TARA HAMED V WAYNE COUNTYAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
TARA KATHERINE HAMED,
July 7, 2009
Wayne Circuit Court
LC No. 03-327525-NZ
WAYNE COUNTY and WAYNE COUNTY
Advance Sheets Version
SERGEANT KENNETH DAWWISH,
CORPORAL NETTI JACKSON, SHERIFF
WARREN C. EVANS, and DEPUTY REGINALD
Before: Borrello, P.J., and Meter and Stephens, JJ.
In this action arising from alleged violations of the Michigan Civil Rights Act (CRA),
plaintiff, Tara K. Hamed, appeals as of right the trial court’s April 10, 2007, order granting
partial summary disposition to defendants Wayne County and Wayne County Sheriff’s
Department (the department) with respect to plaintiff’s claims for hostile environment sexual
harassment and “application of county rules, policies and procedures.” Plaintiff also appeals as
of right the trial court’s April 26, 2007, order granting summary disposition to Wayne County
and the department with respect to plaintiff’s claim for quid pro quo sexual harassment. Wayne
County and the department’s cross-appeal, arguing that the trial court erred by denying their
motion to strike allegations in plaintiff’s amended complaint and by rejecting some of their
alternative arguments in support of summary disposition. We reverse and remand for further
I. Factual Basis for the Cause of Action
Plaintiff was arrested on an outstanding warrant for unpaid child support in Livingston
County on or around September 7, 2001. The Livingston Circuit Court ordered her to serve 45
days in the Livingston County Jail, subject to release upon payment of $1,500. The court did not
immediately order her into custody, but instead ordered her to check into an inpatient substance
abuse treatment program and to report to the Livingston County Jail on September 14, 2001, to
serve her term, unless she was in a drug treatment program.
On the night of September 7-8, 2001, Livingston County officials transferred her to the
custody of Wayne County deputy sheriffs, who transported her to the Wayne County Jail
pursuant to outstanding warrants for probation violation. When the officers arrived with plaintiff
at the Wayne County Jail, they realized that Deputy Reginald Johnson was alone on duty in the
male registry area. Jail regulations require the attendance of a female deputy when female
inmates are present. The transporting officers contacted Sergeant Kenneth Dawwish to advise
him of the situation. He permitted them to leave plaintiff alone with Johnson.
After the transporting officers left, Johnson kept plaintiff with him in the command
“bubble” instead of placing her in a cell. He allegedly commented to plaintiff that he could
“help” her and that she would be “indebted” to him for his help. Plaintiff’s complaint avers that
she interpreted Johnson’s comments as an offer of favorable treatment in exchange for sexual
favors. Johnson placed her in Cell No. 2 without locking the door, but, for no apparent reason,
switched her to Cell No. 7, which was dark and infested with cockroaches. Plaintiff allegedly
begged him to let her out. Johnson asked plaintiff whether she would be a “good girl” before he
released her from Cell No. 7. He then directed her into a private office that was closed to
inmates and outside the range of surveillance cameras. Johnson sexually assaulted plaintiff
inside the office. He partially removed her clothes and fondled her breasts and buttocks. He
ejaculated on her clothing and made an unsuccessful attempt to sexually penetrate her.
Afterward, a female officer, apparently unaware of the assault, escorted plaintiff to the women’s
area of the jail.
Plaintiff reported the incident to the department’s officials, and the department later
terminated Johnson’s employment. He was subsequently convicted of criminal sexual conduct.
Defendants do not dispute that Johnson sexually assaulted plaintiff inside the jail, although they
challenge her allegations regarding the details of the events preceding the assault.
II. Respondeat Superior Liability
On appeal, plaintiff first claims that the trial court erred by determining that Wayne
County and the department could not be found liable under a theory of respondeat superior. We
agree with plaintiff.
This Court reviews de novo a trial court’s resolution of a summary disposition motion.
Reed v Breton, 475 Mich 531, 537; 718 NW2d 770 (2006). Defendants moved for summary
disposition under MCR 2.116(C)(8) and (10). A motion under MCR 2.116(C)(8) tests the legal
sufficiency of the complaint. Adair v Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004).
The reviewing court accepts all well-pleaded factual allegations as true and construes them in a
light most favorable to the nonmoving party. Id. The motion may be granted only where the
claims alleged are so clearly unenforceable as a matter of law that no factual development could
possibly justify recovery. Id.
