Richard Miller v. Michigan Department of Corrections ( 2024 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Elizabeth T. Clement Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch
Kyra H. Bolden
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
MILLER v DEPARTMENT OF CORRECTIONS
Docket No. 164862. Argued November 9, 2023 (Calendar No. 2). Decided May 10, 2024.
Richard Miller and Brent Whitman filed an action in the Genesee Circuit Court against the
Michigan Department of Corrections (MDOC) alleging retaliatory termination in violation of the
Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq.; Brenda Miller, Richard Miller’s
spouse, asserted a derivative loss-of-consortium claim. Richard Miller and Brent Whitman were
coworkers and close friends of Cedric Griffey, a deputy warden employed by MDOC. Cedric
Griffey’s wife, Lisa Griffey, was also employed by MDOC, but resigned due to racist abuse and
harassment by her coworkers. Lisa Griffey filed a formal complaint with MDOC regarding the
harassment and eventually filed a civil rights lawsuit against MDOC under the ELCRA. After
Lisa Griffey filed the formal complaint with MDOC, Cedric Griffey became a target of internal
investigations and disciplinary actions by MDOC. Fearing that his job was at risk, Cedric Griffey
decided to retire from MDOC. Lisa Griffey’s complaint against MDOC was amended to add
Cedric Griffey as a plaintiff. Richard Miller and Brent Whitman were also involved in some of
the investigations targeting Cedric Griffey, and they were ultimately fired. Plaintiffs filed this
action, alleging that Richard Miller and Brent Whitman were fired in retaliation against the
Griffeys because of their personal relationship with Cedric Griffey, in violation of the ELCRA.
MDOC moved for summary disposition, arguing that plaintiffs had failed to state a claim under
the ELCRA because they had not alleged that they had personally engaged in any protected
conduct. The circuit court, David J. Newblatt, J., denied MDOC’s motion. MDOC appealed, and
the Court of Appeals, MURRAY, P.J., and SAWYER and M. J. KELLY, JJ., reversed, concluding that
the ELCRA did not authorize plaintiffs’ claims. 343 Mich App 104 (2022). Plaintiffs’ application
for leave to appeal in the Supreme Court was granted. 511 Mich 860 (2023).
In a unanimous opinion by Justice CAVANAGH, the Supreme Court held:
MCL 37.2701(a) provides a cause of action for associational or “third party” retaliation
claims. Plaintiffs sufficiently pleaded such a claim.
1. MCL 37.2801(1) provides that a person alleging a violation of the ELCRA may bring a
civil action for appropriate injunctive relief and/or damages. The ELCRA prohibits an individual,
or two or more people, from retaliating or discriminating against a person for opposing a violation
of the act or for exercising their rights under the act, MCL 37.2701(a); aiding or coercing a person
to violate the act, MCL 37.2701(b); directly or indirectly attempting to commit conduct prohibited
by the act, MCL 37.2701(c); willfully interfering with the performance of a duty of the Civil Rights
Commission or any of its members or authorized representatives, MCL 37.2701(d); willfully
obstructing a person from complying with the act, MCL 37.2701(e); or coercing, intimidating,
threatening, or interfering with a person in the exercise or enjoyment of, “or on account of his or
her having aided or encouraged any other person in the exercise or enjoyment of, any right granted
or protected by” the act, MCL 37.2701(f). When a person takes adverse action against someone
who has engaged in protected conduct, the necessary causal link between the adverse action and
the protected conduct is clear. In this case, however, Richard Miller and Brent Whitman alleged
that the retaliatory acts taken against them were retaliation against Cedric Griffey for his protected
actions. Although the word “retaliation” suggests that a plaintiff must allege that they were
retaliated against by the defendant, the ELCRA requires only that, to state a claim of retaliation, a
plaintiff must allege that (1) the defendant took adverse action against the plaintiff and (2) there is
a causal link between the adverse action and a protected act. Richard Miller and Brent Whitman
alleged that they had a close relationship with Cedric Griffey, and defendant took adverse action
against them in response to Cedric Griffey’s protected acts. Additionally, plaintiffs alleged that
defendant’s actions resulted in economic and noneconomic loss and other harm. Thus, plaintiffs
stated a cause of action under the ELCRA. As required by MCL 37.2801(1), plaintiffs alleged a
violation of MCL 37.2701(a), asserting that defendants retaliated against a person (Cedric Griffey)
because that person opposed a violation of the act, and plaintiffs alleged that defendant’s violation
caused them to suffer damages, as defined by MCL 37.2801(3). Although MCL 37.2701(a)
prohibits retaliation against “a person,” it does not specify that the person must be the plaintiff. If
retaliation or discrimination under the act is alleged to have occurred, then a violation of the act
has been stated. Moreover, MCL 37.2801 does not limit recovery of damages to the person who
was directly retaliated against. Rather, a “person” alleging a violation of the ELCRA under MCL
37.2801(1) may bring a civil action for damages. The causal link between the adverse action
(defendant’s firing of Richard Miller and Brent Whitman in retaliation against Cedric Griffey) and
Cedric Griffey’s protected acts is Richard Miller’s and Brent Whitman’s alleged close relationship
with Cedric Griffey. Their firings were allegedly part of the effort to retaliate against Cedric
Griffey. An associational claim based on these alleged facts is not so clearly unenforceable that
no factual development could possibly justify recovery. Whether these facts can be substantiated
with evidence is a question for consideration under MCR 2.116(C)(10), not MCR 2.116(C)(8).
