SHARDA GARG V MACOMB CO COMM MENTAL HEALTH
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 11, 2005
SHARDA GARG,
Plaintiff-Appellee/Cross-Appellant,
v
No. 121361
MACOMB COUNTY COMMUNITY MENTAL HEALTH SERVICES,
Defendant-Appellant/Cross-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal to consider whether there
was sufficient evidence to support plaintiff's 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
consideration,
limitations
there
period
was
is
removed
insufficient
from
evidence
of
retaliation based on either plaintiff's 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
defendant.
In
for
of
a
holding,
so
entry
judgment
we
overrule
in
the
favor
of
"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 plaintiff's crossappeal.
I. Facts and Procedural History
Plaintiff
She
began
her
Sharda
Garg
employment
is
of
as
a
Asian
staff
Indian
ancestry.
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
engaged
in
where
what
plaintiff
plaintiff
worked,
had
characterized
during
as
harassing" behavior with female coworkers.
1981
"sexually
Specifically,
plaintiff observed Habkirk pull one coworker's bra strap
and
snap
the
elastic
panties
2
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
upper
office
back,
corridor,
near
her
felt
someone's
shoulder.
hand
Plaintiff
touch
her
reacted
as
follows: "I felt somebody touching me, and I just turned
around and swung at him."
She further 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
Habkirk.
to
anyone
regarding
why
she
had
struck
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
3
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," plaintiff's
1983 performance review was downgraded to "satisfactory."
It
was
also
at
this
point
that
plaintiff
applied
several job promotions, in each case unsuccessfully.
for
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
rejected.
in
1983
were
also
Over the next three years, plaintiff applied
unsuccessfully
denied
applications
a
for
total
four
of
more
promotions.
eighteen
promotion
Plaintiff
was
opportunities,
including eleven during the period of 1983 through 1987.
During this period, Habkirk always served in plaintiff's
chain of command.
immediate
asked
Once at a dinner party with plaintiff's
supervisor,
why
plaintiff
Robert
had
Slaine,
not
been
plaintiff's
promoted.
husband
Slaine
responded that, in his opinion, it was because Habkirk did
not like plaintiff.
and
Habkirk
denied
Slaine denied making this statement,
telling
Slaine
that
he
disliked
plaintiff.
In 1986, Kent Cathcart was chosen by Habkirk as the
new
program
director
in
plaintiff's
facility.
However,
little changed for plaintiff because she failed to receive
4
any of the next three promotions for which she applied.
In
December 1986, she was denied a promotion in favor of a
contract
rejection
employee
in
with
February
promotion-related
less
seniority.
1987,
plaintiff
grievance
defendant's employees.
with
the
Following
filed
union
her
this
first
representing
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 promotionrelated 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.
that
Cathcart,
Cathcart
after
and
Specifically, she claims
the
two
supervisors
plaintiff
was
transferred
who
to
succeeded
defendant's
First North facility in 1995, treated her "in a degrading
and humiliating manner."
would
criticize
her
for
Plaintiff claims that Cathcart
not
participating
in
agency
activities, but would then deny her requests to participate
in
meetings,
conferences,
and
5
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."
testified
that
Cathcart
once
chastised
Plaintiff also
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.
addition,
it
plaintiff
was
to
located
hear
throughout the day.
despite
her
next
"people
to
a
bathroom,
defecating
and
In
forcing
urinating"
Plaintiff was assigned to this office
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 plaintiff's 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
6
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 act.
Plaintiff
originally claimed retaliatory discrimination based solely
on
the
union
discrimination.
grievance
claiming
national-origin
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
Defendant
limitations.
moved
for
MCL
partial
600.5805(1)
summary
and
disposition
(10).
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
defendant
color.
had
However,
retaliated
the
against
7
jury
also
plaintiff
found
that
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
plaintiff's
physical
response
to
the
touching
by
Habkirk was sufficient to inform defendant that she opposed
Habkirk's
further
allow
sexually
held
a
that
harassing
behavior.
sufficient
reasonable
juror
to
The
evidence
find
a
trial
was
court
presented
causal
to
connection
between plaintiff's 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
issued
of
223829).
Appeals,
March
29,
2002
(Docket
No.
The Court of Appeals held that the "continuing
violations" doctrine allowed the introduction of factual
allegations
plaintiff
going
filed
back
her
more
lawsuit
than
and
three
thus
years
the
before
statute
of
limitations was not a bar to the facts plaintiff presented
to the jury.
Appeals
held
With regard to the merits, the Court of
that
when
plaintiff
struck
Habkirk,
a
reasonable juror could have concluded that she "'raise[d]
8
the specter,'" quoting Mitan v Neiman Marcus, 240 Mich App
679,
682;
613
NW2d
415
(2000),
Habkirk's sexual harassment.
that
she
was
opposing
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
for
application
such
leave
argument,
to
we
appeal,
granted
defendant's
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).
evidence,
while
viewed
Reversal is permitted only if the
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
9
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.
defendant
retaliated
Instead, the issue is whether
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
Plaintiff's first theory is that defendant retaliated
against
her
because
she
opposed
10
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
back,
near
her
shoulder,
office.1
Habkirk's
while
Plaintiff
she
was
testified
walking
that
"I
near
felt
somebody's hand touching me, and I turned around and hit
the
person."
She
noted
further
automatic reaction on my part.
that
"it
was
a
very
I felt somebody touching
me, and I just turned around and swung at him."
We conclude there is insufficient evidence for a juror
reasonably to conclude that by striking Habkirk under these
circumstances
plaintiff
was
opposing
sexual
harassment,
i.e., engaging in a "protected activity" under the Civil
Rights Act.
First, plaintiff acknowledged that Habkirk was
not sexually harassing her at the time she hit him so that
it
is
difficult
to
view
"protected activity."
acknowledgment
her.
Second,
lawsuit,
1
that
conduct
as
responsive
to
This is underscored by plaintiff's
Habkirk
there
plaintiff
her
is
ever
no
had
never
evidence
sought
to
sexually
that,
cast
her
harassed
before
this
conduct
in
Plaintiff argued at oral argument before this Court
that it was significant that she was passing a room Habkirk
had just occupied, because it demonstrates that she "knew"
it was Habkirk who touched her.
However, she testified
several times that she felt "somebody" touch her back, that
she "didn't know who was in behind [her]," and that she
simply "swung at whoever it was behind [her]."
(Emphasis
added.)
11
hitting Habkirk in terms of opposing sexual harassment at
defendant's
workplace.
communicated
to
the
Such
alleged
a
message
victims
never
Habkirk's
of
was
sexual
harassment or to fellow employees, much less to Habkirk,
management,
union
representatives,
or
public
agencies.
Third, plaintiff testified that she did not even know it
was Habkirk who touched her shoulder until after she struck
him.
That
is,
because
plaintiff
in
her
"automatic"
response to the touching could just as likely have struck
out
at
any
one
of
her
coworkers
as
at
Habkirk,
it
is
difficult to conclude that her action was somehow intended
to communicate a principled opposition to prior incidents
of supervisory misconduct.
connection
here
between
That is, there is simply no
cause—the
alleged
sexual
harassment—and effect—plaintiff's striking Habkirk.2
Moreover, although it is not necessary to our analysis
in
this
case,
even
if
plaintiff
were
indisputably
responding to past sexual harassment by hitting Habkirk, we
are not prepared to conclude that any response to conduct
2
This lack of connection is underscored by plaintiff's
own testimony that the incidents of sexual harassment that
allegedly prompted her opposition occurred only at "about
the same time" that she struck Habkirk.
Although we
acknowledge that a reasonable juror would be entitled to
conclude that this characterization is compatible with
incidents
of
sexual
harassment
preceding
plaintiff's
hitting Habkirk, the lack of a clear temporal relationship
between the cause and the effect does not well serve
plaintiff's argument.
12
prohibited by the Civil Rights Act, no matter how excessive
or
inappropriate
the
response,
including
assaultive
behavior, falls within the act's protections.
An employee
is not immunized for any type of responsive conduct, no
matter how outrageous or disproportionate, simply because
it
is
connected
with
opposition
to
discrimination.
Obviously, no employee would be protected under the act
from
all
"retaliation"
by
an
employer
for
criminal,
or
sabotaging, or destructive activities simply because these
occurred in response to perceived employer discrimination.
For purposes of analysis under § 701(a), consideration must
be
given
to
separating
the
motivation
underlying
an
employee's conduct and the means by which such motivation
is translated into conduct.
