Sharda Garg v. MacOmb Co Comm Mental Health ( 2005 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 11, 2005
SHARDA GARG,
Plaintiff-Appellee/Cross-Appellant,
v No. 121361
MACOMB COUNTY COMMUNITY MENTAL HEALTH SERVICES,
Defendant-Appellant/Cross-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal to consider whether there
was sufficient evidence to support plaintiff's claims of
retaliatory discrimination and whether the "continuing
violations" doctrine of Sumner v Goodyear Tire & Rubber Co,
427 Mich. 505; 398 NW2d 368 (1986), should be preserved,
modified, or abrogated in light of the language of the
statute of limitations, MCL 600.5805(1). The jury found
that plaintiff was not discriminated against on the basis
of national origin, but was retaliated against on the basis
of either her opposition to sexual harassment or because
she filed a grievance claiming national-origin
discrimination. The Court of Appeals affirmed. Because we
conclude that, once evidence of acts that occurred outside
the statute of limitations period is removed from
consideration, there was insufficient evidence of
retaliation based on either plaintiff's alleged opposition
to sexual harassment or her filing of a grievance, we
reverse the judgment of the Court of Appeals and remand to
the trial court for entry of a judgment in favor of
defendant. In so holding, we overrule the "continuing
violations" doctrine of Sumner, supra, as inconsistent with
the language of the statute of limitations, MCL 600.5805(1)
and (10). As a result, we do not reach the other issues
raised on appeal or the issues raised in plaintiff's cross-
appeal.
I. Facts and Procedural History
Plaintiff Sharda Garg is of Asian Indian ancestry.
She began her employment as a staff psychologist with
defendant Macomb County Community Mental Health Services in
1978. Plaintiff testified that Donald Habkirk, the
director of defendant's disability section, which included
the facility where plaintiff worked, had during 1981
engaged in what plaintiff characterized as "sexually
harassing" behavior with female coworkers. Specifically,
plaintiff observed Habkirk pull one coworker's bra strap
and snap the elastic panties of another. Plaintiff
2
acknowledges that she herself was never treated in this
manner or otherwise sexually harassed, and that she never
reported to anyone the incidents she allegedly observed.
Habkirk denied engaging in such conduct.
At "around the same time," plaintiff, while walking
down an office corridor, felt someone's hand touch her
upper back, near her shoulder. Plaintiff reacted as
follows: "I felt somebody touching me, and I just turned
around and swung at him." She further observed, "it was a
very automatic reaction on my part." It was only after she
hit this person that she realized it was Habkirk whom she
had hit. She and Habkirk stared at each other for a moment
before she proceeded into her office. Plaintiff did not
file a grievance, tell anyone about the incident, or offer
any explanation to anyone regarding why she had struck
Habkirk. In response to a question concerning whether the
touching was "improper," plaintiff did not characterize it
as such.
While Habkirk never took any formal action against
plaintiff for striking him, and indeed testified that he
could not even remember the incident, plaintiff claims that
her formerly cordial relationship with Habkirk deteriorated
as he became increasingly cold and distant. While
plaintiff generally enjoyed a good employment relationship
with defendant and its management initially, she asserted
3
that she began to perceive changes in this relationship
following the touching incident. After six years of being
rated as either "outstanding" or "very good," plaintiff's
1983 performance review was downgraded to "satisfactory."
It was also at this point that plaintiff applied for
several job promotions, in each case unsuccessfully. The
first position she applied for in 1983 was given to someone
from outside the organization, despite a general
inclination by defendant in favor of internal promotions.
Two other promotion applications in 1983 were also
rejected. Over the next three years, plaintiff applied
unsuccessfully for four more promotions. Plaintiff was
denied a total of eighteen promotion opportunities,
including eleven during the period of 1983 through 1987.
During this period, Habkirk always served in plaintiff's
chain of command. Once at a dinner party with plaintiff's
immediate supervisor, Robert Slaine, plaintiff's husband
asked why plaintiff had not been promoted. Slaine
responded that, in his opinion, it was because Habkirk did
not like plaintiff. Slaine denied making this statement,
and Habkirk denied telling Slaine that he disliked
plaintiff.
In 1986, Kent Cathcart was chosen by Habkirk as the
new program director in plaintiff's facility. However,
little changed for plaintiff because she failed to receive
4
any of the next three promotions for which she applied. In
December 1986, she was denied a promotion in favor of a
contract employee with less seniority. Following this
rejection in February 1987, plaintiff filed her first
promotion-related grievance with the union representing
defendant's employees. When plaintiff was again denied a
promotion in early 1987, this time in favor of a person
from outside the company, she filed a second promotion-
related grievance with the union in June 1987, alleging
that the denial was due to discrimination based on her
national origin and color. The grievance was forwarded to
Cathcart, and was denied without investigation. Plaintiff
next applied for a promotion in 1989, but was again denied.
Plaintiff was denied seven promotions during the period of
1989 through 1997.
Plaintiff claims that the "retaliation" against her
for filing these grievances also took the form of poor
overall treatment by defendant. Specifically, she claims
that Cathcart, and the two supervisors who succeeded
Cathcart after plaintiff was transferred to defendant's
First North facility in 1995, treated her "in a degrading
and humiliating manner." Plaintiff claims that Cathcart
would criticize her for not participating in agency
activities, but would then deny her requests to participate
in meetings, conferences, and committees. In addition,
5
plaintiff testified that Cathcart would reprimand her for
being even two minutes late for work, but would let her
coworkers "come and go as they pleased." Plaintiff also
testified that Cathcart once chastised her for going
outside to look at a rainbow, but that her coworkers were
routinely allowed to go outside for cigarette breaks on
company time. Cathcart also refused to give her keys to
the facility. Finally, when she moved to First North,
plaintiff was given an office that was formerly a storage
closet. The office was uncarpeted and had no windows. In
addition, it was located next to a bathroom, forcing
plaintiff to hear "people defecating and urinating"
throughout the day. Plaintiff was assigned to this office
despite her seventeen years of seniority and the
availability of more desirable office spaces.
Plaintiff also claims that Cathcart demonstrated a
predisposition against "people of color" during the period
that she was employed by defendant under his supervision.
Specifically, plaintiff testified regarding four separate
displays of this predisposition. First, when Cathcart
learned that plaintiff's son had been accepted to medical
school, he allegedly stated that "there are enough Indian
doctors already." Second, Cathcart allegedly complained
about the accent of an Indian psychiatrist, stating that
"these people have been here long enough, they ought to
6
speak good English." Third, Cathcart allegedly stated that
he would not have hired an African-American nurse if a
white candidate had been available. Finally, Cathcart
allegedly used a racially derogatory term when referring to
African-Americans. Cathcart denies making any of these
statements.
On July 21, 1995, plaintiff brought this action under
the Civil Rights Act, MCL 37.2101 et seq., claiming that
her promotion denials and poor treatment were due to
national-origin discrimination and were in retaliation for
engaging in activities protected by the act. Plaintiff
originally claimed retaliatory discrimination based solely
on the union grievance claiming national-origin
discrimination. She later amended her complaint to allege
that she was also retaliated against for opposing sexual
harassment. Defendant denied the allegations and asserted
that some of the allegations were barred by the three-year
period of limitations. MCL 600.5805(1) and (10).
Defendant moved for partial summary disposition on that
basis, but the trial court denied the motion, citing the
"continuing violations" doctrine adopted in Sumner.
Following a three-week trial, the jury found that
plaintiff was not discriminated against because of national
origin or color. However, the jury also found that
defendant had retaliated against plaintiff because she
7
"opposed sexual harassment or because she filed a complaint
or charge about being discriminated against." The jury
awarded plaintiff $250,000 in damages.
Defendant filed a motion for judgment notwithstanding
the verdict or a new trial. The trial court noted that
"physical acts can convey a message better than words," and
that plaintiff's physical response to the touching by
Habkirk was sufficient to inform defendant that she opposed
Habkirk's sexually harassing behavior. The trial court
further held that sufficient evidence was presented to
allow a reasonable juror to find a causal connection
between plaintiff's striking Habkirk and her failure to be
promoted. Because the evidence supported at least one of
the retaliation theories, defendant's motion was denied.
In an unpublished opinion, the Court of Appeals affirmed
the jury's verdict. Unpublished opinion per curiam of the
Court of Appeals, issued March 29, 2002 (Docket No.
223829). The Court of Appeals held that the "continuing
violations" doctrine allowed the introduction of factual
allegations going back more than three years before
plaintiff filed her lawsuit and thus the statute of
limitations was not a bar to the facts plaintiff presented
to the jury. With regard to the merits, the Court of
Appeals held that when plaintiff struck Habkirk, a
reasonable juror could have concluded that she "'raise[d]
8
the specter,'" quoting Mitan v Neiman Marcus, 240 Mich. App.
