoting Phelan v. May Dep’t Stores Co., 443 Mass. 52, 55 (2004); Pelletier, 458 Mass. at 523-524; Haddad v. Wal-Mart Stores, Inc. (No. 1), 455 Mass. 91, 93 n.3 (2009); Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 570-571, cert. denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm’n Against Discrimination, 543 U.S. 979 (2004). ii. Jury instructions. Lexus asserts that the trial judge committed material error in not including a separate special question on the special verdict form regarding whether Gyulakian sufficiently proved that her suffering was caused by Ferreira’s harassment. The jury were properly charged as to the law. The judge instructed the jury that no damages could be awarded for injuries not “conducted by one of the employer[’]s supervisors.” The special verdict form also asked the following questions: (1) “Do you find that Ms. Gyulakian was subjected to an unlawful hostile work environment?” and (2) “What amount of damages, if any, do you find were caused by the unlawful hostile work environment?” The jurors checked the box indicating “Yes” as to the first question, and determined that the hostile work environment caused $40,000 worth of damages. The implication of the trial judge’s instruction, supplemented by the questions on the special verdict form, is that Lexus could not be liable for damages but for its supervisor causing the sexually hostile or offensive work environment. The trial judge did not err in denying the defendant’s motion for judgment n.o.v. as to the jury’s award of compensatory damages. b. Scope of punitive damages. This case puts at issue the scope of an employer’s liability for punitive damages when its employee creates a sexually hostile or offensive work environment. Gyulakian argues that punitive damages are warranted against Lexus on two grounds: first, that Lexus should be punishable based on the actions of its supervisory personnel, regardless of whether Lexus was aware of that conduct; and, second, that, after being notified of the harassment, Lexus’s failure to take sufficient steps to remedy the discrimination should be punishable. As to Gyulakian’s first proposed source of punitive damages, we are not persuaded that a supervisor’s creation of a sexually hostile or offensive work environment alone is sufficient to warrant the imposition of punitive damages on the employer. Punitive damages are intended to fulfil a prophylactic purpose, and serve little benefit when imposed on an employer for the actions of a supervisory employee where that supervisor’s discriminatory transgressions were unknown to the employer. See Haddad, 455 Mass. at 110-111 (punitive damages only imposed for knowing violations and “outrageous or egregious” conduct); Pine v. Rust, 404 Mass. 411, 415 (1989) (“Punitive damages are not favored in Massachusetts . . . ”); Restatement (Second) of Agency § 217C (1958). In determining whether to impose punitive damages against an employer based on its supervisory employee’s creation of a sexually hostile or offensive work environment, the scope of our inquiry is independent of the direct actions of that employee, and considers whether the employer’s response, once it is on notice of the offensive behavior, was sufficient to address the complained-of harassment. Whether a plaintiff is entitled to punitive damages from his or her employer on the basis of being exposed to a sexually hostile or offensive work environment created by one of its employees is therefore a two-step inquiry. We consider first whether the employer was on notice of the harassment and failed to take steps to investigate and remedy the situation; and, second, whether that failure was outrageous or egregious. See Haddad, 455 Mass. at 110., i. Waiver. Before we reach the issue whether Lexus is liable for punitive damages, we must consider if Lexus waived the opportunity to challenge the imposition of punitive damages when it did not specifically move for a directed verdict on the issue. The trial judge concluded that the issue was not waived because Lexus raised the propriety of imposing punitive damages on an imputed basis under G. L. c. 15 IB while challenging the availability of such damages on the special verdict form. Motions for judgment n.o.v. are governed by Mass. R. Civ. P. 50 (b), as amended, 428 Mass. 1402 (1998). They are allowed “only when a motion for directed verdict has been made at the close of evidence.” Bonofiglio v. Commercial Union Ins. Co., 411 Mass. 31, 34 (1991). A motion for a directed verdict must “state the specific grounds therefor.” Mass. R. Civ. P. 50 (a), 365 Mass. 814 (1974). Because a motion for judgment n.o.v. is “technically a revised motion for a directed verdict, no grounds for the motion for judgment [n.o.v.] may be raised which were not asserted in the directed verdict motion.” Bonofiglio, supra. This requirement “is an important one,” as it “allows the judge knowingly to rule on the question before him [or her], and it allows the opposing party an opportunity to rectify any deficiencies in its case — or, more p