2. The Court of Appeals analyzed plaintiffs’ claims by looking to Thompson v North
American Stainless, LP, 562 US 170 (2011). In Thompson, the plaintiff and his fiancée were both
employed by the defendant. The United States Supreme Court concluded that the plaintiff, who
was fired three weeks after his fiancée filed a sex-discrimination claim against the defendant, had
an actionable claim under Title VII of the federal Civil Rights Act, 42 USC 2000e et seq. Michigan
courts have recognized that the ELCRA is modeled after Title VII of the Civil Rights Act, and
MCL 37.2701(a) and 42 USC 2000e-3(a), the antiretaliation provisions, have similar language and
serve similar purposes. But the Court of Appeals concluded that Thompson was not directly
applicable to this case because Title VII does not contain a provision analogous to Subsection (f).
The Court of Appeals concluded that MCL 37.2701(f) addressed third-party claims because it
contains a requirement that the prohibited retaliation be on account of the plaintiff having “aided
or encouraged” another person in the exercise of their rights under the act. Therefore, Subsection
(f) was applicable here as the more specific provision. Further, the Court of Appeals determined
that allowing a “third party” claim under Subsection (a) would render the “aided or encouraged”
requirement in Subsection (f) nugatory. But the Court of Appeals wrongly labeled Subsection (f)
as a “third-party retaliation provision” rather than looking to the logical operation of the text. The
panel focused on the “aided or encouraged” language in determining that the provision addressed
third-party retaliation when in fact, this language prohibits a form of direct retaliation, i.e.,
retaliation against a person who has “aided or encouraged” another in the invocation of their rights
under the ELCRA. Aiding or encouraging another in the exercise of a right under the act is a
protected activity; thus, this conduct described in Subsection (f) is direct retaliation, not
associational retaliation, and the “aided or encouraged” language protects a claimant against
retaliation for their own protected activity, not the protected activity of others.
3. In concluding that Subsection (f) addresses third-party retaliation claims, the Court of
Appeals misapplied two canons of statutory interpretation: (1) the general/specific canon, and (2)
the surplusage canon. Typically, the general/specific canon applies when two statutes conflict,
and to resolve the conflict, the more specific provision prevails over the more general one.
However, Subsections (a) and (f) do not conflict. MCL 37.2701 lists six ways that the ELCRA is
violated. Multiple subsections may apply to the same conduct and a single retaliatory act may
violate the ELCRA in multiple ways. If the application of different subsections in a given case
dictated different results, then there would be a conflict between the subsections. But when the
subsections overlap and lead to the same result, as in this case, there is no conflict to resolve. The
Court of Appeals also unnecessarily applied the canon against surplusage, which requires courts
to give effect to every word, phrase, and clause in a statute to avoid rendering any part of a statute
surplusage or nugatory. The language of Subsection (a) and Subsection (f) is different enough
that, while there is significant overlap, there are factual scenarios that fall uniquely into one
provision or the other. Because Subsection (f) covers some unique situations, even if both
subsections address third-party retaliation, the surplusage canon does not apply.
4. The Court of Appeals also erred by suggesting that the 1992 amendment of the ELCRA
that added Subsection (f) impliedly repealed a portion of Subsection (a). Repeals by implication
are disfavored and rare but may be accomplished (1) by the enactment of a subsequent act
inconsistent with a former act or (2) by the occupancy of the entire field by a subsequent enactment.
In this case, Subsection (f) does not satisfy either test. The “aided or encouraged” language in
Subsection (f) does not prohibit the type of retaliation prohibited by Subsection (a), i.e., third-party
reprisals, nor does it prohibit anything that Subsection (a) clearly permits. Therefore, there is no
conflict, much less one that is irreconcilable. Additionally, the fact that the subsections overlap to
any extent does not establish that the amendment that added Subsection (f) covers the whole
subject of retaliation and was clearly intended as a substitute for Subsection (a).
Judgment of the Court of Appeals reversed, and case remanded to the circuit court.
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Elizabeth T. Clement Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch
Kyra H. Bolden
FILED May 10, 2024
STATE OF MICHIGAN
SUPREME COURT
RICHARD MILLER, BRENDA MILLER,
and BRENT WHITMAN,
Plaintiffs-Appellants,
v No. 164862
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH
CAVANAGH, J.