679, 682; 613 NW2d 415 (2000), that she was opposing
Habkirk's sexual harassment. The Court of Appeals also
determined that there was sufficient evidence to allow a
reasonable juror to conclude that plaintiff established
both of her retaliation claims.
After this Court directed the parties to present oral
argument on whether to grant leave to appeal or take other
action permitted by MCR 7.302(G)(1), 469 Mich. 983 (2003),
and having heard such argument, we granted defendant's
application for leave to appeal, directing briefing
regarding whether the "continuing violations" doctrine of
Sumner was consistent with the statute of limitations, MCL
600.5805(1). 469 Mich. 1042 (2004).
II. Standard of Review
The denial of a motion for judgment notwithstanding
the verdict is subject to review de novo. Sniecinski v
Blue Cross & Blue Shield of Michigan, 469 Mich. 124, 131;
666 NW2d 186 (2003). Reversal is permitted only if the
evidence, while viewed in a light most favorable to
plaintiff, fails to establish a claim as a matter of law.
Wilkinson v Lee, 463 Mich. 388, 391; 617 NW2d 305 (2000).
Whether the "continuing violations" doctrine is consistent
with MCL 600.5805(1) and (10) is a question of law that we
9
review de novo. Jenkins v Patel, 471 Mich. 158, 162; 684
NW2d 346 (2004).
III. Analysis
The issue in this case is not whether plaintiff was
treated poorly or insensitively by defendant. Nor is it
whether defendant "retaliated" against plaintiff for her
conduct in hitting Habkirk. Instead, the issue is whether
defendant retaliated against plaintiff specifically for
conduct on her part protected by the Civil Rights Act. MCL
37.2701 provides, in pertinent part:
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.
To establish a prima facie case of retaliation, a
plaintiff must show:
(1) that he 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.
[DeFlaviis v Lord & Taylor, Inc, 223 Mich. App.
432, 436; 566 NW2d 661 (1997).]
A. RETALIATION BASED ON OPPOSITION TO SEXUAL HARASSMENT
Plaintiff's first theory is that defendant retaliated
against her because she opposed Habkirk's sexual
10
harassment. At "around the same time" that plaintiff
allegedly observed sexually harassing behavior by Habkirk
toward female employees, she felt someone touch her on the
back, near her shoulder, while she was walking near
Habkirk's office.1 Plaintiff testified that "I felt
somebody's hand touching me, and I turned around and hit
the person." She noted further that "it was a very
automatic reaction on my part. I felt somebody touching
me, and I just turned around and swung at him."
We conclude there is insufficient evidence for a juror
reasonably to conclude that by striking Habkirk under these
circumstances plaintiff was opposing sexual harassment,
i.e., engaging in a "protected activity" under the Civil
Rights Act. First, plaintiff acknowledged that Habkirk was
not sexually harassing her at the time she hit him so that
it is difficult to view her conduct as responsive to
"protected activity." This is underscored by plaintiff's
acknowledgment that Habkirk had never sexually harassed
her. Second, there is no evidence that, before this
lawsuit, plaintiff ever sought to cast her conduct in
1
Plaintiff argued at oral argument before this Court
that it was significant that she was passing a room Habkirk
had just occupied, because it demonstrates that she "knew"
it was Habkirk who touched her. However, she testified
several times that she felt "somebody" touch her back, that
she "didn't know who was in behind [her]," and that she
simply "swung at whoever it was behind [her]." (Emphasis
added.)
11
hitting Habkirk in terms of opposing sexual harassment at
defendant's workplace. Such a message was never
communicated to the alleged victims of Habkirk's sexual
harassment or to fellow employees, much less to Habkirk,
management, union representatives, or public agencies.
Third, plaintiff testified that she did not even know it
was Habkirk who touched her shoulder until after she struck
him. That is, because plaintiff in her "automatic"
response to the touching could just as likely have struck
out at any one of her coworkers as at Habkirk, it is
difficult to conclude that her action was somehow intended
to communicate a principled opposition to prior incidents
of supervisory misconduct. That is, there is simply no
connection here between cause—the alleged sexual
harassment—and effect—plaintiff's striking Habkirk.2
Moreover, although it is not necessary to our analysis
in this case, even if plaintiff were indisputably
responding to past sexual harassment by hitting Habkirk, we
are not prepared to conclude that any response to conduct
2
This lack of connection is underscored by plaintiff's
own testimony that the incidents of sexual harassment that
allegedly prompted her opposition occurred only at "about
the same time" that she struck Habkirk. Although we
acknowledge that a reasonable juror would be entitled to
conclude that this characterization is compatible with
incidents of sexual harassment preceding plaintiff's
hitting Habkirk, the lack of a clear temporal relationship
between the cause and the effect does not well serve
plaintiff's argument.
12
prohibited by the Civil Rights Act, no matter how excessive
or inappropriate the response, including assaultive
behavior, falls within the act's protections. An employee
is not immunized for any type of responsive conduct, no
matter how outrageous or disproportionate, simply because
it is connected with opposition to discrimination.
Obviously, no employee would be protected under the act
from all "retaliation" by an employer for criminal, or
sabotaging, or destructive activities simply because these
occurred in response to perceived employer discrimination.
For purposes of analysis under § 701(a), consideration must
be given to separating the motivation underlying an
employee's conduct and the means by which such motivation
is translated into conduct.
Under these circumstances, we conclude that no juror
could have reasonably concluded that defendant was engaged
in a "protected activity" by opposing sexual harassment
when she hit Habkirk.
Even if the jury here were persuaded that plaintiff
was engaged in a "protected activity" by striking Habkirk,
she has failed to show that defendant knew that she was
engaged in such activity. Absent such a showing, there
could be no "retaliation" on the employer's part to
anything within the protection of the Civil Rights Act.
While Habkirk obviously would have been aware that
13
plaintiff had struck him, there was nothing inherent in
this conduct that would have apprised him that plaintiff
was thereby opposing sexual harassment. There is no
evidence that Habkirk touched plaintiff at that time (or
any other time) in a way that was inappropriate; there is
no evidence that plaintiff herself perceived that Habkirk
touched her in a way that was inappropriate; there is no
evidence that Habkirk reasonably could have discerned from
the nature of plaintiff's response to his touching that she
was communicating any message of opposition to sexual
harassment; and there is no evidence that plaintiff at any
time explained the "significance" of her behavior to
Habkirk.
Nor is there anything else on the part of plaintiff
following this incident that would communicate to anyone
how she had been opposing sexual harassment by striking
Habkirk. To the extent that she failed to communicate this
supposed purpose to alleged victims of Habkirk's previous
conduct, to coemployees, to management, to union
representatives, to public authorities, or to Habkirk
himself,3 it is difficult to understand how defendant could
have been sufficiently aware that plaintiff was engaged in
3
Nor did plaintiff discuss Habkirk's alleged
inappropriate behavior itself with any of these parties.
14
"protected" activity so as to be able to "retaliate"
against her for such conduct.
Under these circumstances, we conclude that no juror
could reasonably have concluded that defendant was aware
that plaintiff had been engaged in "protected activity" by
opposing sexual harassment when she hit Habkirk.
Therefore, on the basis either that there is
insufficient evidence that plaintiff was engaged in
protected activity4 or that defendant could have been aware
of such activity, plaintiff has failed to establish a claim
under the Civil Rights Act. To the extent that she has
failed to present sufficient evidence that she was engaged
in protected activity, she has failed to satisfy the
threshold requirement for coverage under § 701(a); to the
extent that she has failed to present sufficient evidence
that defendant could have been aware of such activity, she
could not have been the object of "retaliation" under
§ 701(a).5
4
We do not agree with the Court of Appeals that
plaintiff here has raised any specter that she was engaged
in opposition to sexual harassment by her conduct.
