BRENT BARRETT V KIRTLAND COMMUNITY COLLEGE
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STATE OF MICHIGAN
COURT OF APPEALS
BRENT BARRETT,
FOR PUBLICATION
April 10, 2001
9:00 a.m.
Plaintiff-Appellee,
v
No. 217040
Roscommon Circuit Court
LC No. 95-007196-CL
KIRTLAND COMMUNITY COLLEGE,
Defendant-Appellant,
and
CARY VAJDA, KATHERINE GROSSER and
DOROTHY N. FRANKE,
Defendants.
Before: Holbrook, Jr., P.J., and Sawyer and Zahra, JJ.
ZAHRA, J.
Defendant Kirtland Community College (KCC) appeals as of right from an order denying
its motion for judgment notwithstanding the verdict (JNOV), or a new trial. We affirm in part,
reverse in part, and remand for further proceedings consistent with this opinion.
I FACTS
Plaintiff was hired by KCC in February 1992 as part-time cultural events coordinator. In
September 1992, plaintiff signed a one-year contract to serve as KCC’s full-time coordinator of
cultural events/activities. In September 1993, plaintiff signed another one-year contract to
remain in that position. That second contract was to expire on September 17, 1994. Plaintiff’s
duties as full-time coordinator of cultural events/activities included: planning performances at
KCC’s theater, running the theater’s box office, contracting with performers, producing shows at
the theater, and completing accounting duties with respect to the performances. Plaintiff’s
coordinator position was not a faculty position.
Defendant Cary Vajda was KCC’s dean of student services and plaintiff’s immediate
supervisor at all times pertinent to this case. Defendant Katherine Grosser was KCC’s dean of
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business services and defendant Dorothy Franke was president of KCC during plaintiff’s
employment.1
In October 1993, Vajda asked KCC employee Allison Goshorn on a date. Vajda did not
know Goshorn was romantically involved with plaintiff at the time he asked her out. Plaintiff
claimed that the quality of his working relationship with Vajda declined once Vajda discovered
the nature of Goshorn’s relationship with plaintiff. As a result, plaintiff filed three complaints
with the Michigan Department of Civil Rights (MDCR), charging gender discrimination and
retaliation under the Elliott-Larsen Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA
3.548(101) et seq. Plaintiff claimed that he suffered psychological and physical problems as a
result of continual adverse treatment by Vajda. Those problems prompted plaintiff to take a
personal leave from his job in May 1994 and a later unpaid leave under the Family Medical
Leave Act (FMLA), 29 USC 2601 et seq. During the time plaintiff was on leave, the coordinator
of cultural events/activities position was reconfigured by KCC administrators into a faculty
position.2 Plaintiff applied for the new position, but was not hired. On September 13, 1994 (four
days before the expiration of his employment contract), plaintiff returned from his leave and was
discharged by Franke after a short meeting. In a letter Franke wrote to plaintiff on the date of his
discharge, she stated that plaintiff’s “[c]ontinued insubordination” and his “[a]bandonment of
position” were the reasons for his discharge. Franke specified that plaintiff’s insubordination
included failing to return keys to KCC facilities despite being directed to do so on four separate
occasions and refusing to provide proof of attendance at a meeting for which plaintiff sought
travel expenses. Franke further specified that plaintiff abandoned his position by failing to return
to work after his doctor indicated he was able to return on September 6, 1994, and by failing to
notify KCC personnel to discuss returning to his job.
In October 1995, plaintiff filed this lawsuit, alleging breach of employment contract,
violation of the FMLA, gender discrimination under the CRA, retaliation under the CRA, and
defamation. Plaintiff’s retaliation, breach of contract, and FMLA claims went to trial.3 The jury
found no violation of the FMLA. However, the jury found that KCC retaliated against plaintiff
and assessed damages of $99,960 in regard to that claim. The jury also found that KCC breached
plaintiff’s employment contract. Pursuant to the parties’ agreement, the trial court assessed
damages in connection with the breach of contract verdict, determining damages in the amount of
$750. KCC brought a motion for JNOV, or alternatively, for a new trial, arguing that there was
no evidence of a causal link between protected activity by plaintiff and adverse actions taken by
KCC, nor evidence that plaintiff was terminated without just cause or that his employment
1
The parties eventually stipulated to dismiss defendants Vajda, Grosser and Franke from
plaintiff’s suit and those individuals are not parties to this appeal.