Under these circumstances, we conclude that no juror
could have reasonably concluded that defendant was engaged
in
a
"protected
activity"
by
opposing
sexual
harassment
when she hit Habkirk.
Even if the jury here were persuaded that plaintiff
was engaged in a "protected activity" by striking Habkirk,
she has failed to show that defendant knew that she was
engaged in such activity.
could
be
no
Absent such a showing, there
"retaliation"
on
the
employer's
part
to
anything within the protection of the Civil Rights Act.
While
Habkirk
obviously
would
13
have
been
aware
that
plaintiff had struck him, there was nothing inherent in
this conduct that would have apprised him that plaintiff
was
thereby
opposing
sexual
harassment.
There
is
no
evidence that Habkirk touched plaintiff at that time (or
any other time) in a way that was inappropriate; there is
no evidence that plaintiff herself perceived that Habkirk
touched her in a way that was inappropriate; there is no
evidence that Habkirk reasonably could have discerned from
the nature of plaintiff's response to his touching that she
was
communicating
any
message
of
opposition
to
sexual
harassment; and there is no evidence that plaintiff at any
time
explained
the
"significance"
of
her
behavior
to
Habkirk.
Nor is there anything else on the part of plaintiff
following this incident that would communicate to anyone
how she had been opposing sexual harassment by striking
Habkirk.
To the extent that she failed to communicate this
supposed purpose to alleged victims of Habkirk's previous
conduct,
to
representatives,
coemployees,
to
public
to
management,
authorities,
or
to
to
union
Habkirk
himself,3 it is difficult to understand how defendant could
have been sufficiently aware that plaintiff was engaged in
3
Nor
did
plaintiff
discuss
Habkirk's
alleged
inappropriate behavior itself with any of these parties.
14
"protected"
activity
so
as
to
be
able
to
"retaliate"
against her for such conduct.
Under these circumstances, we conclude that no juror
could reasonably have concluded that defendant was aware
that plaintiff had been engaged in "protected activity" by
opposing sexual harassment when she hit Habkirk.
Therefore,
insufficient
on
the
evidence
basis
that
either
plaintiff
that
was
there
is
engaged
in
protected activity4 or that defendant could have been aware
of such activity, plaintiff has failed to establish a claim
under the Civil Rights Act.
To the extent that she has
failed to present sufficient evidence that she was engaged
in
protected
activity,
she
has
failed
to
satisfy
the
threshold requirement for coverage under § 701(a); to the
extent that she has failed to present sufficient evidence
that defendant could have been aware of such activity, she
could
not
have
been
the
object
of
"retaliation"
under
§ 701(a).5
4
We do not agree with the Court of Appeals that
plaintiff here has raised any specter that she was engaged
in opposition to sexual harassment by her conduct.
5
Had plaintiff presented sufficient evidence with
regard to these matters, i.e., shown both that she had been
engaged in a protected activity and that defendant had been
aware of this, she would still have been required to
demonstrate that she suffered an adverse employment action
as a result of her engaging in the protected activity,
i.e., that there was some nexus or causal connection
15
B. RETALIATION BASED
ON
FILING
A
GRIEVANCE
Plaintiff's second theory is that defendant retaliated
against her after she filed a grievance claiming nationalorigin discrimination.
After being refused a promotion for
the eleventh time, plaintiff filed a grievance with her
union in June 1987, claiming that she was being denied
promotions
because
origin and color.
of
discrimination
based
on
national
Plaintiff claims that, as a result of
filing the grievance, she was denied subsequent promotion
opportunities
and
was
subjected
to
poor
treatment
general by Cathcart and the First North supervisors.
regard
to
this
claim,
it
is
undisputed
that
in
With
plaintiff
engaged in a protected activity, namely filing a grievance
claiming a violation of the Civil Rights Act.
In addition,
it is undisputed that defendant was aware that plaintiff
had
engaged
in
this
activity.
Plaintiff
presented
testimony that defendant's retaliatory conduct took place
over an eleven-year period, including acts that took place
after
she
filed
the
instant
action
on
July
21,
1995.
between the adverse employment action and the protected
activity.
See DeFlaviis, supra; West v Gen Motors Corp,
469 Mich 177, 186; 665 NW2d 468 (2003) (applying the
antiretaliation
provisions
of
the
Whistleblowers'
Protection Act, MCL 15.361 et seq.).
See also Shallal v
Catholic Social Services of Wayne Co, 455 Mich 604, 617;
566
NW2d
571
(1997)
(noting
that
"'whistleblower
statute[s][are] analogous to antiretaliation provisions of
other employment discrimination statutes . . .'" [citation
omitted]).
16
Defendant argues that, pursuant to the three-year period of
limitations, any claim based on acts occurring before July
21,
1992,
is
barred.
MCL
600.5805(10).
Despite
the
statute of limitations, both the trial court and the Court
of Appeals permitted plaintiff to recover on the basis of
untimely
under
acts,
the
or
acts
so-called
adopted in Sumner.
occurring
"continuing
before
July
21,
violations"
1992,
doctrine
We conclude that, absent evidence of
these acts, there is insufficient evidence to establish a
causal link between the 1987 grievance and any retaliatory
acts occurring within the limitations period.
The
"continuing
violations"
doctrine
was
addressed by this Court in Sumner, supra at 510.
our
analysis
in
that
case
by
stating
that
first
We began
it
is
"appropriate . . . in discrimination cases [to] turn to
federal precedent for guidance in reaching our decision."
Id.
at
525.
We
found
particularly
helpful
the
considerations relied on by federal courts in nullifying
the statute of limitations in Title VII of the Civil Rights
Act of 1964.
42 USC
2000e et seq.
We described these as
follows:
First, [the Civil Rights Act] is a remedial
statute
whose
purpose
is
to
root
out
discrimination and make injured parties whole.
Second, employees are generally lay people, who
do not know that they must act quickly or risk
losing their cause of action.
An employee may
fear reprisal by the employer, or may refer the
17
matter to a union, which may not take any action
within the limitation period. Employees may also
delay filing their complaints in the hope of
internal resolution or simply to give the
employer a second chance.
Third, and most
importantly, many discriminatory acts occur in
such a manner that it is difficult to precisely
define when they took place. One might say that
they unfold rather than occur. [Sumner, supra at
525-526].[6]
Sumner also found persuasive the United States Supreme
Court's decision in United Air Lines, Inc v Evans, 431 US
553; 97 S Ct 1885; 52 L Ed 2d 571 (1977).
In Evans, the
United States Supreme Court for the first time addressed
the "continuing violations" doctrine that had been created
by
the
lower
federal
statute of limitations.7
courts
in
order
to
overcome
the
The employee in Evans, a flight
6
While it is not necessary to our analysis in this
case, we note that the operation of our statute of
limitations at least partially undercuts the significance
of the factors cited by Sumner.
In Michigan, an employee
does not have to "act quickly or risk losing their cause of
action" under the state Civil Rights Act but has up to
three years to assert a claim in contrast to the 180 days
allowed under Title VII.
This extended period would also
presumably accord an employee sufficient time to seek
"internal resolution or simply to give the employer a
second chance" without endangering her claim. Further, at
least some reasonable observers might presume the threeyear limitations period accords an employee sufficient time
to
determine
that
a
discriminatory
act
has
truly
"unfolded."
7
See, e.g., King v Georgia Power Co, 295 F Supp 943,
946 (ND Ga, 1968)(holding that "[t]he failure to allege
that the complaint was filed with the EEOC [Equal
Employment Opportunity Commission] within 90 days of the
alleged unfair employment practices is of no importance,
for the violations of Title VII alleged in the complaint
18
attendant with United Air Lines, was fired in 1968 on the
basis
of
a
"no
marriage"
violate Title VII.
but
was
not
rule
that
was
later
found
to
She was rehired by the airline in 1972,
credited
for
treated
her
as
a
pre-1968
new
hire
service
for
and,
therefore,
was
seniority
purposes.
The employee argued that the airline's refusal
to recognize her past service constituted a "present effect
to
the
past
consequences
Therefore,
illegal
of
she
act
forbidden
alleged
and
therefore
perpetuates
discrimination."
that
the
Id.
"continuing
at
the
557.
violations"
doctrine should be applied to allow her to obtain relief
for
the
States
now-untimely
"present
Supreme
1968
Court
effect
to
firing.
held
a
that
past
act
However,
merely
of
the
United
demonstrating
discrimination"
insufficient to create a continuing violation.
a
is
Id. at 558.