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Wilson
v Alpena Co Rd Comm, 474 Mich 161, 166; 713 NW2d 717 (2006). When ruling on a motion
brought under MCR 2.116(C)(10), the trial court must consider the affidavits, pleadings,
depositions, admissions, and other evidence submitted by the parties in the light most favorable
to the nonmoving party. Reed, supra at 537. The moving party is entitled to judgment as a
matter of law if the proffered evidence fails to establish a genuine issue of material fact. Id.
The question raised here is whether the rule of strict vicarious liability for employers,
applicable in quid pro quo sexual harassment cases in the employment discrimination context,
also applies to quid pro quo sexual harassment arising from the provision of public
accommodations and public services when the harassment consists of a sexual assault. This is a
question of first impression in Michigan.
The CRA defines discrimination based on sex to include sexual harassment. MCL
37.2103(i) defines sexual harassment as follows:
(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
(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.
This definition is generally applicable to all provisions of the CRA and does not differentiate
between discrimination in employment, public accommodations, or public services.
Sexual harassment that falls within subsection i or ii of this definition is known as quid
pro quo harassment. Sexual harassment that falls within subsection iii is known as hostile
environment sexual harassment. Chambers v Trettco, Inc, 463 Mich 297, 310; 614 NW2d 910
(2000). In order to establish a claim of quid pro quo harassment in the employment context, a
plaintiff must demonstrate (1) that she was subjected to unwelcome sexual conduct or
communication as described in the statute and (2) that her employer or the employer’s agent used
her submission to or rejection of the unwanted conduct as a factor in a decision affecting her
employment. Id. at 310. By analogy, a plaintiff claiming quid pro quo harassment in the context
of public accommodations or public services must show that the provider of those services or
accommodations, or the provider’s agent, used her submission to or rejection of the unwanted
conduct as a factor in a decision affecting the plaintiff’s access to the public services or
Plaintiff alleged that Johnson subjected her to unwanted sexual conduct under
circumstances that suggested that her treatment as an inmate would depend on whether she
submitted to that conduct. She alleged that Johnson fraternized with her by talking about having
a close personal relationship with her in which she would be “indebted” to him upon her release.
Johnson moved her to an uncomfortable cell and asked her whether she would be a “good girl”
before he released her. He did not refer her to a female deputy or the female area of the jail until
after he sexually assaulted her. These allegations permit an inference that his treatment of
plaintiff in the jail would depend on whether she complied with his request for sexual favors, and
the complaint therefore sufficiently alleges quid pro quo sexual harassment. Chambers, supra at
310-311. While defendants challenge certain aspects of plaintiff’s amended pleading, they do
not argue that plaintiff failed to allege facts in support of these elements. Instead, they argue that
plaintiff failed to establish their vicarious liability for Johnson’s conduct.
The parties’ primary dispute arises from their conflicting views regarding the application
of Champion v Nation Wide Security, Inc, 450 Mich 702; 545 NW2d 596 (1996), and Zsigo v
Hurley Med Ctr, 475 Mich 215; 716 NW2d 220 (2006). In Champion our Supreme Court held
that a supervisor’s sexual assault of a subordinate employee is a form of quid pro quo sexual
harassment and that the employer is liable for the supervisor’s conduct where the assault is
“accomplished through the use of the supervisor’s managerial powers.” Id. at 704. The Court
clarified its holding by stating that it did not “extend unlimited liability to employers whose
supervisors rape subordinates.” Id. at 713 (emphasis added). The Court reiterated that it held
employers strictly liable only “where the supervisor accomplishes the rape through the exercise
of his supervisory power over the victim.” Id. at 714. The Court concluded, “[W]e adopt the
nearly unanimous view that imposes strict liability on employers for quid pro quo sexual
harassment committed by supervisory personnel.” Id. at 712.