2
That reconfiguration did not affect the duration of plaintiff’s employment contract that was to
expire on September 17, 1994.
3
The other claims were dismissed pursuant to a motion for summary disposition and are not
subject to this appeal.
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contract was otherwise breached.4 The trial court denied KCC’s motion. Thereafter, the court
assessed $46,500 in attorney fees and $986 in costs with respect to the retaliation claim.
II LEGAL ANALYSIS
A. Retaliation in Violation of MCL 37.2701(a); MSA 3.548(701)(a)
On appeal, KCC argues that the trial court erred in denying its motion for JNOV with
respect to plaintiff’s retaliation claim. We agree.
A trial court’s decision to grant or deny a motion for JNOV is reviewed de novo. Attard v
Citizens Ins Co of America, 237 Mich App 311, 321; 602 NW2d 633 (1999); Farm Credit
Services of Michigan’s Heartland, PCA v Weldon, 232 Mich App 662, 672; 591 NW2d 438
(1998). In reviewing a decision on a motion for JNOV, this Court must view the testimony and
all legitimate inferences in the light most favorable to the nonmoving party. Forge v Smith, 458
Mich 198, 204; 580 NW2d 876 (1998). If reasonable jurors could have honestly reached
different conclusions, the jury verdict must stand. Central Cartage Co v Fewless, 232 Mich App
517, 524; 591 NW2d 422 (1998). Only if the evidence fails to establish a claim as a matter of
law is JNOV appropriate. Forge, supra.
The CRA provides, in part:
An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an
individual with respect to employment, compensation or a term, condition, or
privilege of employment, because of religion, race, color, national origin, age, sex,
height, weight, or marital status.
(b) Limit, segregate, or classify an employee or applicant for employment in a way
that deprives or tends to deprive the employee or applicant of an employment
opportunity, or otherwise adversely affects the status of an employee or applicant
because of religion, race, color, national origin, age, sex, height, weight, or marital
status. [MCL 37.2202(1)(a) and (b); MSA 3.548(202)(1)(a) and (b).]
The CRA also prohibits an employer from retaliating against an employee for pursuing rights
under the CRA, stating:
Two or more persons shall not conspire to, or a person shall not:
4
Defendant’s only argument on appeal relating to the breach of contract claim is that the trial
court erroneously excluded evidence that would have established plaintiff was terminated for
cause. We note that defendant’s argument below on a motion in limine and its argument on
appeal regarding the affect of after-acquired evidence only pertains to damages on plaintiff’s
retaliation claim. Thus, we do not consider such argument in regard to plaintiff’s breach of
contract claim. As more fully set forth later in this opinion, we conclude the trial court did not
abuse its discretion by excluding the evidence defendant sought to introduce at trial.
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(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. [MCL 37.2701(a); MSA 3.548(701)(a).]
1. Claims of pre-termination retaliation
In the trial court, plaintiff asserted that his job was reconfigured and he was eventually
discharged in retaliation for complaining to Franke about Vajda’s adverse treatment of him and
for filing complaints with the MDCR.5 On appeal, KCC claims that plaintiff did not engage in
protected activity under the CRA that could be said to have led to any adverse employment
action.