Kamee Verdrager vs. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., & others. Suffolk. November 5, 2015. May 31, 2016. Present: Botsford, Duffly, Lenk, & Hines, JJ. Anti-Discrimination Law, Employment, Sex, Termination of employment. Employment, Discrimination, Sexual harassment, Demotion, Retaliation, Termination. Unlawful Interference. Practice, Civil, Summary judgment, Discovery. In a civil action brought by an attorney (plaintiff) against the law firm that employed her and certain individuals in that firm (defendants), alleging discrimination on the basis of gender, the judge erred in granting summary judgment in favor of the defendants, where the plaintiff presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination [396-405], as well as evidence allowing an inference that both were the result of retaliation [405-410]. This court concluded that an employee’s acts of self-help discovery in aid of claims under G. L. c. 151B, § 4, might constitute protected activity under that statute, but only if the employee’s actions are reasonable in the totality of the circumstances; further, this court concluded that where the plaintiff in a civil action alleging discrimination in employment is an attorney, such that some of the documents at issue might be subject to the rules of attorney-client confidentiality and privilege, the plaintiff’s acts of self-help discovery are not thereby stripped of the protections afforded other employees by G. L. c. 151B; finally, this court set forth seven factors to be taken into account in an analysis of the reasonableness of self-help measures in the totality of the circumstances. [410-415] In a civil action alleging tortious interference with contractual relations, the judge properly granted summary judgment in favor of the defendant on the ground that the claim was time barred because the relevant acts took place more than three years before the complaint was filed, where the proper vehicle for the plaintiff’s claim would have been the administrative procedure provided in G. L. c. 151B. [415] Civil action commenced in the Superior Court Department on November 3, 2009. The case was heard by Peter M. Lauriat, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Kamee Verdrager, pro se. Joan A. Lukey (.Justin J. Wolosz also present) for the defendants. Ellen J. Messing, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation & another, amici curiae, submitted a brief. Robert Gault, David Barmak, Bret Cohen, R. Robert Popeo, and Donald Schroeder. Lenk, J. General Laws c. 151B, § 4, prohibits employers from discriminating against employees on the basis of gender. It also prohibits them from retaliating against employees for engaging in “protected activity,” i.e., activity undertaken “to protest or oppose statutorily prohibited discrimination” (citation omitted). See Thirkield v. Neary & Hunter OB/GYN, LLC, 76 F. Supp. 3d 339, 350 (D. Mass. 2015) (interpreting G. L. c. 151B). Here, we are asked to determine whether summary judgment should have entered for the employer on an employee’s claims for gender discrimination and retaliation. In addressing the retaliation claim, we confront the novel question whether it is “protected activity” for an employee to search for, copy, and share with the employee’s attorney confidential documents that the employee is authorized to access in the course of employment and that may help prove a discrimination claim. The plaintiff is an attorney who worked for a Boston law firm, defendant Mintz, Levin, Ferris, Cohn, Glovsky and Popeo, P.C. (firm). During the course of her employment with that firm, from June, 2004, to November, 2008, she complained to her superiors and, ultimately, to the Massachusetts Commission Against Discrimination (MCAD) that she was being subjected to discriminatory treatment on the basis of her gender — treatment that, she believed, led to her demotion in February, 2007. In the wake of this demotion, and on the advice of her attorney, the plaintiff searched the firm’s document management system for items that might prove her assertions of discrimination. In November, 2008, after these searches were made known to the firm’s chairman, the plaintiff’s employment was terminated “for cause.” In November, 2009, the plaintiff filed the present action in the Superior Court, which, as amended, named as defendants the firm, certain firm “members” with whom she worked, and the firm’s chairman, R. Robert Popeo. The complaint alleged that both the plaintiff’s demotion and her termination were the result of discrimination on the basis of gender, and that both also constituted retaliation for her having opposed such discrimination. The complaint specified five counts pursuant to G. L. c. 151B, § 4: gender discrimination (against all defendants except Bret Cohen); pregnancy discrimination (against the firm); aiding and abetting discrimination (against all except the firm and Cohen); failure to investigate and remedy discrimination (against the firm); and retaliation (against all except Cohen). A sixth count, tortious interference with contractual relations, was filed only against Cohen, who was not named in any of the other counts. The defendants then counterclaimed on various grounds. Following cross motions for summary judgment, only three of the defendants’ counterclaims survived, and all of the plaintiff’s claims were dismissed. The plaintiff appealed from the dismissal of her claims, and we allowed her petition for direct appellate review. We conclude, first, that the plaintiff has presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination, as well as evidence allowing an inference that both were the result of retaliation. Therefore, summary judgment for the defendants on those counts was inappropriate. Second, we hold that an employee’s accessing, copying, and forwarding of documents may, in certain limited circumstances, constitute “protected activity,” but only where her actions are reasonable in the totality of the circumstances. Finally, we conclude that judgment was entered properly on the claim against Cohen for tortious interference with contractual relations. 