"[T]he emphasis should not be placed on mere continuity;
the
critical
exists."
question
Id.
is
whether
Therefore,
any
in
present
order
to
violation
support
a
discrimination claim on a "continuing violations" theory,
an
employee
must
present violation.
first
demonstrate
the
existence
of
a
Since the employee in Evans was unable
may be construed as 'continuing' acts"); Bartmess v Drewrys
USA, Inc, 444 F2d 1186, 1188 (CA 7, 1971) (holding that
"the ninety day limitation is no bar when a continuing
practice of discrimination is being challenged rather than
a single, isolated discriminatory act").
19
to demonstrate any violation within the time limitations of
Title VII, her claim was barred as untimely.
Sumner found the federal precedent persuasive and held
that the "continuing violations" doctrine applied to claims
under both the Civil Rights Act and the Handicappers' Civil
Rights Act, MCL 37.1101 et seq.
This Court adopted the
Evans requirement that an employee must first demonstrate
that a violation has taken place within the limitations
period.
Sumner,
supra
at
536.
Once
an
employee
has
demonstrated this, he or she must then demonstrate either
that
his
or
her
employer
has
engaged
in
a
"policy
of
discrimination" or has engaged in "a series of allegedly
discriminatory acts which are sufficiently related so as to
constitute a pattern . . . ."
Id. at 528.
There are three
factors to consider in determining whether an employer has
been engaged in a series of allegedly discriminatory acts:
"The first is subject matter.
Do the
alleged
acts
involve
the
same
type
of
discrimination, tending to connect them in a
continuing violation?
The second is frequency.
Are the alleged acts recurring (e.g., a biweekly
paycheck) or more in the nature of an isolated
work assignment or employment decision?
The
third factor, perhaps of most importance, is
degree of permanence.
Does the act have the
degree of permanence which should trigger an
employee's awareness of and duty to assert his or
her rights, or which should indicate to the
employee that the continued existence of the
adverse consequences of the act is to be expected
without being dependent on a continuing intent to
discriminate?"
[Sumner, supra at 538, quoting
20
Berry v LSU Bd of Supervisors, 715 F2d 971, 981
(CA 5, 1983).]
Whatever the merits of the policy crafted by Sumner,
it bears little relationship to the actual language of the
relevant
statue
600.5827.
of
limitations,
MCL
600.5805,
and
MCL
Fundamental canons of statutory interpretation
require us to discern and give effect to the Legislature's
intent
as
expressed
by
the
language
of
its
statutes.
DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d
300 (2000).
If such language is unambiguous, as most such
language is, Klapp v United Ins Group Agency, Inc, 468 Mich
459; 663 NW2d 447 (2003), "we presume that the Legislature
intended the meaning clearly expressed—no further judicial
construction is required or permitted, and the statute must
be enforced as written."
DiBenedetto, supra at 402.
MCL 600.5805 provides, in pertinent part:
(1) A person shall not bring or maintain an
action to recover damages for injuries to persons
or property unless, after the claim first accrued
to the plaintiff or to someone through whom the
plaintiff claims, the action is commenced within
the periods of time prescribed by this section.
* * *
(10) The period of limitations is 3 years
after the time of the death or injury for all
other actions to recover damages for the death of
a person, or for injury to a person or property.
MCL 600.5827 provides that a "claim accrues at the
time
the
wrong
upon
which
the
21
claim
is
based
was
done
regardless of the time when damage results."
Thus, § 5805
requires a plaintiff to commence an action within three
years
of
each
adverse
employment
act
by
a
defendant.
Section 5805 does not say that a claim outside this threeyear period can be revived if it is somehow "sufficiently
related"
period.
"shall
to
injuries
occurring
within
the
limitations
Rather, the statute simply states that a plaintiff
not"
bring
limitations period.
a
claim
for
injuries
outside
the
Nothing in these provisions permits a
plaintiff to recover for injuries outside the limitations
period when they are susceptible to being characterized as
"continuing violations."
is
simply
to
extend
the
To allow recovery for such claims
limitations
period
beyond
that
which was expressly established by the Legislature.8
8
The dissent is utterly deconstructionist in its
attitude toward statutes of limitations, which is its right
but which attitude nonetheless bears no relationship to
that of the Legislature.
We are told by the dissent, for
example, that we often cannot determine when discriminatory
acts have taken place, when civil rights claims have
accrued or manifested themselves, whether an act of
discrimination is "discrete or nondiscrete," and that even
discrete acts of discrimination may not be readily
identifiable. Post at 12. Doubtless, there are difficult
evidentiary issues in the realm of civil rights as in most
other realms of the law.
Such difficulties, however, do
not constitute authorization for ignoring the express
direction of the Legislature that violations of the Civil
Rights Act are to be subject to a period of limitations,
one that is 2 1/2 years longer than the federal period of
limitations.
The dissent is obviously correct that the
cost of a statute of limitations is that some acts of
discrimination will go unredressed.
This is the cost of
22
An additional flaw in Sumner's reasoning is its unduly
heavy
reliance
on
federal
case
law,
particularly
Evans.
While federal precedent may often be useful as guidance in
this Court's interpretation of laws with federal analogues,
such precedent cannot be allowed to rewrite Michigan law.
The
persuasiveness
of
federal
precedent
can
only
be
considered after the statutory differences between Michigan
and federal law have been fully assessed, and, of course,
even when this has been done and language in state statutes
is
compared
to
similar
language
in
federal
statutes,
federal precedent remains only as persuasive as the quality
of
its
analysis.
violations"
Here,
doctrine
in
not
only
Michigan
does
the
conflict
"continuing
with
the
requirements of §§ 5805 and 5827, but, at least arguably,
the
federal
doctrine
is
given
affirmative
support
by
language in Title VII that is absent from the Civil Rights
Act.
In 1972, Congress amended Title VII to extend the
period within which an employee must file a complaint with
the Equal Employment Opportunity Commission from 90 days to
180 days.
At the same time, Congress imposed a two-year
any statute of limitations, but nonetheless a cost that the
Legislature apparently believes is outweighed by the
benefits of setting a deadline on stale claims. While the
dissent may be correct that the "continuing violations"
doctrine "better protects" the victims of discrimination,
post at 13, and that it is a "highly workable and
preferable" doctrine, post at 14, it is not the doctrine
chosen by the Legislature.
23
limit
on
backpay
recognized
an
awards.
employee's
Thus,
right
Congress
to
implicitly
recover
damages
for
discriminatory acts beyond those that occurred within the
180-day
period.
constituted
violation
an
Sumner
"implicit
because
theory,"
noted
that
endorsement
Congress
such
the
of
amendment
continuing
allowed
employees
to
recover damages for discriminatory acts beyond those that
occurred within the 180-day period.
However,
Sumner
Sumner, supra at 526.
to
note
provision
corresponding
failed
that
in
Michigan
there
law
is
that
no
even
implicitly endorses the "continuing violations" doctrine.
Thus,
rather
existence
of
than
the
conclusion—that
contrary
to
supporting
federal
the
statute
"continuing
Michigan
law
Sumner's
and,
leads
to
violations"
therefore,
holding,
the
opposite
doctrine
that
the
is
federal
precedent should not have been imported into Michigan law.9
Therefore, we overrule Sumner and hold that a person
must file a claim under the Civil Rights Act within three
years of the date his or her cause of action accrues, as
9
We note that the United States Supreme Court recently
rejected the "continuing violations" doctrine for Title VII
claims with regard to discrete acts because it is contrary
to the statute of limitations.
Nat'l R Passenger Corp v
Morgan, 536 US 101; 122 S Ct 2061; 153 L Ed 2d 106 (2002).
24
required by § 5805(10).10
three years.
That is, "three years" means
An employee is not permitted to bring a
lawsuit for employment acts that accrue beyond this period,
because
the
Legislature
has
should not be permitted.11
determined
that
such
claims
Whether or not the "continuing
10
Although we concur with the dissent that the
doctrine of stare decisis constitutes the "'preferred
course because it promotes the evenhanded, predictable, and
consistent
development
of
legal
principles,
fosters
reliance on judicial decisions and contributes to the
actual and perceived integrity of the judicial process,'"
post at 10-11, quoting Robinson v Detroit, 462 Mich
439,463; 613 NW2d 307 (2000), so also are these values
promoted by the separation of powers doctrine, which holds
that it is the responsibility of the judiciary to respect
the intentions of the Legislature by giving faithful
meaning to the words of the law. In this case, we conclude
that the values identified in Robinson, and invoked by the
dissent, are substantially better served by restoring the
law to its written meaning rather than maintaining the
judicial amendments of Sumner. Not only, in our judgment,
are laws generally made more "evenhanded, predictable and
consistent" when their words mean what they plainly say,
and when all litigants are subject to the equal application
of such words, but laws are also made more accessible to
the people when each of them is able to read the law and
thereby understand his or her rights and responsibilities.