On appeal, defendants contend that Champion does not control this matter because the
decision in Champion was subsequently weakened by the Supreme Court’s decision in Zsigo. In
concluding that the supervisor in Champion could be held vicariously liable, the Champion Court
cited 1 Restatement Agency, 2d, § 219(2)(d). Champion, supra at 712 n 6. In Zsigo, the
Supreme Court explained that Champion’s reference to 1 Restatement Agency, 2d, § 219(2)(d),
did not qualify as an adoption of that provision. The Supreme Court stated:
The reference to “Restatement Agency, 2d, § 219(2)(d)” in footnote six of
Champion may have contributed to appellate court confusion about whether this
Court adopted the aided by the agency exception to employer nonliability under
the doctrine of respondeat superior. We now clarify that the reference to
§ 219(2)(d) in Champion, supra, was made only in passing and on the basis of the
very distinct facts of that civil rights matter. We did not, by that reference, adopt
§ 219(2)(d). The Court of Appeals erred in finding that this Court affirmatively
adopted the “aided by the agency relationship” exception to liability under the
respondeat superior doctrine set forth in Restatement Agency, 2d, § 219(2).
[Zsigo, supra at 223-224.]
The Court noted that, according to Champion, “even in the context of quid pro quo sexual
harassment, the sexual assault must be ‘accomplished through the use of the supervisor’s
managerial powers.’” Zsigo, supra at 224 n 19, quoting Champion, supra at 704.
The Zsigo Court, while rejecting the application of agency principles from Restatement
Agency, 2d, § 219(2)(d), continued to find that strict liability applies to employers whose
managers misuse their managerial authority to commit sexual assaults on subordinates. This
Court is asked to determine if this strict liability analysis of Champion is applicable to the
circumstances presented in this case.
Defendants misread Zsigo to overrule Champion. The Zsigo Court clearly articulated that
it was not overruling Champion because Champion’s holding was not based on Restatement
Agency, 2d, § 219(2)(d). The Court in Zsigo explained:
The dissent contends that the Champion Court implicitly adopted
§ 219(2)(d) and did not limit its application. We note, to the contrary, that the
Champion holding was carefully crafted to apply only in the context of quid pro
quo sexual harassment under MCL 37.2103(i). Specifically, the Court stated:
“In this case, we must decide whether an employer is liable for quid pro
quo sexual harassment under MCL 37.2103(i) . . . where one of its employed
supervisors rapes a subordinate and thereby causes her constructive discharge.
We hold that an employer is liable for such rapes where they are accomplished
through the use of the supervisor’s managerial powers. We believe that this result
best effectuates the remedial purpose of the Civil Rights Act, MCL 37.2101 et
seq. . . . . [Champion, supra at 704-705 (emphasis added).]”
Thus, even in the context of quid pro quo sexual harassment, the sexual
assault must be “accomplished through the use of the supervisor’s managerial
powers.” Id. This limited exception clearly does not apply to the facts in this
case. [Zsigo, supra at 224 n 19.]
In other words, the offender in quid pro quo sexual harassment does not merely use his
employment or agency as an opportunity to exploit the victim sexually (as did the nursing
assistant in Zsigo); rather, his authority over the subordinate is the tool that is instrumental and
integral in his commission of the sexual exploitation. The nursing assistant in Zsigo did not use
authority delegated by his employer to render the plaintiff vulnerable to his abusive conduct. He
merely seized the opportunity that arose when he was alone with a restrained patient who was
not capable of acting in her own best interests. In contrast, the supervisor in Champion used his
authority as a means of committing the assault. He selected the plaintiff to be the only security
guard with him in the hospital and offered to use his authority to her advantage if she granted
him sexual favors. When she refused, he used his managerial authority to direct her to an
isolated area where he could lock her in a room, cut her off from outside help, and force himself
on her. Champion, supra at 706-707. The Zsigo Court recognized a distinction between seizing
an opportunity to commit unlawful conduct and using one’s authority over a subordinate as a
means of subjecting that subordinate to abusive and unlawful conduct. Zsigo, supra at 224 n 19.
In the instant case, Johnson did not merely use his position to find opportunities to
commit a sexual assault against a female inmate; he used his authority as a turnkey to exploit her
sexually. As the sole deputy in charge of plaintiff, Johnson had both physical power and legal
authority over her. He alone had the authority to decide when she would be referred to the
female area of the prison. He could use his authority to decide which cell plaintiff would be
placed in and to direct her around the jail. Plaintiff’s amended complaint pleads facts sufficient
to support a claim that Johnson’s managerial authority was an instrumental and integral tool in
perpetrating the sexual assault.
