MARY FORTENBERRY V JENKINS-DICK CORP
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STATE OF MICHIGAN
COURT OF APPEALS
MARY FORTENBERRY, ANJENETTA
PHIFFER, IRENE CARRINGTON-LEE,
MATILDA SHANNON and DIANA HUDSON,
UNPUBLISHED
December 2, 2003
Plaintiffs-Appellants,
v
No. 242225
Wayne Circuit Court
LC No. 01-110717-CZ
JENKINS-DICK CORPORATION,
Defendant-Appellee,
and
ANN ARBOR CEILING,
Defendant.
Before: Owens, P.J., and Fitzgerald and Saad, JJ.
PER CURIAM.
In this gender and race discrimination case, plaintiffs appeal the trial court’s grant of
summary disposition to defendant. We affirm.
On March 29, 2001, plaintiffs filed their complaint against defendant, Jenkins-Dick, a
joint venture and general contractor for part of the Greektown Casino project.1 Plaintiffs alleged
that defendant (1) violated plaintiffs’ rights under the Michigan Civil Rights Act (CRA), MCL
37.2101 et seq., and (2) negligently performed its obligations under its contract with the casino
owner.2 The trial court granted defendant’s motion for summary disposition under MCR
2.116(C)(8) and (10), and plaintiffs appeal.
1
Plaintiffs also sued Ann Arbor Ceiling, a subcontractor that performed work on the project.
The trial court dismissed the company from this action pursuant to a stipulation of the parties.
2
Plaintiffs also asserted a claim of fraud and misrepresentation, but later abandoned it.
-1-
I.
We review de novo the trial court’s summary disposition ruling. Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). For their CRA claim, plaintiffs
alleged that defendant (1) refused to hire plaintiffs, (2) treated differently those plaintiffs who
worked on the project, and (3) sexually harassed Fortenberry and Phiffer. The court granted
summary disposition on the claim pursuant to MCR 2.116(C)(10), which tests the factual support
for a claim. Spiek, supra at 337. In analyzing a motion under this subrule, a court must consider
the affidavits, pleadings, depositions, admissions and other relevant documentary evidence in the
light most favorable to the nonmoving party to determine whether any genuine issue of material
fact exists to warrant a trial. Spiek, supra at 337.
The record contains unrebutted evidence that defendant does not qualify as an
“employer” for purposes of the CRA.3 In support of its motion, defendant submitted the
affidavit and deposition testimony of Wilbert Fisher, defendant’s general superintendent during
the Greektown project. The evidence established that (1) defendant existed solely to act as the
general contractor of select portions of the Greektown project; (2) defendant engaged in no
hiring of workers on the Greektown project, but left the hiring decisions solely to the
subcontractors, and (3) defendant had absolutely no authority to affect the terms of employment
of the subcontractors’ employees. In the response brief and on appeal, plaintiffs effectively
concede that defendant does not qualify as an employer for purposes of MCL 37.2201(a) and
MCL 37.2202(1), and offer no argument or evidence to rebut defendant’s showing that it did not
hire or otherwise exert authority over any subcontractors’ employees on the project.
In light of the evidence and plaintiffs’ concessions, the trial court correctly ruled that no
genuine issue of material fact exists with respect to any of the allegations that defendant, as an
“employer” made discriminatory, employment-related decisions in violation of MCL 37.2202(1).
Plaintiffs also alleged that defendant retaliated against plaintiffs by laying off Phiffer in
response to her complaints of sexual harassment and by refusing to hire plaintiffs because of
discrimination complaints they directed to the Detroit City Council. While it is true that MCL
37.2701(a) contemplates that “a person,” not strictly an “employer,” may violate the CRA by
retaliating against another person, here, the only alleged retaliation was defendant’s refusal to
hire plaintiffs and the layoff of Phiffer. Because undisputed evidence shows that defendant did
not hire project workers and had no authority over the terms of employment of its
subcontractors’ employees, the trial court correctly ruled, as a matter of law, that the retaliation
theory of liability, which was “premised on the existence of [an actual or] a potential employer
employee relationship” between defendant and plaintiffs, did not apply to defendant.
II.
3
Under MCL 37.2201(a), the term “employer” means “a person who has 1 or more employees,
and includes an agent of that person.”
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In a related argument, plaintiffs challenge the trial court’s ruling that they did not
adequately set forth a claim that defendant aided or abetted the discriminatory conduct of its
subcontractors in violation of MCL 37.2701(b). “Decisions concerning the meaning and scope
of pleading . . . are within the sound discretion of the trial court and reversal is only appropriate
when the trial court abuses that discretion.” Weymers v Khera, 454 Mich 639, 654; 563 NW2d
647 (1997).