5
Had plaintiff presented sufficient evidence with
regard to these matters, i.e., shown both that she had been
engaged in a protected activity and that defendant had been
aware of this, she would still have been required to
demonstrate that she suffered an adverse employment action
as a result of her engaging in the protected activity,
i.e., that there was some nexus or causal connection
15
B. RETALIATION BASED ON FILING A GRIEVANCE
Plaintiff's second theory is that defendant retaliated
against her after she filed a grievance claiming national-
origin discrimination. After being refused a promotion for
the eleventh time, plaintiff filed a grievance with her
union in June 1987, claiming that she was being denied
promotions because of discrimination based on national
origin and color. Plaintiff claims that, as a result of
filing the grievance, she was denied subsequent promotion
opportunities and was subjected to poor treatment in
general by Cathcart and the First North supervisors. With
regard to this claim, it is undisputed that plaintiff
engaged in a protected activity, namely filing a grievance
claiming a violation of the Civil Rights Act. In addition,
it is undisputed that defendant was aware that plaintiff
had engaged in this activity. Plaintiff presented
testimony that defendant's retaliatory conduct took place
over an eleven-year period, including acts that took place
after she filed the instant action on July 21, 1995.
between the adverse employment action and the protected
activity. See DeFlaviis, supra; West v Gen Motors Corp,
469 Mich. 177, 186; 665 NW2d 468 (2003) (applying the
antiretaliation provisions of the Whistleblowers'
Protection Act, MCL 15.361 et seq.). See also Shallal v
Catholic Social Services of Wayne Co, 455 Mich. 604, 617;
566 NW2d 571 (1997) (noting that "'whistleblower
statute[s][are] analogous to antiretaliation provisions of
other employment discrimination statutes . . .'" [citation
omitted]).
16
Defendant argues that, pursuant to the three-year period of
limitations, any claim based on acts occurring before July
21, 1992, is barred. MCL 600.5805(10). Despite the
statute of limitations, both the trial court and the Court
of Appeals permitted plaintiff to recover on the basis of
untimely acts, or acts occurring before July 21, 1992,
under the so-called "continuing violations" doctrine
adopted in Sumner. We conclude that, absent evidence of
these acts, there is insufficient evidence to establish a
causal link between the 1987 grievance and any retaliatory
acts occurring within the limitations period.
The "continuing violations" doctrine was first
addressed by this Court in Sumner, supra at 510. We began
our analysis in that case by stating that it is
"appropriate . . . in discrimination cases [to] turn to
federal precedent for guidance in reaching our decision."
Id. at 525. We found particularly helpful the
considerations relied on by federal courts in nullifying
the statute of limitations in Title VII of the Civil Rights
Act of 1964. 42 USC 2000e et seq. We described these as
follows:
First, [the Civil Rights Act] is a remedial
statute whose purpose is to root out
discrimination and make injured parties whole.
Second, employees are generally lay people, who
do not know that they must act quickly or risk
losing their cause of action. An employee may
fear reprisal by the employer, or may refer the
17
matter to a union, which may not take any action
within the limitation period. Employees may also
delay filing their complaints in the hope of
internal resolution or simply to give the
employer a second chance. Third, and most
importantly, many discriminatory acts occur in
such a manner that it is difficult to precisely
define when they took place. One might say that
they unfold rather than occur. [Sumner, supra at
525-526].[6]
Sumner also found persuasive the United States Supreme
Court's decision in United Air Lines, Inc v Evans, 431 U.S.
553; 97 S. Ct. 1885; 52 L. Ed. 2d 571 (1977). In Evans, the
United States Supreme Court for the first time addressed
the "continuing violations" doctrine that had been created
by the lower federal courts in order to overcome the
statute of limitations.7 The employee in Evans, a flight
6
While it is not necessary to our analysis in this
case, we note that the operation of our statute of
limitations at least partially undercuts the significance
of the factors cited by Sumner. In Michigan, an employee
does not have to "act quickly or risk losing their cause of
action" under the state Civil Rights Act but has up to
three years to assert a claim in contrast to the 180 days
allowed under Title VII. This extended period would also
presumably accord an employee sufficient time to seek
"internal resolution or simply to give the employer a
second chance" without endangering her claim. Further, at
least some reasonable observers might presume the three-
year limitations period accords an employee sufficient time
to determine that a discriminatory act has truly
"unfolded."
7
See, e.g., King v Georgia Power Co, 295 F Supp 943,
946 (ND Ga, 1968)(holding that "[t]he failure to allege
that the complaint was filed with the EEOC [Equal
Employment Opportunity Commission] within 90 days of the
alleged unfair employment practices is of no importance,
for the violations of Title VII alleged in the complaint
18
attendant with United Air Lines, was fired in 1968 on the
basis of a "no marriage" rule that was later found to
violate Title VII. She was rehired by the airline in 1972,
but was not credited for her pre-1968 service and,
therefore, was treated as a new hire for seniority
purposes. The employee argued that the airline's refusal
to recognize her past service constituted a "present effect
to the past illegal act and therefore perpetuates the
consequences of forbidden discrimination." Id. at 557.
Therefore, she alleged that the "continuing violations"
doctrine should be applied to allow her to obtain relief
for the now-untimely 1968 firing. However, the United
States Supreme Court held that merely demonstrating a
"present effect to a past act of discrimination" is
insufficient to create a continuing violation. Id. at 558.
"[T]he emphasis should not be placed on mere continuity;
the critical question is whether any present violation
exists." Id. Therefore, in order to support a
discrimination claim on a "continuing violations" theory,
an employee must first demonstrate the existence of a
present violation. Since the employee in Evans was unable
may be construed as 'continuing' acts"); Bartmess v Drewrys
USA, Inc, 444 F2d 1186, 1188 (CA 7, 1971) (holding that
"the ninety day limitation is no bar when a continuing
practice of discrimination is being challenged rather than
a single, isolated discriminatory act").
19
to demonstrate any violation within the time limitations of
Title VII, her claim was barred as untimely.
Sumner found the federal precedent persuasive and held
that the "continuing violations" doctrine applied to claims
under both the Civil Rights Act and the Handicappers' Civil
Rights Act, MCL 37.1101 et seq. This Court adopted the
Evans requirement that an employee must first demonstrate
that a violation has taken place within the limitations
period. Sumner, supra at 536. Once an employee has
demonstrated this, he or she must then demonstrate either
that his or her employer has engaged in a "policy of
discrimination" or has engaged in "a series of allegedly
discriminatory acts which are sufficiently related so as to
constitute a pattern . . . ." Id. at 528. There are three
factors to consider in determining whether an employer has
been engaged in a series of allegedly discriminatory acts:
"The first is subject matter. Do the
alleged acts involve the same type of
discrimination, tending to connect them in a
continuing violation? The second is frequency.
Are the alleged acts recurring (e.g., a biweekly
paycheck) or more in the nature of an isolated
work assignment or employment decision? The
third factor, perhaps of most importance, is
degree of permanence. Does the act have the
degree of permanence which should trigger an
employee's awareness of and duty to assert his or
her rights, or which should indicate to the
employee that the continued existence of the
adverse consequences of the act is to be expected
without being dependent on a continuing intent to
discriminate?" [Sumner, supra at 538, quoting
20
Berry v LSU Bd of Supervisors, 715 F2d 971, 981
(CA 5, 1983).]
Whatever the merits of the policy crafted by Sumner,
it bears little relationship to the actual language of the
relevant statue of limitations, MCL 600.5805, and MCL
600.5827. Fundamental canons of statutory interpretation
require us to discern and give effect to the Legislature's
intent as expressed by the language of its statutes.
DiBenedetto v West Shore Hosp, 461 Mich. 394, 402; 605 NW2d
300 (2000). If such language is unambiguous, as most such
language is, Klapp v United Ins Group Agency, Inc, 468 Mich.
459; 663 NW2d 447 (2003), "we presume that the Legislature
intended the meaning clearly expressed—no further judicial
construction is required or permitted, and the statute must
be enforced as written." DiBenedetto, supra at 402.
MCL 600.5805 provides, in pertinent part:
(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.
* * *
(10) 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.
MCL 600.5827 provides that a "claim accrues at the
time the wrong upon which the claim is based was done
21
regardless of the time when damage results." Thus, § 5805
requires a plaintiff to commence an action within three
years of each adverse employment act by a defendant.
Section 5805 does not say that a claim outside this three-
year period can be revived if it is somehow "sufficiently
related" to injuries occurring within the limitations
period. Rather, the statute simply states that a plaintiff
"shall not" bring a claim for injuries outside the
limitations period. Nothing in these provisions permits a
plaintiff to recover for injuries outside the limitations
period when they are susceptible to being characterized as
"continuing violations." To allow recovery for such claims
is simply to extend the limitations period beyond that
which was expressly established by the Legislature.8
8
The dissent is utterly deconstructionist in its
attitude toward statutes of limitations, which is its right
but which attitude nonetheless bears no relationship to
that of the Legislature. We are told by the dissent, for
example, that we often cannot determine when discriminatory
acts have taken place, when civil rights claims have
accrued or manifested themselves, whether an act of
discrimination is "discrete or nondiscrete," and that even
discrete acts of discrimination may not be readily
identifiable. Post at 12. Doubtless, there are difficult
evidentiary issues in the realm of civil rights as in most
other realms of the law. Such difficulties, however, do
not constitute authorization for ignoring the express
direction of the Legislature that violations of the Civil
Rights Act are to be subject to a period of limitations,
one that is 2 1/2 years longer than the federal period of
limitations. The dissent is obviously correct that the
cost of a statute of limitations is that some acts of
discrimination will go unredressed. This is the cost of
22
An additional flaw in Sumner's reasoning is its unduly
heavy reliance on federal case law, particularly Evans.