Defendants also argue that Champion applies only to employment discrimination actions
arising under article 2 of the CRA. This argument is clearly inconsistent with the plain language
of MCL 37.2103(i), in which each of the three categories of sexual harassment is expressly
defined as applying to “employment, public accommodations or public services, education, or
housing.” As this Court held in Diamond v Witherspoon, 265 Mich App 673, 685; 696 NW2d
770 (2005), “the plain language of the CRA includes situations outside the realm of employment
where an individual’s access to public accommodations or public services is affected.” As an
inmate in the Wayne County Jail, plaintiff was entitled to the public service of being treated in
accordance with her constitutional rights and with jail regulations. Johnson’s exploitation of her
status deprived her of this service.
Defendants also argue that public accommodations and public services claims are
distinguishable from employment discrimination claims because the public accommodations or
public services provisions of the CRA, “unlike the employment discrimination provisions, make
no reference whatsoever to agents or agency principles.” Defendants do not cite any provisions
of the CRA, but they presumably refer to the definition of “employer” in MCL 37.2201(a) as “a
person who has 1 or more employees, and includes an agent of that person.” In contrast, MCL
37.2301(a) defines “place of public accommodation” and “public service” as follows:
(a) “Place of public accommodation” means a business, or an educational,
refreshment, entertainment, recreation, health, or transportation facility, or
institution of any kind, whether licensed or not, whose goods, services, facilities,
privileges, advantages, or accommodations are extended, offered, sold, or
otherwise made available to the public. . . .
(b) “Public service” means a public facility, department, agency, board, or
commission, owned, operated, or managed by or on behalf of the state, a political
subdivision, or an agency thereof or a tax exempt private agency established to
provide service to the public, except that public service does not include a state or
county correctional facility with respect to actions and decisions regarding an
individual serving a sentence of imprisonment.
The absence of any reference to agents in these definitions cannot reasonably be construed as an
omission of agency principles from the public accommodations and public services provisions of
the CRA. The definition of “employer” in MCL 37.2201 reflects that an employer might be an
individual person or an entity such as a corporation, whereas the definitions of “place of public
accommodation” and “public service” in MCL 37.2301 reflect that such entities are not
individuals. Indeed, if the absence of a reference to agents in MCL 37.2301 were construed as
an omission of agency principles from the entire article, only individual defendants could be held
liable for discrimination in the provision of public services or accommodations, thus exempting
the vast majority of providers who can only function through the actions of individuals.
We therefore conclude that plaintiff established a valid claim for quid pro quo sexual
harassment under article 3 of the CRA and that the trial court erred by granting summary
disposition for defendants on the ground that Johnson acted outside the scope of his authority
when he sexually assaulted plaintiff. Employers are vicariously liable for acts of quid pro quo
sexual harassment committed by their employees when those employees use their supervisory
authority to perpetrate the harassment. Evidence was presented that Johnson used his authority
as a sheriff’s deputy to exploit plaintiff’s vulnerability, thereby subjecting defendants to
vicarious liability for his conduct.
III. Public Services under the CRA
Defendants assert that the trial court erred when it concluded that plaintiff was not an
“individual serving a sentence of imprisonment” and, therefore, was not excluded from the scope
of the CRA. We disagree.
Defendants argue that the Wayne County Jail does not provide a public service within the
meaning of article 3 of the CRA. Defendants argue that the statutory definition of “public
service” within the CRA expressly excludes claims of CRA violations by individuals serving a
sentence of imprisonment where those claims arise from actions and decisions regarding their
incarceration. MCL 37.2301(b) defines “public service” as follows:
“Public service” means a public facility, department, agency, board, or
commission, owned, operated, or managed by or on behalf of the state, a political
subdivision, or an agency thereof or a tax exempt private agency established to
provide service to the public, except that public service does not include a state or
county correctional facility with respect to actions and decisions regarding an
individual serving a sentence of imprisonment. [Emphasis added.]