Pursuant to MCR 2.111(B)(1), a complaint must state the facts “on which the pleader
relies in stating the cause of action, with the specific allegations necessary reasonably to inform
the adverse party of the nature of the claims the adverse party is called on to defend.” To
determine the elements that comprise a claim of aiding another’s violation of an individual’s
civil rights, the parties and the trial court referred to cases interpreting New Jersey law, which
has a provision similar to MCL 37.2701(b), that prohibits a person from aiding, abetting,
inciting, compelling or coercing “the doing of any of the acts forbidden under” the
nondiscrimination act. Hurley v Atlantic City Police Dep’t, 174 F3d 95, 126 (CA 3, 1999). In
Hurley, the Third Circuit ruled that, to establish that a defendant aided or abetted discrimination,
a plaintiff must demonstrate that (1) the party aided by the defendant performed a wrongful act
that caused an injury, (2) the defendant had general awareness “of his role as part of an overall
illegal or tortious activity at the time that he provide[d] the assistance,” and (3) the defendant
knowingly and substantially assisted the principal act of discrimination. Id. at 127.
A review of plaintiffs’ complaint supports the trial court’s determination “that the words
aid or abet are simply absent from the [c]omplaint.” Instead, plaintiffs describe defendant as a
principal actor, and nowhere employ language to suggest that defendant acted to compel, coerce
or incite another’s discriminatory action. The trial court also correctly observed that plaintiffs
never mentioned the separate, specific subsection that contains the prohibition of aiding or
abetting a discriminatory act, MCL 37.2701(b). Moreover, the complaint lacks any allegation
that defendant was aware of its “role as part of an overall illegal or tortious activity at the time
that” it provided the assistance, or that defendant knowingly and substantially assisted any
principal act of discrimination. Hurley, supra at 127. Accordingly, the court did not abuse its
discretion in ruling that the allegations in the complaint did not adequately inform defendant that
plaintiffs intended to hold it liable as an aider or abettor of another’s discriminatory acts.
Thus, because there is no genuine issue of material fact concerning defendant’s
discrimination as an employer, and because the complaint does not sufficiently allege that
defendant aided or abetted the discrimination of another, the trial court properly granted
summary disposition to defendant.
III.
In a related argument, plaintiffs also say that the trial court erred by denying their request
to amend their complaint to include specific allegations that defendant aided or abetted
discrimination. We review for an abuse of discretion the trial court’s decision to permit or deny
permission to a party to amend its pleadings. Amerisure Ins Co v Graff Chevrolet, Inc, 257 Mich
App 585, 598; 669 NW2d 304 (2003).
MCR 2.118(A)(2) provides that a party may apply to a court for leave to amend a
pleading, and that “[l]eave shall be freely given when justice so requires.” A court ordinarily
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should grant a party’s motion to amend, and should deny such a motion only for one of the
following particularized reasons: (1) the moving party’s undue delay; (2) the moving party’s bad
faith or dilatory motive; (3) the moving party’s repeated failure to cure deficiencies through
previously allowed amendments; (4) the opposing party would suffer undue prejudice if the court
allowed the amendment; and (5) futility. Weymers, supra at 658, quoting Ben P Fyke & Sons v
Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973). And, while mere delay alone does not
warrant denial of a motion to amend, it is equally clear that:
[a] party is not entitled to wait until the discovery cutoff date has passed and a
motion for summary judgment has been filed on the basis of claims asserted in the
original complaint before introducing entirely different legal theories in an
amended complaint. . . . In complex cases . . . it is particularly likely that drastic
amendments on the eve of trial will prejudice the defendants. . . . Putting the
defendants “through the time and expense of continued litigation on a new theory,
with the possibility of additional discovery, would be manifestly unfair and
unduly prejudicial.” [Weymers, supra at 661-662, quoting Priddy v Edelman, 883
F2d 438, 446-447 (CA 6, 1989) (citations omitted).]
