VIRGINIA JOLIET V GREGORY E PITONIAK
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 31, 2006
VIRGINIA JOLIET,
Plaintiff-Appellee,
v
No. 127175
GREGORY E. PITONIAK and FRANK BACHA,
Defendant-Appellants,
and
JAMES ARANGO,
Defendant.
_______________________________
BEFORE THE ENTIRE BENCH
WEAVER, J.
The issue before us is whether plaintiff’s claims for violations of the Civil
Rights Act (CRA),1 breach of contract, and misrepresentation accrue on the dates
that the alleged discriminatory acts or misrepresentations occur or on the
plaintiff’s last day of work. Following our decision in Magee v DaimlerChrysler
1
MCL 37.2101 et seq.
Corp, 472 Mich 108; 693 NW2d 166 (2005), we hold that a claim of
discrimination accrues when the adverse discriminatory acts occur. Thus, if a
plaintiff’s complaint does not make out a claim of discriminatory discharge, a
claim of constructive discharge for a separation from employment occurring after
the alleged discriminatory acts cannot serve to extend the period of limitations for
discriminatory acts committed before the termination. Because Jacobson v Parda
Fed Credit Union, 457 Mich 318; 577 NW2d 881 (1998), held that allegations of
constructive discharge could operate to extend the applicable period of limitations
for discriminatory acts falling outside the period of limitations, and is inconsistent
with Magee, supra, it is overruled.
Here, plaintiff does not assert a claim of discriminatory discharge. All the
discriminatory acts or misrepresentations alleged in plaintiff’s complaint took
place before November 30, 1998. Therefore, plaintiff’s November 30, 2001,
complaint was not timely filed under the applicable three-year statute of
limitations, MCL 600.5805.2 Accordingly, we hold that the trial court and the
Court of Appeals erred in denying defendants’ motion for summary disposition.
We reverse and remand to the Wayne Circuit Court for entry of an order of
summary disposition in defendants’ favor.
2
The language formerly found in MCL 600.5805(9) is now set forth in
MCL 600.5805(10).
2
FACTS
Plaintiff worked for the city of Taylor as a data processing manager.
Plaintiff testified by deposition that beginning in 1997, she was subjected to
continual sexist remarks and derogatory treatment because of her age by defendant
Frank Bacha, the former executive director of the Department of Public Works in
the city of Taylor.
On August 31, 1998, the city hired a much younger man, Randy Wittner, as
the new director of information systems. Plaintiff testified that many of her prior
job duties were shifted to Wittner, and that she suffered a $15,000 reduction in
income because she no longer received overtime pay.3
In late September 1998, Bacha went on leave, and then formally left his
position on October 8, 1998.
Bacha was apparently the subject of sexual
harassment complaints from other women, and it was arranged for him to leave his
job with the city of Taylor. After Bacha went on leave, plaintiff never saw him
again.
Plaintiff testified that she became uncertain about her status at work in the
fall of 1998. She attempted to meet with defendant Gregory Pitoniak, mayor of
the city of Taylor, about her concerns, but he avoided meeting with her. Plaintiff
repeatedly requested an “at will termination” by the city, which would have
3
Plaintiff’s January 17, 2003, affidavit.
3
allowed her to receive 30 weeks’ severance pay, but she testified that Pitoniak
refused to discuss her requests.
Plaintiff went on vacation on November 24, 1998. While on vacation she
decided that she could no longer work for the city. Plaintiff sent in her resignation
on November 30, 1998, to be effective December 1, 1998.
In her letter of
resignation, plaintiff again requested that she be given severance pay.
On November 30, 2001, plaintiff filed a complaint against Pitoniak and
Bacha.4
Plaintiff claimed quid pro quo sex discrimination, hostile work
environment sex discrimination, age discrimination, breach of contract, and
misrepresentation.
Defendants filed a motion for summary disposition under MCR
2.116(C)(7), asserting that plaintiff’s suit was barred by the three-year period of
limitations in MCL 600.5805(9). At the February 21, 2003, hearing on the motion
for summary disposition, plaintiff conceded that all her claims, including her
claims for breach of contract and misrepresentation, were governed by the threeyear period of limitations in MCL 600.5805(9).
The trial court denied defendants’ motion for summary disposition,
concluding that plaintiff had three years from the last day that she worked, which
4
Plaintiff’s complaint also named James Arango as a defendant. Arango
was an outside contractor who did work for the city of Taylor’s Department of
Public Works. Arango was apparently never served with the complaint and has
not filed an appearance or responsive pleadings in this matter. The claim against
Arango is not before the Court.