1. Background. We summarize the facts, which are generally undisputed, “drawing inferences in favor of the plaintiff where they may reasonably be drawn from the facts.” Young v. Boston Univ., 64 Mass. App. Ct. 586, 587 (2005), cert. denied, 549 U.S. 832 (2006). To the extent that facts are disputed, we resolve them in favor of the plaintiff. See Miller v. Cotter, 448 Mass. 671, 676 (2007). We reserve certain details for later discussion. After graduating from law school in 1999, the plaintiff practiced employment and labor law in New York. In June, 2004, she began work as a fifth-year associate at the firm’s Boston office, in its employment, labor, and benefits (ELB) section. Throughout the course of the plaintiff’s employment, the firm had in place an “Electronic Information System [EIS] Acceptable Use Policy” (EIS policy). On June 16, 2004, the plaintiff signed a copy of that policy and agreed to be governed by its provisions. The plaintiff was trained in the use of DeskSite, a document management system used by the firm, at the beginning of her employment. She was told that she “was supposed to save almost all documents which she authored to the public section of DeskSite” and “was expected to search the system regularly in connection with her work.” Any documents in the “public” section of that system “were available to everyone in the firm who could access DeskSite.” Such documents could be accessed directly or could be found through a general word search of the system’s contents. Users also could choose, however, to save documents in a “private” section of the system, accessible only to themselves or to individuals that they specified. The EIS policy provided that the “EIS should be used, with limited exceptions, only for job-related communications. Although personal use is permitted, employees should do so with the full understanding that nothing is private” (emphasis in original). Associates frequently used DeskSite for personal or nonbusiness reasons, including to check the time records of other associates to see “who was getting the most work.” The firm also had in place a confidentiality policy, which stated that “[a]ll documents, correspondence, forms and other work product created or produced by the firm in connection with the delivery of legal services to the firm’s clients are the sole property of [the firm] and its clients. Such material should not be removed from the office or used for any reason other than for or in connection with the delivery of services on behalf of the firm.” Shortly after joining the firm, in late June and early July, 2004, the plaintiff was assigned to work with Cohen, a member in the ELB section, to draft a brief on behalf of one of the firm’s clients. In an electronic mail message dated July 19, 2004, Cohen stated that the client “has really liked our pleadings to date. Let’s keep up the good work!” Another firm member, who also worked on the brief, later wrote in an evaluation that the plaintiff “not only has a sound command of legal principles but she appears to have great intuition and reaction to legal issues that will make her an excellent advisor to clients and an attorney who has much to contribute to strategic issues in matters. On numerous matters in [this] case she has dropped by my office to discuss an issue and her intuitive response to the issue has been on point and well-considered .... I have not witnessed [her] interaction with clients, but I do know that she has had extensive contact with opposing counsel and the client in [this] matter. My impression is that [the client] has appreciated [the plaintiff’s] counsel and that [she] is well-respected and had ‘run with the ball’ in connection with opposing counsel in the matter .... I would certainly like to work with her again on any matters that involve ELB litigation[.]” The plaintiff maintains that, while Cohen and the plaintiff were working on this brief, he made a number of inappropriate, sexually charged comments to her. At some point in July, 2004, the plaintiff complained of these incidents to the firm’s human resources office. In mid-August, 2004, the plaintiff spoke with, among others, the firm’s managing director, Peter Biagetti, and with the attorney managing the ELB section, defendant Robert Gault, about the incidents. Gault and Biagetti met with Cohen in August, 2004, to discuss the plaintiff’s assertions. Gault and Biagetti concluded that her complaints were “management style complaints” rather than “complaints related to gender differences,” and decided to hire an executive coach to work with Cohen. At some point during that summer, firm chairman Popeo was informed of the plaintiff’s complaints. Popeo spoke with Biagetti and was told that Biagetti had looked into the complaints and had found no evidence of gender-based discrimination. In October, 2004, after a client complained to Cohen about the plaintiff’s performance, Cohen asked the client to submit the complaint in writing, which Cohen then forwarded to Gault, the ELB section manager, and Starr, the director of human resources. Also in October, 2004, various individuals, both members and associates, told the plaintiff that Cohen was making negative remarks about her. In evaluating the plaintiff’s performance in the fall of 2004, Cohen rated it as “usually below expectations.” He wrote that the plaintiff “needs a great deal of help on her writing. She is smart and seems to have a great deal of