The record reflects that the trial court correctly found that plaintiffs unduly delayed in
requesting permission to amend their complaint and that defendant would have been prejudiced
if the court permitted the amendment. Early in the proceedings, plaintiffs were aware of the
alleged facts supporting their claim that defendant aided or abetted the subcontractors’
discrimination. A review of plaintiffs’ proposed amended complaint reveals that plaintiffs
altered none of the common allegations within their original complaint, and that within Count I
of the amended complaint plaintiffs utilized the same factual allegations they asserted within the
original complaint, with some minor grammatical rearrangement. As the trial court observed, ¶ 6
of defendant’s affirmative defenses, filed on June 15, 2001, averred that defendant “is not an
employer under the [CRA],” and defendant’s responses to plaintiffs’ interrogatories, which
defendant served upon plaintiff on September 21, 2001, repeatedly informed plaintiffs that
defendant did not seek or hire any project-related workers, but left all hiring of workers to its
subcontractors. Plaintiffs do not contest the extent of their knowledge regarding defendant’s role
in the project. Plaintiffs offer no explanation for why they waited approximately five more
months to raise the potential amendment, until after the conclusion of discovery and defendant’s
filing of its motions for dismissal and summary disposition, other than their unavailing
suggestion that they wanted documentary evidence or deposition testimony that would further
describe defendant’s precise role in the project and the extent of defendant’s hiring activities.
We cannot conclude that the trial court abused its discretion in denying plaintiffs’ request
to amend the complaint because (1) the trial court recognized and applied the correct standard in
denying plaintiffs’ request to amend the complaint, (2) plaintiffs inexplicably, unduly delayed in
requesting an amendment until many months after they knew the facts underlying their claim,
after the close of discovery, and after defendant filed its motions for summary disposition, and
(3) the grant of plaintiffs’ proposed amendment would result in prejudice to defendant, which did
not have notice of a proposed aiding or abetting discrimination claim, and which would require
further discovery to examine the previously unexplored elements of a claim of aiding or abetting.
Weymers, supra at 658-662; Amerisure Ins Co, supra at 598-599.
IV.
-4-
Plaintiffs also assert that the trial court erred when it summarily dismissed their claim that
defendant negligently performed its contractual obligations. Whether defendant owed plaintiffs
a legal duty constitutes a question of law that this Court reviews de novo. Harts v Farmers Ins
Exchange, 461 Mich 1, 6; 597 NW2d 47 (1999); Benejam v Detroit Tigers, Inc, 246 Mich App
645, 648; 635 NW2d 219 (2001). If the pleadings fail to state a claim on which relief may be
granted, and no factual development could justify the claim for relief, the trial court should, as
here, dismiss the claim.4
A duty may arise out of a contractual relationship. Freeman-Darling, Inc v AndriesStoren-Reynaert Multigroup, Inc, 147 Mich App 282, 284; 382 NW2d 769 (1985). Whether a
plaintiff states an actionable tort claim for negligence arising out of an alleged breach of contract
depends on the nature of the plaintiff’s allegations. Michigan courts distinguish between a claim
that the defendant performed certain contractual obligations with active negligence, and a claim
that the defendant failed to perform his contractual obligations. Rinaldo’s Constr Corp v
Michigan Bell Telephone Co, 454 Mich 65, 83; 559 NW2d 647 (1997); Hart v Ludwig, 347 Mich
559, 561-562, 564-565; 79 NW2d 895 (1956); Derbabian v S & C Snowplowing, Inc, 249 Mich
App 695, 708; 644 NW2d 779 (2002); Antoon v Community Emergency Med Serv, Inc, 190 Mich
App 592, 595; 476 NW2d 479 (1991). A party who affirmatively performs his contractual
obligations owes a duty to those who may be foreseeably injured by his performance to proceed
with reasonable care. Clark v Dalman, 379 Mich 251, 260-261; 150 NW2d 755 (1967); Hart,
supra at 563-564; Joyce v Rubin, 249 Mich App 231, 243-244; 642 NW2d 360 (2002)
(observing that under this theory of negligence, a defendant’s breach of a contractual duty causes
injury to a third party, who is then allowed to bring a tort action). To the contrary, no
independent tort claim arises solely from a defendant’s failure to perform his contractual
obligations. Hart, supra at 562-564; Derbabian, supra at 708; Freeman-Darling, supra at 284.
“The cases are numerous and confusing as to the dividing line between
actions of contract and of tort, and there are many cases where a man may have
his election to bring either action. Where the cause of action arises merely from
breach of promise, the action is in contract.
“The action of tort has for its foundation the negligence of the defendant,
and this means more than a mere breach of promise . . . .
“As a general rule there must be some active negligence or misfeasance to
support tort. There must be some breach of duty distinct from breach of
contract.” [Hart, supra at 563, quoting Tuttle v George H Gilbert Mfg Co, 145
Mass 169, 174-175; 13 NE 465 (1887) (emphasis added).]
