BRANDON BRIGHTWELL V FIFTH THIRD BANK OF MICHIGAN
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STATE OF MICHIGAN
COURT OF APPEALS
BRANDON BRIGHTWELL,
UNPUBLISHED
April 9, 2009
Plaintiff-Appellee,
v
No. 280820
Wayne Circuit Court
LC No. 07-718889-CZ
FIFTH THIRD BANK OF MICHIGAN,
Defendant-Appellant.
SHARON CHAMPION,
Plaintiff-Appellee,
v
No. 281005
Wayne Circuit Court
LC No. 07-718890-CZ
FIFTH THIRD BANK OF MICHIGAN,
Defendant-Appellant.
Before: Talbot, P.J., and Bandstra and Gleicher, JJ.
GLEICHER, J. (dissenting).
I respectfully dissent. In my view, proper venue lies in Wayne County.
The lead opinion concludes that “defendants’ alleged [Civil Rights Act] violation
occurred in Oakland County where it made the decision to terminate plaintiff’s employment.”
Ante at 3. But a decision to terminate a plaintiff’s employment does not suffice to create a claim
under the Civil Rights Act (CRA). “Simply put, a claim for discriminatory discharge cannot
arise until a claimant has been discharged.” Collins v Comerica Bank, 468 Mich 628, 633; 664
NW2d 713 (2003). In Collins, our Supreme Court held that a CRA claimant’s cause of action
did not arise on the day that the defendant suspended her, but only when it “terminated” or
“discharged” her. Id. at 634.
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Here, defendant’s Oakland County personnel investigated plaintiffs and ultimately
elected to terminate plaintiffs’ Wayne County employment.1 But these Oakland County actions
did not violate the CRA, and are not the focus of plaintiffs’ complaints. Rather, plaintiffs’ CRA
claims arise from their actual employment discharge, which occurred in Wayne County.
Accordingly, I believe that the circuit courts correctly denied defendant’s change of venue
motions.
The venue provision of the CRA sets forth that an action seeking damages for racial
discrimination “may be brought in the circuit court for the county where the alleged violation
occurred, or for the county where the person against whom the civil complaint is filed resides or
has his principal place of business.” MCL 37.2801(2). This Court first considered the CRA’s
venue provision in Barnes v Int’l Business Machines, 212 Mich App 223; 537 NW2d 265
(1995). The plaintiff in Barnes performed “some work” in Wayne County. Id. at 226. But
because the plaintiff failed to demonstrate that “any of the allegedly discriminatory decisions
were made in Wayne County,” this Court held that venue was properly laid in Oakland County,
the location of the defendants’ Michigan corporate headquarters. Id. at 225-226. In her
concurring opinion, Judge Helene White observed, in relevant part,
I join in the opinion per curiam but write separately to state that I do not
do so on the basis that venue of a civil rights action is proper only in the county
where the discriminatory decision is made. Discrimination also “occurs,” MCL
38.2801 . . . , in the county where the decision is implemented and the
discrimination is inflicted. [Id. at 227.]
Judge White further explained that because Wayne County was not the “locus” of the plaintiff’s
employment, the defendants’ discriminatory decisions were not implemented there and no
discrimination was “inflicted” in that county. Id.
This Court next considered the CRA’s venue provision in Keuhn v Michigan State Police,
225 Mich App 152; 570 NW2d 151 (1997). The plaintiff in Keuhn worked for the Michigan
State Police in Livingston County, and he filed suit there alleging that the defendant failed to
promote him based on his race. Id. at 153. Relying on Barnes, the defendant sought a change of
venue to Ingham County, the location of its headquarters. Id. at 154-155. The circuit court
denied the defendant’s motion to change venue to Ingham County, and the defendant appealed.
This Court rejected the defendant’s claim that venue was proper only in Ingham County,
noting that the defendant’s promotional process incorporated decisions made at the Livingston
County state police post and at the defendant’s Ingham County headquarters. We distinguished
the plaintiff in Keuhn from the plaintiff in Barnes as follows:
1
Defendant maintains a “regional office” in Oakland County. Its principal place of business is
located in Kent County.
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Here, plaintiff contends that venue is proper in Livingston County because
the allegedly discriminatory promotional process included decisions made in that
county, not merely because damages from the discrimination resulted in that
county.
Indeed, plaintiff’s complaint is not limited to allegations of
discrimination against him alone but alleges that defendant engaged in a pattern or
practice of discriminating against white males. Therefore, the actions giving rise
to the alleged liability in this matter include both the recommendation made by
the post commander in Livingston County and the final approval given in Ingham
County. Accordingly, given these facts, venue in Livingston County is proper.
[Id. at 155.]
In both Barnes and Keuhn, this Court determined venue by identifying the county in
which an allegedly discriminatory decision had been made. Notably, however, in neither case
did this Court critically examine whether venue might have been proper in the county “where the
alleged [CRA] violation occurred.” MCL 37.2801(2). In my view, this Court’s previous
decisions construing the CRA’s venue provision, including Barnes and Keuhn, have not strictly
adhered to the clear, unambiguous statutory text, which requires that venue lie in the county
“where the alleged violation occurred.” MCL 37.2801(2). By concluding that venue may
properly lie in a county that contains neither the defendant’s principal place of business, the
location in which the plaintiff actually worked, or the site of the adverse employment action, the
instant majority also fails to conform its analysis to the statutory language.