In this case we address whether a so-called third-party retaliation claim, i.e., where
one person claims that they were subjected to retaliation as an indirect attack against
someone else who engaged in protected activity, is actionable under the Elliott-Larsen Civil
Rights Act (ELCRA), MCL 37.2101 et seq., and, if so, precisely where the basis for that
right is found in the act. We conclude that the ELCRA prohibits such retaliation under
MCL 37.2701(a). MCL 37.2701(a) makes no distinction between direct and third-party
retaliation claims, so a plaintiff may state a claim of either direct or third-party retaliation
under that provision and any other provision of MCL 37.2701 that applies to the facts of
their case. Accordingly, we reverse the judgment of the Court of Appeals and remand to
the Genesee Circuit Court for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
The events of this case began with a dispute between the Michigan Department of
Corrections (MDOC) and two of its employees who are not parties here—Lisa Griffey and
Cedric Griffey. Lisa Griffey alleged that over a two-year period she experienced a racially
hostile work environment with aggressions both subtle and overt. Griffey v Dep’t of
Corrections, unpublished per curiam opinion of the Court of Appeals, issued July 21, 2022
(Docket No. 354322). Lisa Griffey is Black, and her race was the focus of much of the
hostility she experienced. Among her complaints were references to and use of offensive
racial stereotypes and a suggestion that she be sent to conduct a home visit with a known
racist parolee. Id. at 2-6. Lisa Griffey alleged that she struggled to deal with the
harassment, and her mental health and marriage both suffered over the years as she endured
the discrimination. After a particularly offensive comment, she filed an official complaint
with her supervisor. Id. at 5. Her complaint allegedly only worsened the ostracism and
harassment she experienced. Id. at 5-7. She voluntarily transferred offices but found her
new workplace hostile as well. She discovered that her previous supervisor had warned
her new coworkers that she filed harassment complaints. Id. at 7. Eventually, she filed a
civil action alleging that the MDOC had violated the ELCRA by treating her differently
2
than her white coworkers, subjecting her to a racially hostile work environment, and
retaliating against her after she complained of the racial harassment. Id. at 9.
Cedric Griffey, Lisa Griffey’s husband, was a deputy warden employed by the
MDOC. Id. at 11. Lisa Griffey shared the details of her harassment with her husband.
Following Lisa Griffey’s formal complaint of harassment, Cedric Griffey was involved in
several internal MDOC investigations. These investigations were, at least ostensibly,
unrelated to the harassment of Lisa Griffey and her complaints about that harassment. Id.
at 12-20. As a result of the investigations and the disciplinary actions taken against him,
Cedric Griffey feared that his job was at risk and elected to retire. The complaint Lisa
Griffey had already filed was amended to include claims of retaliation against Cedric
Griffey by the MDOC. Id. at 20. A jury eventually awarded the Griffeys $11,670,128.33.
Id. at 1.
Richard Miller and Brent Whitman, plaintiffs in this case, 1 were also employees of
the MDOC and involved in one of the MDOC investigations. 2 Both Miller and Whitman
were ultimately fired and filed this lawsuit alleging that they had been fired in retaliation
against the Griffeys in violation of the ELCRA. Plaintiffs alleged that they were close
friends with Cedric Griffey and that the relationship was common knowledge. Plaintiffs
also alleged that there was a culture of retaliation in the MDOC against employees who
embarrassed the organization.
1
Brenda Miller, Richard Miller’s spouse, asserts a derivative loss-of-consortium claim.
2
Plaintiffs contend that these were “sham” investigations.
3
Defendant moved for summary disposition under MCR 2.118(C)(8) arguing that,
because plaintiffs did not allege that they had personally engaged in any protected conduct,
they failed to state a claim under the ELCRA. In response, plaintiffs asserted that they had
pleaded cognizable “associational” or “third-party” claims and analogized their case to
Thompson v North American Stainless, LP, 562 US 170; 131 S Ct 863; 178 L Ed 2d 694(2011), in which the United States Supreme Court held that associational or third-party
retaliation claims were actionable under Title VII of the federal Civil Rights Act, 42 USC
2000e et seq. The circuit court denied defendant’s motion, applying Thompson. Defendant
appealed, and the Court of Appeals reversed, holding that statutory differences in the
Michigan and federal schemes undercut Thompson’s persuasiveness in this context and
that the ELCRA did not authorize plaintiffs’ claims. Miller v Dep’t of Corrections, 343
Mich App 104; 996 NW2d 738 (2022).
Plaintiffs sought leave to appeal in this Court, which we granted, directing the
parties to address “(1) whether the [ELCRA] establishes a right to recover for third-party
retaliation claims; and (2) if so, whether the basis for that right is found in MCL 37.2701(a)
or MCL 37.2701(f).” Miller v Dep’t of Corrections, 511 Mich 860, 860 (2023).
II. STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition.
El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). Motions
for summary disposition brought under MCR 2.116(C)(8) test “the legal sufficiency of a
claim based on the factual allegations in the complaint.” Id. Such motions should be
granted only when “a claim is so clearly unenforceable that no factual development could
4
possibly justify recovery.” Id. at 160. We also review de novo questions of statutory
interpretation. Rouch World, LLC v Dep’t of Civil Rights, 510 Mich 398, 410; 987 NW2d
501 (2022).
III. ANALYSIS
Pursuant to MCL 37.2801(1), “[a] person alleging a violation of [the ELCRA] may
bring a civil action for appropriate injunctive relief or damages, or both.” As used in the
statute, “ ‘damages’ means damages for injury or loss caused by each violation of this act,
including reasonable attorney’s fees.” MCL 37.2801(3). MCL 37.2701 specifies what
conduct constitutes a “violation” of the ELCRA:
Two or more persons shall not conspire to, or a person shall not:
(a) Retaliate or discriminate against a person because the person has
opposed a violation of this act, or because the person has made a charge, filed
a complaint, testified, assisted, or participated in an investigation,
proceeding, or hearing under this act.
(b) Aid, abet, incite, compel, or coerce a person to engage in a
violation of this act.
(c) Attempt directly or indirectly to commit an act prohibited by this
act.
(d) Willfully interfere with the performance of a duty or the exercise
of a power by the commission or 1 of its members or authorized
representatives.
(e) Willfully obstruct or prevent a person from complying with this
act or an order issued or rule promulgated under this act.
(f) Coerce, intimidate, threaten, or interfere with a person in the
exercise or enjoyment of, or on account of his or her having aided or
encouraged any other person in the exercise or enjoyment of, any right
granted or protected by this act.
5
When a person takes adverse action against someone who has engaged in a protected
act, the necessary causal link between the adverse action and the protected act is obvious.
The nuance here is that plaintiffs are alleging that the acts taken against them were
retaliation against Cedric Griffey for his protected actions. Intuitively, the notion of
“retaliation” suggests that a plaintiff must allege retaliation by a defendant against
themselves. However, that is not how these statutes read. 3 All that is required to state a
claim of retaliation under the ELCRA are allegations that (1) the defendant took an adverse
action against the plaintiff and (2) there is a causal link between the adverse action and a
protected act.
In this case, plaintiffs’ first amended complaint alleges that plaintiffs had a close
relationship with Cedric Griffey and that defendant took adverse actions against plaintiffs
in response to Cedric Griffey’s protected acts:
15. As part of the effort to retaliate against Griffey, Defendant set
Plaintiffs up to be terminated. Plaintiffs both had an extremely close
relationship with Mr. Griffey, which went beyond being mere co-workers.
Specifically:
a. Whitman, Miller, and Griffey considered each other friends;
3
The labels of “direct” as opposed to “third party” or “associational” claims of retaliation
highlight this intuitive distinction. We understand “direct” retaliation as a reprisal taken
against a person who has themself engaged in protected conduct. In contrast, “third party”
or “associational” retaliation is a reprisal taken against someone other than the person who
engaged in protected conduct. See Thompson, 562 US at 173-174, citing Burlington N &
SFR Co v White, 548 US 53; 126 S Ct 2405; 165 L Ed 2d 345 (2006). Both constitute
retaliation for protected conduct, and both are prohibited under the ELCRA. While the
ELCRA, like Title VII, does not use the terms “direct,” “third party,” or “associational,” it
does not need to because the language of MCL 37.2701(a) is broadly written and plainly
applies to any form of retaliation.
6
b. Mr. Griffey had met and interacted with Plaintiffs[’] families;
c. Everyone knew that Miller and Whitman were close to Cedric
Griffey;
d. The three shared intimate information about each other’s loved
ones and families;
e. Plaintiff Whitman’s brother even went to Mr. Griffey’s house
before;
f. Plaintiffs went to Griffey not just as a supervisor, but as a friend
they could confide in.
* * *
18. . . . [I]n Defendant’s effort to illegally terminate Lisa Griffey,
Cedric Griffey and retaliate against them, Lt. Whitman and Plaintiff Lt.
Miller were terminated.
* * *
20. Defendant MDOC has a culture of retaliation that ostracizes and
punishes employees who bring embarrassment onto the Department,
including bringing to light illegal activities and/or discrimination within the
ranks.
Plaintiffs also alleged that defendant’s actions resulted in economic loss, noneconomic
loss, and other harm.
Plaintiffs have stated a cause of action under the ELCRA. As required by MCL
37.2801(1), plaintiffs have alleged a violation of MCL 37.2701(a) by asserting that
defendant “[r]etaliate[d] . . . against a person [Cedric Griffey] because the person [Cedric
Griffey] . . . opposed a violation of this act . . . .” Plaintiffs allege that this violation of
MCL 37.2701(a) caused them to suffer damages as defined by MCL 37.2801(3). MCL
37.2701(a) prohibits retaliation against “a person”; i.e., one may not “[r]etaliate or
discriminate against a person because the person has opposed a violation of this act . . . .”