4
was sometime between November 30, 1998, and December 3, 1998, to file suit.
The Court of Appeals affirmed the order denying defendants’ motion for summary
disposition, finding that plaintiff’s last day of work was November 30, 1998.5
Defendants then filed an application for leave to appeal in this Court. We
ordered oral argument on the application, instructing the parties to address the
following questions:
The parties shall submit supplemental briefs . . . addressing:
(1) what actions, if any, were taken by the two defendants after
October 8, 1998, that contributed to a discriminatory hostile work
environment, so as to support a December 1, 1998, date of injury; (2)
whether a December 1, 1998, accrual date for injury to plaintiff is
sustainable for defendant Frank Bacha, where he left his
employment with the city of Taylor on October 8, 1998; and (3) the
impact, if any, of this Court's decision in Magee v DaimlerChrysler
Corp, 472 Mich 108 (2005).[6]
STANDARD OF REVIEW
This Court reviews de novo rulings on summary disposition motions,
viewing the evidence in the light most favorable to the nonmoving party.7 In the
absence of disputed facts, whether a cause of action is barred by the applicable
statute of limitations is a question of law, which this Court reviews de novo.8
5
Unpublished opinion per curiam of the Court of Appeals, issued August
31, 2004 (Docket No. 247590).
6
472 Mich 908 (2005).
7
Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004), and DiFranco
v Pickard, 427 Mich 32, 38; 398 NW2d 896 (1986).
8
Moll v Abbott Laboratories, 444 Mich 1, 26; 506 NW2d 816 (1993).
5
ANALYSIS
All of plaintiff’s claims against the defendants are subject to the three-year
period of limitations in MCL 600.5805(9).9 The questions presented are on what
dates did plaintiff’s claims accrue, and when did the period of limitations begin to
run.
The statute of limitations at issue, MCL 600.5805, provides that plaintiff’s
claims must be brought within three years of the date the claims accrued:
(1) A person shall not bring or maintain an action to recover
damages for injuries to persons or property unless, after the claim
first accrued to the plaintiff or to someone through whom the
plaintiff claims, the action is commenced within the periods of time
prescribed by this section.
* * *
(9) The period of limitations is 3 years after the time of the
death or injury for all other actions to recover damages for the death
of a person, or for injury to a person or property.
9
Plaintiff does not have a contract with either of the defendants; her
contract was with the city of Taylor, which is not a party in the suit. These alleged
contract claims are discrimination claims recast as contract claims. At the
February 21, 2003, hearing on the motion for summary disposition, plaintiff
conceded that all her claims, including her claim for breach of contract and
misrepresentation, were governed by the three-year statute of limitations in MCL
600.5805(9). Stringer v Sparrow Hosp Bd of Trustees, 62 Mich App 696, 702;
233 NW2d 698 (1975), and Glowacki v Motor Wheel Corp, 67 Mich App 448,
460; 241 NW2d 240 (1976). Given plaintiff’s concession, for purposes of our
analysis of when plaintiff’s claims accrued under the applicable statute of
limitations, how such contract claims are characterized is irrelevant.
6
Furthermore, accrual under the three-year statute of limitations is measured
by “the time the wrong upon which the claim is based was done regardless of the
time when damage results.”10
Thus, plaintiff’s claims are barred by the statute of limitations unless they
were brought within three years of the date the claims accrued, which is the date of
the alleged wrongdoing.
The trial court and the Court of Appeals both relied on Jacobson, supra,
and Collins v Comerica Bank, 468 Mich 628; 664 NW2d 713 (2003), to hold that
the period of limitations began to run on plaintiff’s last day of work. Both courts
found that plaintiff’s last day of work was not before November 30, 1998, and thus
plaintiff’s suit was timely filed within the three-year period of limitations.
The lower courts’ reliance on Collins was erroneous. First, as we noted in
Magee, supra, Collins involved a claim of discriminatory discharge motivated by
race and gender animus, not a constructive discharge based on earlier
discriminatory acts, as is the claim here.11
In Collins, after the plaintiff’s
employment was terminated by her employer, the plaintiff brought a claim of
discriminatory discharge under the Civil Rights Act, MCL 37.2101 et seq. There,
10
MCL 600.5827 (emphasis added).
11
Magee, supra at 112.
7
this Court recognized that “a claim for discriminatory discharge cannot arise until
a claimant has been discharged.”12
But here plaintiff does not assert a claim of discriminatory discharge.