While federal precedent may often be useful as guidance in
this Court's interpretation of laws with federal analogues,
such precedent cannot be allowed to rewrite Michigan law.
The persuasiveness of federal precedent can only be
considered after the statutory differences between Michigan
and federal law have been fully assessed, and, of course,
even when this has been done and language in state statutes
is compared to similar language in federal statutes,
federal precedent remains only as persuasive as the quality
of its analysis. Here, not only does the "continuing
violations" doctrine in Michigan conflict with the
requirements of §§ 5805 and 5827, but, at least arguably,
the federal doctrine is given affirmative support by
language in Title VII that is absent from the Civil Rights
Act. In 1972, Congress amended Title VII to extend the
period within which an employee must file a complaint with
the Equal Employment Opportunity Commission from 90 days to
180 days. At the same time, Congress imposed a two-year
any statute of limitations, but nonetheless a cost that the
Legislature apparently believes is outweighed by the
benefits of setting a deadline on stale claims. While the
dissent may be correct that the "continuing violations"
doctrine "better protects" the victims of discrimination,
post at 13, and that it is a "highly workable and
preferable" doctrine, post at 14, it is not the doctrine
chosen by the Legislature.
23
limit on backpay awards. Thus, Congress implicitly
recognized an employee's right to recover damages for
discriminatory acts beyond those that occurred within the
180-day period. Sumner noted that such amendment
constituted an "implicit endorsement of the continuing
violation theory," because Congress allowed employees to
recover damages for discriminatory acts beyond those that
occurred within the 180-day period. Sumner, supra at 526.
However, Sumner failed to note that there is no
corresponding provision in Michigan law that even
implicitly endorses the "continuing violations" doctrine.
Thus, rather than supporting Sumner's holding, the
existence of the federal statute leads to the opposite
conclusion—that the "continuing violations" doctrine is
contrary to Michigan law and, therefore, that federal
precedent should not have been imported into Michigan law.9
Therefore, we overrule Sumner and hold that a person
must file a claim under the Civil Rights Act within three
years of the date his or her cause of action accrues, as
9
We note that the United States Supreme Court recently
rejected the "continuing violations" doctrine for Title VII
claims with regard to discrete acts because it is contrary
to the statute of limitations. Nat'l R Passenger Corp v
Morgan, 536 U.S. 101; 122 S. Ct. 2061; 153 L. Ed. 2d 106 (2002).
24
required by § 5805(10).10 That is, "three years" means
three years. An employee is not permitted to bring a
lawsuit for employment acts that accrue beyond this period,
because the Legislature has determined that such claims
should not be permitted.11 Whether or not the "continuing
10
Although we concur with the dissent that the
doctrine of stare decisis constitutes the "'preferred
course because it promotes the evenhanded, predictable, and
consistent development of legal principles, fosters
reliance on judicial decisions and contributes to the
actual and perceived integrity of the judicial process,'"
post at 10-11, quoting Robinson v Detroit, 462 Mich.
439,463; 613 NW2d 307 (2000), so also are these values
promoted by the separation of powers doctrine, which holds
that it is the responsibility of the judiciary to respect
the intentions of the Legislature by giving faithful
meaning to the words of the law. In this case, we conclude
that the values identified in Robinson, and invoked by the
dissent, are substantially better served by restoring the
law to its written meaning rather than maintaining the
judicial amendments of Sumner. Not only, in our judgment,
are laws generally made more "evenhanded, predictable and
consistent" when their words mean what they plainly say,
and when all litigants are subject to the equal application
of such words, but laws are also made more accessible to
the people when each of them is able to read the law and
thereby understand his or her rights and responsibilities.
When the words of the law bear little or no relationship to
what courts say the law means (as in Sumner), then the law
increasingly becomes the exclusive province of lawyers and
judges.
11
The principal difference between the majority and
the dissent in approaching the interpretative process is
that the majority is content to rely on the actual words
used by the Legislature while the dissent insists on
ascribing its own "purpose" to the act, post at 17 n 6, and
interpreting the act consistent with this statement of
purpose, no matter what barriers to this end have been
inconveniently created by the Legislature in failing to use
words that serve the dissent's self-stated "purpose."
While it can scarcely be gainsaid that the purpose of the
25
violations" exception of Sumner constitutes a useful
improvement in the law, there is no basis for this Court to
construct such an amendment.12
Accordingly, plaintiff's claims of retaliatory
discrimination arising from acts occurring before June 21,
Civil Rights Act is to "root out discrimination and make
injured parties whole," id., that purpose must be
understood in the context of a competing "purpose" to
ensure that relief under the act be subject to a statute of
limitations. While the dissent apparently views a statute
of limitations as compromising the act's "purpose," i.e.,
its own characterization of such purpose, we believe that
it is better understood as requiring a more precise and
fine-tuned statement of the act's purpose, one predicated
on the intentions of the Legislature rather than on the
preferences of the dissent. The words of any statute can
be effectively undermined by a sufficiently generalized
statement of "purpose" that is unmoored in the actual
language of the law.
12
This Court has rejected similar attempts to modify
statutes of limitations. See Boyle v Gen Motors Corp, 468
Mich. 226, 231-232; 661 NW2d 557 (2003) (rejecting
application of the discovery rule to extend the statute of
limitations in fraud cases); Secura Ins Co v Auto-Owners
Ins Co, 461 Mich. 382, 387-388; 605 NW2d 308 (2000) (holding
that the doctrine of judicial tolling cannot be applied in
the absence of statutory language permitting such tolling);
Magee v DaimlerChrysler Corp, 472 Mich. 108, 113; 693 NW2d
166 (2005) (noting that the "continuing violations"
doctrine "renders nugatory the period of limitations
established by the Legislature in MCL 600.5805[10]").
While the judicial temptation to relax a statute of
limitations may be understandable in the context of a
lawsuit in which a plaintiff, alleging that he or she has
suffered a serious wrong, has been denied his or her day in
court, the costs involved in terms of undermining the
clarity and predictability of the law, allowing stale
complaints to proceed, and injecting uncertainty into a
myriad of legal relationships, are considerable, not to
mention that a court that does so would be exercising
"legislative," not "judicial," power. See Const 1963, art
3, § 2; art 4, § 1; art 6, § 1.
26
1992, are untimely and cannot be maintained. Without these
untimely acts, plaintiff's claim is limited to acts
occurring five to eleven years13 after she filed her
grievance. In light of this gap, there is insufficient
evidence to allow a reasonable juror to find a causal link
between the 1987 grievance and the discriminatory acts
falling within the limitations period.14
13
The first actionable claim in 1992 is five years
after plaintiff's 1987 national-origin grievance and
plaintiff claims that she was treated poorly up to the date
of the 1998 trial, which was eleven years after the
grievance was filed.
14
Notwithstanding our overruling of Sumner, the
dissent, unlike the majority, would still allow acts
falling outside the period of limitations to be admissible
"'as background evidence in support of a timely claim.'"
Post at 19, quoting Morgan, supra at 113. The dissent
would enable a plaintiff to claim that an adverse
employment action occurring outside the limitations period
constituted evidence that the employer is committing
current violations. Such an understanding would
essentially resurrect the "continuing violations" doctrine
of Sumner through the back door. It would bar an employee
from directly recovering for untimely acts of
discrimination, but allow the employee to indirectly
recover for the same acts. What practical difference is
there between the Sumner rule, which states that acts of
discrimination that might otherwise be viewed as stale are
cognizable under the act if they are part of a "continuing
violation," and the dissent's rule that would allow stale
violations to be considered "as evidence" of the actionable
violation? The premises of the dissent and of Sumner are
indistinguishable in that there can be no "discrete" acts
of discrimination, but that such acts must always be
assessed in a continuing context so that we can never know
when an "injury" for statute of limitations purposes has
occurred. The dissent's rule is as inconsistent with the
Civil Rights Act as the "continuing violations" doctrine of
Sumner, and equally incompatible with the rationale for a
27
Furthermore, in order to show causation in a
retaliatory discrimination case, "[p]laintiff must show
something more than merely a coincidence in time between
protected activity and adverse employment action." West v
Gen Motors Corp, 469 Mich. 177, 186; 665 NW2d 468 (2003).