7
MCL 37.2701(a) does not specify that “the person” need be the plaintiff. 4 If such
retaliation or discrimination is alleged to have occurred, a violation of the ELCRA has been
stated. MCL 37.2701(a) prohibits retaliation for invoking the rights contained in the
ELCRA without limitation as to what form that retaliation might take.
Reading further into the ELCRA, we can see that it clearly provides for this cause
of action. Plaintiffs’ allegation that defendant fired them to retaliate against Cedric Griffey
alleges a violation of MCL 37.2701(a). Accordingly, plaintiffs have satisfied the
requirement in MCL 37.2801 that an action must “alleg[e] a violation of this act . . . .”
MCL 37.2801 also requires plaintiffs to allege that they suffered damages as a result of the
alleged violation. MCL 37.2801 does not limit recovery for damages to the person who
was directly retaliated against. Rather, MCL 37.2801(1) states that “a person” alleging a
violation of the ELCRA may bring a civil action for damages, including “damages for
injury or loss caused by each violation of this act, including reasonable attorney’s fees.”
In this case, plaintiffs have alleged that they suffered damages caused by
defendant’s violation of the act—in other words, they suffered damages as a result of
defendant firing them in retaliation against Cedric Griffey. The firings are the adverse
action. The causal link between the firings and Cedric Griffey’s protected acts is explained
by plaintiffs’ alleged close relationship with Cedric Griffey—the firings of plaintiffs were
“part of the effort to retaliate against Griffey[.]” An associational claim based on these
4
Of course, MCL 37.2701(a) does not specify that the person need not be the plaintiff, but
that observation carries little weight. The logical operation of MCL 37.2701(a) does not
contain this limitation, and statutes do not typically specify the requirements they do not
contain. There are infinitely many requirements not in a statute and, obviously, those
cannot all be spelled out explicitly.
8
alleged facts is not “so clearly unenforceable that no factual development could possibly
justify recovery.” El-Khalil, 504 Mich at 160. As recognized by the trial court, “[t]he
Court can envision a scenario whereby a defendant could deliberately cause real emotional
and psychological pain to a ‘reasonable worker’ by retaliating against his or her close friend
such that he or she would be ‘dissuaded from engaging in protected activity.’ ” See
Thompson, 562 US at 174. Whether or not these facts can be substantiated with evidence
is a question for consideration under MCR 2.116(C)(10), not MCR 2.116(C)(8).
The Court of Appeals took a different tack and began its analysis with Thompson.
This is an understandable starting point given that Michigan courts have recognized that
the ELCRA is “clearly modeled after” its federal counterpart, Title VII of the Civil Rights
Act, and have looked to federal caselaw interpreting Title VII when interpreting the
ELCRA. Rasheed v Chrysler Corp, 445 Mich 109, 123 n 20; 517 NW2d 19 (1994). This
is specifically true with respect to MCL 37.2701(a) and 42 USC 2000e-3(a), the
antiretaliation provisions, which have similar language and serve similar purposes. See
White v Dep’t of Transp, 334 Mich App 98, 116-117; 964 NW2d 88 (2020). Though not
bound by federal court interpretations of Title VII, we generally find them persuasive in
interpreting the ELCRA. Rasheed, 445 Mich at 123 n 20.
In Thompson, the United States Supreme Court considered a claim of so-called
“third party retaliation” under Title VII. The plaintiff, Eric Thompson, and his fiancée,
Miriam Regalado, were both employed by the defendant. Regalado filed a charge against
the defendant alleging sex discrimination, and three weeks later, Thompson was fired.
Thompson, 562 US at 172. Thompson alleged that his firing was in retaliation for
Regalado’s protected activity. Id. The defendant argued that Thompson was not protected
9
from retaliation since he had not engaged in any protected activity, though it was
undisputed that Regalado had. See id. at 172-173. The analogy to the facts of this case is
clear.