The Legislature added the emphasized clause in 1999, effective March 10, 2000. See 1999 PA
Defendants contend that plaintiff was serving a sentence of imprisonment in a county
correctional facility and, therefore, is not entitled to raise a claim of discrimination in the
provision of a public service with regard to her treatment in the jail. Defendants emphasize that
plaintiff was brought to the Wayne County Jail after the Livingston Circuit Court ordered her to
serve 45 days in jail. The trial court rejected this argument because plaintiff was not brought to
the Wayne County Jail to serve a sentence, but for processing in matters unrelated to the
Livingston County matter. On cross-appeal, defendants argue that the trial court erred in its
interpretation and application of MCL 37.2301(b).
This issue raises a question of statutory interpretation. When faced with questions of
statutory interpretation, courts must discern and give effect to the Legislature’s intent as
expressed in the words of the statute. Pohutski v City of Allen Park, 465 Mich 675, 683; 641
NW2d 219 (2002). Where the language is unambiguous, it must be presumed that the
Legislature intended the meaning clearly expressed, and no further judicial interpretation is
permitted. Id. Terms that are not defined in a statute must be given their plain and ordinary
meanings, and it is appropriate to consult a dictionary definition for those meanings. Halloran v
Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004).
The exception in MCL 37.2301(b) does not encompass all legally incarcerated persons.
Rather, it encompasses only those who are “serving a sentence of imprisonment” in a state or
county correctional facility. Defendants concede that the exclusionary phrase in MCL
37.2301(b) does not exclude all individuals legally detained in a correctional facility. In oral
arguments, they further conceded that pretrial detainees are not within the ambit of MCL
37.2301(b). Although defendants implicitly argued in the trial court that the statute provides a
blanket exception for correctional facilities, they have abandoned that argument on appeal.
Defendants concede that plaintiff would not come within the exclusionary clause of MCL
37.2301(b) if the sole reason for her incarceration in the Wayne County Jail was to await
disposition of alleged probation violation charges. Defendants cite People v Monasterski, 105
Mich App 645; 307 NW2d 394 (1981), in which this Court held that the time constraints of the
Interstate Agreement on Detainers Act, MCL 780.601 et seq., were not applicable to the
defendant there, because the statute applied only where a defendant was serving a term of
imprisonment in the sending state. The Court concluded that the defendant was not serving a
term of imprisonment in the sending state because he was in custody in that state pending
prosecution on criminal charges. Id. at 652-653.
Defendants instead argue that plaintiff here was an individual serving a sentence of
imprisonment within the meaning of the statute because she was serving a sentence imposed by
the Livingston Circuit Court. We reject this argument. The Livingston Circuit Court order is a
standard court form entitled “Support Enforcement Order.” The trial court checked the
paragraph that reads:
The payer shall be committed to 45* days in the county jail, to be released
upon payment of $1,500 to the county sheriff, friend of the court, or clerk of the
court as appropriate. The sum shall be applied as directed by the friend of the
court. [The numbers and the asterisk were handwritten on blank lines.]
The asterisk refers to a handwritten paragraph that provides:
Pltf to be released today & to check into inpt treatment program by 9-1401 at 5:00 pm/if not in program Pltf to report to Jail on 9-14 at 5:00 to serve 45
days w/$1,500 release payment.
Although defendants characterized this matter as a “probation violation” at the summary
disposition hearing, it is clear from the order that plaintiff was ordered to serve jail time for
failing to comply with a child support order. Consequently, we conclude that the order is
properly classified as a penalty for contempt of court. See MCL 552.625, MCL 552.631, MCL
552.633, and MCL 600.1715.
The record does not support a finding that plaintiff was serving a term of imprisonment
when she was in the Wayne County Jail. She had been found guilty of not complying with a
valid court order, and the court fashioned a penalty that, even if it characterized as a term of
imprisonment, was not set to begin until September 14, 2001, seven days after she was sexually
assaulted while awaiting disposition on a Wayne County bench warrant. Plaintiff was not
transported to the Wayne County Jail to serve the 45-day term, but for processing in unrelated
matters. In addition to being prospective, the imprisonment portion of the Livingston order was
conditional. She was not scheduled to begin the 45-day sentence unless she had not paid the
$1,500 and had not entered an inpatient drug treatment program before September 14, 2001.
There is no indication in the record that the Livingston Circuit Court would credit her time
served in Wayne County toward the 45-day term. The Livingston County order does not
reference the Wayne County Jail at all. Apparently a check of the Law Enforcement Information
Network was done on plaintiff and an outstanding Wayne County warrant was discovered.