We read the CRA in light of the primary goal of judicial interpretation, which is to
ascertain and give effect to the intent of the Legislature. Radtke v Everett, 442 Mich 368, 386;
501 NW2d 155 (1993). If the plain and ordinary meaning of a statute is clear, judicial
construction is neither necessary nor permitted. Cherry Growers, Inc v Agricultural Marketing
and Bargaining Bd, 240 Mich App 153, 166; 610 NW2d 613 (2000). We may not speculate as
to the probable intent of the Legislature beyond the words expressed in the statute. In re Schnell,
214 Mich App 304, 310; 543 NW2d 11 (1995). If a statute provides its own glossary, the terms
must be applied as expressly defined. Tryc v Michigan Veterans Facility, 451 Mich 129, 136;
545 NW2d 642 (1996). When reasonable minds may differ as to the meaning of a statute, the
courts must look to the object of the statute, the harm it is designed to remedy, and apply a
reasonable construction that best accomplishes the statute’s purpose. Marquis v Hartford
Accident & Indemnity, 444 Mich 638, 644; 513 NW2d 799 (1994).
In interpreting provisions of the CRA, we are guided by federal court interpretations of its
counterpart federal statute. Chambers v Trettco, Inc, 463 Mich 297, 313; 614 NW2d 910 (2000);
see title VII of the federal Civil Rights Act of 1964, 42 USC 2000e et seq.6 While we are not
5
While plaintiff claimed in the trial court that KCC’s reconfiguration of the coordinator of
cultural events/activities position and his discharge were both retaliatory actions taken by KCC
that adversely impacted plaintiff’s employment, only plaintiff’s discharge can form the legal
basis of a retaliation claim. The reconfiguration of plaintiff’s coordinator position to a faculty
position did not affect plaintiff’s employment. Plaintiff’s employment contract was set to end
September 17, 1994 and no action on the part of KCC other than plaintiff’s discharge on
September 13, 1994 precluded plaintiff from returning to his position prior to that date. See
Meyer v Centerline, 242 Mich App 560, 569; 619 NW2d 182 (2000) (recognizing that an adverse
employment action must be materially adverse and must have an objective basis for
demonstrating that the change is adverse, “rather than the mere subjective impressions of the
plaintiff.”) Plaintiff also claims that Franke’s failure to put a stop to Vajda’s adverse treatment
after she was informed of Vajda’s alleged conduct was, itself, an adverse employment action.
See id. at 569-571. Franke’s inaction cannot serve as the basis for plaintiff’s retaliation claim
because, as discussed in greater detail infra, the conduct about which plaintiff complained to
Franke did not fall within the scope of the CRA.
6
Title VII prohibits discrimination in employment “against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race,
(continued…)
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bound by federal precedent based on title VII, those precedents analogous to questions presented
under the CRA are persuasive and will be afforded substantial consideration by this Court.
DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 437; 566 NW2d 661 (1997), citing McCalla
v Ellis, 180 Mich App 372, 377-378; 446 NW2d 904 (1989). However, we are always primarily
obligated when interpreting Michigan law to ascertain and give effect to the intent of the
Michigan Legislature. Chambers, supra at 314. Therefore, while we may look for guidance in
federal interpretations of similar laws, we must not defer to federal interpretations when doing so
would be inconsistent with any portion of our Legislature’s enactment. Id.; Chiles v Machine
Shop, Inc, 238 Mich App 462, 472-473; 606 NW2d 398 (1999).
This Court has interpreted the retaliation provision of the CRA, MCL 37.2701(a); MSA
3.548(701)(a), to require that a plaintiff prove a prima face case by showing:
1) that he or she 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. [Meyer v Centerline, 242 Mich App 560,
568-569; 619 NW2d 182 (2000), citing DeFlaviis, supra at 436.]
To establish causation, the plaintiff must show that his participation in protected activity under
the CRA was a “significant factor” in the employer’s adverse employment action, not just that
there was a causal link between the two. Jacklyn v Schering-Plough Healthcare Products Sales
Corp, 176 F3d 921, 929 (CA 6, 1999); Polk v Yellow Freight System, Inc, 801 F2d 190, 1999
(CA 6, 1986).