There is no evidence to suggest any distinction between the
promotion denial that occurred while plaintiff was in
Cathcart's chain of command and those denials involving
supervisors who had no knowledge of plaintiff's grievance.
Five supervisors, including four who were directly
responsible for postgrievance promotion decisions involving
plaintiff, testified that they were unaware that plaintiff
had filed any grievance. Plaintiff failed to introduce any
evidence to contradict that testimony. However, despite
the First North supervisors' lack of knowledge about the
grievance, they treated her requests for promotions in the
same manner that Cathcart did, i.e., they denied them.
Because these supervisors were not aware of the grievance,
they could not have "retaliated" against plaintiff for its
filing. Further, there is no evidence that plaintiff's job
qualifications changed in any meaningful way in the time
statute of limitations. See Nielsen v Barnett, 440 Mich. 1,
8-9; 485 NW2d 666 (1992). It would allow the plaintiff to
resuscitate stale claims—in this case claims more than a
decade old—and require a defendant to defend against such
claims in the face of the passage of time, fading memories,
and the loss of witnesses and evidence.
28
between the denial by Cathcart and the denials by the other
supervisors at First North. Thus, a juror could not
reasonably conclude that the reasons behind the denials
within First North were related to the grievance.
Plaintiff has failed to produce evidence affirmatively
showing, as is her burden, that the reasons underlying the
promotion denial involving Cathcart were any different from
the denials involving supervisors who were unaware that
plaintiff had filed a grievance. West, supra at 183-184;
DeFlaviis, supra. It appears that both the trial court and
the Court of Appeals identified a "causal connection"
between the grievance and the promotion denials simply on
the basis of timing—that is, because the denials occurred
after the grievance, there must be a functional
relationship. This is the kind of post hoc, ergo propter
hoc reasoning rejected in West. We reject such reasoning
in this case as well.
Similarly, plaintiff failed to establish that she was
treated poorly by Cathcart and the First North supervisors
as a result of the grievance. Plaintiff was unable to
establish that Cathcart's treatment of plaintiff was
29
distinguishable in any way from her treatment by
supervisors who were unaware of the grievance.15
First, plaintiff claimed that Cathcart treated her
differently from other employees by refusing to give her a
key to the facility. However, her supervisor at First
North, who denied any knowledge of the grievance, similarly
refused to give plaintiff a key. Second, plaintiff claimed
that her work was subjected to greater scrutiny by Cathcart
than that of her coworkers. However, she also claimed that
another First North supervisor, who is no longer an
employee of defendant and did not testify, wrote her
several memos a day "unfairly attacking" her performance.
Finally, both plaintiff and the Court of Appeals found it
noteworthy that she was moved to a "disgusting" office
after the transfer to First North. However, the supervisor
who assigned her that office testified that he was unaware
of the grievance and had informed her that it was only a
temporary situation. Under these circumstances, we
conclude that no juror could have reasonably concluded that
plaintiff was subjected to poor treatment because she had
15
In fact, Cathcart testified that he did not
remember, and would not have been troubled by, the
grievance. Further, plaintiff admitted that, during the
period of alleged poor treatment, Cathcart intervened on
her behalf when another supervisor sought to change her
work hours.
30
been engaged in "protected activity" by filing a grievance
claiming national-origin discrimination.
Finally, plaintiff has failed to demonstrate that
Cathcart's alleged derogatory comments based on national
origin establish any causal connection between the
grievance and the adverse employment action. In order to
establish such a connection, plaintiff needed to show that
the comments demonstrated Cathcart's discriminatory animus
toward her and that, as a result of such animus, Cathcart
retaliated against her for filing the grievance.
Plaintiff claims that Cathcart made a racially
derogatory statement regarding Indians.16 Plaintiff
testified that Cathcart responded to the news that her son
had been admitted to a medical program by stating, "I don't
know how many Indian doctors we need."17 This statement does
not pertain in any way to the promotion process; neither is
it directed toward plaintiff in terms of evaluating her
16
Cathcart allegedly made another racially derogatory
statement regarding Indians in 1989; however, it is outside
the limitations period. We also note that Cathcart
allegedly made two statements concerning African-Americans.
These seem to have little bearing in this case because
plaintiff is not African-American. Further, one of these
statements occurred at least two years before plaintiff's
grievance regarding national-origin discrimination and the
other occurred approximately nine years afterward.
17
While plaintiff did not indicate when this statement
was made, a juror could infer that it was made sometime
between 1992 and 1995.
31
work performance or threatening any future treatment of
her. See Sniecinski, supra at 136 n 8. However
inappropriate or ill-informed this statement, it is better
characterized, in our judgment, as a "stray comment" than
as reflective of any "pattern of biased comments . . . ."18
Id.
More to the point, for the same reason that plaintiff
here has failed to demonstrate that Cathcart's treatment of
her did not vary in any appreciable way from her treatment
by other supervisors—concerning whom there is no evidence
of even such "stray comments"—we do not believe that
plaintiff has demonstrated that she was subjected to
denials of promotions or otherwise poor treatment by
defendant on the basis of her grievance. Again, we
reiterate that the question is not the propriety or
seemliness of Cathcart's statements, but merely whether
such statements establish a causal link between plaintiff's
grievance and her subsequent treatment by defendant.
In light of insufficient evidence that plaintiff was
not promoted or otherwise treated poorly because she
engaged in a "protected activity," i.e., having filed a
grievance against defendant alleging national-origin
18
This conclusion is underscored by the fact that the
jury, after learning of all these statements, concluded
that plaintiff had not been discriminated against on the
basis of national origin.
32
discrimination, plaintiff has failed to establish a
retaliation claim under the Civil Rights Act.
IV. Conclusion
We conclude that the "continuing violations" doctrine
is contrary to the language of § 5805 and hold, therefore,
that the doctrine has no continued place in the
jurisprudence of this state. Accordingly, Sumner is
overruled. Further, we conclude that there is insufficient
evidence to support plaintiff's claims of retaliation based
on her opposition to sexual harassment and those acts by
her employer following the grievance that were within the
statutory limitations period. Accordingly, we reverse the
judgment of the Court of Appeals and remand the matter to
the trial court for entry of judgment in favor of
defendant.
Stephen J. Markman
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
33
S T A T E O F M I C H I G A N
SUPREME COURT
SHARDA GARG,
Plaintiff-Appellee/Cross-Appellant,
v No. 121361
MACOMB COUNTY COMMUNITY MENTAL HEALTH SERVICES,
Defendant-Appellant/Cross-Appellee.
_______________________________
CAVANAGH, J. (dissenting).
I agree with the majority’s conclusion that there was
insufficient evidence of retaliation based on plaintiff’s
alleged opposition to the sexual harassment of her co-
workers.
I disagree with the majority’s conclusion that
plaintiff presented insufficient evidence that she was
retaliated against for filing a grievance. Moreover, I
disagree with the majority’s decision to overrule Sumner v
Goodyear Tire & Rubber Co, 427 Mich. 505; 398 NW2d 368
(1986), and abolish the continuing violations doctrine.
Finally, I disagree with the majority’s rationale that
because the continuing violations doctrine no longer
applies, evidence of prior acts must necessarily be
excluded from consideration. Accordingly, I must
respectfully dissent.
I. Plaintiff Presented Sufficient Evidence of Retaliation
for Filing a Grievance
The Michigan Civil Rights Act “is aimed at ‘the
prejudices and biases’ borne against persons because of
their membership in a certain class, and seeks to eliminate
the effects of offensive or demeaning stereotypes,
prejudices, and biases.” Miller v C A Muer Corp, 420 Mich.
355, 363; 362 NW2d 650 (1984) (citations omitted). To this
end, the Civil Rights Act, MCL 37.2701, provides in
pertinent part:
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.
The Court of Appeals has observed that the purposes of the
retaliation provisions of the act are “to protect access to
the machinery available to seek redress for civil rights
violations and to protect operation of that machinery once
it has been engaged.” DeFlaviis v Lord & Taylor, Inc, 223
Mich. App. 432, 440; 566 NW2d 661 (1997) (citation omitted).
This Court has yet to formally delineate the prima
facie elements of a retaliation claim under the Michigan
Civil Rights Act. The Court of Appeals, however, has
2
relied on federal precedent to formulate its own test.
