REBECCA RENE MILLER V GRUBERS VALUE WORLD
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STATE OF MICHIGAN
COURT OF APPEALS
REBECCA RENÉ MILLER,
UNPUBLISHED
March 30, 1999
Plaintiff-Appellant,
v
No. 202201
Monroe Circuit Court
LC No. 96-004586 CZ
GRUBERS VALUE WORLD, INC.,
and JAMES A. GRUBER,
Defendants-Appellees.
Before: MacKenzie, P.J., and Gribbs and Wilder, JJ.
PER CURIAM.
Plaintiff, who was denied access to a public New Year’s Eve party hosted by defendants,
appeals as of right from an order granting defendants’ motion for summary disposition. We affirm.
The trial court indicated that it granted the motion under MCR 2.116(C)(8) and (C)(10). Since
the court relied on materials outside the pleadings, however, we will review the ruling under the
standards applicable to MCR 2.116(C)(10); Driver v Hanley (After Remand), 226 Mich App 558,
562; 575 NW2d 31 (1997). We review de novo a trial court’s grant of summary disposition under
MCR 2.116(C)(10). Pinckney Community Schools v Continental Casualty Co, 213 Mich App
521, 525; 540 NW2d 748 (1995). Like the trial court, we look at the entire record, view the evidence
in favor of the nonmoving party, and decide if there exists a relevant issue about which reasonable minds
might differ. Id. If, as in the instant case, the nonmoving party would bear the burden of proof at trial,
that party, in order to avoid summary disposition, must provide documentary evidence showing the
existence of a disputable issue. Quinto v Cross & Peters, 451 Mich 358, 362; 574 NW2d 314
(1996).
Plaintiff argues that questions of fact existed regarding whether defendants discriminated against
her on the basis of gender. She alleges that defendants violated § 302 of the Civil Rights Act, MCL
37.2302; MSA 3.548(302), which provides, among other things, that persons may not be excluded
from places of public accommodation because of their gender. To establish a viable claim under § 302,
plaintiff had to provide evidence of intentional discrimination, disparate treatment, or disparate impact.
See Schellenberg v Rochester Elks, 228 Mich App 20, 32; 577 NW2d 163 (1998), and Koester v
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Novi, 458 Mich 1, 19-20; 580 NW2d 835 (1998). As discussed infra, plaintiff provided evidence for
none of these theories.
To establish a case of intentional discrimination under § 302, plaintiff had to show: (1) that she
was a member of a protected class; (2) that she was discriminated against at a place of public
accommodation; (3) that defendants were predisposed to discriminate against persons in the class; and
(4) that defendants acted upon that disposition when the discrimination occurred. Schellenberg, supra
at 33. The parties do not dispute that plaintiff, as a female, was a member of a protected class. Nor do
they dispute that the hall at which the New Year’s Eve party took place was a “place of public
accommodation” under § 302. However, plaintiff produced no evidence that defendants were
predisposed to discriminate against females or that they acted upon that disposition when denying
plaintiff access to the hall. She showed only that defendants may have had a predisposition to
discriminate against persons, like plaintiff, who had sued them in the past. Such persons do not
constitute a protected class, and plaintiff therefore did not establish a viable intentional discrimination
case.
To establish a case of disparate treatment under § 302, plaintiff had to show that she was a
member of a protected class and that she was treated differently than a man for the same or similar
conduct. Id. Plaintiff did not show that she was treated differently than a similarly situated man. She
presented no evidence that men who had sued defendants in the past were allowed into the hall on New
Year’s Eve. Although she claimed that such men existed, this claim was insufficient to combat a motion
for summary disposition under MCR 2.116(C)(10), since a party opposing a (C)(10) motion, in order
to avoid dismissal of the case, must provide documentary evidence of a relevant, disputable issue.
Quinto, supra at 358. Thus, plaintiff did not establish a viable disparate treatment case. Nor did she
establish a viable disparate impact case, which, in the present context, requires a showing that a facially
neutral policy impacted females more severely than males. Koester, supra at 19-20. Plaintiff did not
show that defendants’ apparent policy of excluding former litigants from their hall affected females
differently than males. The trial court properly granted summary disposition in favor of defendants with
regard to plaintiff ’s sex discrimination claim.
Next, plaintiff argues that the trial court erred in granting defendants’ motion for reconsideration
regarding her intentional infliction of emotional distress claim. The court had previously denied
defendant's motion for summary disposition on this claim, and plaintiff believes that because the motion
for reconsideration raised no new issues and demonstrated no error, it should have been denied. We
review a trial court’s decision to grant or deny a motion for reconsideration for an abuse of discretion.
In re Beglinger Trust, 221 Mich App 273, 279; 561 NW2d 130 (1997). The trial court indicated that
it granted the motion because it presented a dispositive legal issue that defendants had earlier failed to
raise. Although defendants briefly mentioned the issue in question – that they had a right, as a private
business and private business owner, to exclude persons from their premises as long as no statutes were
violated – during oral arguments on their summary disposition motion, they did not raise it in the motion
itself or in the supporting brief. They did, however, discuss it thoroughly in their motion for
reconsideration. This thorough discussion likely alerted the court to a possible error in its ruling, and,
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consequently, the court did not abuse its discretion in granting the reconsideration motion. See MCR
2.119(F)(3).
Nor did the court err in granting defendants summary disposition with respect to the intentional
infliction of emotional distress claim. For such a claim to be viable, plaintiff had to show that defendants'
conduct was extreme, outrageous, and beyond all possible bounds of decency. Haverbush v
Powelson, 217 Mich App 228, 233-234; 551 NW2d 206 (1996). Here, there was no evidence that
defendant James Gruber did anything other than tell plaintiff that she had to leave the hall. This act, as a
matter of law, could not support an intentional infliction of emotional distress claim. The claim was
properly dismissed.
Finally, plaintiff argues that the trial court should have granted her motion to amend her
complaint to allege a violation of the Michigan Equal Accommodations Act, MCL 750.146, 750.147;
MSA 28.343; MSA 28.344. We review a trial court’s grant or denial of a motion to amend for an
abuse of discretion. Jenks v Brown, 219 Mich App 415, 420; 557 NW2d 114 (1996). A viable
claim under the Equal Accommodations Act required, in the context of this case, a showing that
defendants discriminated against plaintiff because of her gender. Ferrell v Vic Tanny, 137 Mich App
238, 246; 357 NW2d 669 (1984). As discussed earlier, plaintiff failed to present evidence that
defendants denied her access to the hall because she was a female. Accordingly, the proposed
amendment would have been futile, and the trial court therefore did not abuse its discretion in denying
the motion to amend. Jenks, supra at 420.
Affirmed.
/s/ Barbara B. MacKenzie
/s/ Roman S. Gribbs
/s/ Kurtis T. Wilder
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