(a) Retaliation based on the filing of formal complaints with the MDCR
In the present case, plaintiff’s conduct of filing complaints with the MDCR on March 11,
1994, May 12, 1994, and September 16, 1994, charging gender discrimination and retaliation was
“protected activity” for purposes of a retaliation claim. See MCL 37.2701(a); MSA
3.548(701)(a) (prohibiting retaliation “because the person has . . . filed a complaint . . . under this
act.”) These complaints became known to KCC. Subsequently, plaintiff’s employment was
terminated. Thus, plaintiff presented sufficient evidence to satisfy the first three elements of his
claim of retaliation. In order for plaintiff to prevail on his retaliation claim, he must establish
causation.
The record is void of any evidence of causation with respect to the MDCR complaints.
The undisputed evidence establishes that Franke considered discharging plaintiff and had
definitely decided not to renew plaintiff’s contract prior to plaintiff filing any of the three
complaints. Plaintiff did not dispute Franke’s trial testimony that she was the only KCC
administrator with authority to discharge employees. A memo written by Franke, dated March 3,
1994 and sent to KCC’s board of trustees stated that plaintiff was having problems accepting
(…continued)
color, religion, sex, or national origin.” 42 USC § 2000e-2(a)(1).
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direction and responsibility and had a generally “poor attitude.” Franke specified: “If all this
spells ‘fire’ to you, it does to me, also. . . . I can tell you for sure that I won’t be recommending
renewal for his contract which ends in September.”7 Given the content of that memo, plaintiff’s
filing of the MDCR complaints commencing on March 11, 1994, cannot be said to have been a
“significant factor” in Franke’s decision not to renew plaintiff’s contract or to discharge plaintiff.
See Jacklyn, supra and Polk, supra. Consequently, those filings cannot form the basis of a
retaliation claim. Meyer, supra.8
7
Franke testified that around the time she drafted the memo, she believed plaintiff’s future at
KCC was “dim.” She acknowledged that her opinion of plaintiff was based, in part, on
conversations she had with Vajda. We recognize that plaintiff alleged Vajda was motivated to lie
about plaintiff’s conduct. However, the mere fact that Vajda commented on plaintiff’s conduct
does not necessarily create an issue of fact. See Krohn v Sedgwick James of Michigan, Inc, __
Mich __; __ NW2d __ (Docket No. 211111, issued 1/12/01), slip op pp 6-7 (holding that a stray
remark by an employee not involved in the employer’s decision to discharge the plaintiff cannot
be attributed as proof of the employer’s motivation for the discharge). Moreover, even assuming
that Vajda lied to Franke regarding plaintiff’s conduct, Vajda’s lies were not, under plaintiff’s
own theory, motivated by plaintiff’s complaints, but rather were motivated by his romantic
jealousy. For reasons more fully set forth in this opinion, action based on romantic jealousy is
not prohibited under the CRA and a retaliation claim based on such action cannot stand. Further,
there was evidence that Franke relied significantly on her own experience and on the input of
administrators other than Vajda in forming her opinion of plaintiff. Franke recalled that, in
December 1993, administrators discussed plaintiff’s lack of cooperation in regard to his incurring
additional travel expense when returning from a business trip. She also testified that she became
involved in scheduling theater performances because the public was unhappy with prior
performances put on by plaintiff. Franke further indicated that her opinion of plaintiff was
affected by KCC Controller Ed Koliba’s experiences with plaintiff. Koliba testified at trial that
plaintiff was “very uncooperative” when Koliba tried to work with him to establish an
accounting system. Franke also testified that plaintiff’s job assessment (presumably one
compiled by Vajda) was “not very big” a factor in her termination decision. Franke made clear
that plaintiff’s insubordination in refusing her demand that he turn over his keys on the date he
returned from his leave was the biggest factor in her decision to fire plaintiff. Testimony at trial
established that KCC administrators sought return of the keys several times during plaintiff’s
leave and on the date that he returned to work because they were concerned with thefts of theater
equipment. Franke specified that she did not consult Vajda directly prior to terminating plaintiff.