Rather, plaintiff’s Civil Rights Act claims and her breach of contract and
misrepresentation claim are based on alleged discriminatory conduct that occurred
before she resigned her position. Thus, unlike the situation in Collins, the adverse
employment action alleged in this case did not coincide with the date of the
termination of plaintiff’s employment. Collins is inapposite.
This Court recently recognized in Magee, supra, the distinction between a
constructive and a discriminatory discharge. When the plaintiff does not make a
claim of discriminatory termination, the court must examine whether the
discriminatory conduct occurred within the three years that preceded the filing of
the complaint. In Magee, the plaintiff went on medical leave on September 12,
1998, and resigned on February 2, 1999. She never returned to work from her
medical leave. On February 1, 2002, the plaintiff filed a civil rights claim against
the defendant, alleging an assortment of age, sex, and hostile work environment
claims. The trial court granted the defendant’s motion for summary disposition on
the ground that the statute of limitations barred the plaintiff’s claims, because the
plaintiff alleged no discriminatory activity after September 12, 1998. The Court of
12
Collins, supra at 633 (emphasis added).
8
Appeals reversed the trial court by relying on Collins. It held that the plaintiff’s
suit was timely because she filed suit within three years of her resignation.
This Court reversed the Court of Appeals and distinguished Collins on the
basis that the plaintiff in Magee did not allege a discriminatory discharge. Since
she was not discriminatorily discharged by the defendant, and she could not allege
any acts of discrimination within three years of her lawsuit, the plaintiff’s claims
were barred by the statute of limitations.
We find the holding of Magee
particularly instructive in this case, since both cases center on claims of
constructive discharge where the alleged discriminatory acts preceded the date of
resignation.
In addition to its misplaced reliance on Collins, the Court of Appeals in this
case also relied on Jacobson, supra, to hold that plaintiff’s claims accrued on her
last day of work. In Jacobson, this Court considered whether the 90-day statute of
limitations contained in the Whistleblowers’ Protection Act (WPA)13 barred the
plaintiff’s wrongful discharge claim.14 The plaintiff, an executive vice president
and chief operating officer of the defendant Parda Federal Credit Union, argued
13
MCL 15.363(1) (“A person who alleges a violation of this act may bring
a civil action for appropriate injunctive relief, or actual damages, or both within 90
days after the occurrence of the alleged violation of this act.”).
14
MCL 15.362 (“An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the employee’s compensation, terms,
conditions, location or privileges of employment because the employee, or a
person acting on behalf of the employee, reports or is about to report, verbally or
in writing, a violation or a suspected violation of a law . . . .”).
9
that she had been constructively discharged, in violation of the WPA, after she
notified the FBI that her employer may have filed a fraudulent bond claim with its
insurer.15 The plaintiff alleged that her relationship with the Parda board of
directors thereafter deteriorated, that the board passed her over for a promotion to
be chief executive officer, and that her job duties were significantly reduced. In
response to what the plaintiff perceived to be an intolerable work environment, the
plaintiff composed and mailed a resignation letter on Saturday, October 21, 1989,
and cleaned out her desk on the following Monday. She later filed suit on January
19, 1990, exactly 90 days after writing and mailing the letter.
After the plaintiff received a favorable jury verdict, the trial court granted
the defendant a directed verdict because the plaintiff failed to allege a violation of
the WPA that occurred within the period of limitations. The Court of Appeals
reversed, and this Court affirmed.
The majority held that the constructive discharge, although not itself a
cause of action,16 was a violation of the WPA as a retaliatory act of discharge,
since “a discharge occurs when a reasonable person in the employee’s place would
feel compelled to resign.”17 Although the plaintiff’s voluntarily resignation was
15
Jacobson, supra at 321-322.
16
Id. at 321 n 9, citing Vagts v Perry Drug Stores, Inc, 204 Mich App 481;
516 NW2d 102 (1994).
17
Jacobson, supra at 328.
10
compelled by discriminatory acts that had occurred more than 90 days before
filing her lawsuit, the majority found that her WPA claim was timely filed.
Justice Taylor, joined by Justices Weaver and Brickley, dissented. The
dissent distinguished between a violation of the WPA and its lingering effects.