When the words of the law bear little or no relationship to
what courts say the law means (as in Sumner), then the law
increasingly becomes the exclusive province of lawyers and
judges.
11
The principal difference between the majority and
the dissent in approaching the interpretative process is
that the majority is content to rely on the actual words
used by the Legislature while the dissent insists on
ascribing its own "purpose" to the act, post at 17 n 6, and
interpreting the act consistent with this statement of
purpose, no matter what barriers to this end have been
inconveniently created by the Legislature in failing to use
words that serve the dissent's self-stated "purpose."
While it can scarcely be gainsaid that the purpose of the
25
violations"
exception
of
Sumner
constitutes
a
useful
improvement in the law, there is no basis for this Court to
construct such an amendment.12
Accordingly,
plaintiff's
claims
of
retaliatory
discrimination arising from acts occurring before June 21,
Civil Rights Act is to "root out discrimination and make
injured
parties
whole,"
id.,
that
purpose
must
be
understood in the context of a competing "purpose" to
ensure that relief under the act be subject to a statute of
limitations. While the dissent apparently views a statute
of limitations as compromising the act's "purpose," i.e.,
its own characterization of such purpose, we believe that
it is better understood as requiring a more precise and
fine-tuned statement of the act's purpose, one predicated
on the intentions of the Legislature rather than on the
preferences of the dissent.
The words of any statute can
be effectively undermined by a sufficiently generalized
statement of "purpose" that is unmoored in the actual
language of the law.
12
This Court has rejected similar attempts to modify
statutes of limitations. See Boyle v Gen Motors Corp, 468
Mich
226,
231-232;
661
NW2d
557
(2003)
(rejecting
application of the discovery rule to extend the statute of
limitations in fraud cases); Secura Ins Co v Auto-Owners
Ins Co, 461 Mich 382, 387-388; 605 NW2d 308 (2000) (holding
that the doctrine of judicial tolling cannot be applied in
the absence of statutory language permitting such tolling);
Magee v DaimlerChrysler Corp, 472 Mich 108, 113; 693 NW2d
166 (2005) (noting that the "continuing violations"
doctrine "renders nugatory the period of limitations
established by the Legislature in MCL 600.5805[10]").
While the judicial temptation to relax a statute of
limitations may be understandable in the context of a
lawsuit in which a plaintiff, alleging that he or she has
suffered a serious wrong, has been denied his or her day in
court, the costs involved in terms of undermining the
clarity and predictability of the law, allowing stale
complaints to proceed, and injecting uncertainty into a
myriad of legal relationships, are considerable, not to
mention that a court that does so would be exercising
"legislative," not "judicial," power. See Const 1963, art
3, § 2; art 4, § 1; art 6, § 1.
26
1992, are untimely and cannot be maintained.
untimely
acts,
occurring
five
grievance.
plaintiff's
to
eleven
claim
years13
is
Without these
limited
after
she
to
acts
filed
her
In light of this gap, there is insufficient
evidence to allow a reasonable juror to find a causal link
between
the
1987
grievance
and
the
discriminatory
acts
falling within the limitations period.14
13
The first actionable claim in 1992 is five years
after
plaintiff's
1987
national-origin
grievance
and
plaintiff claims that she was treated poorly up to the date
of the 1998 trial, which was eleven years after the
grievance was filed.
14
Notwithstanding our overruling of Sumner, the
dissent, unlike the majority, would still allow acts
falling outside the period of limitations to be admissible
"'as background evidence in support of a timely claim.'"
Post at 19, quoting Morgan, supra at 113.
The dissent
would enable a plaintiff to claim that an adverse
employment action occurring outside the limitations period
constituted evidence that the employer is committing
current
violations.
Such
an
understanding
would
essentially resurrect the "continuing violations" doctrine
of Sumner through the back door. It would bar an employee
from
directly
recovering
for
untimely
acts
of
discrimination, but allow the employee to indirectly
recover for the same acts.
What practical difference is
there between the Sumner rule, which states that acts of
discrimination that might otherwise be viewed as stale are
cognizable under the act if they are part of a "continuing
violation," and the dissent's rule that would allow stale
violations to be considered "as evidence" of the actionable
violation?
The premises of the dissent and of Sumner are
indistinguishable in that there can be no "discrete" acts
of discrimination, but that such acts must always be
assessed in a continuing context so that we can never know
when an "injury" for statute of limitations purposes has
occurred.
The dissent's rule is as inconsistent with the
Civil Rights Act as the "continuing violations" doctrine of
Sumner, and equally incompatible with the rationale for a
27
Furthermore,
retaliatory
in
order
discrimination
to
case,
show
causation
"[p]laintiff
in
must
a
show
something more than merely a coincidence in time between
protected activity and adverse employment action."
West v
Gen Motors Corp, 469 Mich 177, 186; 665 NW2d 468 (2003).
There is no evidence to suggest any distinction between the
promotion
denial
Cathcart's
chain
that
of
occurred
command
while
and
those
plaintiff
denials
was
in
involving
supervisors who had no knowledge of plaintiff's grievance.
Five
supervisors,
including
four
who
were
directly
responsible for postgrievance promotion decisions involving
plaintiff, testified that they were unaware that plaintiff
had filed any grievance.
Plaintiff failed to introduce any
evidence to contradict that testimony.
However, despite
the First North supervisors' lack of knowledge about the
grievance, they treated her requests for promotions in the
same
manner
that
Cathcart
did,
i.e.,
they
denied
them.
Because these supervisors were not aware of the grievance,
they could not have "retaliated" against plaintiff for its
filing.
Further, there is no evidence that plaintiff's job
qualifications changed in any meaningful way in the time
statute of limitations. See Nielsen v Barnett, 440 Mich 1,
8-9; 485 NW2d 666 (1992). It would allow the plaintiff to
resuscitate stale claims—in this case claims more than a
decade old—and require a defendant to defend against such
claims in the face of the passage of time, fading memories,
and the loss of witnesses and evidence.
28
between the denial by Cathcart and the denials by the other
supervisors
at
reasonably
First
conclude
North.
that
Thus,
the
reasons
a
juror
behind
could
the
not
denials
within First North were related to the grievance.
Plaintiff has failed to produce evidence affirmatively
showing, as is her burden, that the reasons underlying the
promotion denial involving Cathcart were any different from
the
denials
involving
supervisors
plaintiff had filed a grievance.
DeFlaviis, supra.
the
Court
of
who
were
unaware
that
West, supra at 183-184;
It appears that both the trial court and
Appeals
identified
a
"causal
connection"
between the grievance and the promotion denials simply on
the basis of timing—that is, because the denials occurred
after
the
grievance,
relationship.
there
must
be
a
functional
This is the kind of post hoc, ergo propter
hoc reasoning rejected in West.
We reject such reasoning
in this case as well.
Similarly, plaintiff failed to establish that she was
treated poorly by Cathcart and the First North supervisors
as a result of the grievance.
establish
that
Cathcart's
Plaintiff was unable to
treatment
29
of
plaintiff
was
distinguishable
in
any
way
from
her
treatment
by
supervisors who were unaware of the grievance.15
First,
plaintiff
claimed
that
Cathcart
treated
her
differently from other employees by refusing to give her a
key to the facility.
However, her supervisor at First
North, who denied any knowledge of the grievance, similarly
refused to give plaintiff a key.
Second, plaintiff claimed
that her work was subjected to greater scrutiny by Cathcart
than that of her coworkers.
another
First
employee
of
North
However, she also claimed that
supervisor,
defendant
and
did
who
not
is
no
testify,
longer
an
wrote
her
several memos a day "unfairly attacking" her performance.
Finally, both plaintiff and the Court of Appeals found it
noteworthy
that
she
was
moved
to
after the transfer to First North.
a
"disgusting"
office
However, the supervisor
who assigned her that office testified that he was unaware
of the grievance and had informed her that it was only a
temporary
situation.
Under
these
circumstances,
we
conclude that no juror could have reasonably concluded that
plaintiff was subjected to poor treatment because she had
15
In fact, Cathcart testified that he did
remember, and would not have been troubled by,
grievance.
