Burns v. City of Detroit

Citation253 Mich. App. 608,660 N.W.2d 85
Decision Date04 February 2003
Docket NumberDocket No. 213029.
PartiesLynette BURNS, Plaintiff-Appellee, v. CITY OF DETROIT, a Municipal Corporation; Dereck Hicks, Individually and in his Official Capacity; Terrence Hill, Individually and in his Official Capacity; and Darryl Hopson, Individually and in his Official Capacity, Jointly and Severally, Defendants-Appellants.
CourtCourt of Appeal of Michigan — District of US

Sachs Waldman (by Mary Katherine Norton and Elizabeth A. Cabot), Detroit, for the plaintiff.

City of Detroit Law Department (by June Boyd, Assistant Corporation Counsel), Detroit, for the defendants.

Eisenberg & Bogas, P.C. (by Kathleen L. Bogas), Bloomfield Hills, for the Michigan Trial Lawyers Association, the Detroit Trial Lawyers Association, and the Michigan Employment Lawyers Association, Amici Curiae.

Amberg, Firestone and Lee, P.C. (by Joseph H. Firestone), Southfield, for the Michigan Education Association.

Sachs Waldman Professional Corporation (by Mary Ellen Gurewitz and Marshall J. Widick), Detroit, for the Michigan State A.F.L.-C.I.O.

Dan Sherrick, General Counsel, and Georgi-Ann Bargamian, Associate General Counsel, Detroit, for International Union, UAW.

Nicholas M. Inzeo, Acting Deputy General Counsel, Philip B. Sklover, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, Julie L. Gantz, Attorney, and Adele Rapport, Regional Attorney, Washington, D.C., Detroit, for the United States Equal Employment Opportunity Commission.

Eardley Law Offices PC (by Eugenie B. Eardley and John F. Eardley), Cannonsburg, for the Triangle Foundation.

Peter Henner, Clarksville, New York, and Paula Brantner, San Francisco, California, for the National Employment Lawyers Association.

William Goodman, James Reif, and Shayana Kadidal, New York, New York, for the Center for Constitutional Rights.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Ron D. Robinson, Assistant Attorney General, Detroit, for the Michigan Department of Civil Rights.

Kingsley R. Browne, Detroit, for the Center for Individual Freedom.




This opinion addresses whether certain comments that formed the basis for a jury verdict of workplace sexual harassment constitute protected speech under the United States and Michigan Constitutions and whether the imposition of liability for the comments under the Civil Rights Act, M.C.L. § 37.2101 et seq., raises concerns of vagueness and overbreadth. We conclude that the comments at issue do not constitute protected speech and that the imposition of liability does not raise concerns of vagueness and overbreadth. We therefore uphold the finding of sexual harassment.

I. Facts and Procedural History

Plaintiff, who was a fingerprint technician for the Detroit Police Department, claimed that two male co-workers on the midnight shift, defendants Terrence Hill and Darryl Hopson,1 sexually harassed her and that her supervisors did not take appropriate remedial actions after she reported the harassment. Plaintiff sued for sexual harassment, retaliation, defamation, and tortious interference with a business relationship, and the jury found for plaintiff on all four claims. Defendants appealed as of right to this Court from the judgment. We2 upheld the jury's verdict with regard to sexual harassment and retaliation, reversed the verdict with regard to the two remaining claims, and remanded the matter for a new trial regarding damages. Subsequently, defendants sought leave to appeal to the Supreme Court, which, in lieu of granting leave to appeal, remanded the case back to this Court and asked us to consider whether the remarks that formed the basis for the sexual harassment verdict constitute protected speech under the United States and Michigan Constitutions and whether the liability imposed raises concerns of vagueness and overbreadth. 465 Mich. 946, 637 N.W.2d 503 (2002).

Hill and Hopson made the following comments, among others, while plaintiff performed her job:3

"[D]on't lie on me bitch."

"[She's a] fucking [b]itch...."

"[B]itch bring [your] ass back...."

"[Your] problem [is you] don't have a man. You don't have a man that fucks your ass every night. One good time you would be all right. That's why me and Darryl hated working around a bunch of bitches."

"[T]hese fucking females up in here will drive you out of your goddamn mind. That's what you can't let them do."
"You got to understand that these females in Ident4 are unhappy women who don't have men in their lives. For a woman who don't have a man to be friends with another woman who don't have a man and getting advice from each other don't make any sense[.] What kind of shit is that? These women don't have nothing else in their lives."
"[I]f she had a man she wouldn't care if she is called a bitch or not. Man, if somebody messed with my job knowing I got a wife and two kids, I'll stump them. I'll follow her ass out to her car and stump the shit out of the bitch."
"[I]f you catch her ass out there ... and stump the living shit out of her fucking ass ... [n]obody will see you and I'll drive pas[t] like I didn't see anything. If you don't wanna do it I got some partners from my old neighborhood who could do it for you."
"[She's a] male hating female."