Our Supreme Court provided the appropriate analytical framework in an analogous case
involving venue, Dimmitt & Owens Financial, Inc. v Deloitte & Touche (ISC), LLC, 481 Mich
618; 624; 752 NW2d 37 (2008). Dimmitt involved MCL 600.1629(1), a venue statute applicable
in tort actions. The Supreme Court instructed in Dimmitt that in construing a venue provision,
“our primary obligation is to discern legislative intent as reflected in the plain language of the
statute.” Id. at 624. The statutory language construed in Dimmitt permits venue in the county
where the “original injury occurred.” MCL 600.1629(1)(a), (b). In reaching its decision, the
Supreme Court in Dimmitt closely examined the “original injury” language selected by the
Legislature, and painstakingly distinguished an “injury” from a breach of the standard of care.
Dimmitt teaches that we must follow the basic rules of statutory interpretation, focusing carefully
on the statutory text, when construing venue statutes. “When the language of a statute is
unambiguous, the Legislature’s intent is clear, and judicial construction is neither necessary nor
permitted.” Id.
The plain language of the CRA’s venue provision permits a plaintiff to file suit “where
the alleged violation occurred.” The venue statute at issue here thus requires this Court to apply
the term “violation,” and not “decision” or “potential violation.” The CRA directs that an
employer “shall not … discharge or otherwise discriminate against an individual with respect to
employment … because of … race[.]” Therefore, a “violation” of the CRA occurs only when a
plaintiff suffers “an adverse employment action under circumstances giving rise to an inference
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of discrimination,” Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347, 359; 597
NW2d 250 (1999)(emphasis supplied).2
Contrary to Judge Talbot’s characterization of my reasoning, I do not “rely” on the
holding in Dimmitt, the substance of the tort venue statute, or Judge White’s concurring opinion
in Barnes. Rather, I rely solely on the unambiguous language of MCL 37.2801(2), construed in
a manner consistent with the analytical method prescribed by our Supreme Court in Dimmitt.
Our Legislature decreed that venue lies in the county where a CRA “violation” occurs. This
Court and our Supreme Court have repeatedly emphasized that a CRA violation is an adverse
employment action.3 The adverse employment actions in these cases occurred in Wayne
County.
Although defendant apparently formulated its decision to terminate plaintiffs’
employment at its regional headquarters in Oakland County, it discharged plaintiffs in Wayne
County.4 The CRA simply does not proscribe the employment-related investigation defendant
conducted in its Oakland County office, or the decisions made in the same location. These
undertakings, standing alone, do not constitute adverse employment actions or violations of the
2
A review of this Court’s decision in Wilcoxon exposes the majority’s analytical error. The
plaintiff in Wilcoxon asserted that considerations of race motivated the defendant employer’s
decision to transfer the plaintiff to a different job. This Court accepted as true the plaintiff’s
claim that her employer made a racially-motivated decision to effect a job transfer. But this
Court held that the employer’s transfer decision did not violate the CRA because the plaintiff
could not prove that the transfer constituted an adverse employment action. Id. at 363. In
Wilcoxon, this Court described that an adverse employment action is “materially adverse in that
it is more than mere inconvenience or an alteration of job responsibilities,” and must exhibit
“some objective basis for demonstrating that the change is adverse” that goes beyond “subjective
impressions.” Id. at 364 (internal quotation omitted). Under Wilcoxon, the instant plaintiffs
possess no cause of action based on their employers’ discussions, investigations or plans because
those activities simply do not constitute adverse employment actions.
3
I respectfully disagree with Judge Talbot’s analysis linking the statutory venue provision with
the evidence necessary to establish a prima facie case of discrimination. The direct evidence test
and a burden shifting analysis are evidentiary tools relating to proof of a CRA violation. But
“discriminatory animus,” standing alone, does not violate the CRA, and neither does a decision
to discriminate motivated by discriminatory animus. An employer violates the CRA only be
effectuating an improperly motivated decision. An employer’s discriminatory thoughts, ideas,
plans, plots and conclusions fall entirely beyond the reach of the law—until they are translated
into an action that violates the CRA.
4
Regarding Brightwell, the circuit court found, “Mr. Brightwell’s permanent place of
employment it appears was in the City of Detroit on Jefferson Avenue as an assistant bank
manager and the termination, he was terminated from that position while there . . . .” Plaintiffs’
counsel asserted that defendant fired Champion while she was at her home in Wayne County.
Defendant’s representative attested in his affidavit that defendant formulated its decisions to fire
plaintiffs at its headquarters in Oakland County, but made no claim that defendant actually
discharged plaintiffs there.
-4-
CRA. Because defendant violated the CRA only by actually terminating plaintiffs, not by
considering, discussing, or investigating their termination, venue properly rested in Wayne
County, the location of both allegedly wrongful discharges. Consequently, the circuit courts did
not clearly err by denying defendant’s motions to change venue. I would affirm.
/s/ Elizabeth L. Gleicher
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