Further, plaintiff admitted that, during
period of alleged poor treatment, Cathcart intervened
her behalf when another supervisor sought to change
work hours.
30
not
the
the
on
her
been engaged in "protected activity" by filing a grievance
claiming national-origin discrimination.
Finally,
plaintiff
has
failed
to
demonstrate
that
Cathcart's alleged derogatory comments based on national
origin
establish
any
causal
connection
between
grievance and the adverse employment action.
the
In order to
establish such a connection, plaintiff needed to show that
the comments demonstrated Cathcart's discriminatory animus
toward her and that, as a result of such animus, Cathcart
retaliated against her for filing the grievance.
Plaintiff
derogatory
claims
statement
that
Cathcart
regarding
made
Indians.16
a
racially
Plaintiff
testified that Cathcart responded to the news that her son
had been admitted to a medical program by stating, "I don't
know how many Indian doctors we need."17 This statement does
not pertain in any way to the promotion process; neither is
it directed toward plaintiff in terms of evaluating her
16
Cathcart allegedly made another racially derogatory
statement regarding Indians in 1989; however, it is outside
the limitations period.
We also note that Cathcart
allegedly made two statements concerning African-Americans.
These seem to have little bearing in this case because
plaintiff is not African-American.
Further, one of these
statements occurred at least two years before plaintiff's
grievance regarding national-origin discrimination and the
other occurred approximately nine years afterward.
17
While plaintiff did not indicate when this statement
was made, a juror could infer that it was made sometime
between 1992 and 1995.
31
work
performance
her.
See
or
threatening
Sniecinski,
any
supra
at
future
136
n
treatment
8.
of
However
inappropriate or ill-informed this statement, it is better
characterized, in our judgment, as a "stray comment" than
as reflective of any "pattern of biased comments . . . ."18
Id.
More to the point, for the same reason that plaintiff
here has failed to demonstrate that Cathcart's treatment of
her did not vary in any appreciable way from her treatment
by other supervisors—concerning whom there is no evidence
of
even
such
plaintiff
denials
"stray
has
of
comments"—we
demonstrated
promotions
defendant
on
the
reiterate
that
seemliness
of
or
basis
the
that
not
believe
she
was
subjected
to
poor
treatment
by
Again,
we
propriety
or
otherwise
of
her
question
Cathcart's
do
is
grievance.
not
statements,
the
but
merely
that
whether
such statements establish a causal link between plaintiff's
grievance and her subsequent treatment by defendant.
In light of insufficient evidence that plaintiff was
not
promoted
or
otherwise
treated
poorly
because
she
engaged in a "protected activity," i.e., having filed a
grievance
18
against
defendant
alleging
national-origin
This conclusion is underscored by the fact that the
jury, after learning of all these statements, concluded
that plaintiff had not been discriminated against on the
basis of national origin.
32
discrimination,
plaintiff
has
failed
to
establish
a
retaliation claim under the Civil Rights Act.
IV. Conclusion
We conclude that the "continuing violations" doctrine
is contrary to the language of § 5805 and hold, therefore,
that
the
doctrine
jurisprudence
overruled.
of
has
this
no
continued
state.
place
Accordingly,
in
the
Sumner
is
Further, we conclude that there is insufficient
evidence to support plaintiff's claims of retaliation based
on her opposition to sexual harassment and those acts by
her employer following the grievance that were within the
statutory limitations period.
Accordingly, we reverse the
judgment of the Court of Appeals and remand the matter to
the
trial
court
for
entry
of
judgment
in
defendant.
Stephen J. Markman
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
33
favor
of
S T A T E
M I C H I G A N
O F
SUPREME COURT
SHARDA GARG,
Plaintiff-Appellee/Cross-Appellant,
v
No. 121361
MACOMB COUNTY COMMUNITY MENTAL HEALTH SERVICES,
Defendant-Appellant/Cross-Appellee.
_______________________________
CAVANAGH, J. (dissenting).
I agree with the majority’s conclusion that there was
insufficient evidence of retaliation based on plaintiff’s
alleged
opposition
to
the
sexual
harassment
of
her
co-
workers.
I
disagree
plaintiff
with
presented
the
majority’s
insufficient
conclusion
evidence
that
retaliated against for filing a grievance.
that
she
was
Moreover, I
disagree with the majority’s decision to overrule Sumner v
Goodyear
Tire
&
Rubber
(1986),
and
abolish
Finally,
I
disagree
because
the
the
with
continuing
applies,
evidence
excluded
from
Co,
of
427
continuing
the
prior
505;
acts
398
violations
majority’s
violations
consideration.
respectfully dissent.
Mich
no
that
longer
necessarily
Accordingly,
368
doctrine.
rationale
doctrine
must
NW2d
I
be
must
I. Plaintiff Presented Sufficient Evidence of Retaliation
for Filing a Grievance
The
prejudices
Michigan
and
Civil
biases’
Rights
borne
Act
against
“is
aimed
persons
at
‘the
because
of
their membership in a certain class, and seeks to eliminate
the
effects
of
offensive
prejudices, and biases.”
or
demeaning
stereotypes,
Miller v C A Muer Corp, 420 Mich
355, 363; 362 NW2d 650 (1984) (citations omitted).
end,
the
Civil
Rights
Act,
MCL
37.2701,
To this
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.
The Court of Appeals has observed that the purposes of the
retaliation provisions of the act are “to protect access to
the machinery available to seek redress for civil rights
violations and to protect operation of that machinery once
it has been engaged.”
DeFlaviis v Lord & Taylor, Inc, 223
Mich App 432, 440; 566 NW2d 661 (1997) (citation omitted).
This Court has yet to formally delineate the prima
facie elements of a retaliation claim under the Michigan
Civil
Rights
Act.
The
Court
2
of
Appeals,
however,
has
relied
on
federal
precedent
to
formulate
its
own
test.
Today, the majority adopts the Court of Appeals test as its
own.
See ante at 10-11.
Thus, to establish a prima facie
case of unlawful retaliation under the Civil Rights Act, 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, supra at 436, citing Polk v Yellow
Freight Sys, Inc, 876 F2d 527, 531 (CA 6, 1989), Booker v
Brown & Williamson Tobacco Co, Inc, 879 F2d 1304, 1310 (CA
6, 1989), and Kroll v Disney Store, Inc, 899 F Supp 344,
348
(ED
Mich,
1995).
Using
these
elements,
I
would
conclude that the trial court properly denied defendant’s
motion for judgment notwithstanding the verdict (JNOV) on
plaintiff’s
claim
that
she
was
retaliated
against
for
filing a grievance against her supervisor.
As noted by the majority, the first two elements of
the
test
are
satisfied
because
plaintiff
engaged
in
protected activity and defendant was aware that plaintiff
had engaged in this activity.
See ante at 17.
Moreover, I
would conclude that sufficient evidence was presented on
the third and fourth elements; namely, there was sufficient
3
evidence
that
defendant
took
adverse
employment
action
against plaintiff and there was a causal connection between
the
filing
action.
of
the
grievance
and
the
adverse
employment
With regard to these elements, I find the Court of
Appeals characterization of the evidence persuasive.
The
Court of Appeals noted:
[P]laintiff
sufficiently
established
the
elements of a retaliation claim by way of her
evidence that (1) plaintiff filed a grievance
alleging racial discrimination in June 1987; (2)
Cathcart, a supervisor, knew about the grievance;
(3) after filing the grievance, plaintiff failed
to receive the next promotion that she sought,
posted in December 1988, despite being qualified
for the position; (4) plaintiff failed to receive
seven total promotions between 1989 and 1997,
despite being qualified for the positions; (5)
individuals
less
qualified
than
plaintiff
received promotions while plaintiff did not; (6)
in
1994,
plaintiff
was
transferred
to
a
windowless office from which she could hear
noises emanating from the adjacent bathroom,
while persons more senior [sic] to plaintiff
received better offices; (7) in 1996, Cathcart
made a statement disparaging to blacks; (8)
Cathcart made another comment disparaging to
Indians; (9) Cathcart reprimanded plaintiff but
not others for minor infractions; (10) Cathcart
ignored plaintiff in staff meetings and treated
her poorly in the hallways; (11) in 1984 or 1985,
Cathcart used the word “n-----” in referring to
blacks; and (12) Cathcart remained in plaintiff’s
chain
of
command
throughout
the
years.