Hill and Hopson also said that plaintiff was abnormal for being over thirty years old and without a man. Moreover, plaintiff testified that she had received irritating, romantic notes from Hopson throughout her years at her job and that Hill sometimes blew in her ear and asked her why she covered her body.

After plaintiff reported these comments and threats, a meeting took place to discuss various workplace issues. At this meeting, defendant Dereck Hicks, one of the fingerprint technician supervisors, stated that women are apt to "cry sexual harassment" because of premenstrual syndrome. Hicks also warned that "[a]nything a man says to a woman he can end up in court." Defendants admitted that as a result of plaintiff's sexual harassment claim, they transferred her to the day shift. Plaintiff testified that this transfer caused her hardship with childcare and a pay reduction.

II. Nature of the Case

Our Supreme Court raised the constitutional issue on remand sua sponte and asked us to address whether the statements in question constitute protected speech and whether the liability imposed raises concerns of vagueness and overbreadth. The Court framed the issue as

whether the remarks that supported the "hostile environment" sexual harassment claims cannot form the basis for liability because they are protected speech under U.S. Const., Am. I, and Const. 1963, art. 1, § 5, and because basing a finding of liability on such remarks would raise vagueness and overbreadth concerns under the same constitutional provisions.5
III. Legal Discussion
A. Forfeiture of the Issue

We decline to reverse our decision in favor of plaintiff for two reasons. First, no defendant should get the benefit of this review because no defendant raised the issue of a possible constitutional violation below.6 As noted in Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 234, 507 N.W.2d 422 (1993), "Issues raised for the first time on appeal are not ordinarily subject to review." The Booth Court further stated:

This Court has repeatedly declined to consider arguments not presented at a lower level, including those relating to constitutional claims. In re Forfeiture of Certain Personal Property, 441 Mich. 77, 84, 490 N.W.2d 322 (1992); Butcher v. Treasury Dep't, 425 Mich. 262, 276, 389 N.W.2d 412 (1986); Dagenhardt v. Special Machine & Engineering, Inc., 418 Mich. 520, 345 N.W.2d 164 (1984); Ohio Dep't of Taxation v. Kleitch Bros., Inc., 357 Mich. 504, 516, 98 N.W.2d 636 (1959). We have only deviated from that rule in the face of exceptional circumstances. Perin v. Peuler, 373 Mich. 531, 534, 130 N.W.2d 4 (1964)[, overruled on other grounds in McDougall v. Schanz, 461 Mich. 15, 597 N.W.2d 148 (1999) ] (issue resolution was necessary to quell confusion generated by the Court's earlier opinions); People v. Snow, 386 Mich. 586, 591, 194 N.W.2d 314 (1972) (addressed the issue to prevent a miscarriage of justice). There exist no exigent circumstances in this case that require our review of the board's constitutional argument. [Booth, supra at 234, n. 23, 507 N.W.2d 422.]

See also People v. Viano, 467 Mich. 856, 649 N.W.2d 83 (2002). Moreover, the Michigan Court of Appeals "functions as a court of review that is principally charged with the duty of correcting errors" that occurred below and thus should decline to address unpreserved issues. See Michigan Up & Out of Poverty Now Coalition v. Michigan, 210 Mich.App. 162, 167-168, 533 N.W.2d 339 (1995).

Because of the blatant and highly offensive harassment to which plaintiff was subjected, and because Michigan's sexual harassment law is well defined and unambiguous, we see no exigent circumstances, particularly in this case, that require our review of the constitutional issue raised by the Supreme Court. Booth, supra at 234, n. 23, 507 N.W.2d 422. In fact, this case presents a much stronger case than Booth for declining to address the constitutional issue, because in Booth, a party had at least raised the issue on appeal. Id. Here, no party raised the constitutional issue either below or on appeal. Moreover, no errors with regard to the trial court's rulings or the jury's findings concerning sexual harassment occurred below in this case, and therefore there is nothing for us to correct. Up & Out of Poverty, supra at 167-168, 533 N.W.2d 339. While we respect our Supreme Court's authority to raise the issue on remand sua sponte, we believe that invoking this constitutional issue to benefit a party who failed to raise the...

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