Barnes v. International Business Machines Corp.

• Decision Date: 21 July 1995
• Docket Number: Docket No. 171240
• Citation: 537 N.W.2d 265,212 Mich.App. 223
• Parties: Ervin BARNES, Jr., Plaintiff-Appellee, v. INTERNATIONAL BUSINESS MACHINES CORPORATION and George Samenuk, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 265

537 N.W.2d 265

212 Mich.App. 223

Ervin BARNES, Jr., Plaintiff-Appellee, v. INTERNATIONAL BUSINESS MACHINES CORPORATION and George Samenuk, Defendants-Appellants.

Docket No. 171240.

Court of Appeals of Michigan.

Submitted March 8, 1995, at Detroit.

Decided July 21, 1995, at 9:05 a.m.

Released for Publication Sept. 15, 1995.

Sommers, Schwartz, Silver & Schwartz, P.C. by Joseph A. Golden, Gary E. Abeska, and Patrick Burkett, Southfield, for plaintiff.

Miller, Canfield, Paddock & Stone by Donna J. Donati and Megan P. Norris, Detroit, Covington & Burling by Jeffrey G. Huvelle, Anthony Herman, and Eric Dodson Greenberg, Washington, DC (Adam Pomerantz, White Plains, NY, of counsel), for defendants.

Before WHITE, P.J., and BANDSTRA and CYNAR, ^* JJ.

PER CURIAM.

Plaintiff sued his employer in the Wayne Circuit Court, alleging racial discrimination, M.C.L. § 37.2202(1); M.S.A. § 3.548(202)(1), and intentional infliction of emotional distress. Defendants appeal by leave granted from the trial court's denial of their motion for a change of venue. We reverse.

Defendants argue that the trial court erred in denying their motion for a change of venue. They also argue that plaintiff failed to carry his burden of submitting credible factual evidence that venue was proper in Wayne County. We agree.

The venue provision of the Civil Rights Act states that an action "may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil complaint is filed resides or has his principal place of business." M.C.L. § 37.2801(2); M.S.A. § 3.548(801)(2). The venue provision for tort actions states that an action may be brought in "[a] county in which all or part of the cause of action arose and in which either" defendant resides, has a place of business or conducts business, or where defendant's registered corporate office is located. M.C.L. § 600.1629(1)(a); M.S.A. § 27A.1629(1)(a). Other options are provided in the event that no county satisfies the criteria in subdivision a. See M.C.L. § 600.1629(1)(b)-(d); M.S.A. § 27A.1629(1)(b)-(d).

It is undisputed that venue in this case would be proper under either statute in Oakland County because that is the location of defendants' corporate headquarters in Michigan and where the allegedly discriminatory and tortious decisions were made. Plaintiff argues, however, that venue is also proper in Wayne County because that is where he experienced at least some of the effects of defendants' decisions and where he suffered resulting damages. We disagree.

Plaintiff's position is based upon Lorencz v. Ford Motor Co., 439 Mich. 370, 375, 377, 483 N.W.2d 844 (1992), and Witt v. C.J. Barrymore's, 195 Mich.App. 517, 521-522, 491 N.W.2d 871 (1992). ¹ In Lorencz, our Supreme Court held that the "all or part of the cause of action" language meant that an action could be brought where any of the elements of the cause of action arose. Lorencz, supra at 375, 483 N.W.2d 844. The Court listed "damages" as one of the elements of a cause of action. Id. In Witt, this Court explicitly held, following Lorencz, that an action could be brought where damages accrued. Witt, supra at 521-522, 491 N.W.2d 871.

The Supreme Court has recently clarified its decision in Lorencz and implicitly overruled Witt. The Court held that, in determining where a tort action accrues, the place where damages were sustained (if different from where the injury or the breach of duty occurred) does not constitute a proper venue. Gross v. General Motors Corp., 448 Mich. 147, 165, 528 N.W.2d 707 (1995). Plaintiff therefore may not pursue his tort action in Wayne County because he has alleged only that damages resulted in that county. ²

Although the Supreme Court's decision in Gross does not technically apply to discrimination cases, we believe that its reasoning does. As noted by the Court, allowing an action to be brought where its effects or damages occur would encourage forum shopping in contravention of the goals of the venue provisions. Id. at 164, 528 N.W.2d 707. Further, the civil rights statute clearly provides that venue is proper where "the alleged violation occurred," not where its effects were felt or where the damages accrued. See M.C.L. § 37.2801(2); M.S.A. § 3.548(801)(2). The violations alleged are adverse employment decisions. Although plaintiff performed some work in Wayne County, he has provided no credible factual evidence that any of the allegedly discriminatory decisions were made in Wayne County, as distinguished from their effects being felt there. ³

Reversed.

WHITE, Presiding Judge (concurring ).

I join in the opinion per curiam but write separately to state that I do not do so on the basis that venue of a civil rights action is proper only in the county where the discriminatory decision is made. Discrimination also "occurs," M.C.L. § 38.2801; M.S.A. § 3.548(801), in the county where the decision is implemented and the discrimination is inflicted. ¹ In the instant case, however, while plaintiff performed some work activities in Wayne County, that was not the locus of his...