The Thompson Court concluded that such retaliation was prohibited and actionable
under Title VII. The Court noted that the antidiscrimination prohibitions of Title VII were
limited to actions “with respect to . . . compensation, terms, conditions, or privileges of
employment,” while the antiretaliation prohibitions of Title VII covered employer action
that “discriminate[s] against any . . . employees.” Id. at 173-174 (quotation marks and
citations omitted). The Court noted that it had already held that Title VII’s antiretaliation
provision prohibited any employer action that “ ‘well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.’ ” Id. at 174, quoting
Burlington, 548 US at 68. Given that, the Court thought the third-party claim was clearly
included in the statute: “We think it obvious that a reasonable worker might be dissuaded
from engaging in protected activity if she knew that her fiance would be fired.” Thompson,
562 US at 174. The Court acknowledged that allowing third-party retaliation claims when
the relationship between the plaintiff and the protected actor is more attenuated could
present “line-drawing problems” but concluded that “a preference for clear rules cannot
justify departing from statutory text.” Id. at 174-175. 5
5
Following Thompson, other courts have addressed the “line drawing” problem and
concluded that most familial relationships are sufficient to fall within the protection of Title
VII’s antiretaliation statute. See Ward v Athens City Bd of Ed, 187 F3d 639 (CA 6, 1999)
(determining that children could maintain retaliation claim based on protected speech made
by their mother); Nailon v Univ of Cincinnati, 715 Fed Appx 509 (CA 6, 2017) (evaluating
retaliation claim made by an aunt based on the protected speech of her niece). But familial
or romantic relationships are not the only types of relationships that are sufficiently close
to warrant protection under antiretaliation statutes. See, e.g., EEOC v Fred Fuller Oil Co,
10
The Court of Appeals reasoned that if the ELCRA’s text did not deviate from Title
VII, then applying Thompson would be simple. Miller, 343 Mich App at 118. But the
Court of Appeals found it significant that MCL 37.2701 does not just contain Subsection
(a), which is substantially similar to Title VII, it also contains Subsection (f), which has no
Title VII counterpart. See id. 6 The panel concluded that Subsection (f) was a specific
protection for “third-party retaliation” claims, and because there is no federal counterpart,
Thompson’s analysis of 42 USC 2000e-3(a) does not explain the operation of MCL
37.2701. Id. at 121, 123-124. The panel then looked at MCL 37.2701 as a whole, including
Subsection (f). The panel noted that Subsection (f) was engrafted onto the statute in 1992
Inc, unpublished opinion of the United States District Court for the District of New
Hampshire, issued January 31, 2014 (Case No. 13-cv-295-PB), pp 13, 15-16 (allowing a
retaliation claim brought by a “close friend” of an individual who engaged in protected
conduct to proceed); Ali v Dist of Columbia Gov’t, 810 F Supp 2d 78, 89-90 (D DC, 2011)
(denying the defendant’s motion for summary judgment of third-party retaliation claim
brought by the “best friend” of the individual who engaged in protected conduct); Cobb v
Atria Senior Living, Inc, unpublished opinion of the United States District Court for the
District of Connecticut, issued January 29, 2018 (Case No. 3:17-cv-00291), p 12
(concluding that “a relationship of friendship and confidence” between coworkers was
sufficient to plead an associational retaliation claim).
The relationship of Cedric Griffey to Richard Miller and Brent Whitman is not
familial or romantic, as was the relationship in Thompson. The nature of the relationship
is not really the issue, however, so much as the causal link between the adverse action and
the protected act. When a relationship is close, that is likely to be persuasive evidence of
the requisite causal link. The more remote a relationship, the more difficult it will be to
prove a sufficient causal link between the adverse action and the protected act. But, as the
circuit court observed in this case, that is a matter to be resolved on a motion under MCR
2.116(C)(10) or before a jury.
6
We agree with the Court of Appeals that the ELCRA differs enough from Title VII that
interpreting MCL 37.2701 is more complicated than just importing Thompson into our
ELCRA jurisprudence. But, as explained below, we disagree with the Court of Appeals
that the existence of Subsection (f) negates the applicability of Subsection (a) to claims of
third-party retaliation.
11
and is “an almost verbatim replication of the language contained in the federal Fair Housing
Act (FHA), 42 USC 3617.” Miller, 343 Mich App at 120; see 1992 PA 124. States were
required to adopt this language or face losing the ability to handle local FHA complaints.
Id. The panel gleaned three points about Subsection (f): (1) it addressed third-party claims,
(2) its language did not limit its operation to housing matters despite the context of its
adoption, and (3) it does not contain the word “retaliate,” as Subsection (a) does. Id. at
121. As to the last point, the panel noted that if any of the coercive acts that Subsection (f)
lists were taken in response to invocation of the ELCRA, that would amount to retaliation.
Relying on the premise that Subsection (f) was the Legislature’s provision for third-
party claims, the panel found Subsection (f) to be the more specific provision and, thus, the
applicable provision. Id. at 124-125. Subsection (f) contains a requirement that the
prohibited retaliation be “on account of [the plaintiff] having aided or encouraged any other
person in the exercise or enjoyment of, any right granted or protected by this act.” MCL
37.2701(f). According to the Court of Appeals, allowing a “third party” claim under
Subsection (a) would render Subsection (f)’s “aided or encouraged” requirement nugatory.
Miller, 343 Mich App at 124. Therefore, third-party claims are not authorized under
Subsection (a). See id. Because plaintiffs did not allege that they “aided or encouraged”
Cedric Griffey, the panel concluded that they failed to state a claim under Subsection (f).
Id. at 125-126.