institutional knowledge but, at least when I dealt with her, was unable to translate her knowledge into a cohesive thought.... Orally, I find that she does not speak with confidence. For example, she says ‘um’ a lot.” The concerns regarding the plaintiff’s writing were echoed in the comments of her other evaluators. Defendant Donald Schroeder, then a senior associate in the ELB section, who would later be promoted to membership, rated the plaintiff’s performance as “always meets expectations.” In his written comments, however, he added that the plaintiff “needs to develop her analytical writing skills and organize her thoughts more clearly on paper.” Gault rated her work as “usually meets expectations” and noted that “I do not have much exposure” to her work but “I’ve seen a few things [in her writing] that suggest a need for more attention to detail.” In January, 2005, Cohen increased the scope of a research project he had assigned to the plaintiff. This project did not count toward her quota of hours billable to clients. Based on conversations she had at the time with her colleagues, the plaintiff maintains that the scope of the nonbillable work assigned to her was greater than that assigned by Cohen to other associates, a point that Cohen disputes. On February 2, 2005, the United States Court of Appeals for the Fourth Circuit upheld a jury verdict in favor of a female employee in the firm’s Virginia office. See Gallina vs. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, U.S. Ct. App., Nos. 03-1883 & 03-1947, slip op. at 12 (4th Cir. Feb 2, 2005) (Gallina). The jury found that, in violation of Federal antidiscrimination laws, the firm had retaliated against the employee for complaining of what she believed to be discriminatory treatment on the basis of her gender. Id. at 8. On February 11, 2005, Cherie Kiser, a member in the firm’s Washington, D.C., office who chaired the firm’s diversity committee, left a voicemail message for Popeo expressing her concern that the firm in general, and section manager Gault, in particular, did not take seriously employees’ complaints of gender discrimination. Popeo later spoke with Kiser, stating his commitment to combatting discrimination based on gender, but suggesting that Kiser was “overreacting” to what “she was hearing from Gault.” In March, 2005, the plaintiff underwent her annual performance review. Among her evaluators were Schroeder and Gault. She received an over-all rating of “always meets expectations” in five competencies, and an over-all rating of “usually meets expectations” in another six competencies. Each evaluator also provided written comments. Gault wrote that the plaintiff “seems very smart but [I] think the writing issues may mask some of her inherent intellectual ability.” Schroeder wrote that “her writing style is too informal” and that “[s]he needs to proofread her work and pay more attention to detail.” Some of the other comments were positive, including a comment from Gault that the plaintiff “[s]eems to have a pretty good substantive knowledge of a lot of general employment law areas” and from Schroeder that she “is very good with clients.” In the fiscal year ending that month, the plaintiff had amassed thirty-three more billable hours per month than the average associate. Also in March, 2005, Starr, the human resources director, and Rosemary Allen, a firm member who oversaw the firm’s personnel matters, received complaints from six women that Cohen had made inappropriate comments to them. After investigating, Starr and Allen concluded that no gender-based discrimination had taken place. On July 20, 2005, Eastern Point Consulting Group, Inc. (Eastern Point), a consulting company hired in the wake of the Gallina case to investigate allegations of discrimination, presented the findings from its investigation to the firm. Among other things, Eastern Point reported that many female attorneys, both members and associates, “believe it is more difficult for women than men at [the firm].” Starr was interviewed in the course of this investigation, and stated that there is a “tolerance for poor behavior” at the firm. In September, 2005, after returning from her honeymoon, the plaintiff informed Gault that she was pregnant with her first child. Gault responded, “Well, I suppose these things happen. I guess we have your honeymoon to blame for this?” He then discussed the possibility of the plaintiff reducing her schedule to part time, although the plaintiff had not sought a reduction in hours or raised the possibility of such a reduction. Subsequently, the plaintiff experienced medical difficulties related to her pregnancy and was placed on short-term disability. Gault and Schroeder exchanged electronic mail messages in January, 2006, and March, 2006, in which each expressed that he was “frustrated” with the plaintiff’s absences and lack of availability. Gault also spoke to the plaintiff’s neighbors and discovered that she was performing work around her house that he did not believe was consistent with the medical conditions she reported. In March, 2006, the plaintiff underwent her second annual performance review. Gault was one of her evaluators. She received over-all ratings of “usually exceeds expectations” in four competencies, “always meets expectations” in six other competencies, and a rating of “usually meets expectations” in the eleventh area, business development. In a written comment, Gault stated, “I noted some areas of substantive knowledge and writing in my last review that needed improvement,” but