PENNY RYMAL V HERMAN BAERGEN
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STATE OF MICHIGAN
COURT OF APPEALS
PENNY RYMAL,
FOR PUBLICATION
June 8, 2004
9:05 a.m.
Plaintiff,
v
HERMAN BAERGEN and MTD SYSTEMS, INC.,
No. 243795
Macomb Circuit Court
LC No. 2001-003226-NZ
Defendant-Appellees
and
CLARK PRODUCTS, INC., and CLARK
FOODSERVICE, INC.,
Defendants-Appellants.
PENNY RYMAL,
Plaintiff-Appellant,
v
HERMAN BAERGEN and MTD SYSTEM, INC.,
No. 248124
Macomb Circuit Court
LC No. 2001-003226-NZ
Defendant-Appellees
and
CLARK PRODUCTS, INC., and CLARK
FOODSERVICE, INC.,
Official Reported Version
Defendants.
Before: Kelly, P.J., and Murphy and Neff, JJ.
KELLY, P.J. (Concurring in part and dissenting in part).
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I respectfully dissent from the majority's decision that the trial court erred in granting
summary disposition of plaintiff 's retaliation claim against defendants MTD Systems, Inc., and
Herman Baergen. First, plaintiff did not properly plead a retaliation claim under the CRA.
Second, even if she had properly pleaded a retaliation claim, she failed to establish that she was
engaged in a protected activity under the CRA. Third, plaintiff failed to establish a causal
connection between the telephone calls to Brian Fraser and the adverse employment action.
Finally, within the context of employment discrimination, the plain language of CRA, read as a
whole, does not provide a cause of action against individuals under either article 2 or article 7.
I. Standard of Review
"The decision to grant or deny summary disposition is a question of law that is reviewed
de novo." Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002).
"The interpretation and application of a statutory provision is a question of law that is reviewed
de novo by this Court." Id. The following rules apply to judicial interpretation of the CRA:
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. If the plain
and ordinary meaning of a statute is clear, judicial construction is neither
necessary nor permitted. We may not speculate about the probable intent of the
Legislature beyond the words expressed in the statute. If a statute provides its
own glossary, the terms must be applied as expressly defined. When reasonable
minds may differ with respect to the meaning of a statute, the courts must look to
the object of the statute and the harm it is designed to remedy and apply a
reasonable construction that best accomplishes the purpose of the statute. [Barrett
v Kirtland Community College, 245 Mich App 306, 313-314; 628 NW2d 63
(2001) (citations omitted).]
II. Retaliation
To establish a prima facie case of retaliation under MCL 37.2701(a), a plaintiff must
show:
(1) that the plaintiff 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).]
I agree with the majority that plaintiff 's complaint is "fairly cursory." Although the word
"retaliation" appears in Count I, the term is merely used to describe conduct that plaintiff
identifies as sexual discrimination in violation of the CRA. More specifically, the word
"retaliation" appears three times in Count I of plaintiff 's complaint:
22. Plaintiff was sexually harassed and retaliated against by defendants'
agent and employee, Defendant Baergen, throughout the course of her
employment.
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23. This sexual harassment and retaliation included, but is not limited to,
unwelcome comments and conduct of an offensive and sexual nature directed at
plaintiff, the creation of a hostile work environment, as described herein and
constructively terminating plaintiff 's employment withholding pay commissions
due to her, based on her refusal to engage in a sexual relationship with Defendant
Baergen.
* * *
25. The conduct of defendants' agent and employee in sexually harassing
and retaliating against plaintiff constitutes sexual discrimination in violation of
MCLA 37.2101 et seq.
The alleged sexual harassment identified in Count I falls directly within MCL 37.2103:
(i) 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:
* * *
(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 . .
..
(iii) The conduct or communication has the purpose or effect of
substantially interfering with an individual's employment . . . .
While reference to a specific statutory provision is not required, plaintiff did not reference MCL
37.2701, which could have put defendants on notice that retaliation was being pleaded. More
importantly, however, plaintiff did not allege that she was engaged in a protected activity or that
a causal connection existed between the protected activity and the adverse employment action.
Instead, plaintiff simply alleged quid pro quo and hostile work environment sexual harassment,
two types of sexual discrimination prohibited by the CRA. As such, the complaint was
insufficient to put defendants on notice that a retaliation claim was also being pleaded.