Unlike the Court of Appeals, we do not read Subsection (f) as a limitation on
Subsection (a). See id. at 125. As always, the ultimate goal in questions of statutory
interpretation is “to ascertain and give effect to the Legislature’s intent.” Rouch World,
510 Mich at 410 (quotation marks and citation omitted). In doing so, we sometimes use
12
canons of statutory interpretation, being mindful that they “are tools that may assist in this
endeavor, but they are not straitjackets.” Milne v Robinson, 513 Mich 1, 12; ___ NW3d
___ (2024). The panel correctly began with the principle that courts should endeavor to
read potentially conflicting provisions of a statute harmoniously if possible. See Nowell v
Titan Ins Co, 466 Mich 478, 482; 648 NW2d 157 (2002); see also 1 Cooley, Constitutional
Limitations (4th ed), p 71 (“[O]ne part is not to be allowed to defeat another, if by any
reasonable construction the two can be made to stand together.”) The Court of Appeals
then specifically applied two canons of statutory interpretation in its analysis: (1) when
statutes conflict the more specific governs over the more general, and (2) courts give effect
to every word, phrase, and clause in a statute to avoid rendering any part of a statute
surplusage or nugatory. However, the Court of Appeals misapplied these canons.
The Court of Appeals first went wrong by labeling Subsection (f) as a “third-party
retaliation” provision rather than looking to the logical operation of the text. See Miller,
343 Mich App at 121. While the Court of Appeals focused on Subsection (f)’s “aided or
encouraged” language in proclaiming the subsection a third-party retaliation provision, this
language instead prohibits a form of direct retaliation—i.e., taking certain actions against
a person who has “aided or encouraged” another in their invocation of ELCRA rights. As
the panel acknowledged, “to ‘aid or encourage’ another in the exercise or enjoyment of a
right under the Act is itself a protected activity.” Id. at 123. The conduct described in this
part of Subsection (f) is retaliation for the conduct of the victim, not the conduct of
another—in other words, it is direct retaliation, not associational retaliation. Stated
differently, the language relied on by the Court of Appeals in Subsection (f) protects a
claimant against retaliation for the claimant’s own protected activity, not the protected
13
activity of others. 7 This erroneous characterization of Subsection (f) as governing purely
associational claims enabled the rest of the Court of Appeals’ errors.
Specifically, the Court of Appeals’ application of the general/specific canon rests
on this error. As it is typically understood, the canon applies when two statutes conflict,
and to resolve the conflict, the more specific provision prevails over the more general one.
Milne, 513 Mich at 12. However, Subsections (a) and (f) do not conflict. MCL 37.2701
lists six ways that the ELCRA is violated. If a defendant violates one or more subsections,
they are liable for the harm they cause. There are myriad ways a defendant’s conduct might
violate multiple provisions of MCL 37.2701, but such conduct would simply give rise to
multiple violations of the ELCRA and alternative bases on which the plaintiff might rest
their case. If the application of different subsections in a given case dictated different
results—that is, if one subsection indicated certain conduct was prohibited while a different
subsection said the same conduct was not prohibited—then there would be a conflict
between the subsections. But where, as here, the subsections overlap and lead to the same
result—the defendant engaged in prohibited conduct—there is no conflict to resolve.
Simply put, multiple subsections may apply to the same conduct, and a single retaliatory
act may violate the ELCRA in multiple ways.
7
The Court of Appeals also intimated that the phrase “any other person” in Subsection (f)
creates a third-party retaliation claim. See Miller, 343 Mich App at 120 (emphasizing “any
other person” in the statutory text). But the “other person” language is not indicative of a
third-party retaliation claim; rather, it refers to the actor’s own right to not be retaliated
against for aiding or encouraging another person in the exercise of that other person’s rights
under the ELCRA.
14
The Court of Appeals’ insistence that Subsection (f) is purely a “third party”
retaliation provision also led it to unnecessarily apply the canon against surplusage. The
language of the provisions is different enough that, while they have significant overlap,
there are factual scenarios falling uniquely into one or the other. Subsection (a) is limited
to retaliation against a person who “opposed a violation of this act” or “participated in an
investigation, proceeding, or hearing under this act.” Subsection (f), in contrast, applies
whenever a person “aided or encouraged any other person in the exercise or enjoyment of[]
any right granted or protected by this act.” Unlike Subsection (a), Subsection (f) does not
require the act of “aid[ing] or encourag[ing]” to be in response to a violation of the
ELCRA—an employee could have “aided or encouraged” another employee before any
violation occurred. Thus, even if both subsections provide a third-party retaliation claim,
Subsection (f) covers at least some unique situations, so the surplusage canon does not
apply. See Baker v Gen Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980) (holding
that statutory language was not rendered nugatory by an amendment because the original
language “retain[ed] independent significance”). Moreover, the Court of Appeals
recognized that Subsection (f) retains independent meaning (i.e., is not rendered
surplusage) even if it does not govern third-party retaliation claims at all. Miller, 343 Mich
App at 123 n 9 (“Subsection (f) can be violated without the conduct being retaliatory in
nature, even though it is still coercive, intimidating, interfering, or threatening.”).