[Unpublished opinion per curiam of the Court of
Appeals, issued March 29, 2002 (Docket No.
223829).][1]
1
I disagree with the majority’s contention that these
statements should be considered mere stray remarks.
4
A
motion
evidence,
for
viewed
JNOV
in
should
the
be
light
granted
if
the
favorable
most
only
to
the
nonmoving party, fails to establish a claim as a matter of
law.
Orzel v Scott Drug Co, 449 Mich 550, 557-558; 537
NW2d
208
(1995).
This
Court
reviews
de
novo
a
trial
court’s decision to grant or deny a motion for JNOV, and
likewise reviews the evidence and all reasonable inferences
in the light most favorable to the nonmoving party.
v
Oakwood
Under
this
Hosp,
471
standard,
Mich
67,
77;
I
cannot
684
say
NW2d
that
296
the
Craig
(2004).
evidence
detailed by the Court of Appeals fails to establish a claim
of
retaliation
reasonable
as
jurors
a
matter
could
reach
of
law.
different
Moreover,
while
conclusions,
I
cannot say that no reasonable juror could conclude that
plaintiff was retaliated against for filing a grievance.
Thus, I would hold that the trial court properly denied
defendant’s motion for JNOV on the retaliation theory.2
Moreover, I find wholly unpersuasive the majority’s logic
that the derogatory statements concerning African-Americans
are irrelevant because plaintiff is Indian.
2
As noted previously, I tend to agree with the
majority that plaintiff presented insufficient evidence
that she was retaliated against for her alleged opposition
to the sexual harassment of her coworkers.
However, I
disagree with the majority’s election to decide, in dictum,
whether responsive physical behavior constitutes protected
activity.
Given the majority’s ultimate conclusion, this
portion
of
the
majority’s
opinion
is
unnecessary.
5
II. Sumner and the Continuing Violations Doctrine
The
Michigan
statute
of
Civil
Rights
limitations.
Act
contains
Nonetheless,
this
no
internal
Court
has
applied the general three-year limitations period set forth
in MCL 600.5805 to claims brought under the act.
See,
e.g., Mair v Consumers Power Co, 419 Mich 74; 348 NW2d 256
(1984).
However, in recognition that such claims tend to
“unfold rather than occur,” this Court unanimously adopted
a
narrow
exception
to
the
continuing violations doctrine.
statute
of
limitations—the
Sumner, supra at 526.
The
continuing violations doctrine dictates that unlawful acts
that occur beyond the period of limitations are actionable,
as long as the acts are sufficiently related to constitute
a pattern and one of the acts occurred within the period of
limitations.
As
noted
by
the
Sumner
Court,
the
federal
courts
developed the continuing violations doctrine as a narrow
exception to Title VII’s short limitations period.
This
Court detailed the reasons for the exception, reasons that
still ring true today:
These courts expressed concern with a number
of factors which they felt militated against a
strict application of the limitation requirement.
Moreover, although this issue was raised by the Attorney
General as amicus curiae, this issue was neither raised
below nor specifically briefed by the parties.
6
First, Title VII is a remedial statute whose
purpose is to root out discrimination and make
injured parties whole.
Second, employees are
generally lay people, who do not know that they
must act quickly or risk losing their cause of
action.
An employee may fear reprisal by the
employer, or may refer the matter to a union,
which may not take any action within the
limitation period.
Employees may also delay
filing their complaints in the hope of internal
resolution or simply to give the employer a
second chance. Third, and most importantly, many
discriminatory acts occur in such a manner that
it is difficult to precisely define when they
took place.
One might say that they unfold
rather than occur. [Id. at 525-526.]
In light of the United States Supreme Court’s decision
in United Air Lines, Inc v Evans, 431 US 553; 97 S Ct 1885;
52
L
Ed
2d
571
(1977),
this
Court
observed
that
the
continuing violations doctrine generally consists of two
subtheories:
The first subtheory involves allegations
that an employer has engaged in a continuous
policy of discrimination.
In such a case, the
plaintiff is alleging that “he is challenging not
just discriminatory conduct which has affected
him, but also, or alternatively, the underlying
employment system which has harmed or which
threatens to harm him and other members of his
class.”
The second subtheory, the “continuing course
of conduct” or “series of events” situation is
relevant where an employee challenges a series of
allegedly
discriminatory
acts
which
are
sufficiently related so as to constitute a
pattern, only one of which occurred within the
limitation period.
[Sumner,
supra at 528
(citations omitted).]
7
Here,
plaintiff
is
alleging
that
defendant
retaliated
against her through a continuing course of conduct.
Thus,
the second subtheory applies to this case.
In determining whether a continuing course of conduct
exists under the second subtheory, this Court adopted the
approach set forth by the Fifth Circuit Court of Appeals:
“The first is subject matter. Do the alleged
acts involve the same type of discrimination,
tending
to
connect
them
in
a
continuing
violation?
The second is frequency. Are the
alleged
acts
recurring
(e.g.,
a
biweekly
paycheck) or more in the nature of an isolated
work assignment or employment decision?
The
third factor, perhaps of most importance, is
degree of permanence.
Does the act have the
degree of permanence which should trigger an
employee’s awareness of and duty to assert his or
her rights, or which should indicate to the
employee that the continued existence of the
adverse consequences of the act is to be expected
without being dependent on a continuing intent to
discriminate?”
[Sumner, supra at 538, quoting
Berry v LSU Bd of Supervisors, 715 F2d 971, 981
(CA 5, 1983).]
Under these circumstances, I would conclude that the
continuing
violations
retaliation claim.
doctrine
applies
to
plaintiff’s
First, the acts involve the same type
of continuing violation: repeated denials of promotions and
disparate
treatment
protected activity.
frequency:
in
retaliation
for
engaging
in
Second, defendant’s acts occurred with
plaintiff
was
consistently
denied
every
promotion she applied for from the date the grievance was
8
filed.
Finally, on these facts, the consistent denials of
promotions and disparate treatment did not have the degree
of permanence that would necessarily preclude application
of the continuing violations doctrine.
Plaintiff did not
suspect that the impetus for the adverse actions was the
filing
of
the
grievance
until
much
later.
While
retaliatory conduct may be considered a discrete act under
some circumstances, the facts of this case demonstrate that
retaliation is often just as subtle and hard to detect as
discrimination.
violations
Thus,
doctrine
I
and
would
conclude
apply
that
the
all
continuing
the
adverse
employment actions taken by defendant against plaintiff are
actionable.
III. The Majority’s Decision to Overrule Sumner
The majority reasons that Sumner and the continuing
violations doctrine have no place in Michigan law because
they bear little relationship to the actual language of MCL
600.5805 and 600.5827.
Rather, MCL 600.5805 “requires a
plaintiff to commence an action within three years of each
adverse employment act by a defendant. . . . Nothing in
these
provisions
injuries
outside
susceptible
violations.’”
to
permits
the
plaintiff
limitations
being
Ante
a
at
period
characterized
22-23.
9
to
recover
when
as
Moreover,
they
for
are
‘continuing
the
majority
concludes that Sumner “unduly” relied on federal case law.
Id.
at
23.
violations
According
doctrine
to
is
the
majority,
the
given
support
arguably
continuing
by
the
language of Title VII, unlike the language of Michigan’s
statutory provisions.
Additionally, Congress amended Title
VII to impose a two-year limit on recovering back pay and,
thus,
implicitly
endorsed
the
doctrine.
The
majority
posits that there is no corresponding provision in Michigan
law that even implicitly endorses the continuing violations
doctrine.
Accordingly, the majority overrules Sumner and
holds
a
that
person
must
file
a
claim
under
the
Civil
Rights Act within three years of the date his or her cause
of action accrues.
“[T]his Court has consistently opined that, absent the
rarest
circumstances,
we
established precedent.”
should
remain
faithful
to
Brown v Manistee Co Rd Comm, 452
Mich 354, 365; 550 NW2d 215 (1996).
The doctrine of stare
decisis is “‘the preferred course because it promotes the
evenhanded,
predictable,
and
consistent
development
of
legal principles, fosters reliance on judicial decisions,
and contributes to the actual and perceived integrity of
the judicial process.’”
Robinson v Detroit, 462 Mich 439,
463; 613 NW2d 307 (2000) (citation omitted).
Court
has
detailed
four
principles
10
to
The current
consider
before
established
earlier
decision
precedent
case
was
defies
is
overruled:
“(1)
whether
the
(2)
whether
the
decided,[3]
wrongly
‘practical
workability,’
(3)
whether
reliance interests would work an undue hardship, and (4)
whether changes in the law or facts no longer justify the
questioned decision.”