that he “has seen what seems to be an improvement in her work since her last evaluation.” His main criticism was that “I have not seen any evidence of production potential/entrepreneurial instincts.” Another member wrote “that she spent excessive time on the work” he had assigned her and that her “drafting is not particularly precise.” On the other hand, a firm member from outside ELB wrote positively that “the work [the plaintiff] did was for a very demanding client who set pretty unrealistic expectations, but [she] was able to meet them.” In a separate evaluation dated May 1, 2006, Schroeder wrote, among other things, that the plaintiff’s “writing needs to improve” and that she “did not always communicate [her reduced] schedule to everyone in ELB and I had to handle a number of matters on an emergency basis.” On May 3, 2006, the plaintiff gave birth to her first child. She began a planned six-month maternity leave. In June, 2006, defendant David Barmak replaced Gault as section manager of the ELB section. While the plaintiff was on leave, she was informed that, based on the performance reviews she had received in March, 2006, prior to her leave, she would be subject to another, interim performance review. This review would be based on her performance during the first ninety days after her return from leave. The plaintiff returned to work on November 1, 2006. Thereafter, she registered a relatively low number of billable hours compared to other associates in the ELB section. By early February, 2007, the plaintiff had received two negative reviews of her work. One review criticized her for putting into a contract “poorly drafted language that needed to be redrafted in more conventional form.” The other review, from Schroeder, noted, among other things, that she took “too much time to complete [a writing] task” he had assigned her and that “I had to perform more editing than I normally need to do for memos done by more junior associates.” He also noted that “[d]espite a full-time schedule, she is coming in at 9[:]30 or so and leaving no later than 5[:]30 ... I cannot understand why she has not attempted to step up to the plate.” The plaintiff also received positive comments from a client who “was very complimentary of [the plaintiff] and [her] work.” In or around February, 2007, Allen, the member overseeing personnel matters, told Popeo, the firm chairman, that the senior attorneys in the ELB section had requested that the plaintiff

COTTON v BANKS Docket No. 319001. Submitted February 10, 2015, at Detroit. Decided March 26, 2015, at 9:10 a.m. Tramaine Cotton brought a wrongful-termination suit in the Wayne Circuit Court against the state of Michigan and Brian Banks (a member of the Michigan House of Representatives by whom Cotton had been hired as a legislative assistant). Cotton alleged that Banks terminated his employment because Cotton rejected Banks’s romantic advances. Banks contended that he terminated Cotton’s employment after learning that Cotton had been driving without a valid driver’s license and that a bench warrant had been issued for Cotton’s arrest following his failure to appear at a court hearing related to a traffic violation. Cotton’s suit claimed that Banks discriminated against him on the basis of his sex, demanded sexual favors as a condition of employment, created a hostile work environment, and retaliated against him for reporting Banks’s conduct. Cotton also claimed that Banks’s conduct constituted the tort of intentional infliction of emotional distress. The state moved for summary disposition on the basis that it was not Cotton’s employer for purposes of his civil rights claim and that his intentional tort claim should have been brought in the Court of Claims. Banks claimed that his conduct was protected by the legislative immunity provided under the Speech or Debate Clause of Michigan’s Constitution, Const 1963, art 4, § 11, and moved for summary disposition on that basis. The court, Susan D. Borman, J., denied Banks’s motion and granted the state’s motion for summary disposition. The court also granted Cotton’s motion to amend his complaint to add the House of Representatives as a defendant. Cotton’s amended complaint alleged civil rights violations against Banks and the House of Representatives and one count of intentional infliction of emotional distress against Banks alone. Banks appealed. The Court of Appeals held,'. 1. The trial court erred by determining that the Civil Rights Act, MCL 37.2101 et seq., effectively waived the legislative immunity provided by the Speech or Debate Clause of the Michigan Constitution, Const 1963, art 4, § 11, for certain acts of legislators, because the Civil Rights Act did not expressly and unequivocally state such a waiver. Waiver of the constitutional immunity offered by the Speech or Debate Clause cannot be made by inference. 2. The trial court properly held that Banks was not immune from civil suit under the Speech or Debate Clause because terminating Cotton’s employment did not constitute activity within the legitimate sphere of legislative activity for which the immunity was intended. Banks’s decision to terminate Cotton’s employment was not integral to the legislative process. That is, Banks’s personnel management was not essential to the consideration and passage or rejection of proposed legislation, nor did it involve a matter solely within the jurisdiction of the Legislature. 