According to the dissent, it is the adverse employment action that motivates an
employee ultimately to resign that triggers the statute of limitations, not the date of
the resignation.18 As the WPA limitations period runs on the “‘occurrence of the
alleged violation of this act,’”19 the dissent noted that the plaintiff’s resignation
was a response to an alleged WPA violation, not an alleged violation itself. The
dissent criticized the majority for focusing intently on the date of resignation,
particularly when the events in Jacobson that “cause[d] the employee to feel
compelled to resign”20 would have been time barred by the 90-day statute of
limitations.
We note that, absent Magee, which the Court of Appeals in this case did not
have the opportunity to consider, Jacobson would compel this Court to affirm the
Court of Appeals, because plaintiff filed suit within three years of the date of her
resignation. However, our decision in Jacobson is inconsistent with the statute of
limitations accrual analysis we ultimately applied in Magee. Because Jacobson’s
18
Id. at 337 (Taylor, J., dissenting).
19
Id.
20
Id.
11
analysis is contrary to the one adopted in Magee, we are obligated to resolve this
conflict and decide which decision best reflects the Legislative intent expressed in
the words of the statute of limitations.
Magee is more faithful in construing the plain language of the statute of
limitations under the CRA than Jacobson was in construing the WPA statute of
limitations. Magee recognized that the basic question to answer when analyzing
the accrual date of a claim under the CRA is when did the “injury” or “wrong”
take place. This is the most straightforward reading of the statute of limitations,
which speaks only in terms of the “injury” and “the time [of] the wrong.” Here,
pursuant to the text of MCL 600.5827, plaintiff’s claims accrued at the time the
wrongs on which her claims are based were committed, not when she suffered
damage. Thus, the relevant date for the period of limitations is not plaintiff’s last
day of work, but the date of the last discriminatory incident or misrepresentation.
We agree with the Jacobson majority that a constructive discharge is not a
cause of action, but simply the culmination of alleged wrongful actions that would
cause a reasonable person to quit employment.
Constructive discharge is a
defense that a plaintiff interposes to preclude the defendant from claiming that the
plaintiff voluntarily left employment. Jacobson, supra at 321 n 9. The resignation
itself does not constitute a separate cause of action. Id.
However, notwithstanding the conclusion that a constructive discharge is
not a cause of action, Jacobson erroneously treated an employee’s resignation as a
violation of the WPA.
Where the resignation is not itself an unlawful act
12
perpetrated by the employer, it simply is not a “violation” of the WPA under the
plain language of MCL 15.362, which prohibits discharge, threats, or other
discrimination by the employer. We agree with the Jacobson dissent that in the
context of a constructive discharge it is the employer’s wrongful act that starts the
period of limitations by causing the employee to feel compelled to resign, not the
employee’s response. Accordingly, we overrule the accrual analysis of Jacobson
because it is inconsistent with our opinion in Magee and with the plain language of
the statute of limitations under the WPA and the CRA.21
Having
distinguished
Collins,
reaffirmed
Magee,
and
overruled
Jacobson,we next examine the discriminatory conduct and misrepresentations
alleged against each individual defendant to see whether the alleged conduct
occurred on or after November 30, 1998, within the three years preceding the
filing of plaintiff’s complaint.
21
The dissent labels our overruling of Jacobson “gratuitous” and
“unnecessary” because Jacobson involved claims brought under the WPA, not the
CRA. Post at 2. However, the dissent’s basis for distinguishing Jacobson evades
the plain fact that the Court of Appeals relied on Jacobson to reach its decision in
this case. Therefore, the soundness of Jacobson’s accrual analysis, which
conflicts with our recent decision in Magee, must be confronted and resolved by
this Court. Given the choice, the dissent would prefer to overrule Magee and
reaffirm Jacobson, but she posits no analytical reason why it would resolve the
conflict in favor of the latter and why, under the plain language of the CRA’s
statute of limitations, the plaintiff’s claim could accrue when the plaintiff felt
compelled to resign rather than the date when the defendant employer actually
injured the plaintiff through an adverse employment action. We believe that such
a result is inconsistent with the language of the applicable statute of limitations.
13
A. Age and Sexual Discrimination
1. DEFENDANT FRANK BACHA
Plaintiff recorded incidents by Bacha that she believed were discriminatory
in her daily planner.
The incidents that plaintiff recorded occurred between
August 1997 and September 1998. Plaintiff testified in her deposition that she
never saw Bacha after he ceased working for the city in September 1998:
Q. . . . Was there any type of harassment by Mr. Bacha that
you’re aware of after he went on leave in September of 1998?
A. No, I never saw him again.[22]
Even viewing the evidence in the light most favorable to plaintiff, on the
basis of plaintiff’s deposition testimony it is clear that Bacha engaged in no
discriminatory conduct within the limitations period.