Today, the majority adopts the Court of Appeals test as its
own. See ante at 10-11. Thus, to establish a prima facie
case of unlawful retaliation under the Civil Rights Act, a
plaintiff must show: “(1) that he 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.” DeFlaviis, supra at 436, citing Polk v Yellow
Freight Sys, Inc, 876 F2d 527, 531 (CA 6, 1989), Booker v
Brown & Williamson Tobacco Co, Inc, 879 F2d 1304, 1310 (CA
6, 1989), and Kroll v Disney Store, Inc, 899 F Supp 344,
348 (ED Mich, 1995). Using these elements, I would
conclude that the trial court properly denied defendant’s
motion for judgment notwithstanding the verdict (JNOV) on
plaintiff’s claim that she was retaliated against for
filing a grievance against her supervisor.
As noted by the majority, the first two elements of
the test are satisfied because plaintiff engaged in
protected activity and defendant was aware that plaintiff
had engaged in this activity. See ante at 17. Moreover, I
would conclude that sufficient evidence was presented on
the third and fourth elements; namely, there was sufficient
3
evidence that defendant took adverse employment action
against plaintiff and there was a causal connection between
the filing of the grievance and the adverse employment
action. With regard to these elements, I find the Court of
Appeals characterization of the evidence persuasive. The
Court of Appeals noted:
[P]laintiff sufficiently established the
elements of a retaliation claim by way of her
evidence that (1) plaintiff filed a grievance
alleging racial discrimination in June 1987; (2)
Cathcart, a supervisor, knew about the grievance;
(3) after filing the grievance, plaintiff failed
to receive the next promotion that she sought,
posted in December 1988, despite being qualified
for the position; (4) plaintiff failed to receive
seven total promotions between 1989 and 1997,
despite being qualified for the positions; (5)
individuals less qualified than plaintiff
received promotions while plaintiff did not; (6)
in 1994, plaintiff was transferred to a
windowless office from which she could hear
noises emanating from the adjacent bathroom,
while persons more senior [sic] to plaintiff
received better offices; (7) in 1996, Cathcart
made a statement disparaging to blacks; (8)
Cathcart made another comment disparaging to
Indians; (9) Cathcart reprimanded plaintiff but
not others for minor infractions; (10) Cathcart
ignored plaintiff in staff meetings and treated
her poorly in the hallways; (11) in 1984 or 1985,
Cathcart used the word “n-----” in referring to
blacks; and (12) Cathcart remained in plaintiff’s
chain of command throughout the years.
[Unpublished opinion per curiam of the Court of
Appeals, issued March 29, 2002 (Docket No.
223829).][1]
1
I disagree with the majority’s contention that these
statements should be considered mere stray remarks.
4
A motion for JNOV should be granted only if the
evidence, viewed in the light most favorable to the
nonmoving party, fails to establish a claim as a matter of
law. Orzel v Scott Drug Co, 449 Mich. 550, 557-558; 537
NW2d 208 (1995). This Court reviews de novo a trial
court’s decision to grant or deny a motion for JNOV, and
likewise reviews the evidence and all reasonable inferences
in the light most favorable to the nonmoving party. Craig
v Oakwood Hosp, 471 Mich. 67, 77; 684 NW2d 296 (2004).
Under this standard, I cannot say that the evidence
detailed by the Court of Appeals fails to establish a claim
of retaliation as a matter of law. Moreover, while
reasonable jurors could reach different conclusions, I
cannot say that no reasonable juror could conclude that
plaintiff was retaliated against for filing a grievance.
Thus, I would hold that the trial court properly denied
defendant’s motion for JNOV on the retaliation theory.2
Moreover, I find wholly unpersuasive the majority’s logic
that the derogatory statements concerning African-Americans
are irrelevant because plaintiff is Indian.
2
As noted previously, I tend to agree with the
majority that plaintiff presented insufficient evidence
that she was retaliated against for her alleged opposition
to the sexual harassment of her coworkers. However, I
disagree with the majority’s election to decide, in dictum,
whether responsive physical behavior constitutes protected
activity. Given the majority’s ultimate conclusion, this
portion of the majority’s opinion is unnecessary.
5
II. Sumner and the Continuing Violations Doctrine
The Michigan Civil Rights Act contains no internal
statute of limitations. Nonetheless, this Court has
applied the general three-year limitations period set forth
in MCL 600.5805 to claims brought under the act. See,
e.g., Mair v Consumers Power Co, 419 Mich. 74; 348 NW2d 256
(1984). However, in recognition that such claims tend to
“unfold rather than occur,” this Court unanimously adopted
a narrow exception to the statute of limitations—the
continuing violations doctrine. Sumner, supra at 526. The
continuing violations doctrine dictates that unlawful acts
that occur beyond the period of limitations are actionable,
as long as the acts are sufficiently related to constitute
a pattern and one of the acts occurred within the period of
limitations.
As noted by the Sumner Court, the federal courts
developed the continuing violations doctrine as a narrow
exception to Title VII’s short limitations period. This
Court detailed the reasons for the exception, reasons that
still ring true today:
These courts expressed concern with a number
of factors which they felt militated against a
strict application of the limitation requirement.
Moreover, although this issue was raised by the Attorney
General as amicus curiae, this issue was neither raised
below nor specifically briefed by the parties.
6
First, Title VII is a remedial statute whose
purpose is to root out discrimination and make
injured parties whole. Second, employees are
generally lay people, who do not know that they
must act quickly or risk losing their cause of
action. An employee may fear reprisal by the
employer, or may refer the matter to a union,
which may not take any action within the
limitation period. Employees may also delay
filing their complaints in the hope of internal
resolution or simply to give the employer a
second chance. Third, and most importantly, many
discriminatory acts occur in such a manner that
it is difficult to precisely define when they
took place. One might say that they unfold
rather than occur. [Id. at 525-526.]
In light of the United States Supreme Court’s decision
in United Air Lines, Inc v Evans, 431 U.S. 553; 97 S. Ct. 1885;
52 L Ed 2d 571 (1977), this Court observed that the
continuing violations doctrine generally consists of two
subtheories:
The first subtheory involves allegations
that an employer has engaged in a continuous
policy of discrimination. In such a case, the
plaintiff is alleging that “he is challenging not
just discriminatory conduct which has affected
him, but also, or alternatively, the underlying
employment system which has harmed or which
threatens to harm him and other members of his
class.”
The second subtheory, the “continuing course
of conduct” or “series of events” situation is
relevant where an employee challenges a series of
allegedly discriminatory acts which are
sufficiently related so as to constitute a
pattern, only one of which occurred within the
limitation period. [Sumner, supra at 528
(citations omitted).]
7
Here, plaintiff is alleging that defendant retaliated
against her through a continuing course of conduct. Thus,
the second subtheory applies to this case.
In determining whether a continuing course of conduct
exists under the second subtheory, this Court adopted the
approach set forth by the Fifth Circuit Court of Appeals:
“The first is subject matter. Do the alleged
acts involve the same type of discrimination,
tending to connect them in a continuing
violation? The second is frequency. Are the
alleged acts recurring (e.g., a biweekly
paycheck) or more in the nature of an isolated
work assignment or employment decision? The
third factor, perhaps of most importance, is
degree of permanence. Does the act have the
degree of permanence which should trigger an
employee’s awareness of and duty to assert his or
her rights, or which should indicate to the
employee that the continued existence of the
adverse consequences of the act is to be expected
without being dependent on a continuing intent to
discriminate?” [Sumner, supra at 538, quoting
Berry v LSU Bd of Supervisors, 715 F2d 971, 981
(CA 5, 1983).]
Under these circumstances, I would conclude that the
continuing violations doctrine applies to plaintiff’s
retaliation claim. First, the acts involve the same type
of continuing violation: repeated denials of promotions and
disparate treatment in retaliation for engaging in
protected activity. Second, defendant’s acts occurred with
frequency: plaintiff was consistently denied every
promotion she applied for from the date the grievance was
8
filed. Finally, on these facts, the consistent denials of
promotions and disparate treatment did not have the degree
of permanence that would necessarily preclude application
of the continuing violations doctrine. Plaintiff did not
suspect that the impetus for the adverse actions was the
filing of the grievance until much later. While
retaliatory conduct may be considered a discrete act under
some circumstances, the facts of this case demonstrate that
retaliation is often just as subtle and hard to detect as
discrimination. Thus, I would apply the continuing
violations doctrine and conclude that all the adverse
employment actions taken by defendant against plaintiff are
actionable.
III. The Majority’s Decision to Overrule Sumner
The majority reasons that Sumner and the continuing
violations doctrine have no place in Michigan law because
they bear little relationship to the actual language of MCL
600.5805 and 600.5827. Rather, MCL 600.5805 “requires a
plaintiff to commence an action within three years of each
adverse employment act by a defendant. . . . Nothing in
these provisions permits a plaintiff to recover for
injuries outside the limitations period when they are
susceptible to being characterized as ‘continuing
violations.’” Ante at 22-23. Moreover, the majority
9
concludes that Sumner “unduly” relied on federal case law.