3. Banks was not protected by the Speech or Debate Clause because his decision to terminate Cotton’s employment was administrative, not legislative, in nature. Whether the absolute immunity provided legislators by the Speech or Debate Clause protects a legislator from civil arrest and civil process for the legislator’s employment decisions does not depend on the nature of an employee’s duties. Rather, the immunity offered by the Speech or Debate Clause depends on whether the legislator is engaged in a true legislative act, not simply an act that has some connection to the legislative process. Trial courts must be careful to distinguish between a true legislative act, and an act that is merely performed by a legislator. 4. The trial court properly denied Banks’s motion for summary disposition, which was based on the ground that he was protected by the absolute immunity found in the Speech or Debate Clause. Banks was not entitled to absolute immunity because analysis of Banks’s alleged misconduct — terminating Cotton’s employment for improper reasons — did not require an investigation into Banks’s legislative activity. 5. The trial court did not err by denying Banks’s motion for summary disposition based on his contention that the Civil Rights Act provided the exclusive remedy for Cotton’s claim of sexual harassment and his consequent allegation of the common-law tort of intentional infliction of emotional distress. The Civil Rights Act did not abrogate Cotton’s right to bring suit against Banks, because the statutory language in the Civil Rights Act contains no reference to legislators, and it does not preclude an action for the intentional infliction of emotional distress even when the same facts could give rise to a statutory violation of the Civil Rights Act. Affirmed. 1. Constitutional Law — Speech or Debate Clause — Legislative Immunity— Waiver. The Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., does not expressly and unequivocally waive the absolute immunity to which a legislator is entitled under the Speech or Debate Clause of the Michigan Constitution, Const 1963, act 4, § 11, and a waiver of the immunity cannot be made by inference. 2. Constitutional Law — Speech or Debate Clause — Legislative Immunity. The Speech or Debate Clause of the Michigan Constitution immunizes a legislator from civil arrest and civil process premised on actions that the legislator took within the legitimate sphere of legislative activity; a legislator’s conduct that is integrally related to the consideration and passage or rejection of proposed legislation or concerns a matter solely within the Legislature’s jurisdiction is engaged in conduct within the legitimate sphere of legislative activity. 3. Constitutional Law — Speech or Debate Clause — Legislative Immunity— Employment Decisions. Whether a legislator is immune from civil arrest and civil process under the Speech or Debate Clause for decisions related to his or her staffs employment does not depend on the nature of an employee’s duties; whether a legislator is entitled to immunity depends on whether the legislator’s conduct constituted a true legislative act and was not merely an act performed by a legislator. 4. Constitutional Law — Speech or Debate Clause — Legislative Immunity— Investigation Into Legislator’s Conduct. A legislator is absolutely immune from civil arrest and civil process when evaluation of the legislator’s conduct would require an investigation into his or her legislative activity. Darryl K. Segars for Trámame Cotton. The Bradley Law Center, LLC (by Avery J. Bradley and Andrea J. Bradley), for Brian Banks. Dickinson Wright, PLLC (by Peter H. Ellsworth, Jeffery V. Stuckey, and Ryan M. Shannon), for the Michigan House of Representatives. Before: SERVITTO, P.J., and STEPHENS and M. J. KELLY, JJ. M. J. KELLY, J. In this employment dispute, defendant Representative Brian Banks of the Michigan House of Representatives appeals by right the trial court’s order denying his motion for summary disposition of the claims by Banks’s former staff member, plaintiff, Tramaine Cotton. The primary issue on appeal is whether Banks has absolute immunity from suit under the Speech or Debate Clause of Michigan’s Constitution for personnel decisions involving those members of his staff who might have involvement in the legislative process. See Const 1963, art 4, § 11. For the reasons fully explained below, we conclude that there were no errors warranting relief. Accordingly, we affirm. I. BASIC FACTS According to Cotton, Banks hired him in January 2013 to serve as a driver. Cotton alleged that, after his hire, Banks continuously expressed his desire to have a dating relationship with him, but Cotton rejected Banks’s advances. After Cotton made it clear that he would not agree to a romantic relationship, Cotton maintained that Banks began to assign him tasks that were beyond the scope of his employment and asked him to work on days he was not supposed to work. Cotton alleged that he was constructively discharged in April 2013. Banks, however, presented a very different version of events in the trial court. Banks stated that he hired Cotton in February 2013 to serve as a legislative assistant and that Cotton’s duties included responding to constituent concerns, attending functions, and driving Banks and other representatives between Detroit and Lansing. Banks claimed that he began proceedings to terminate Cotton’s employment after he learned that Cotton had been arrested for driving on a suspended license and had missed a court date, after which a bench warrant issued for Cotton’s arrest. He stated that Cotton was terminated from his employment in May 