Barrett v. Kirtland Community College, Docket No. 217040.

CourtCourt of Appeal of Michigan (US)
Citation245 Mich. App. 306,628 N.W.2d 63
Docket NumberDocket No. 217040.
PartiesBrent BARRETT, Plaintiff-Appellee, v. KIRTLAND COMMUNITY COLLEGE, Defendant-Appellant, and Cary Vajda, Katherine Grosser and Dorothy N. Franke, Defendants.
Decision Date06 June 2001

628 N.W.2d 63
245 Mich.
App. 306

Brent BARRETT, Plaintiff-Appellee,
KIRTLAND COMMUNITY COLLEGE, Defendant-Appellant, and
Cary Vajda, Katherine Grosser and Dorothy N. Franke, Defendants

Docket No. 217040.

Court of Appeals of Michigan.

Submitted October 17, 2000, at Lansing.

Decided April 10, 2001, at 9:00 a.m.

Released for Publication June 6, 2001.

628 N.W.2d 66
Robert J. Krupka and Michael J. Forster, Saginaw, for the plaintiff

Thrun, Maatsch and Nordberg, P.C. (by Martha J. Marcero and Roy H. Henley), Lansing, for the defendant.

Before HOLBROOK, Jr., P.J., and SAWYER and ZAHRA, JJ.

628 N.W.2d 64

628 N.W.2d 65

Defendant Kirtland Community College (KCC) appeals as of right from an order denying its motion for judgment notwithstanding the verdict (JNOV) or a new trial.

628 N.W.2d 67
We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.


Plaintiff was hired by KCC in February 1992 as part-time cultural events coordinator. In September 1992, plaintiff signed a one-year contract to serve as KCC's fulltime coordinator of cultural events/activities. In September 1993, plaintiff signed another one-year contract to remain in that position. That second contract was to expire on September 17, 1994. Plaintiff's duties as full-time coordinator of cultural events/activities included planning performances at KCC's theater, running the theater's box office, contracting with performers, producing shows at the theater, and completing accounting duties with respect to the performances. Plaintiff's coordinator position was not a faculty position.

Defendant Cary Vajda was KCC's dean of student services and plaintiff's immediate supervisor at all times pertinent to this case. Defendant Katherine Grosser was KCC's dean of business services and defendant Dorothy Franke was president of KCC during plaintiff's employment.1

In October 1993, Vajda asked KCC employee Allison Goshorn on a date. Vajda did not know Goshorn was romantically involved with plaintiff at the time he asked her out. Plaintiff claimed that the quality of his working relationship with Vajda declined once Vajda discovered the nature of Goshorn's relationship with plaintiff. As a result, plaintiff filed three complaints with the Michigan Department of Civil Rights (MDCR), charging gender discrimination and retaliation under the Civil Rights Act (CRA), M.C.L. § 37.2101 et seq.; MSA 3.548(101) et seq. Plaintiff claimed that he suffered psychological and physical problems as a result of continual adverse treatment by Vajda. Those problems prompted plaintiff to take a personal leave from his job in May 1994 and a later unpaid leave under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. During the time plaintiff was on leave, the coordinator of cultural events/activities position was reconfigured by KCC administrators into a faculty position.2 Plaintiff applied for the new position, but was not hired. On September 13, 1994 (four days before the expiration of his employment contract), plaintiff returned from his leave and was discharged by Franke after a short meeting. In a letter Franke wrote to plaintiff on the date of his discharge, she stated that plaintiff's "[c]ontinued insubordination" and his "[a]bandonment of position" were the reasons for his discharge. Franke specified that plaintiff's insubordination included failing to return keys to KCC facilities despite being directed to do so on four separate occasions and refusing to provide proof of attendance at a meeting for which plaintiff sought travel expenses. Franke further specified that plaintiff abandoned his position by failing to return to work after his doctor indicated he was able to return on September 6, 1994, and by failing to notify KCC personnel to discuss returning to his job.

In October 1995, plaintiff filed this lawsuit, alleging breach of employment contract, violation of the FMLA, gender discrimination under the CRA, retaliation under the CRA, and defamation. Plaintiff's retaliation, breach of contract, and

628 N.W.2d 68
FMLA claims went to trial.3 The jury found no violation of the FMLA. However, the jury found that KCC retaliated against plaintiff and assessed damages of $99,960 in regard to that claim. The jury also found that KCC breached plaintiff's employment contract. Pursuant to the parties' agreement, the trial court assessed damages in connection with the breach of contract verdict, determining damages in the amount of $750. KCC brought a motion for JNOV or, alternatively, for a new trial, arguing that there was no evidence of a causal link between protected activity by plaintiff and adverse actions taken by KCC, nor evidence that plaintiff was terminated without just cause or that his employment contract was otherwise breached.4 The trial court denied KCC's motion. Thereafter, the court assessed $46,500 in attorney fees and $986 in costs with respect to the retaliation claim.


