Campbell v. DEP'T OF HUMAN SERVICES

• Decision Date: 24 November 2009
• Docket Number: Docket No. 281592.
• Citation: 780 N.W.2d 586,286 Mich. App. 230
• Parties: CAMPBELL v. DEPARTMENT OF HUMAN SERVICES.
• Court: Court of Appeal of Michigan — District of US

780 N.W.2d 586

286 Mich. App. 230

CAMPBELL v. DEPARTMENT OF HUMAN SERVICES.

Docket No. 281592.

Court of Appeals of Michigan.

Submitted July 8, 2009, at Lansing.

Decided November 24, 2009, at 9:05 a.m.

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Barnes Monroe Barnes, P.C. (by Joan M. Barnes), for plaintiff.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, and Ann M. Sherman, Assistant Attorney General, for defendant.

Before: METER, P.J., and MURRAY and BECKERING, JJ.

METER, P.J.

In this gender-discrimination case, defendant appeals as of right from a judgment for plaintiff entered after a jury trial. We affirm. Of particular note is our holding that although acts of discrimination occurring outside an applicable limitations period are not actionable, evidence of them may, in appropriate cases, be used as "background evidence" to establish a pattern of discrimination and to support a proper claim.

I. PERTINENT FACTS

Plaintiff alleged in her lawsuit that defendant, her employer, discriminated against her on the basis of her gender, contrary to MCL 37.2202(1)(a), a provision of the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq.¹ Plaintiff had been employed with defendant since 1985, working in various positions with adjudicated youths. The basis of plaintiff's claim was defendant's decision to promote Michael Johnson, instead of her, to the center director position at Arbor Heights (Arbor), a youth facility, in October 2002.

The parties did not dispute that plaintiff's claim was governed by a three-year period of limitations. See MCL 600.5805(10). Defendant moved for summary disposition, noting that plaintiff's discrimination claim was subject to the analysis outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which has been adopted in Michigan. See Hazle v. Ford Motor Co., 464 Mich. 456, 462-463, 628 N.W.2d 515 (2001). Defendant claimed that plaintiff had failed to present evidence of acts within the three-year limitations period amounting to discrimination. Defendant further claimed that it offered an alternative, nondiscriminatory reason for promoting Johnson instead of plaintiff to the position in question.

A key issue in defendants motion was whether acts that occurred outside the limitations period could be considered in order to support a claim based on an act that occurred within that period. Defendant asserted that acts outside the limitations period could not be considered on the basis of our Supreme Court's decision in Garg v. Macomb Co. Community Mental Health Services, 472 Mich. 263, 283-285, 696 N.W.2d 646 (2005), amended 473 Mich. 1205, 699 N.W.2d 697 (2005), in which the Court held that a plaintiff could not bring a viable CRA lawsuit for employment actions that occurred outside the limitations period. Garg overruled Sumner v. Goodyear Tire & Rubber Co., 427 Mich. 505, 398 N.W.2d 368 (1986), which recognized a "continuing-violations" exception to the statute of limitations. Garg, 472 Mich. at 280, 284, 696 N.W.2d 646. Defendant contended that only events that occurred after January 28, 2002,² properly could be considered in this case. Plaintiff maintained that Garg does not mandate the exclusion from evidence of acts outside the limitations period in order to show a pattern of discrimination, as long as the claim itself is based on an act within that period.

The trial court rejected defendant's interpretation of Garg by relying on the reasoning in Ramanathan v. Wayne State Univ. Bd. of Governors, unpublished opinion per curiam of the Court of Appeals, issued January 4, 2007 (Docket No. 266238), 2007 WL 28416 (Ramanathan I), rev'd in part on other grounds by Ramanathan v. Wayne State Univ. Bd. of Governors, 480 Mich. 1090, 745 N.W.2d 115 (2008) (Ramanathan II). It stated that it had discretion to consider acts that occurred outside the limitations period as background evidence in order to establish a pattern of discrimination. The court applied the McDonnell Douglas framework, found that plaintiff had presented sufficient evidence to establish a prima facie case, and concluded that a genuine issue of material fact existed regarding whether unlawful discrimination was a motivating factor in defendant's failure to promote plaintiff. The court concluded that, although defendant satisfied its burden of providing a legitimate, nondiscriminatory reason for its failure to promote plaintiff, the substantively admissible evidence, which included acts outside the limitations period, was sufficient to support a rational inference of discrimination. The trial court therefore denied defendant's motion for summary disposition of plaintiff's gender discrimination claim, and a two-day jury trial took place.

