Burkhardt v. Bayliss, 071817 MICA, 330092
| Judge | Before: Kelly, P.J., and Stephens and O'Brien, JJ. |
| Parties | MICHELLE BURKHARDT, Plaintiff-Appellant, v. SUE BAYLISS, DARYL GREEN, JAMES KRAUS, SUE GRAHAM, DAVID EMMONS, JOSEPH BROWN, and CITY OF LANSING, Defendants-Appellees. |
| Docket Number | 330092 |
| Court | Court of Appeal of Michigan — District of US |
| Date | 18 July 2017 |
UNPUBLISHED
Ingham Circuit Court LC No. 14-000687-CL
Before: Kelly, P.J., and Stephens and O'Brien, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court's order granting summary disposition to defendants under MCR 2.116(C)(10). We affirm.
I. BACKGROUND
The instant case is plaintiff Michelle Burkhardt's second suit against her employer defendant City of Lansing. Plaintiff's first suit involved claims of gender discrimination, sexual harassment, the Whistleblower's act, and retaliation. On June 9, 2014, while plaintiff's first suit was pending on appeal, plaintiff filed this suit. Plaintiff pled one count retaliation under the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq.1 Plaintiff alleged three adverse employment actions. According to the complaint, the first adverse employment action began on September 9, 2013, the next business day after the jury verdict was announced in her first action. On that day, plaintiff delivered documents supporting her claim for medical reimbursement to Amy Fraser in defendant City of Lansing's human resources office. Plaintiff alleged that on September 9, defendant Sue Graham, also an employee in defendant City of Lansing's human resources office, falsely reported to members of the City of Lansing police department that she saw plaintiff "in the hallway of the police building 'crying hysterically' and 'distraught' to the extent her emotional condition was in question." Plaintiff alleged that Graham's false statement resulted in plaintiff being confronted at a gas station in public by defendants, Sergeant Sue Bayliss and Lieutenant Elloree Sosebee, for a wellness check, escorted back to a conference room at the Ninth Precinct, and waiting forty minutes for a union attorney to arrive. After the union attorney spoke "with some command officers, " plaintiff was able to return to and finish her patrol shift.
According to the complaint, the second adverse employment action occurred on March 21, 2014, the day after plaintiff's medical reimbursement claim was processed. Plaintiff alleged that on March 21, she was ordered by defendants Lieutenant David Emmons and Sergeant Joseph Brown to attend a meeting where she was forced to sign a document titled "light duty expectations" upon her returning to work after foot surgery. Plaintiff alleged that other officers on light duty who had not engaged in protected activity were treated more favorably and given less restrictions.
The third adverse employment action was alleged to have occurred on April 10, 2014, when plaintiff received a letter indicating that she would be the subject of an internal affairs investigation for "unsatisfactory work performance and insubordination with a reference date of March 24, 2012." According to plaintiff, March 24 would have been plaintiff's "first day back to work from the date of the 'expectations' letter and her trip to the hospital."
On August 6, 2015, defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(7) and (C)(10). Defendants argued that because plaintiff failed to plead an exception to governmental immunity, plaintiff's claim against defendant City of Lansing employee defendant Graham must fail. Defendants also argued that plaintiff's retaliation claim should be dismissed under MCR 2.116(C)(10) because plaintiff failed to establish an adverse employment action as required under the ELCRA. Plaintiff filed a motion in opposition on August 19, 2015. Plaintiff argued that the ELCRA "applies specifically to all employers and is a waiver of immunity when a governmental employer violates it." Plaintiff also argued she established a prima face case of retaliation by showing that her employer knew, but failed to take action to stop retaliatory harassment by co-workers.