8
Plaintiff also argues that a letter dated May 3, 1994, from Vajda’s attorney to plaintiff
constitutes evidence of retaliation directly related to plaintiff’s March 11, 1994 MDCR complaint
about Vajda. Vajda’s counsel claimed that plaintiff was spreading defamatory rumors about
Vajda and demanded that plaintiff retract such statements. We conclude this correspondence
does not, as a matter of law, support a claim of retaliation in violation of MCL 37.2701(a); MSA
3.548(701)(a). In order for plaintiff to prevail on a claim of retaliation he must establish that “the
defendant took an employment action adverse to the plaintiff[.]” Meyer, supra. Plaintiff did not
present evidence that Vajda’s counsel was acting on behalf of KCC (defendant) nor that
counsel’s demand constituted an action that adversely impacted plaintiff’s employment situation.
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(b) Retaliation based on an oral complaint
The relevant question, therefore, is whether plaintiff engaged in any protected activity
prior to Franke’s drafting of the March 3, 1994 memo. Plaintiff presented evidence that soon
after Vajda became aware of his relationship with Goshorn, Vajda severed direct communication
with him, created new employment policies pertaining only to him, and enforced old policies that
were not previously enforced with respect to other employees.9 Plaintiff claims that he disclosed
Vajda’s adverse treatment to Franke during a meeting in January 1994. He contends that
Franke’s failure to put a stop to Vajda’s adverse treatment of him was, itself, an adverse
employment action sufficient to support a retaliation claim.
Plaintiff cannot prevail on a claim of retaliation in violation of the CRA without
establishing that he engaged in activity protected under the act. Meyer, supra. MCL 37.2701(a);
MSA 3.548(701)(a) specifically defines the type of activity protected under the CRA. As it
relates to this action, the CRA specifically prohibits retaliation or discrimination because “the
person has opposed a violation of this act, or because the person has made a charge … under this
act.” Id. Applying MCL 37.2701(a); MSA 3.548(701)(a) to the facts of this case, we must
determine whether plaintiff’s oral complaint to Franke in January 1994 amounted to a charge
made under the CRA or opposition to a violation of the CRA. We conclude that it did not.
(i) Plaintiff did not make a charge under the CRA
Plaintiff did not take any action that could be construed as a “charge” under the act. An
employee need not specifically cite to the CRA when making a charge under the act. However,
the employee must do more than generally assert unfair treatment. See Mitan v Neiman Marcus,
240 Mich App 679, 682; 613 NW2d 415 (2000) (holding complaints amounting to generic
claims of “job discrimination” did not qualify as a charge made under the Persons with
Disabilities Act). The employee’s charge must clearly convey to the objective employer that the
employee is raising the spectre of a claim of unlawful discrimination pursuant to the CRA.
McLemore v Detroit Receiving Hosp & Univ Medical Center, 196 Mich App 391, 396; 493
NW2d 441 (1992). Plaintiff’s oral complaint to Franke in January 1994, failed to meet this
standard. Plaintiff alleges unlawful discrimination because of sex.10 According to plaintiff, he
complained to Franke that Vajda had severely limited or closed the line of communication
between Vajda and plaintiff. Plaintiff further claimed Vajda had implemented policies that were
enforced only as to plaintiff. Plaintiff asserted Vajda’s conduct changed after Vajda discovered
plaintiff and Goshorn were involved romantically. Plaintiff never complained that he was
subjected to any physical or verbal conduct of a sexual nature relating to either plaintiff or
Goshorn. Nor did plaintiff complain that he was treated differently because of his gender. Under
9
Policies to which only plaintiff was allegedly subject included: keeping detailed, daily time
logs, returning college-owned equipment that he was using at his home, and complying with
strict directives regarding travel expenses.