III. Protected Activity
I also disagree that the two telephone calls to Fraser constituted protected activity. MCL
37.2701 prohibits retaliation or discrimination 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." (Emphasis
added.)
In assessing whether plaintiff has established a prima facie case, the first inquiry is
whether she engaged in protected activity sufficient to satisfy the first element. Plaintiff testified
that she told Fraser:
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I felt that I was being harassed. I felt that I was being pushed out, and I
wanted some help. I didn't think I could handle it.
* * *
I told him several instances with Herman where he had been out of line.
He was disputing agreements that we had made.
* * *
I told him about the swearing. I told him about the—what I felt was unfair
treatment and the argumentative nature that I was being treated with.
The entire conversation lasted approximately two minutes and plaintiff never indicated that she
was being sexually harassed. With regard to the second call, plaintiff testified that she asked
Fraser how the conversation went with Baergen. When Fraser indicated that Baergen said there
was no problem, plaintiff told Fraser he was misinformed. Again, plaintiff did not indicate that
she was being sexually harassed. An employee "must do more than generally assert unfair
treatment." Barrett, supra at 318-319. An employee "must clearly convey to an objective
employer that the employee is raising the specter of a claim of unlawful discrimination pursuant
to the CRA." Id. at 319. "[G]eneric, non-sex-based" complaints are insufficient. Id. Therefore,
plaintiff 's two telephone conversations with Fraser were not protected activities under MCL
37.2701.
IV. Causal Connection
Even if plaintiff 's telephone calls were protected activity, she failed to establish a
genuine issue of fact with regard to a causal connection between the telephone calls to Fraser and
the adverse employment action.
"To establish causation, the plaintiff must show that his participation in activity protected
by the CRA was a 'significant factor' in the employer's adverse employment action, not just that
there was a causal link between the two." Barrett, supra at 315. In West v Gen Motors Corp,
469 Mich 177, 184-187; 665 NW2d 468 (2003), our Supreme Court analyzed the requirements to
establish a "causal connection" between protected activity and an adverse employment action.
The Court concluded that a plaintiff "must show something more than merely a coincidence in
time between protected activity and adverse employment action." Id. at 186.
In this case, there was no genuine issue of fact that plaintiff 's telephone calls to Fraser
were a significant factor in the employment actions taken against plaintiff. Viewing the facts in
the light most favorable to plaintiff, the evidence clearly shows a long-term negative reaction to
plaintiff 's refusal to engage in a sexual relationship with Baergen. This activity did not cease
after plaintiff called Fraser—it continued in a similar and like fashion. There is absolutely no
evidence that the call to Fraser had anything to do with the subsequent adverse employment
action. Rather, the evidence indicates that the adverse employment action was directly
attributable to plaintiff 's rejection of Baergen's initial proposition as she specifically alleges in
paragraph 23 of her complaint.
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V. Individual Liability
Finally, in the context of employment discrimination, the CRA does not provide a cause
of action for retaliation against individuals under either article 2 or article 7.
"We construe an act as a whole to harmonize its provisions and carry out the purpose of
the Legislature." Macomb Co Prosecuting Attorney v Murphy, 464 Mich 149, 159; 627 NW2d
247 (2001). (Emphasis added.) The CRA is composed of eight articles that serve distinct
purposes. Article 1 consists of definitions that apply to the entire act. The discriminatory actions
prohibited by the CRA are set forth in articles 2 through 5, which individually contain definitions
and rules only applicable to the type of discrimination addressed in that particular article: article
2 prohibits employment discrimination, article 3 prohibits discrimination in places of public
accommodation, article 4 prohibits discrimination in educational institutions, and article 5
prohibits housing discrimination. There are three remaining articles: article 6 establishes the
civil rights commission and its procedures, article 7 prohibits retaliation against a person who
has taken action in opposition to a violation of the CRA, and article 8 provides additional rules
for claims brought under the CRA.
The majority correctly asserts that this Court has construed article 2 to permit claims of
employment discrimination to be brought only against employers, not individuals. Jager v
Nationwide Truck Brokers, Inc, 252 Mich App 464; 652 NW2d 503 (2002). I agree that despite
being strewn with references to the CRA generally, Jager only construes the language in article
2. Thus, its holding does not extend to any other article in the CRA, including article 7 that is at
issue here. Nonetheless, Jager affects the application of article 7 within the context of
employment discrimination claims.