On August 26, 2015, the trial court issued an Order Regarding Reassignment pursuant to MCR 8.111 that reassigned plaintiff's case from Judge Aquilina, who had been chosen by blind draw, to Judge Canady, III who had presided over plaintiff's first suit against defendant City of Lansing. Plaintiff opposed the order of reassignment and filed a motion to vacate the order wherein she argued that her current suit was not based on the same transaction or occurrence as her prior suit as required for reassignment under MCR 8.111(D)(2). Defendants argued that reassignment was proper because plaintiff's current claim of retaliation was based on occurrences from plaintiff's prior litigation, namely the protected activity of filing an ELCRA complaint in 2010, taking the matter to trial in 2013, and pursuing her reimbursement claim in 2013.
A hearing regarding the motion to vacate the reassignment was held on October 14, 2015. The motion was heard by Judge Canady II, who was not the chief judge. The court found that plaintiff's current case was an assertion that the same conduct recognized by the jury in her prior case was continuing. The court held that plaintiff could bring a claim for ongoing conduct, but that the claim "clearly arises out of the past transaction or occurrence or lawsuit or course of conduct that existed between the City and [plaintiff]."
On October 21, 2015, the court held a hearing for defendants' motion for summary disposition. The parties argued consistently with their briefs. The court found that the citizen complaint made against plaintiff and the internal affairs investigation that followed were not matters of retaliation; rather they were issues confined to and resolved by plaintiff's union's collective bargaining agreement. The court also found that plaintiff was not forced to sign the light duty expectations letter. Instead, she was asked to sign to acknowledge receipt of the letter. The court determined that plaintiff did not experience any adverse employment action because she suffered no pecuniary loss and continued to work without being treated any differently after the wellbeing check, light duty expectations letter and citizen complaint. The court ruled there was no genuine issue of material fact related to whether the wellbeing check was an act of retaliation, and that plaintiff failed to establish a prima face case of retaliation where she suffered no adverse employment action. An order granting defendants summary disposition pursuant to MCR 2.116(C)(7) and (10) was issued the same day.
II. STANDARD OF REVIEW
We review de novo the trial court's decision to grant or deny a motion for summary disposition. Adair v State, 470 Mich. 105, 119; 680 N.W.2d 386 (2004). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). [Maiden v Rozwood, 461 Mich. 109, 120; 597 N.W.2d 817 (1999).].
MCR 2.116(C)(7) permits summary disposition where "[t]he claim is barred because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action." A party may support a motion under MCR 2.116(C)(7) by affidavits, depositions, admissions, or other documentary evidence. If such material is submitted, it must be considered. MCR 2.116(G)(5). Moreover, the substance or content of the supporting proofs must be admissible in evidence. . . . Unlike a motion under subsection (C)(10), a movant under MCR 2.116(C)(7) is not required to file supportive material, and the opposing party need not reply with supportive material. The contents of the complaint are accepted as true unless contradicted by documentation submitted by the movant. Patterson v. Kleiman, 447 Mich. 429, 434, n. 6, 526 N.W.2d 879 (1994). [Maiden, 461 Mich. at 119].
"The court may not make findings of fact or weigh credibility in deciding a motion for summary disposition." Featherly v Teledyne Indus, Inc, 194 Mich.App. 352, 357; 486 N.W.2d 361 (1992).
The trial court's interpretation of the clear and unambiguous contractual language of a release is a question of law that this Court reviews de novo. SSC Associates Limited Partnership v General Retirement System, 210 Mich.App. 449, 452; 534 N.W.2d 160 (1995).
III. ANALYSIS
Plaintiff's complaint is entirely based upon claims of retaliation under the ELCRA. Plaintiff argues that several persons retaliated against her. She claims defendant James Kraus retaliated when he placed plaintiff on reassignment on September 9, 2013. She was also subjected to retaliation by defendant Graham who stalled the processing of plaintiff's medical reimbursement paperwork and told defendant Kraus that plaintiff was crying which caused the wellbeing check. She has a claim against defendant Bayliss who failed to relay to defendant Kraus that plaintiff was fine after the wellbeing check. She alleges retaliation against defendants Emmons and Brown who issued the light duty expectations letter to plaintiff and against defendants Kraus and Green who as supervisors did not stop the harassment of plaintiff by defendants Bayliss, Emmons and Brown. Finally, she has a claim against her employer the City of Lansing...
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