The trial court and Court of Appeals erred in denying the motion for
summary disposition with regard to Bacha.
2. DEFENDANT GREGORY PITONIAK
Although in her deposition plaintiff testified that there was no specific
incident of discrimination by Pitoniak between November 24, 1998, and
November 30, 1998,23 plaintiff claims on appeal that two discriminatory acts by
Pitoniak occurred within the three years that preceded the filing of the complaint.
22
Deposition of Virginia Joliet, August 21, 2002, p 61.
23
In her September 3, 2002, deposition, plaintiff testified as follows:
(continued…)
14
First, plaintiff claims that she received disparate pay until she resigned.
Specifically, plaintiff alleges that her income was decreased by approximately
$15,000 because she no longer received overtime pay after the city hired Wittner
as the new director of information systems. Wittner was hired on August 31,
1998.
The hiring of the younger man was the alleged discriminatory act; the
resulting loss of overtime pay was an ongoing damage that resulted from that
discriminatory act, not a discriminatory act in itself. If an act is not in and of itself
discriminatory, i.e., it has a discriminatory effect only because of a prior
discriminatory act, it cannot sustain a cause of action. Sumner v Goodyear Tire &
Rubber Co, 427 Mich 505, 530; 398 NW2d 368 (1986) (citing United Air Lines,
(…continued)
Q. Was there any incident of discrimination that occurred
between November 24th and the date you resigned on November
30th?
A. I had no contact with City officials, but I maintained that
their actions were cumulative.
Q. Okay. I—
A. But no specific—No.
Q. There was no specific incident of discrimination from
November 24th till November 30th; is that correct?
A. Let me just make sure I didn’t get—don’t have a record of
a phone call.
There was no specific act of discrimination during that
time period.
15
Inc v Evans, 431 US 553; 97 S Ct 1885; 52 L Ed 2d 571 [1977]), overruled on
other grounds by Garg v Macomb Co Community Mental Health Services, 472
Mich 263; 696 NW2d 646 (2005).
Plaintiff’s claim based on the hiring of Wittner accrued when the alleged
discriminatory act took place, when Wittner was hired on August 31, 1998, even
though the damages from that discriminatory act continued during the limitations
period. MCL 600.5827.
Second, plaintiff made a request for severance pay in her resignation letter
of November 30, 1998. Plaintiff alleges that this final request for severance pay,
and Pitoniak’s failure to respond to her request, was a discriminatory act that fell
within the three-year period.
But the failure to grant plaintiff’s request for
severance pay was not a discriminatory act. Plaintiff was not entitled to severance
pay upon her resignation, though she would have been entitled to it had she been
terminated by the city without cause.
Because plaintiff alleged no discriminatory acts by Pitoniak that occurred
on or after November 30, 1998, her complaint against him was not timely filed.
B. Breach of Contract and Misrepresentation
In count IV of her complaint, plaintiff alleged that defendants made various
misrepresentations to her: that her working conditions “would not be affected by
her acceptance of any sexual harassment or discrimination on the basis of her age
or sex,” that her job was not being advertised or open for a replacement, and that
she was to perform her duties in the best interests of the city of Taylor. All these
16
allegations of misrepresentation stem from incidents that occurred before
November 30, 1998. Because the claims did not accrue within the three years
preceding the filing of the complaint, plaintiff’s complaint was not timely filed.
CONCLUSION
Plaintiff’s claims accrued on the dates that the alleged discriminatory acts
or misrepresentations occurred. All the discriminatory acts or misrepresentations
alleged in plaintiff’s complaint took place before November 30, 1998. Thus, her
November 30, 2001, complaint was not timely filed. The trial court and Court of
Appeals erred in denying defendants’ motion for summary disposition based on
the three-year period of limitations, MCL 600.5805(9), by relying on Collins,
supra.
We reverse the Court of Appeals judgment affirming the trial court’s denial
of defendants’ motion for summary disposition, and remand to the Wayne Circuit
Court for entry of an order granting defendants’ motion for summary disposition.
Elizabeth A. Weaver
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
17
STATE OF MICHIGAN
SUPREME COURT
VIRGINIA JOLIET,
Plaintiff-Appellee,
v
No. 127175
GREGORY E. PITONIAK and
FRANK BACHA,
Defendants-Appellants,
and
JAMES ARANGO,
Defendant.
KELLY, J. (dissenting).