Count II of plaintiffs’ complaint alleges that defendant had a contractual obligation to
“implement an employment plan consistent with” the CRA and Detroit Executive Order 22, “to
maintain a job site free of unlawful discrimination and to facilitate the employment of women,
4
We review de novo the trial court’s grant of summary disposition pursuant to MCR
2.116(C)(8), which tests the legal sufficiency of a claim. Spiek, supra at 337.
-5-
minority, Detroit residents, trades people.” The complaint in ¶ 40 alleges that defendant
breached its common-law duty to perform its contractual obligations with reasonable care to
avoid injuring plaintiffs.5
The trial court correctly ruled that the allegations in subparagraphs 40(a)-(d) failed to
state a claim for negligence because they allege only nonfeasance by defendant. These
subparagraphs in essence say that defendant failed to perform certain contractual obligations.
Therefore, plaintiffs’ allegations fail to state an actionable claim for negligence.6 Sherman v Sea
5
Plaintiffs allege that:
Defendant[] . . . breached [its] duty of due care by failing to, among other
things:
a.)
Notify the appropriate unions as to their employment needs;
b.)
Failure to refer to the list of individuals who repeatedly sought
employment with their corporation[];
c.)
Failure to hire Plaintiffs;
d.)
Failure to insist that their foreman notify the union hall of specific
date and hiring requirements;
e.)
Misrepresenting to the City of Detroit that workers who conformed
to the criteria set forth in Executive Order 22 were not available for employment
when, in fact, Plaintiffs were ready, willing and able to work and repeatedly
sought employment with Defendant[];
f.)
Retaining workers to fit the criteria of Executive Order 22 only so
long as necessary to comply with the reporting requirements of the projects within
the City of Detroit and then discharging them when work was still available for
which they were qualified, in violation of the [CRA] and Executive Order 22;
g.)
By utilizing unskilled labor in lieu of skilled trades persons such as
Plaintiffs in an attempt to satisfy the requirements of Executive Order 22 on the
aforementioned job site in contravention of the directive of Executive Order 22
that was designed to enhance employment opportunity of skilled trades persons[;]
h.)
Posting “no job site” hiring signs to prohibit or discourage
applicants from applying thereby permitting Defendant[] to assert the
unavailability of female minority trades persons and maintain their race/gender
bias in hiring. [Emphasis added.]
6
Plaintiffs’ complaint asserts only defendant’s violation of its common-law duty to perform its
contractual obligations with reasonable care. Logically, defendant cannot have violated this
common-law duty to act with reasonable care if it took no action toward performing its
contractual obligations. Although plaintiffs suggest in their appeal brief that defendant violated a
common-law duty obligating persons to act in a nondiscriminatory manner, we decline to
consider this unpreserved issue because plaintiffs at no time raised this alleged duty before the
trial court. ISB Sales Co v Dave’s Cakes, ___ Mich App ___; ___ NW2d ___ (Docket No.
(continued…)
-6-
Ray Boats, Inc, 251 Mich App 41, 52; 649 NW2d 783 (2002); Freeman-Darling, supra at 285,
quoting Hart, supra at 563, quoting Tuttle, supra at 174-175.
With respect to the remaining negligence allegations within subparagraphs 40(e)-(h), two
of these, subparagraphs 40(f) and (g), aver that defendant breached a duty of care by retaining
female employees only briefly before discharging them and replacing them with unskilled
workers. Subparagraphs (f) and (g) appear to allege defendant’s misfeasance in violating the
terms of its contract, and thus arguably state a negligence claim. However, as noted above, the
undisputed facts show that defendant did not hire any Greektown project workers or exercise
authority over the terms of any worker’s employment. Accordingly, summary disposition of
these allegations of negligence is proper pursuant to MCR 2.116(C)(10), because no genuine
issue of material fact exists with respect to subparagraphs 40(f) and (g). See Wickings v Arctic
Enterprises, Inc, 244 Mich App 125, 147, 149-150; 624 NW2d 197 (2000) (an order granting
summary disposition pursuant to an incorrect court rule may be reviewed under the correct rule,
and that this Court ordinarily affirms a trial court’s decision that reaches the correct result, even
for the wrong reasons).7
Affirmed.
/s/ Donald S. Owens
/s/ E. Thomas Fitzgerald
/s/ Henry William Saad
(…continued)
238921, issued 9/23/03), slip op at 7 (an issue not raised in, addressed by, or decided by the
circuit court is unpreserved for appellate review).
7
The remaining affirmed subsections, 40(e) and 40(h) arguably cover conduct related to
plaintiffs' claim of aiding and abetting which we have already said the trial court properly
dismissed.
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