Pohutski v City of Allen Park, 465
Mich 675, 694; 641 NW2d 219 (2002).
these
factors
weighs
in
favor
of
In my view, none of
overruling
Sumner
and
abolishing the continuing violations doctrine.
First, I cannot say that Sumner was wrongly decided.
Like its federal counterpart, the Civil Rights Act “is a
remedial
statute
whose
purpose
is
to
root
discrimination and make injured parties whole.”
supra at 525.
nature,
it
out
Sumner,
Because the Civil Rights Act is remedial in
should
be
liberally
construed.
Kassab
v
Michigan Basic Prop Ins Ass’n, 441 Mich 433, 467; 491 NW2d
545 (1992) (Cavanagh, C.J., dissenting); see also Kassab,
supra at 451 (Mallett, J., dissenting).
In Sumner, supra at 526, this Court astutely observed
that “many discriminatory acts occur in such a manner that
it is difficult to precisely define when they took place.”
3
Is not this “principle” a given?
As I have noted
previously, it would seem strange indeed for a “correctly
decided” decision to be trashed.
11
Indeed,
determining
when
a
claim
accrues
or
occurs
is
surprisingly difficult because violations of the act may
not manifest themselves except at the end of a lengthy
period.
Whether
nondiscrete
often
individual case.
a
particular
depends
on
Court
is
discrete
circumstances
of
or
the
And even so-called discrete acts may not
always be readily identifiable.
Supreme
the
act
recently
left
In fact, the United States
open
the
question
whether
discriminatory employment actions are subject to some sort
of discovery rule.
The Court noted that
[t]here may be circumstances where it will be
difficult to determine when the time period
should begin to run. One issue that may arise in
such circumstances is whether the time begins to
run when the injury occurs as opposed to when the
injury reasonably should have been discovered.
But this case presents no occasion to resolve
that issue.
[Nat’l R Passenger Corp v Morgan,
536 US 101, 114 n 7; 122 S Ct 2061; 153 L Ed 2d
106 (2002).]
The continuing violations doctrine remains a salutary
tool because, as a practical matter, it may be difficult to
determine when a violation of the act was committed or when
a civil rights claim accrues for purposes of MCL 600.5827.4
4
MCL 600.5827 provides:
Except as otherwise expressly provided, the period of
limitations runs from the time the claim accrues.
The
claim accrues at the time provided in sections 5829 to
5838, and in cases not covered by these sections the claim
12
Simply stated, a victim of discrimination may not be aware
that he or she is being or has been discriminated against
until after the period of limitations has expired.
The
continuing violations doctrine better protects the victim
and does not reflexively give the discriminating party the
benefit of judicial hindsight.
However, the Sumner Court
was careful to explain that not every prior act will be
actionable under the continuing violations doctrine.
Even
though discriminatory acts may be difficult to ascertain,
the continuing violations doctrine will not apply if there
is not a pattern, the acts do not involve the same subject
matter,
the
acts
do
not
occur
with
frequency,
or
the
plaintiff should have been aware that his or her rights
under the act were being violated.
In my view, Sumner
remains a sound decision because it seeks to ameliorate the
effects of strictly applying the limitations period where
it is difficult to ascertain exactly when a civil rights
claim accrues.
Second,
Sumner
does not defy practical workability.
As noted above, just the opposite is true.
often
extremely
difficult
to
ascertain
Because it is
when
a
claim
accrues, application of the continuing violations doctrine
accrues at the time the wrong upon which the claim is based
was done regardless of the time when damage results.
13
proceeds
on
a
case-by-case
basis.
The
doctrine
is
generally analyzed under two distinct subtheories and this
Court has set forth a clear three-factor test to assist
courts
in
determining
whether
discriminatory conduct exists.
a
continuing
course
of
Sumner, supra at 538.
In
my view, Sumner remains a highly workable and preferable
decision.
Third, overruling Sumner would work an undue hardship
because of the reliance interests placed on that decision.
Sumner has been entrenched in this state’s jurisprudence
for nearly twenty years.
the
continuing
Further, as a practical matter,
violations
doctrine
encourages
lay
employees, who may not be supremely confident that their
rights are being violated, to seek internal resolution of
their suspected complaints.
Needless to say, such a course
of action is advantageous to all persons involved.
In
reliance on Sumner, an employee could rest assured that
possible
become
violations
stale
internally.
employers
while
the
Civil
attempting
to
Moreover,
employees’
greatly
diminished
was
safeguards.
employers
of
Because
were
of
relieved
Sumner,
of
the
Rights
Act
resolve
fear
of
because
both
burden
the
of
by
Sumner’s
employees
of
not
complaint
reprisals
“litigation watch” at the first sign of trouble.
14
would
being
and
on
Employees
and employers have relied on Sumner for quite some time and
conducted their affairs and operations accordingly.
In
my
view,
affirming
the
principles
announced
in
Sumner would work far less of a hardship than overruling
that
decision.
Indeed,
opponents
of
the
continuing
violations doctrine should be careful what they wish for.
Overruling Sumner may actually encourage employees to run
to court at the first sign of trouble.
This will put a
strain on everyone involved in the process—the employee,
the employer, and the courts.
alleviated
doctrine.
by
Sumner
Such inherent tension was
and
the
continuing
violations
Thus, because the citizens of this state have
justifiably relied on Sumner for nearly two decades and
overruling that decision would unnecessarily disrupt these
reliance interests, I would refrain from overruling Sumner.
Fourth and finally, there has been no change in the
law or facts that has cast doubt on the wisdom of Sumner.
Indeed,
this
Court
has
consistently
cited
and
suggested
that Sumner’s reliance on federal precedent was warranted.
See, e.g., Chambers v Trettco, Inc, 463 Mich 297, 313; 614
NW2d
910
(2000)
(“We
are
many
times
guided
in
our
interpretation of the Michigan Civil Rights Act by federal
interpretations of its counterpart federal statute.
See,
e.g., Sumner v Goodyear Tire & Rubber Co, 427 Mich 505,
15
525;
398
NW2d
368
(1986).”)5
Thus,
there
has
been
no
seismic shift, except for the makeup of this Court, that
would
warrant
overruling
Sumner
and
abolishing
the
continuing violations doctrine.
In sum, I disagree with the majority’s decision to
overrule Sumner.
I believe that the continuing violations
doctrine remains a venerable approach to analyzing claims
brought under the Michigan Civil Rights Act.6
5
See also Radtke v Everett, 442 Mich 368, 381-382; 501
NW2d 155 (1993) (“While this Court is not compelled to
follow federal precedent or guidelines in interpreting
Michigan law, this Court may, ‘as we have done in the past
in discrimination cases, turn to federal precedent for
guidance in reaching our decision.’ Sumner v Goodyear Tire
& Rubber Co, 427 Mich 505, 525; 398 NW2d 368 (1986).”);
Stevens v McLouth Steel Products Corp, 433 Mich 365, 375;
446 NW2d 95 (1989) (“This Court has frequently drawn from
federal court precedent in interpreting other aspects of
the Civil Rights Act. See, e.g., Sumner v Goodyear Tire &
Rubber
Co,
427
Mich
505,
525;
398
NW2d
368
(1986) . . . .”).
6
The majority posits that my conclusion to reaffirm
the principles announced in Sumner stems from my preference
to interpret the Civil Rights Act in harmony with my “own,”
“self-stated” “characterization” of the purpose of the act.
Ante at 26-27 n 11. As detailed in Sumner, supra at 525,
the purpose of the act is “to root out discrimination and
make injured parties whole.”
In the same footnote,
however, the majority acknowledges that Sumner’s stated
purpose of the act is undeniable.
Nonetheless, the
majority concludes that this undeniable purpose must heed
another “competing” purpose–“to ensure that relief under
the act be subject to a statute of limitations.”
Ante at
27 n 11.
Accordingly, the majority would “fine-tune” the
act’s undeniable purpose and restate the “precise” purpose
of the Civil Rights Act as follows: to intermittently root
16
IV. The Majority’s Application of its New Rule is
Fundamentally Flawed
Even assuming the continuing violations doctrine no
longer pertains, the majority’s additional reasoning cannot
withstand
scrutiny.