Subsequently, plaintiff was surrendered to Wayne County officers for disposition of that warrant.
Under these circumstances, we cannot conclude that plaintiff was serving a sentence of
imprisonment in the Wayne County Jail. Consequently, the exclusion of correctional facilities
from the definition of public services with respect to actions and decisions regarding an
individual serving a sentence of imprisonment does not apply to plaintiff.
We note that defendants also argue that the trial court’s interpretation of MCL 37.2301(b)
is inconsistent with the Legislature’s intent. When the Legislature amended MCL 37.2301(b), it
chose to do so by designating a particular class of incarcerated persons, those serving sentences
of imprisonment, as persons excluded from the protections of the CRA with respect to actions
and decisions regarding their incarceration. The 1999 amendment represents the first legal
demarcation between incarcerated persons serving sentences of imprisonment and other
categories of detainees for purposes of determining whether a correctional facility is a public
service under MCL 37.2301(b).
Under these circumstances, there is no basis for interpreting the 1999 amendment as
having any meaning other than that expressed by the plain and unambiguous statutory language:
“public service does not include a state or county correctional facility with respect to actions and
decisions regarding an individual serving a sentence of imprisonment.” Attempting to broaden
the scope of the limitation by extending it to incarcerated persons who are not serving sentences
of imprisonment would violate the clear rules of statutory construction prohibiting deviations
from clear and unambiguous statutory language. Pohutski, supra at 683. Broadening the scope
of the restriction would also violate the well-established maxim expressio unius est exclusio
alterius, meaning that the “express mention in a statute of one thing implies the exclusion of
other similar things.” Ross v Blue Care Network of Michigan, 480 Mich 153, 184; 747 NW2d
828 (2008). “So well established is this maxim that it can be assumed that legislators are fully
aware the courts will utilize it when construing their words.” Id. The Legislature included one
class of incarcerated persons in its restriction, thereby leaving out other classes of incarcerated
persons. The fact that the Legislature’s amendment was prompted by a judicial interpretation
that was deemed contrary to legislative intent does not provide any basis for deviating from the
established principles of applying clear and unambiguous language as written, or from inferring
that the Legislature intended any meaning different from that expressed in the statutory language.
In sum, the trial court did not err by concluding that the Wayne County Jail was
providing a public service to plaintiff because her action alleging a civil rights violation did not
arise from defendants’ actions or decisions regarding an individual’s serving a sentence of
imprisonment. Plaintiff was not serving a sentence of imprisonment in the Wayne County Jail.
Although she had recently been sentenced to serve 45 days in the Livingston County Jail, and
although she was conditionally required to report to the Livingston County Jail to begin that
sentence the following week, she was not detained in the Wayne County Jail in relation to the
Livingston County court order. Further, because we determine that the trial court did not err in
its holding regarding the public service component of the CRA, we need not address whether the
trial court erred in its holding regarding the public accommodations component of that statute.
The trial court was precluded from granting defendants summary disposition regardless of
whether the Wayne County Jail was a place of public accommodation.
IV. Allegations in the Amended Complaint
Finally, defendants allege that the trial court erred by allowing plaintiff to amend her
complaint and by denying defendants’ motion to strike the allegations that appeared in the
amended complaint. We disagree.
This Court reviews a trial court’s decision to grant or deny a motion to amend a
complaint for abuse of discretion. Shember v Univ of Michigan Med Ctr, 280 Mich App 309,
314; 760 NW2d 699 (2008). An abuse of discretion occurs when the trial court’s decision falls
outside the range of principled outcomes. Id. This issue also involves the trial court’s denial of
defendants’ motion to strike pleadings in plaintiff’s verified amended complaint. This Court
reviews a trial court’s decision regarding a motion to strike a pleading pursuant to MCR 2.115
for abuse of discretion. Belle Isle Grill Corp v Detroit, 256 Mich App 463, 469; 666 NW2d 271
Defendants argue that plaintiff acted in bad faith and with dilatory motive in belatedly
amending her claim to add a claim of discrimination arising under the CRA. Defendants contend
that plaintiff materially changed her allegations, and deviated from her previous sworn
testimony, in order to manufacture a claim of sexual harassment. This argument mirrors the
arguments that defendants raised in their motion to strike the allegations in plaintiff’s verified
amended complaint.1 Defendants argued in that motion that various allegations in plaintiff’s
MCR 2.115(B) provides:
On motion by a party or on the court’s own initiative, the court may strike
from a pleading redundant, immaterial, impertinent, scandalous, or indecent
matter, or may strike all or part of a pleading not drawn in conformity with these
amended verified complaint should have been stricken because they contradicted plaintiff’s prior
sworn testimony in her deposition, at Johnson’s criminal trial, and in her interview with an
internal affairs investigator. These primarily relate to statements that Johnson made to plaintiff,
plaintiff’s response to Johnson’s statements, and whether Johnson locked the door of Cell No. 7.