10
Discrimination because of sex includes quid pro quo harassment, hostile environment
harassment and gender-based discrimination. See MCL 37.2103(i); MSA 3.548(103)(i) and
Chambers, supra at 310.
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these circumstances, an objective employer could not conclude that plaintiff was raising the
spectre of a claim pursuant to the CRA. Rather, the evidence merely established that plaintiff
was asserting generic, non-sex-based complaints regarding his working conditions.
(ii) Plaintiff did not oppose a violation of the CRA
Plaintiff claims he opposed a violation of the CRA. Specifically, he claims Vajda’s
alleged adverse treatment of him constituted discrimination based on sex, in violation of MCL
37.2202(1); MSA 3.548(202)(1). The Legislature provided a non-exhaustive definition of the
phrase “discrimination because of sex”:
Discrimination because of sex includes sexual harassment. Sexual harassment
means unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct or communication of a sexual nature under the following
conditions:
(i) Submission to the conduct or communication is made a term or
condition either explicitly or implicitly to obtain employment, public
accommodations or public services, education, or housing.
(ii) Submission to or rejection of the conduct or communication by an
individual is used as a factor in decisions affecting the individual's employment,
public accommodations or public services, education, or housing.
(iii) The conduct or communication has the purpose or effect of
substantially interfering with an individual's employment, public accommodations
or public services, education, or housing, or creating an intimidating, hostile, or
offensive employment, public accommodations, public services, educational, or
housing environment. [MCL 37.2103(i); MSA 3.548(103)(i).]
The definition section of the act also provides the following in regard to the term “sex”: “‘Sex’
includes, but is not limited to, pregnancy, childbirth, or a medical condition related to pregnancy
or childbirth . . . .” MCL 37.2201(d); MSA 3.548(201)(d).
This Court has held that the CRA is not so broad as to bar all conduct that is in anyway
related to sex. See Barbour v Dep’t of Social Services, 198 Mich App 183, 185-186; 497 NW2d
216 (1993) (holding the CRA does not prohibit discrimination based on sexual orientation).
Moreover, federal courts have consistently held that sex-based discrimination prohibited in title
VII refers to the conduct of requiring an employee to submit to sexually-based harassment as a
condition of employment11 or discrimination based on gender, not discrimination based on sexual
affiliations or relationships. See Succar v Dade Co School Bd, 229 F3d 1343, 1345 (CA 11,
2000), Taken v Oklahoma Corp Comm, 125 F3d 1366, 1369-1370 (CA 10, 1997), DeCintio v
Westchester Co Medical Center, 807 F2d 304, 306-308 (CA 2, 1986), cert den 484 US 825; 108
11
Sexually-based harassment as a condition of employment refers to both quid pro quo
harassment and hostile environment harassment. See Chambers, supra at 310.
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S Ct 89; 98 L Ed 2d 50 (1987), Sullivan-Weaver v New York Power Authority, 114 F Supp2d
240, 243 (SD NY, 2000), Prichard v Ledford, 767 F Supp 1425, 1429 (ED Tenn, 1990), aff’d
927 F2d 605 (CA 6, 1991), and Freeman v Continental Technical Services, Inc, 710 F Supp 328,
331 (ND Ga, 1988); see also Platner v Cash & Thomas Contractors, Inc, 908 F2d 902, 905 (CA
11, 1990) and Huebschen v Dep’t of Health & Social Services, 716 F2d 1167, 1172 (CA 7,
1983).
Limiting the phrase “discrimination because of sex” as used in the CRA to instances of
gender-based discrimination or instances where the employee is required to submit to sexuallybased harassment is consistent with the Legislature’s non-exhaustive statutory definitions of that
phrase, MCL 37.2103(i); MSA 3.548(103)(i), and the term “sex,” MCL 37.2201(d); MSA
3.548(201)(d). Had our Legislature intended the CRA to protect against discrimination based on
romantic jealousy, it could have expressly stated that intent within its statutory definitions. The
Legislature did not so provide.