MCL 37.2701 provides:
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.
(b) Aid, abet, incite, compel, or coerce a person to engage in a violation of
this act.
(c) Attempt directly or indirectly to commit an act prohibited by this act.
* * *
(e) Willfully obstruct or prevent a person from complying with this act or
an order issued or rule promulgated under this act.
(f) Coerce, intimidate, threaten, or interfere with a person in the exercise
or enjoyment of, or on account of his or her having aided or encouraged any other
person in the exercise or enjoyment of, any right granted or protected by this act.
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The majority correctly observes that MCL 37.2701 uses the term "person" rather than
"employer." But I disagree with the conclusions it draws from this observation. MCL 37.2701
must be viewed in light of its purpose in relation to the CRA as a whole. It is clear that article 7
operates as an umbrella to protect people in their "exercise or enjoyment of, any right granted or
protected by this act." Thus, it protects people who are pursuing claims that arise from violations
of articles 2 through 5. Employment discrimination is only one of these types of violations.
Clearly, article 7 does not use the term "employer" because it does not serve only to protect
people in pursuance of claims that arise only under article 2. Article 7 uses the broader term
"person" because it protects people in pursuance of claims, arising under articles 2 through 5,
brought against various entities, including employers, places of accommodation, educational
institutions, persons engaged in real estate transactions, etc.
Because article 2 specifically prohibits employers from discriminating, in the context of
employment discrimination, article 7 can only apply to employers. As noted by the majority, our
Supreme Court outlined the basic principles underlying a sexual harassment lawsuit in the
employment context:
Through the Civil Rights Act, Michigan law recognizes that, in
employment, freedom from discrimination because of sex is a civil right. MCL
37.2102; MSA 3.548(102). Employers are prohibited from violating this right,
MCL 37.2202; MSA 3.548(202), and discrimination because of sex includes
sexual harassment, MCL 37.2103(i); MSA 3.548(103)(i). [Chambers v Trettco,
Inc, 463 Mich 297, 309; 614 NW2d 910 (2000) (emphasis added).]
Jager held that only employers are prohibited from discriminatory actions under article 2:
Read as a whole, the CRA envisions, in our opinion, employer liability for
civil rights violations that result from the acts of its employees who have the
authority to act on the employer's behalf rather than individual liability for those
civil rights violations. Further, had our Legislature intended individual, rather
than employer, liability under the CRA, it could have expressly stated so. Thus,
we conclude that the CRA provides solely for employer liability, and a supervisor
engaging in activity prohibited by the CRA may not be held individually liable for
violating a plaintiff 's civil rights. [Jager, supra at 485.]
Accordingly, in the context of employment discrimination, employers are prohibited from
violating article 2 of the CRA and the "persons" prohibited from retaliating are employers.
This conclusion is further supported by the plain meaning of the term "retaliate," which is
not expressly defined in the CRA. Therefore, it is appropriate to look to the common definition
of retaliate. Mahnick v Bell Co, 256 Mich App 154, 162; 662 NW2d 830 (2003). Retaliate is
defined as "to return like for like . . . to requite or make return for (a wrong or injury) with the
like." Retaliate is synonymous with counter, repay, and reciprocate. Random House Webster's
Unabridged Dictionary (2001). "To return like for like" requires that the interaction occur
between two parties. The party acted against retaliates against the actor. One cannot retaliate if
it was not first subject to an adverse act. In the employment discrimination context, retaliation
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involves an employer that is subject to a discrimination claim taking adverse action against the
employee who has engaged in a protected activity with regard to that claim.
In sum, a retaliation claim cannot exist independent of a prohibited discriminatory action
under articles 2 through 5 of the CRA. As such, any claim for retaliation is related to another
claim of discrimination under one of those articles. Because article 2 does not permit a cause of
action against individuals for sexual harassment, within the context of employment
discrimination, article 7 likewise does not provide a cause of action for retaliation against
individuals. The retaliation claim that plaintiff claims to have alleged was against Baergen who
was not her employer, but only had authority to act on her employer MTD's behalf. In my view,
the CRA does not permit such a claim.
For these reasons, I would hold that the trial court did not err in granting summary
disposition of plaintiff 's retaliation claim against defendants MDT and Baergen. I concur in all
other aspects of the majority's decision.
/s/ Kirsten Frank Kelly
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