I respectfully disagree with the majority in this case. While the Court of
Appeals and the trial court did err in relying on Collins v Comerica Bank,1 their
reliance on Jacobson v Parda Fed Credit Union2 was not misplaced.
And,
because I continue to believe that Magee v DaimlerChrysler Corp3 was wrongly
decided, I disagree with the majority’s decision to overrule Jacobson.
1
468 Mich 628; 664 NW2d 713 (2003).
2
457 Mich 318; 577 NW2d 881 (1998).
3
472 Mich 108; 693 NW2d 166 (2005).
\
The Collins decision is inapposite to this case. The Court there held that a
cause of action for discriminatory termination cannot arise until the employee is
actually discharged. Virginia Joliet does not assert a claim of discriminatory
discharge. Neither did the plaintiff in Magee.
Magee presented unique circumstances. There, the plaintiff’s three medical
leaves were directly related to the continual sexual harassment she experienced at
work. The plaintiff did not return to the harassing work environment after her last
medical leave because the defendant had taken no steps during her leave to stop
the harassment. Magee should be limited to its unique facts.
Jacobson did involve allegations of constructive discharge. It raised claims
under the Whistleblowers’ Protection Act (WPA),4 not the Civil Rights Act
(CRA).5 The majority’s decision to overrule Jacobson in favor of Magee is
gratuitous and unnecessary in the context of this case. Here, plaintiff’s claims are
brought under the CRA, not the WPA.
The WPA’s limitations provision was at issue in Jacobson. The provision
requires that a civil action be brought “within 90 days after the occurrence of the
alleged violation of this act.” MCL 15.363(1). The Jacobson Court held that the
limitations period began to run on the date of the plaintiff’s constructive discharge.
4
MCL 15.361 et seq.
5
MCL 37.2101 et seq.
2
\
The dissent in Jacobson, now in the majority in this case, argued that the plaintiff
did not file her complaint within 90 days of her employer’s retaliatory acts.
Insofar as Jacobson is inconsistent with the majority’s statute of limitations
analysis in Magee, it is Magee that is wrongly decided. I would resolve the
conflict in favor of Jacobson.
Jacobson addressed the question of when a
constructive discharge occurs in the context of the WPA, and cited as instructive
Champion v Nation Wide Security, Inc, 450 Mich 702; 545 NW2d 596 (1996). In
Champion, this Court addressed the question of constructive discharge in the
context of a CRA claim, noting that constructive discharge occurs when employer
conduct “‘is so severe that a reasonable person in the employee’s place would feel
compelled to resign.’” Jacobson, supra at 326, quoting Champion, supra at 710.
The date that constructive discharge occurs is not dependent on the timing of the
employer’s actions. It is the point at which a reasonable employee would have felt
compelled to resign.
I agree with the majority that plaintiff’s claims against defendant Frank
Bacha fail. Bacha engaged in no discriminatory conduct within the three-year
limitations period, having left in September 1998. However, I disagree with the
majority’s conclusion that defendant Gregory E. Pitoniak did not engage in
specific acts of discriminatory conduct during the three years that preceded the
filing of plaintiff’s complaint.
3
\
According to plaintiff, “the Mayor [Pitoniak] kept promising and promising
and promising to meet with me, and he would not meet with me.” Plaintiff’s
September 3, 2002, deposition transcript, p 93.
I was even under a desk one day fixing Gail’s computer. Gail
was one of the Mayor’s two executive secretaries at the time. The
Mayor walked in, told Gail that he didn’t have much to do and he
was going to relax this afternoon. I finished fixing the computer and
stood up, and he’s, oh, he says, I didn’t know you were there. I’ve
got a meeting to go to. Bye. And out he went.
* * *
Q. Okay. So your complaint is that after Mr. Bacha left the
employment of the City that thereafter the way you contend the
Mayor discriminated against you was by failing to meet with you?
A. [Yes.] And by not addressing the situation. [Id., pp 9394.]
Even if I agreed with the majority that the date of the adverse
discriminatory act begins the running of the limitations period, I would still find
plaintiff’s complaint timely filed.
I believe that defendant Pitoniak’s act of
shunning plaintiff constituted a specific incident of discriminatory conduct that
occurred on every day leading up to and including plaintiff’s last day of work,
November 30, 1998. Thus, plaintiff’s November 30, 2001, complaint was timely
filed.
I would deny leave to appeal and affirm Jacobson.
Marilyn Kelly
Cavanagh, J., would deny leave to appeal.
Michael F. Cavanagh
4
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