The jury found that plaintiff had proved her discrimination case and awarded her $328,000 in economic damages and $50,000 in noneconomic damages.

II. EVIDENCE OF ACTS OUTSIDE THE LIMITATIONS PERIOD

Defendant argues that evidence of acts occurring outside the three-year limitations period should have been excluded from trial.

Defendant raises this issue in the context of the trial court's denial of its motion for summary disposition under MCR 2.116(C)(10). This Court reviews de novo a trial court's decision regarding a motion for summary disposition. Kuznar v. Raksha Corp., 481 Mich. 169, 175, 750 N.W.2d 121 (2008). Summary disposition of all or part of a claim may be granted under MCR 2.116(C)(10) when, "except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment ... as a matter of law." "A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint." Corley v. Detroit Bd. of Ed., 470 Mich. 274, 278, 681 N.W.2d 342 (2004) (citation and quotation marks omitted). The moving party must specifically identify the matters that allegedly have no disputed factual issues, and the nonmoving party must support its position that a disputed factual issue does exist by using affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(4); Coblentz v. City of Novi, 475 Mich. 558, 569, 719 N.W.2d 73 (2006).

We review a trial court's admission of evidence for an abuse of discretion. In re Archer, 277 Mich.App. 71, 77, 744 N.W.2d 1 (2007). However, we review de novo preliminary questions of law pertinent to the admission of evidence. Dep't of Transportation v. Frankenlust Lutheran Congregation, 269 Mich.App. 570, 575, 711 N.W.2d 453 (2006).

In Sumner, the Court adopted the "continuing-violations" exception to the statute of limitations, which required the plaintiff to first demonstrate the existence of a violation within the limitations period, and then "demonstrate either that his or her employer has engaged in a `policy of discrimination' or has engaged in `a series of allegedly discriminatory acts which are sufficiently related so as to constitute a pattern. . . .'" Garg, 472 Mich. at 280, 696 N.W.2d 646, quoting Sumner, 427 Mich. at 528, 398 N.W.2d 368. The Garg Court held that this doctrine was at odds with the applicable statute of limitations, MCL 600.5805, and, thus, had no future applicability in Michigan. Garg, 472 Mich. at 281-282, 696 N.W.2d 646. Therefore, under Garg, a plaintiff cannot recover for any injuries that occurred outside the three-year limitations period applicable to CRA claims. Id. at 282, 696 N.W.2d 646. This rule is not in dispute in this case. Rather, the parties dispute whether evidence of acts or events outside the limitations period can nonetheless be used as background evidence to establish a pattern of discrimination in order to prove a timely claim.

The Court in Garg did not squarely address whether acts or events outside the limitations period can be used as background evidence to establish a pattern of discrimination in order to prove a timely claim. It is true that the Court in Garg seemed to exclude from evidence in that case acts occurring outside the limitations period. See id. at 278, 696 N.W.2d 646. This was pointed out by Justice CAVANAGH, writing in dissent. Id. at 303, 696 N.W.2d 646 (CAVANAGH, J., dissenting). However, the Court also emphasized that allowing recovery for injuries outside the limitations period would improperly contravene the intent of the Legislature. Id. at 282, 696 N.W.2d 646. There is a difference, of course, between allowing recovery for an injury outside the limitations period and simply allowing such an injury to be used as background evidence to establish a claim associated with an injury occurring within the limitations period. Significantly, the Court in Garg had originally included a footnote stating that acts outside the limitations period could not be used as background evidence of discrimination, but this footnote was deleted in an amendment to the opinion.

This Court, in its unpublished decision Ramanathan I, which the trial court in this case followed, stated:

Despite the language in Garg, referencing limitations on the admissibility of evidence in that case, we cannot read the amended opinion so broadly as to exclude per se all background evidence of alleged discriminatory or retaliatory acts occurring outside the limitations period. Absent clear guidance in this regard from the Supreme Court, we conclude that this evidence is subject to the rules of evidence and other applicable governing law, and its admissibility is within the discretion of the trial court. Ramanathan I, unpub. op. at 4.

The Ramanathan I panel stated that a "per se rule of exclusion cannot be inferred from Garg given the Supreme Court's amendment of the opinion to delete footnote 14, which expressly sanctioned such blanket exclusion of evidence in claims under the CRE." Id., unpub. op. at 3. On appeal, the Supreme Court reversed this Court's Ramanathan I decision in part and remanded the case to the circuit court without commenting on this Court's...