We do not read the CRA to prohibit conduct based on romantic jealousy. Michigan
courts have long held that the CRA is remedial and must be liberally construed to effectuate its
ends. Reid v Michigan Metro Girl Scout Council, 201 Mich App 10, 14; 506 NW2d 231 (1993),
citing Eide v Kelsey-Hayes Co, 431 Mich 26, 34; 427 NW2d 488 (1988).12 However, it is also
fundamental that a liberal construction of an act must nonetheless be a reasonable construction
that best accomplishes its purpose. See Marquis, supra. Interpreting the CRA’s prohibition of
discrimination based on sex to prohibit conduct based on romantic jealousy turns the CRA on its
head. The CRA was enacted to prevent discrimination because of classifications specifically
enumerated by the Legislature and to eliminate the effects of offensive or demeaning stereotypes,
prejudices, and biases. Radtke, supra at 379; DeFlaviis, supra at 440. It is beyond reason to
conclude that plaintiff’s status as the romantic competition to the woman Vajda sought to date
places plaintiff within the class of individuals the Legislature sought to protect when it prohibited
discrimination based on sex under the CRA. See In re S R, 229 Mich App 310, 314; 581 NW2d
291 (1998) (stating that nothing should be read into a statute that is not within the manifest intent
of the Legislature as gathered from the act itself).
Plaintiff proceeded to trial on a theory of discrimination based on romantic jealousy.
Plaintiff did not claim and the evidence did not establish that plaintiff was required to submit to
sexually-based harassment as a condition of employment. Nor did the evidence presented at trial
support a theory of gender-based discrimination. Plaintiff established, at most, that Vajda’s
alleged adverse treatment of plaintiff was based on plaintiff’s relationship with Goshorn, not
plaintiff’s gender. Vajda may have had a romantic purpose in initially pursuing Goshorn and
may, as the trial court surmised, have intended to eliminate plaintiff so that he could pursue
Goshorn’s affections. However, Vajda’s alleged harassment was not conduct that is proscribed
by the CRA since it was not gender-based. Indeed, if Vajda’s motive was to win the affection of
Goshorn, it would not matter if the person Vajda perceived to be standing in his way was male or
12
We note that liberally construing a statute simply because the statute may be said to be
remedial is of questionable logic. See Antonin Scalia, Assorted Canards of Contemporary Legal
Analysis, 40 Case W Res L Rev 581, 581-586 (1990).
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female. See Freeman, supra at 331 n 2. As such, it is evident that plaintiff’s gender was not the
impetus for Vajda’s alleged conduct, but rather was merely coincidental to that conduct. See
Succar, supra and Huebschen, supra.
Plaintiff did not, as a matter of law, establish that Vajda’s adverse treatment of him
constituted a violation of the CRA.13 Accordingly, we conclude plaintiff did not establish that
KCC retaliated against him for opposing a violation of the CRA as required under MCL
37.2701(a); MSA 3.548(701)(a). See Chiles, supra at 484.
2. Claim of post-termination retaliation
We next consider the validity of plaintiff’s claim of post-termination retaliation. MCL
37.2701; MSA 3.548(701) protects former as well as current employees. DeFlaviis, supra at
440. Subsequent to plaintiff’s discharge, KCC administrators contacted the police when they
noticed that several college-owned books and files were missing from plaintiff’s office.
Thereafter, plaintiff was arrested for larceny of KCC property. Because all criminal charges
against plaintiff in connection with that incident were eventually dismissed, plaintiff asserted
below that KCC’s conduct of reporting him to the police constituted retaliation.
We conclude that plaintiff’s claim for post-termination retaliation fails as a matter of law.