A. Retaliation in Violation of M.C.L. § 37.2701(a); MSA 3.548(701)(a)

On appeal, KCC argues that the trial court erred in denying its motion for JNOV with respect to plaintiff's retaliation claim. We agree.

A trial court's decision to grant or deny a motion for JNOV is reviewed de novo. Attard v. Citizens Ins. Co. of America, 237 Mich.App. 311, 321, 602 N.W.2d 633 (1999); Farm Credit Services of Michigan's Heartland, PCA v. Weldon, 232 Mich.App. 662, 672, 591 N.W.2d 438 (1998). In reviewing a decision on a motion for JNOV, this Court must view the testimony and all legitimate inferences in the light most favorable to the nonmoving party. Forge v. Smith, 458 Mich. 198, 204, 580 N.W.2d 876 (1998). If reasonable jurors honestly could have reached different conclusions, the jury verdict must stand. Central Cartage Co. v. Fewless, 232 Mich.App. 517, 524, 591 N.W.2d 422 (1998). Only if the evidence fails to establish a claim as a matter of law is JNOV appropriate. Forge, supra.

The CRA provides, in part:

An employer shall not do any of the following:

(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status. [MCL 37.2202(1)(a) and (b); MSA 3.548(202)(1)(a) and (b).]
628 N.W.2d 69
The CRA also prohibits an employer from retaliating against an employee for pursuing rights under the CRA, stating:
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. [MCL 37.2701(a); MSA 3.548(701)(a).]

1. Claims of pretermination retaliation

In the trial court, plaintiff asserted that his job was reconfigured and he was eventually discharged in retaliation for complaining to Franke about Vajda's adverse treatment of him and for filing complaints with the MDCR.5 On appeal, KCC claims that plaintiff did not engage in protected activity under the CRA that could be said to have led to any adverse employment action.

We read the CRA in light of the primary goal of judicial interpretation, which is to ascertain and give effect to the intent of the Legislature. Radtke v. Everett, 442 Mich. 368, 386, 501 N.W.2d 155 (1993). If the plain and ordinary meaning of a statute is clear, judicial construction is neither necessary nor permitted. Cherry Growers, Inc. v. Agricultural Marketing & Bargaining Bd., 240 Mich.App. 153, 166, 610 N.W.2d 613 (2000). We may not speculate about the probable intent of the Legislature beyond the words expressed in the statute. In re Schnell, 214 Mich.App. 304, 310, 543 N.W.2d 11 (1995). If a statute provides its own glossary, the terms must be applied as expressly defined. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 136, 545 N.W.2d 642 (1996). When reasonable minds may differ with respect to the meaning of a statute, the courts must look to the object of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the purpose of the statute. Marquis v. Hartford Accident & Indemnity (After Remand), 444 Mich. 638, 644, 513 N.W.2d 799 (1994).

In interpreting provisions of the CRA, we are guided by federal court interpretations of the counterpart federal statute. Chambers v. Trettco, Inc., 463 Mich. 297, 313, 614 N.W.2d 910 (2000); see title VII of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.6 While we

628 N.W.2d 70
are not bound by federal precedent based on title VII, those precedents analogous to questions presented under the CRA are persuasive and will be afforded substantial consideration by this Court. DeFlaviis v. Lord & Taylor, Inc., 223 Mich.App. 432, 437, 566 N.W.2d 661 (1997), citing McCalla v. Ellis, 180 Mich.App. 372, 377-378, 446 N.W.2d 904 (1989). However, we are always primarily obligated when interpreting Michigan law to ascertain and give effect to the intent of the Michigan Legislature. Chambers, supra at 314, 614 N.W.2d 910. Therefore, while we may look for guidance in federal interpretations of similar laws, we must not defer to federal interpretations when doing so would be inconsistent with any portion of our Legislature's enactment. Id.; Chiles v. Machine Shop, Inc., 238 Mich.App. 462, 472-473, 606 N.W.2d 398 (1999).

This Court has interpreted the retaliation provision of the...

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