2013 for those reasons. In May 2013, Cotton sued Banks and the state of Michigan for wrongful termination. Cotton alleged that Banks violated Michigan’s Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., by discriminating against him on the basis of his sex, by demanding sexual favors as a condition of employment, by creating a hostile work environment, and by retaliating against him. Cotton also alleged that Banks’s sexual harassment constituted the intentional infliction of emotional distress. Cotton alleged that the state, as Banks’s employer, was vicariously liable for Banks’s wrongful conduct. In August 2013, the state moved for summary disposition under MCR 2.116(C)(4) and (10). The State argued that, because employees of the House of Representatives were excluded from state civil service, the State was not Cotton’s employer for purposes of the Civil Rights Act. The state also argued that the circuit court did not have jurisdiction over Cotton’s intentional tort claim — that claim had to be brought in the Court of Claims. Banks moved for summary disposition under MCR 2.116(C)(7) and (8) in September 2013. Banks argued that he was absolutely immune, under MCL 691.1407(5), from claims arising out of his termination of Cotton’s employment. He claimed he was entitled to immunity under an unpublished decision from a circuit court because his decision to terminate Cotton involved an integral part of the legislative process, but Banks did not specifically argue that he had immunity under Const 1963, art 4, § 11. Additionally, Banks argued that the trial court must dismiss Cotton’s claim of retaliation because Cotton did not plead that he reported the alleged sexual harassment to anyone before his discharge. Cotton’s claim for intentional infliction of emotional distress similarly had to be dismissed, Banks stated, because that claim, as alleged, involved wrongful sexual discrimination in employment, and the Civil Rights Act is the exclusive remedy for such a claim. In response, Cotton argued that the Civil Rights Act constitutes an exception to the immunity provided under MCL 691.1407 and, in any event, the acts of sexual harassment were outside the scope of Banks’s authority as a representative. He also maintained that the Civil Rights Act is not the exclusive remedy for the harms occasioned by sexual harassment. Therefore, he argued, the trial court should deny Banks’s motion for summary disposition. In his reply brief, Banks cited Const 1963, art 4, § 11, and for the first time argued that he had absolute immunity from suit under the Speech or Debate Clause of Michigan’s Constitution for any personnel decisions involving his staff. Banks argued that the undisputed evidence — namely the job description for a legislative assistant and copies of correspondence — showed that Cotton’s job duties were integrally related to the legislative process. On that basis, Banks claimed he was immune from liability for his actions related to Cotton’s employment. In October 2013, the trial court held a hearing on the motions. At the hearing, the trial court expressed its belief that the Civil Rights Act created an exception to all governmental immunity, including immunity provided under the Speech or Debate Clause. The trial court also did not believe that Cotton was so integrally related to the legislative process that immunity would apply. As for Cotton’s retaliation claim, the trial court refused to consider Banks’s evidence that Cotton did not report the alleged harassment because Banks’s motion was brought under MCR 2.116(C)(8). See MCR 2.116(G)(5). Additionally, the trial court did not agree that the Civil Rights Act preempted Cotton’s claims for intentional infliction of emotional distress. Finally, the trial court agreed that the state was not Cotton’s employer and that the claims against it should be dismissed. The trial court entered an order granting the state’s motion for summary disposition and dismissed the state without prejudice. It also entered a separate order allowing Cotton to amend his complaint to include the House of Representatives as a defendant. Finally, the trial court entered an order denying Banks’s motion for summary disposition. Cotton soon filed his first amended complaint naming the Michigan House of Representatives as a defendant. In his amended complaint, Cotton alleged that he reported the sexual harassment to his superiors. Cotton again alleged four counts against Banks and the House of Representatives premised on violations of the Civil Rights Act, and a fifth claim of intentional infliction of emotional distress against Banks alone. Banks then appealed in this Court. II. THE SPEECH OR DEBATE CLAUSE A. STANDARDS OF REVIEW Banks first argues that the trial court erred when it denied his motion for summary disposition, which was based on the ground that he was absolutely immune from suit under Const 1963, art 4, § 11. He maintains that Michigan courts should construe Michigan’s Speech or Debate Clause similarly to the federal courts’ construction of the federal Speech or Debate Clause. Relying on federal authority, Banks contends that this Court should conclude that the Speech or Debate Clause applies to bar any claims premised on acts or omissions arising from the legislative process. According to Banks, because his decision to terminate Cotton implicated the legislative process, the trial court should have determined that he had absolute immunity under Const 1963, art 4, § 11. This Court reviews de novo a trial court’s decision on a motion for summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). This Court also reviews de novo whether the trial court properly interpreted and applied Michigan’s Constitution. Wayne Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004). B. CIVIL IMMUNITY UNDER THE SPEECH OR DEBATE CLAUSE Michigan’s Speech or Debate Clause provides legislators with a privilege against civil arrest and civil process during sessions of the Legislature and immunity from liability for their speech in either house: Except as provided by law, senators and representatives shall be privileged from civil arrest and civil process during sessions of the legislature and for five days next before the commencement and after the termination thereof. They shall not be questioned in any other place for any speech in either house. [Const 1963, art 4, § 11.] The purpose of the privilege from civil arrest and civil process, our Supreme Court explained, is “to protect the legislators from the trouble, worry and inconvenience of court proceedings during the session, and for a certain time before and after, so that the State could have their undivided time and attention in public affairs.” Auditor General v Wayne Circuit Judge, 234 Mich 540, 542; 208 NW 696 (1926) (construing Const 1908, art 5, § 8, the predecessor to the present Speech or Debate Clause). Although an unreasonably long period of immunity might result in the denial of due process in an extreme case, the privilege must generally be construed to give effect to the policy which underlies it: to prevent both actual distraction and potential distraction from public duty during the legislative session. Bishop v Wayne Circuit Judge, 395 Mich 672, 677; 237 NW2d 465 (1976). The immunity provision in the Speech or Debate Clause is similarly intended to protect legislators from the distraction of litigation. See Prelesnik v Esquina, 132 Mich App 341, 347; 347 NW2d 226 (1984). Read literally, the clause only provides senators and representatives with immunity for speeches made in either house — that is, from being “questioned in any other place for any speech in either house.” See Const 1963, art 4, § 11. Because Michigan’s Speech or Debate Clause is substantially similar to the Speech or Debate Clause found in the Constitution of the United States, it should be similarly construed. See Prelesnik, 132 Mich App at 347, citing Eastland v United States Servicemen’s Fund, 421 US 491; 95 S Ct 1813; 44 L Ed 2d 324 (1975). The United States Supreme Court has stated that the Speech or Debate Clause was the product of the English experience and was intended to ensure the independence of the legislative branch from interference by the executive branch or a possibly hostile judiciary. Eastland, 421 US at 502. But, the Court noted, it had not limited the protection provided by the Speech or Debate Clause to acts of interference by public officials: The applicability of the Clause to private civil actions is supported by the absoluteness of the term “shall not be questioned,” and the sweep of the term “in any other Place.” In reading the Clause broadly we have said that legislators acting within the sphere of legitimate legislative activity “should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.” Just as a criminal prosecution infringes upon the independence which the Clause is designed to preserve, a private civil action, whether for an injunction or damages, creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks to defend the litigation. Private civil actions also may be used to delay and disrupt the legislative function. Moreover, whether a criminal action is instituted by the Executive Branch, or a civil action is brought by private parties, judicial power is still brought to bear on Members of Congress and legislative independence is imperiled. We reaffirm that once it is determined that Members are acting within the “legitimate legislative sphere” the Speech or Debate Clause is an absolute bar to interference. [Id. at 503 (citations omitted).] Consequently, in the absence of a waiver of the immunity, the Speech or Debate Clause immunizes a legislator from civil suits premised on actions that he or she took within the legitimate sphere of legislative activity. Id. C. WAIVER OF IMMUNITY UNDER THE ELLIOTT-LARSEN CIVIL RIGHTS ACT Banks initially argued that the trial court should dismiss Cotton’s claims because Banks had immunity under MCL 691.1407(5), and Cotton failed to plead in avoidance of that immunity. See Yono v Dep’t of Transp (On Remand), 306 Mich App 671, 682; 858 NW2d 128 (2014) (stating that a plaintiff must plead in avoidance of governmental immunity by alleging facts that, if true, would establish that his or her claim falls within an exception to governmental immunity). Cotton did, however, plead claims under the Civil Rights Act, and our Supreme Court has recognized that the act constitutes an exception to the immunity provided by MCL 691.1407. See Mack v Detroit, 467 Mich 186, 195; 649 NW2d 47 (2002). Banks later asserted before the trial court that he was also entitled to immunity under the Speech or Debate Clause, Const 1963, art 4, § 11. On appeal, Banks has abandoned any contention that MCL 691.1407 immunizes him from claims brought under the Civil Rights Act; instead, he now relies exclusively on the Speech or Debate Clause as the source of his immunity. Defendant Michigan House of Representatives notes that at the hearing on Banks’s motion for summary disposition, the trial court expressed its belief that there was no immunity for a