In its effort to harmonize the two provisions, the Court of Appeals also erred by
suggesting that the 1992 amendment of the ELCRA, which added Subsection (f), impliedly
15
repealed at least a portion of Subsection (a). 8 It is axiomatic that “repeals by implication
are disfavored.” Int’l Business Machines Corp v Dep’t of Treasury, 496 Mich 642, 651;
852 NW2d 865 (2014) (opinion by VIVIANO, J.) (quotation marks and citation omitted).
Findings of implied repeal are rare, but implied repeal may be accomplished (1) “by the
enactment of a subsequent act inconsistent with a former act” or (2) “by the occupancy of
the entire field by a subsequent enactment.” Id. (quotation marks and citation omitted).
Courts must determine if there is “any other reasonable construction that would harmonize
the two statutes and avoid a repeal by implication.” Id. at 660.
In this case, Subsection (f) does not satisfy either test. The “aided or encouraged”
language relied on by the Court of Appeals does not permit the type of retaliation prohibited
by Subsection (a), i.e., third-party reprisal claims. 9 Nor does it prohibit anything that
Subsection (a) clearly permits. Therefore, there is no conflict—much less an irreconcilable
8
Miller, 343 Mich App at 118 (“If only Subsection (a) were at issue, we would need to go
no further to conclude that Thompson was persuasive and that a third-party retaliation claim
of the caliber discussed in Thompson could be brought under the Act, even when—as here
and in Thompson—the plaintiff was retaliated against for someone else engaging in a
protected activity.”); see also id. at 119 (“If we only considered Subsection (a) in isolation,
we could potentially reach a conclusion that does not square with the remainder of MCL
37.2701, and our obligation is to enforce all parts of the statute and to read them together
harmoniously if possible.”); id. at 124 (“[I]n light of Subsection (f), we cannot employ
Thompson’s reading of Title VII to discern the meaning of Subsection (a), because that
reading would essentially swallow up and nullify Subsection (f)’s requirement that only a
third party who ‘aids or encourages’ another employee cannot then be coerced, intimidated,
etc., by an employer.”).
9
While the Court of Appeals erred by concluding that the “aided or encouraged” language
in Subsection (f) creates a third-party retaliation claim, we need not consider in this case
whether the first clause of that subsection might encompass a third-party claim, for
example, where a plaintiff is terminated in an attempt to “[c]oerce, intimidate, threaten, or
interfere with” an employee “in the exercise or enjoyment of . . . any right granted or
protected by this act.”
16
one. In addition, to the extent that there is some overlap or redundancy between the
retaliation claims that can be asserted under the subsections, it cannot be fairly said that
the 1992 amendments that added Subsection (f) cover the whole subject of retaliation and
were clearly intended as a substitute for Subsection (a). Imputing this intention to the
Legislature strains the bounds of credulity. Certainly, MCL 37.2701 must be read as a
whole. But there is no reason its subsections cannot overlap. Indeed, it is clear that they
sometimes do. 10
To the extent that our interpretation might render Subsection (f)’s “aided or
encouraged” requirement nugatory, the surplusage canon, like other canons, “is not an
absolute rule.” See People v Pinkney, 501 Mich 259, 283; 912 NW2d 535 (2018). Indeed,
“[s]ometimes drafters do repeat themselves and do include words that add nothing of
substance, either out of a flawed sense of style or to engage in the ill-conceived but
lamentably common belt-and-suspenders approach.” Scalia & Garner, Reading Law: The
Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), pp 176-177 (emphasis
omitted). Or perhaps repetition might occur when drafters adopt language solely to comply
with a federal mandate, as may be the case here. As the panel observed, the Legislature
enacted nearly verbatim language from § 3617 of the FHA and in doing so satisfied certain
federal certification requirements for state or local review of complaints alleging
discriminatory housing practices under the Act. Miller, 343 Mich App at 120. In such
circumstances, any redundancies are properly viewed more in the nature of a belt-and-
10
For example, Subsection (b) says no person shall “[a]id, abet, incite, compel, or coerce
a person to engage in a violation of this act.” MCL 37.2701(b). Subsection (b) cannot be
violated without a predicate violation of some other provision.
17
suspenders approach than as an indication that the Legislature intended to implicitly narrow
the scope of the pre-existing provisions of the ELCRA.
In sum, the Court of Appeals wrongly concluded that Subsection (f) exclusively
addresses third-party or associational retaliation claims and, based on this
misunderstanding, applied inapplicable canons of statutory interpretation to unduly limit
what is otherwise clear regarding the operation of Subsection (a) when read in conjunction
with MCL 37.2801. Properly understood, Subsection (a) permits the type of third-party
claim implicated in this case, so the trial court correctly denied defendant’s motion for
summary disposition under MCR 2.116(C)(8).
IV. CONCLUSION
MCL 37.2701(a) provides a cause of action for associational or “third party”
retaliation claims, and plaintiffs’ first amended complaint sufficiently pleaded such a claim.
Accordingly, we reverse the judgment of the Court of Appeals and remand to the Genesee
Circuit Court for further proceedings.
Megan K. Cavanagh
Elizabeth T. Clement
Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth M. Welch
Kyra H. Bolden
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