Plaintiff acknowledged that he took several boxes of property from his office after he was
terminated. Plaintiff did not challenge Vajda’s testimony that after the boxes were seized by the
police, they were found to contain hundreds of college directories and files and relatively few of
plaintiff’s personal items. Under these circumstances, there is not the requisite causal connection
between plaintiff’s protected activity of filing complaints with the MDCR14 and KCC’s posttermination action. Given KCC’s strong interest in recovering its property, it is beyond reason to
say that plaintiff’s filing of the MDCR complaints was a “significant factor” in KCC’s decision
to report plaintiff to the police. See Jacklyn, supra and Polk, supra. Moreover, there is no
evidence plaintiff suffered any adverse employment action as the result of defendant’s alleged
post-termination action. Meyer, supra. In light of our conclusion that plaintiff’s retaliation claim
fails as a matter of law, we need not consider the merit of KCC’s remaining issues challenging
that claim.
B. Evidentiary Matters Relating to the Breach of Contract Claim
13
Plaintiff also claims defendant’s conduct of denying him access to the employee assistance
program, rejecting his requests for mileage reimbursements, and requesting the return of keys
while he was still employed were adverse employment actions taken after defendant had
knowledge of his MDCR complaints. Even assuming without deciding such conduct constituted
adverse employment actions, none of those actions form the basis of a valid retaliation claim
because plaintiff has not shown that he was discriminated against because of sex under the CRA.
14
As established supra, plaintiff’s filing of the MDCR complaints was the only protected activity
under the CRA engaged in by plaintiff.
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The only issue remaining for our consideration involves KCC’s argument that the trial
court erred in excluding evidence at trial. Given our disposition of the prior issue, we need only
consider this issue in the context of plaintiff’s breach of contract claim.
KCC argues that the trial court erred in excluding evidence of several incidents of
plaintiff’s work-related misconduct. A trial court’s decision to admit or to exclude evidence is
reviewed for an abuse of discretion. Chmielewski v Xermac, Inc, 457 Mich 593, 614; 580 NW2d
817 (1998). An abuse of discretion is found only in extreme cases in which the result is so
palpably and grossly violative of fact and logic that it evidences perversity of will, a defiance of
judgment, or the exercise of passion or bias. Dacon v Transue, 441 Mich 315, 329; 490 NW2d
369 (1992); Hottmann v Hottmann, 226 Mich App 171, 177; 572 NW2d 259 (1997). While the
several work-related incidents cited by KCC would have been relevant to explain why its
administrators developed a poor opinion of plaintiff as an employee, we cannot say that the trial
court’s decision to exclude the evidence was palpably and grossly violative of fact and logic.
Franke testified at trial that her poor opinion of plaintiff was based on her personal experiences
dealing with plaintiff as well as input from other administrators. There was also substantial
testimony that plaintiff was uncooperative and often refused direct orders. While jurors were not
apprised of all the incidents that may have led to the administrators’ poor opinions of plaintiff,
they heard enough evidence of plaintiff’s conduct to infer that his poor job performance and
inability to follow orders were the main reasons for his discharge. Given that the case involved
considerable testimony on several separate incidents, the trial court acted within its discretion
when it concluded that additional testimony regarding the prior events would waste the court’s
time and would likely confuse the jurors. MRE 403.15
KCC has provided no other argument in regard to the breach of contract judgment.
Accordingly, we cannot say that judgment was erroneous.
III Conclusion
In sum, plaintiff’s entire retaliation claim fails as a matter of law and the trial court erred
in denying KCC’s motion for JNOV on that claim. The judgment for plaintiff on the retaliation
claim is reversed and attorney fees and costs assessed in connection with that claim are vacated.
On remand, the trial court shall enter a judgment for KCC on the retaliation claim. The judgment
with respect to plaintiff’s breach of contract claim is affirmed.
15
Insofar as KCC argues that the trial court erred in excluding evidence of plaintiff’s resume
fraud and a letter Vajda wrote to his attorney, there is no need to consider those arguments
because they involve plaintiff’s retaliation claim, which we have held failed.
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Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Brian K. Zahra
/s/ Donald E. Holbrook, Jr.
/s/ David H. Sawyer
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