Id. at 23. According to the majority, the continuing
violations doctrine is arguably given support by the
language of Title VII, unlike the language of Michigan’s
statutory provisions. Additionally, Congress amended Title
VII to impose a two-year limit on recovering back pay and,
thus, implicitly endorsed the doctrine. The majority
posits that there is no corresponding provision in Michigan
law that even implicitly endorses the continuing violations
doctrine. Accordingly, the majority overrules Sumner and
holds that a person must file a claim under the Civil
Rights Act within three years of the date his or her cause
of action accrues.
“[T]his Court has consistently opined that, absent the
rarest circumstances, we should remain faithful to
established precedent.” Brown v Manistee Co Rd Comm, 452
Mich. 354, 365; 550 NW2d 215 (1996). The doctrine of stare
decisis is “‘the preferred course because it promotes the
evenhanded, predictable, and consistent development of
legal principles, fosters reliance on judicial decisions,
and contributes to the actual and perceived integrity of
the judicial process.’” Robinson v Detroit, 462 Mich. 439,
463; 613 NW2d 307 (2000) (citation omitted). The current
Court has detailed four principles to consider before
10
established precedent is overruled: “(1) whether the
earlier case was wrongly decided,[3] (2) whether the
decision defies ‘practical workability,’ (3) whether
reliance interests would work an undue hardship, and (4)
whether changes in the law or facts no longer justify the
questioned decision.” Pohutski v City of Allen Park, 465
Mich. 675, 694; 641 NW2d 219 (2002). In my view, none of
these factors weighs in favor of overruling Sumner and
abolishing the continuing violations doctrine.
First, I cannot say that Sumner was wrongly decided.
Like its federal counterpart, the Civil Rights Act “is a
remedial statute whose purpose is to root out
discrimination and make injured parties whole.” Sumner,
supra at 525. Because the Civil Rights Act is remedial in
nature, it should be liberally construed. Kassab v
Michigan Basic Prop Ins Ass’n, 441 Mich. 433, 467; 491 NW2d
545 (1992) (Cavanagh, C.J., dissenting); see also Kassab,
supra at 451 (Mallett, J., dissenting).
In Sumner, supra at 526, this Court astutely observed
that “many discriminatory acts occur in such a manner that
it is difficult to precisely define when they took place.”
3
Is not this “principle” a given? As I have noted
previously, it would seem strange indeed for a “correctly
decided” decision to be trashed.
11
Indeed, determining when a claim accrues or occurs is
surprisingly difficult because violations of the act may
not manifest themselves except at the end of a lengthy
period. Whether a particular act is discrete or
nondiscrete often depends on the circumstances of the
individual case. And even so-called discrete acts may not
always be readily identifiable. In fact, the United States
Supreme Court recently left open the question whether
discriminatory employment actions are subject to some sort
of discovery rule. The Court noted that
[t]here may be circumstances where it will be
difficult to determine when the time period
should begin to run. One issue that may arise in
such circumstances is whether the time begins to
run when the injury occurs as opposed to when the
injury reasonably should have been discovered.
But this case presents no occasion to resolve
that issue. [Nat’l R Passenger Corp v Morgan,
536 U.S. 101, 114 n 7; 122 S. Ct. 2061; 153 L. Ed. 2d
106 (2002).]
The continuing violations doctrine remains a salutary
tool because, as a practical matter, it may be difficult to
determine when a violation of the act was committed or when
a civil rights claim accrues for purposes of MCL 600.5827.4
4
MCL 600.5827 provides:
Except as otherwise expressly provided, the period of
limitations runs from the time the claim accrues. The
claim accrues at the time provided in sections 5829 to
5838, and in cases not covered by these sections the claim
12
Simply stated, a victim of discrimination may not be aware
that he or she is being or has been discriminated against
until after the period of limitations has expired. The
continuing violations doctrine better protects the victim
and does not reflexively give the discriminating party the
benefit of judicial hindsight. However, the Sumner Court
was careful to explain that not every prior act will be
actionable under the continuing violations doctrine. Even
though discriminatory acts may be difficult to ascertain,
the continuing violations doctrine will not apply if there
is not a pattern, the acts do not involve the same subject
matter, the acts do not occur with frequency, or the
plaintiff should have been aware that his or her rights
under the act were being violated. In my view, Sumner
remains a sound decision because it seeks to ameliorate the
effects of strictly applying the limitations period where
it is difficult to ascertain exactly when a civil rights
claim accrues.
Second, Sumner does not defy practical workability.
As noted above, just the opposite is true. Because it is
often extremely difficult to ascertain when a claim
accrues, application of the continuing violations doctrine
accrues at the time the wrong upon which the claim is based
was done regardless of the time when damage results.
13
proceeds on a case-by-case basis. The doctrine is
generally analyzed under two distinct subtheories and this
Court has set forth a clear three-factor test to assist
courts in determining whether a continuing course of
discriminatory conduct exists. Sumner, supra at 538. In
my view, Sumner remains a highly workable and preferable
decision.
Third, overruling Sumner would work an undue hardship
because of the reliance interests placed on that decision.
Sumner has been entrenched in this state’s jurisprudence
for nearly twenty years. Further, as a practical matter,
the continuing violations doctrine encourages lay
employees, who may not be supremely confident that their
rights are being violated, to seek internal resolution of
their suspected complaints. Needless to say, such a course
of action is advantageous to all persons involved. In
reliance on Sumner, an employee could rest assured that
possible violations of the Civil Rights Act would not
become stale while attempting to resolve the complaint
internally. Moreover, employees’ fear of reprisals by
employers was greatly diminished because of Sumner’s
safeguards. Because of Sumner, both employees and
employers were relieved of the burden of being on
“litigation watch” at the first sign of trouble. Employees
14
and employers have relied on Sumner for quite some time and
conducted their affairs and operations accordingly.
In my view, affirming the principles announced in
Sumner would work far less of a hardship than overruling
that decision. Indeed, opponents of the continuing
violations doctrine should be careful what they wish for.
Overruling Sumner may actually encourage employees to run
to court at the first sign of trouble. This will put a
strain on everyone involved in the process—the employee,
the employer, and the courts. Such inherent tension was
alleviated by Sumner and the continuing violations
doctrine. Thus, because the citizens of this state have
justifiably relied on Sumner for nearly two decades and
overruling that decision would unnecessarily disrupt these
reliance interests, I would refrain from overruling Sumner.
Fourth and finally, there has been no change in the
law or facts that has cast doubt on the wisdom of Sumner.
Indeed, this Court has consistently cited and suggested
that Sumner’s reliance on federal precedent was warranted.
See, e.g., Chambers v Trettco, Inc, 463 Mich. 297, 313; 614
NW2d 910 (2000) (“We are many times guided in our
interpretation of the Michigan Civil Rights Act by federal
interpretations of its counterpart federal statute. See,
e.g., Sumner v Goodyear Tire & Rubber Co, 427 Mich. 505,
15
525; 398 NW2d 368 (1986).”)5 Thus, there has been no
seismic shift, except for the makeup of this Court, that
would warrant overruling Sumner and abolishing the
continuing violations doctrine.
In sum, I disagree with the majority’s decision to
overrule Sumner. I believe that the continuing violations
doctrine remains a venerable approach to analyzing claims
brought under the Michigan Civil Rights Act.6
5
See also Radtke v Everett, 442 Mich. 368, 381-382; 501
NW2d 155 (1993) (“While this Court is not compelled to
follow federal precedent or guidelines in interpreting
Michigan law, this Court may, ‘as we have done in the past
in discrimination cases, turn to federal precedent for
guidance in reaching our decision.’ Sumner v Goodyear Tire
& Rubber Co, 427 Mich. 505, 525; 398 NW2d 368 (1986).”);
Stevens v McLouth Steel Products Corp, 433 Mich. 365, 375;
446 NW2d 95 (1989) (“This Court has frequently drawn from
federal court precedent in interpreting other aspects of
the Civil Rights Act. See, e.g., Sumner v Goodyear Tire &
Rubber Co, 427 Mich. 505, 525; 398 NW2d 368
(1986) . . . .”).
6
The majority posits that my conclusion to reaffirm
the principles announced in Sumner stems from my preference
to interpret the Civil Rights Act in harmony with my “own,”
“self-stated” “characterization” of the purpose of the act.