Defendants’ argument that an amended pleading should be disallowed or stricken on the
basis of prior inconsistent testimony derives from principles regarding summary disposition
under MCR 2.116(C)(10). These principles preclude a party or witness from creating a factual
dispute in avoidance of summary disposition by submitting an affidavit that contradicts his or her
own sworn testimony or prior conduct. Casey v Auto-Owners Ins Co, 273 Mich App 388, 396;
729 NW2d 277 (2006). By analogy, a plaintiff should not be permitted to amend a complaint to
include allegations that contradict prior sworn testimony given in that litigation if the prior
statements would have led to summary disposition of the plaintiff’s claim. Inconsistency and
contradiction are treated very differently.
Inconsistency leads to impeachment while
contradiction can lead to dismissal.
We do not believe that the allegations in plaintiff’s amended verified complaint directly
contradicted her prior sworn statements. We accept defendants’ assertion that some of plaintiff’s
many statements are inconsistent with other statements she has made. These inconsistencies,
while fodder for cross-examination, do not rise to the level of contradiction. In each of her
numerous accounts plaintiff asserts that she was highly emotional, that she was under the direct
supervision and control Johnson, and that Johnson had nonconsensual sexual contact with her.
Defendants emphasize that plaintiff alleged in her complaint that she cried and begged Johnson
to let her out of Cell No. 7 and not return her there. In contrast, plaintiff stated in her deposition
and in her internal affairs interview that she felt “freaked out,” “grossed out,” or squeamish
because of the cockroaches in the cell. Although plaintiff’s statements vary with respect to the
degree of her distress and emotionality, she gave no sworn testimony that she was calm.
Similarly, plaintiff’s varying accounts of Johnson’s statements do not detract from the essence of
her allegations of quid pro quo harassment. In her complaint, plaintiff alleged that Johnson
asked her if she would be a “good girl” and told her that she would be “indebted” to him for
favorable treatment. Previously, plaintiff stated that she could not recall exactly what he said.
She also previously testified that Johnson advised her to contact him instead of returning to her
rehabilitation program, because he would “clean [her] up and take care of [her].” These
differences are not substantial, because all of Johnson’s alleged statements imply that he had
power to act to plaintiff’s advantage or disadvantage, thus giving her an incentive to please him.
Finally, plaintiff’s inconsistencies regarding whether the cell door was locked are not material,
because she could not reasonably believe that she was free to leave the cell without Johnson’s
permission even if the door was unlocked. None of plaintiff’s prior statements, including her
statement that she could not remember everything Johnson said, contradicted this basic account.
This rule does not provide a basis for striking allegations because of prior inconsistent testimony.
Defendants made a weak argument regarding plaintiff’s dilatory motives and prejudice
accruing to the defense. The inconsistencies between plaintiff’s amended verified complaint and
her prior statements do not reveal an attempt to resuscitate a futile claim for quid pro quo sexual
harassment. The record offers little support for any finding that the basis for the amendment was
delay. Nor is there record evidence of prejudice to defendants. To the extent that the amended
complaint requires additional discovery, that request can be made to the trial court.
We hold that the trial court erred by determining that defendants could not be held
vicariously liable for Johnson’s actions. Consequently, because plaintiff was not an inmate
serving a sentence of imprisonment at Wayne County Jail, the sexual assault operated to deprive
her of a public service. Furthermore, the trial court did not abuse its discretion by allowing
plaintiff to amend her complaint. Therefore, defendants were improperly granted summary
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ Stephen L. Borrello
/s/ Patrick M. Meter
/s/ Cynthia Diane Stephens