Under
the
continuing
violations
doctrine, unlawful acts that occur beyond the period of
limitations
are
actionable,
as
long
as
the
acts
are
sufficiently related to constitute a pattern and one of the
acts
occurred
within
the
period
of
limitations.
majority properly acknowledges this point of law.7
The
Thus,
the natural consequence of overruling Sumner and abolishing
the continuing violations doctrine is that acts occurring
beyond the period of limitations are no longer actionable.
out discrimination and make injured parties somewhat whole.
I prefer the undeniable purpose previously articulated by
this Court because it is more consistent with the
Legislature’s intent.
While the majority claims that the
words of any statute can be undermined by considering the
statute’s purpose, today’s decision demonstrates that the
opposite proposition is equally true.
Namely, a remedial
statute can be tortured by a preference to ignore, not
effectuate, the Legislature’s purpose in enacting the
statute.
7
“Nothing in these provisions permits a plaintiff to
recover for injuries outside the limitations period when
they are susceptible to being characterized as ‘continuing
violations.’
To allow recovery for such claims is simply
to extend the limitations period beyond that which was
expressly established by the Legislature.”
Ante at 23
(emphasis added). “An employee is not permitted to bring a
lawsuit for employment acts that accrue beyond this period,
because the Legislature has determined that such claims
should not be permitted.” Id. at 26 (emphasis added).
17
Yet
the
evidence
majority
of
limitations
goes
acts
must
even
further
occurring
be
and
outside
excluded.8
Such
reasons
the
a
that
period
conclusion
of
is
fundamentally flawed.
For
Stated
example,
Supreme
in
Court
Morgan,
held
supra
that
at
Title
105,
the
VII
United
“precludes
recovery for discrete acts of discrimination or retaliation
that occur outside the statutory time period.”9
While I
disagree with the Morgan Court’s holding, it is important
to observe the Court’s subsequent rationale.
In light of
8
“[W]e 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
plaintiff’s
alleged
opposition to sexual harassment or her filing of a
grievance . . . .”
Ante at 1-2 (emphasis added).
“We
conclude that, absent evidence of these acts, there is
insufficient evidence to establish a causal link between
the 1987 grievance and any retaliatory acts occurring
within the limitations period.”
Id. at 18 (emphasis
added).
9
However, I must note that the Morgan Court held that
the continuing violations doctrine still applies to hostile
work environment claims. “We also hold that consideration
of the entire scope of a hostile work environment claim,
including behavior alleged outside the statutory time
period, is permissible for the purposes of assessing
liability, so long as any act contributing to that hostile
work environment takes place within the statutory time
period.”
Id. (emphasis added).
Here, the majority does
not attempt to exercise the same degree of prudence and
reason.
Rather, the majority simply concludes that all
claims brought under the Civil Rights Act, whether premised
on discrete or nondiscrete acts, are subject to the statute
of limitations.
18
its holding, the
Morgan
Court noted, “As we have held,
however, this time period for filing a charge is subject to
equitable doctrines such as tolling or estoppel.”
113.
Id. at
Importantly, the Court also reasoned, “Nor does the
statute
bar
an
employee
from
using
the
prior
acts
background evidence in support of a timely claim.”
as
Id.
(emphasis added).
This rationale comports with the natural
consequences
abolishing
of
the
continuing
violations
doctrine: prior acts outside the period of limitations are
not
actionable
(i.e.,
cannot
serve
as
the
basis
for
imposing liability), but these acts may still be used as
background evidence to support a timely claim.
majority’s
conclusion
that
acts
occurring
Thus, the
outside
the
limitations period must be “removed from consideration” is
unacceptable.
Ante at 2.
I disagree with the majority’s stated conclusion that
evidence of acts occurring outside the limitations period
must
be
“removed
from
consideration”
because,
as
a
practical matter, such evidence often must be considered,
as the majority’s rationale confirms.
While certainly not
a novel approach, I believe that it is entirely proper to
examine
relevant
evidence
itself not be actionable.
whether
to
admit
certain
even
though
such
evidence
may
Stated differently, the decision
evidence
19
is
within
the
trial
court's sound discretion and will not be disturbed absent
an abuse of discretion.
See, e.g., People v McDaniel, 469
Mich 409, 412; 670 NW2d 659 (2003).
Therefore, even though
so-called untimely acts may not be actionable under the
majority’s
relevant
view,
approach,
the
majority
acts
evidence
background
such
in
may
be
most
misunderstands
considered
instances.
as
my
consequences
the
In
of
overruling Sumner.
In
States
response,
Supreme
the
majority
Court’s
claims
rationale
in
that
the
Morgan
United
“essentially
resurrect[s] the ‘continuing violations’ doctrine through
the back door.”
consideration
Ante at 28 n 14.
of
background
employee
to
majority,
transfixed
additional
indirectly
evidence
recover
with
protections
The majority moans that
would
for
destroying
afforded
past
every
by
allow
acts.
shred
the
an
The
of
the
continuing
violations doctrine, has lost sight of the bigger picture.
The
majority
admittedly
fails
to
see
the
practical
difference between the Sumner rule and the logic employed
by the Morgan Court.
I would simply urge reexamination of
these opinions because the differences are quite clear.
The
United
States
Supreme
Court
concluded
that
the
result of abolishing the continuing violations doctrine is
that
untimely
claims
are
20
not
actionable,
period.
Inexplicably,
however,
the
majority
feels
compelled
to
conclude that any evidence that may have once constituted a
claim under the Civil Rights Act, but is now barred by the
statute of limitations, may never be admitted.
this is not the majority’s decision to make.
But, again,
If the trial
court determines that evidence of the now time-barred claim
is
relevant
to
the
timely
claim,
such
evidence
may
be
admitted as background evidence, but may not serve as the
basis
for
any
damage
award.
Sometimes
the
time-barred
claim will not be relevant and the trial court may conclude
that such background evidence is unnecessary.
instances,
the
trial
court
may
discretion and admit such evidence.
exercise
In other
its
sound
The majority, however,
oversteps its bounds when it concludes that such evidence
may
never
be
considered.
relevant
and,
therefore,
may
never
be
I do not know how the Morgan decision could
make this point of law any clearer.
In
sum,
I
believe
that
the
majority’s
resolve
to
dismantle the continuing violations doctrine has led it to
an illogical result.
The majority is essentially arguing
that, in Morgan, the United States Supreme Court attempted
to
resurrect
having
sense.
the
overruled
continuing
the
doctrine.
violations
This
doctrine
argument
after
makes
no
Rather, I believe that the Morgan Court properly
21
acknowledged
doctrine
that
means
overruling
that
the
untimely
continuing
claims
are
not
violations
actionable,
but, in some instances, the trial court may determine that
evidence
of
these
untimely
claims
may
be
admissible
to
provide necessary context.
V. Conclusion
I
would
hold
that
plaintiff
presented
sufficient
evidence for a reasonable juror to conclude that she was
retaliated against for filing her grievance.
Moreover, I
would affirm the principles announced in Sumner, and apply
the continuing violations doctrine to plaintiff’s claim of
retaliation based on the grievance theory.
Finally, even
if I 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
continuing violations doctrine simply means that untimely
acts are not actionable.10
Michael F. Cavanagh
Marilyn Kelly
10
In light of the majority’s resolution of this case,
I too do not reach the other issues raised on appeal or in
plaintiff’s cross-appeal.
22
S T A T E
O F
M I C H I G A N
SUPREME COURT
SHARDA GARG,
Plaintiff-Appellee/Cross-Appellant,
v
No. 121361
MACOMB COUNTY COMMUNITY HEALTH SERVICES,
Defendant-Appellant/Cross-Appellee,
and
LIFE CONSULTATION CENTER,
Defendant.
_______________________________
WEAVER, J. (dissenting).
I agree with the reasoning and conclusions of Justice
Cavanagh’s
adopted
dissenting
the
Goodyear
opinion.
continuing
Tire
&
Rubber
This
violations
Co,
427
Court
doctrine
Mich
505;
unanimously
in
398
Sumner
NW2d
v
368
(1986). Justice Brickley authored Sumner, and was joined by
Justices
Cavanagh,
Levin,
and
Archer.
Justice
Riley,
joined by Justice Boyle, concurred in the adoption of the
doctrine, but disagreed with the majority’s application of
it to the facts of the case.
Chief Justice Williams, in a
separate opinion, also concurred in the adoption of the
doctrine.
I am not persuaded that the adoption of the
doctrine was unwarranted or that, after nineteen years, the
doctrine should be abandoned.
Elizabeth A. Weaver
Marilyn Kelly
2
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