Ante at 26-27 n 11. As detailed in Sumner, supra at 525,
the purpose of the act is “to root out discrimination and
make injured parties whole.” In the same footnote,
however, the majority acknowledges that Sumner’s stated
purpose of the act is undeniable. Nonetheless, the
majority concludes that this undeniable purpose must heed
another “competing” purpose–“to ensure that relief under
the act be subject to a statute of limitations.” Ante at
27 n 11. Accordingly, the majority would “fine-tune” the
act’s undeniable purpose and restate the “precise” purpose
of the Civil Rights Act as follows: to intermittently root
16
IV. The Majority’s Application of its New Rule is
Fundamentally Flawed
Even assuming the continuing violations doctrine no
longer pertains, the majority’s additional reasoning cannot
withstand scrutiny. Under the continuing violations
doctrine, unlawful acts that occur beyond the period of
limitations are actionable, as long as the acts are
sufficiently related to constitute a pattern and one of the
acts occurred within the period of limitations. The
majority properly acknowledges this point of law.7 Thus,
the natural consequence of overruling Sumner and abolishing
the continuing violations doctrine is that acts occurring
beyond the period of limitations are no longer actionable.
out discrimination and make injured parties somewhat whole.
I prefer the undeniable purpose previously articulated by
this Court because it is more consistent with the
Legislature’s intent. While the majority claims that the
words of any statute can be undermined by considering the
statute’s purpose, today’s decision demonstrates that the
opposite proposition is equally true. Namely, a remedial
statute can be tortured by a preference to ignore, not
effectuate, the Legislature’s purpose in enacting the
statute.
7
“Nothing in these provisions permits a plaintiff to
recover for injuries outside the limitations period when
they are susceptible to being characterized as ‘continuing
violations.’ To allow recovery for such claims is simply
to extend the limitations period beyond that which was
expressly established by the Legislature.” Ante at 23
(emphasis added). “An employee is not permitted to bring a
lawsuit for employment acts that accrue beyond this period,
because the Legislature has determined that such claims
should not be permitted.” Id. at 26 (emphasis added).
17
Yet the majority goes even further and reasons that
evidence of acts occurring outside the period of
limitations must be excluded.8 Such a conclusion is
fundamentally flawed.
For example, in Morgan, supra at 105, the United
Stated Supreme Court held that Title VII “precludes
recovery for discrete acts of discrimination or retaliation
that occur outside the statutory time period.”9 While I
disagree with the Morgan Court’s holding, it is important
to observe the Court’s subsequent rationale. In light of
8
“[W]e conclude that, once evidence of acts that
occurred outside the statute of limitations period is
removed from consideration, there was insufficient evidence
of retaliation based on either plaintiff’s alleged
opposition to sexual harassment or her filing of a
grievance . . . .” Ante at 1-2 (emphasis added). “We
conclude that, absent evidence of these acts, there is
insufficient evidence to establish a causal link between
the 1987 grievance and any retaliatory acts occurring
within the limitations period.” Id. at 18 (emphasis
added).
9
However, I must note that the Morgan Court held that
the continuing violations doctrine still applies to hostile
work environment claims. “We also hold that consideration
of the entire scope of a hostile work environment claim,
including behavior alleged outside the statutory time
period, is permissible for the purposes of assessing
liability, so long as any act contributing to that hostile
work environment takes place within the statutory time
period.” Id. (emphasis added). Here, the majority does
not attempt to exercise the same degree of prudence and
reason. Rather, the majority simply concludes that all
claims brought under the Civil Rights Act, whether premised
on discrete or nondiscrete acts, are subject to the statute
of limitations.
18
its holding, the Morgan Court noted, “As we have held,
however, this time period for filing a charge is subject to
equitable doctrines such as tolling or estoppel.” Id. at
113. Importantly, the Court also reasoned, “Nor does the
statute bar an employee from using the prior acts as
background evidence in support of a timely claim.” Id.
(emphasis added). This rationale comports with the natural
consequences of abolishing the continuing violations
doctrine: prior acts outside the period of limitations are
not actionable (i.e., cannot serve as the basis for
imposing liability), but these acts may still be used as
background evidence to support a timely claim. Thus, the
majority’s conclusion that acts occurring outside the
limitations period must be “removed from consideration” is
unacceptable. Ante at 2.
I disagree with the majority’s stated conclusion that
evidence of acts occurring outside the limitations period
must be “removed from consideration” because, as a
practical matter, such evidence often must be considered,
as the majority’s rationale confirms. While certainly not
a novel approach, I believe that it is entirely proper to
examine relevant evidence even though such evidence may
itself not be actionable. Stated differently, the decision
whether to admit certain evidence is within the trial
19
court's sound discretion and will not be disturbed absent
an abuse of discretion. See, e.g., People v McDaniel, 469
Mich. 409, 412; 670 NW2d 659 (2003). Therefore, even though
so-called untimely acts may not be actionable under the
majority’s approach, such acts may be considered as
relevant background evidence in most instances. In my
view, the majority misunderstands the consequences of
overruling Sumner.
In response, the majority claims that the United
States Supreme Court’s rationale in Morgan “essentially
resurrect[s] the ‘continuing violations’ doctrine through
the back door.” Ante at 28 n 14. The majority moans that
consideration of background evidence would allow an
employee to indirectly recover for past acts. The
majority, transfixed with destroying every shred of the
additional protections afforded by the continuing
violations doctrine, has lost sight of the bigger picture.
The majority admittedly fails to see the practical
difference between the Sumner rule and the logic employed
by the Morgan Court. I would simply urge reexamination of
these opinions because the differences are quite clear.
The United States Supreme Court concluded that the
result of abolishing the continuing violations doctrine is
that untimely claims are not actionable, period.
20
Inexplicably, however, the majority feels compelled to
conclude that any evidence that may have once constituted a
claim under the Civil Rights Act, but is now barred by the
statute of limitations, may never be admitted. But, again,
this is not the majority’s decision to make. If the trial
court determines that evidence of the now time-barred claim
is relevant to the timely claim, such evidence may be
admitted as background evidence, but may not serve as the
basis for any damage award. Sometimes the time-barred
claim will not be relevant and the trial court may conclude
that such background evidence is unnecessary. In other
instances, the trial court may exercise its sound
discretion and admit such evidence. The majority, however,
oversteps its bounds when it concludes that such evidence
may never be relevant and, therefore, may never be
considered. I do not know how the Morgan decision could
make this point of law any clearer.
In sum, I believe that the majority’s resolve to
dismantle the continuing violations doctrine has led it to
an illogical result. The majority is essentially arguing
that, in Morgan, the United States Supreme Court attempted
to resurrect the continuing violations doctrine after
having overruled the doctrine. This argument makes no
sense. Rather, I believe that the Morgan Court properly
21
acknowledged that overruling the continuing violations
doctrine means that untimely claims are not actionable,
but, in some instances, the trial court may determine that
evidence of these untimely claims may be admissible to
provide necessary context.
V. Conclusion
I would hold that plaintiff presented sufficient
evidence for a reasonable juror to conclude that she was
retaliated against for filing her grievance. Moreover, I
would affirm the principles announced in Sumner, and apply
the continuing violations doctrine to plaintiff’s claim of
retaliation based on the grievance theory. Finally, even
if I were to agree with the majority that the continuing
violations doctrine is no longer viable, the natural
consequence of abolishing that doctrine is not to exclude
untimely acts from consideration. Rather, abolishing the
continuing violations doctrine simply means that untimely
acts are not actionable.10
Michael F. Cavanagh
Marilyn Kelly
10
In light of the majority’s resolution of this case,
I too do not reach the other issues raised on appeal or in
plaintiff’s cross-appeal.
22
S T A T E O F M I C H I G A N
SUPREME COURT
SHARDA GARG,
Plaintiff-Appellee/Cross-Appellant,
v No. 121361
MACOMB COUNTY COMMUNITY HEALTH SERVICES,
Defendant-Appellant/Cross-Appellee,
and
LIFE CONSULTATION CENTER,
Defendant.
_______________________________
WEAVER, J. (dissenting).
I agree with the reasoning and conclusions of Justice
Cavanagh’s dissenting opinion. This Court unanimously
adopted the continuing violations doctrine in Sumner v
Goodyear Tire & Rubber Co, 427 Mich. 505; 398 NW2d 368
(1986). Justice Brickley authored Sumner, and was joined by
Justices Cavanagh, Levin, and Archer. Justice Riley,
joined by Justice Boyle, concurred in the adoption of the
doctrine, but disagreed with the majority’s application of
it to the facts of the case. Chief Justice Williams, in a
separate opinion, also concurred in the adoption of the
doctrine. I am not persuaded that the adoption of the
doctrine was unwarranted or that, after nineteen years, the
doctrine should be abandoned.
Elizabeth A. Weaver
Marilyn Kelly
2