Deflaviis v. Lord & Taylor, Inc., Docket No. 186156

• Decision Date: 13 May 1997
• Docket Number: Docket No. 186156
• Citation: 566 N.W.2d 661,223 Mich.App. 432
• Parties: , 71 Empl. Prac. Dec. P 44,929 Gabriel DEFLAVIIS and Maria DeFlaviis, Plaintiff-Appellants, v. LORD & TAYLOR, INC., Defendant-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 661

566 N.W.2d 661

223 Mich.App. 432, 71 Empl. Prac. Dec. P 44,929

Gabriel DEFLAVIIS and Maria DeFlaviis, Plaintiff-Appellants, v. LORD & TAYLOR, INC., Defendant-Appellees.

Docket No. 186156.

Court of Appeals of Michigan.

Submitted March 4, 1997, at Detroit.

Decided May 13, 1997, at 9:10 a.m.

Released for Publication Aug. 6, 1997.

Reosti, James & Sirlin, P.C. by Ronald Reosti, Detroit, and Neal Bush, Detroit, for Plaintiff-Appellants.

Moffett & Dillon, P.C. by Stephen T. Moffett and Christine Marakas Battle, Birmingham, for Defendant-Appellees.

Before DOCTOROFF, P.J., and MICHAEL J. KELLY and YOUNG, JJ.

PER CURIAM.

Plaintiff ¹ appeals as of right from the trial court's order awarding summary disposition to defendant with regard to plaintiff's unlawful retaliation action brought pursuant to the Civil Rights Act, M.C.L. § 37.2101 et seq.; M.S.A. § 3.548(101) et seq., and plaintiff's defamation action. We reverse and remand.

Briefly, in 1990, plaintiff was terminated from his position as regional alterations director for defendant, Lord & Taylor, Inc. According to plaintiff, defendant's stated reason for the termination was that plaintiff had provided free alterations to company executives. Subsequently, plaintiff filed a lawsuit against defendant in the United States District Court, Eastern District of Michigan, alleging, among other things, age discrimination in violation of the Civil Rights Act, M.C.L. § 37.2101 et seq.; M.S.A. § 3.548(101) et seq. Summary disposition was granted in favor of defendant in that case in an unpublished opinion issued February 24, 1992 (Docket No. 91-CV-60024-AA). ²

In May 1992, plaintiff interviewed with Scott Cullen, operations manager for Neiman Marcus, for the position of alterations manager at the Troy Neiman Marcus store. Plaintiff claimed that during the interview he explained the circumstances surrounding his discharge from Lord & Taylor and that Cullen told him that the discharge would have no effect on the hiring decision made by Neiman Marcus.

Thereafter, in the summer of 1992, Gary Manson, director of security for Neiman Marcus, called Craig Cunningham, who was vice president of loss prevention for Lord & Taylor, and requested information regarding plaintiff's discharge. Manson indicated that Cunningham told him that plaintiff was terminated for cause for giving away alterations and for bringing in outside work and having it performed by defendant's tailors, and that plaintiff had personally benefited from the work performed. Manson stated in an affidavit that he decided not to hire plaintiff because of the discrepancies between plaintiff's explanation and Cunningham's explanation of the reasons for plaintiff's discharge. On the other hand, Cunningham claimed that he provided Manson no information regarding the circumstances surrounding plaintiff's discharge.

Subsequently, plaintiff filed the instant lawsuit claiming that the alleged negative reference given by Cunningham to Manson was in retaliation for the age discrimination lawsuit plaintiff previously had filed against defendant in the federal court. Plaintiff also claimed that the remarks made by Cunningham to Manson were defamatory in nature. Subsequently, defendant moved for and was granted summary disposition.

On appeal, plaintiff contends that the trial court erred in granting defendant summary disposition. Summary disposition was granted in favor of defendant pursuant to MCR 2.116(C)(10) on the basis that plaintiff had failed to present credible evidence "to establish the existence of the disputed material facts." This Court reviews de novo the trial court's order under MCR 2.116(C)(10). Michigan Mutual Ins. Co. v. Dowell, 204 Mich.App. 81, 85-86, 514 N.W.2d 185 (1994). When conducting this review, we examine the entire record in a light most favorable to the nonmoving party to determine whether a record could be developed that would leave open an issue on which reasonable minds could differ. Id. Giving the nonmoving party the benefit of reasonable doubt, "[t]he trial court must review the record evidence, make all reasonable inferences therefrom, and determine whether a genuine issue of material fact exists ...." Bertrand v. Alan Ford, Inc., 449 Mich. 606, 617-618, 537 N.W.2d 185 (1995). Summary disposition is proper where no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Id. However, a court may not weigh the evidence before it or make findings of fact; if the evidence before it is conflicting, summary disposition is improper. Barnell v. Taubman Co., Inc., 203 Mich.App. 110, 115, 512 N.W.2d 13 (1993).

We first address the merits of the trial court's ruling regarding plaintiff's claim of unlawful retaliation based on the Civil Rights Act, M.C.L. § 37.2101 et seq.; M.S.A. § 3.548(101) et seq. We find the trial court improperly granted summary disposition of this claim.

Section 701 of the Civil Rights Act, M.C.L. § 37.2701; M.S.A. § 3.548(701) reads in relevant part as follows:

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.

To establish a prima facie case of unlawful retaliation under the Civil Rights Act, a plaintiff must show (1) that he engaged in a protected activity; (2) that this was known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. Polk v. Yellow Freight System, Inc., 876 F.2d 527, 531 (C.A.6, 1989); see also Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1310 (C.A.6, 1989); Kroll v. Disney Store, Inc., 899 F.Supp. 344, 348 (E.D.Mich., 1995).

Before considering plaintiff's contention that he established a prima facie case of retaliation, we must first determine whether the Civil Rights Act, M.C.L. § 37.2101 et seq.; M.S.A. § 3.548(101) et seq., protects the activities of former employees like plaintiff. Plaintiff claims that former employees may sue for retaliation under the Civil Rights Act. Conversely, defendant asserts that Cunningham's alleged negative reference to Manson could not have been unlawful retaliation under the Civil Rights Act because plaintiff was no longer employed by defendant at the time of the negative reference.

Whether a former employee may bring an action for unlawful retaliation under the Civil Rights Act is a question of first impression in Michigan. However, the United States Supreme Court, in Robinson v. Shell Oil Co., 519 U.S. ----, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), recently held that § 704(a) of title VII of the Civil Rights Act of 1964 protects former employees from retaliation by a former employer. ³ While this Court is not bound by federal precedent based on title VII, those precedents analogous to questions presented under the Civil Rights Act are highly persuasive and will be considered by this Court. McCalla v. Ellis, 180 Mich.App. 372, 377-378, 446 N.W.2d 904 (1989).

Section 704(a) of title VII makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment" who have either availed themselves of the protections of title VII or assisted others in doing so. 78 Stat. 257, as amended, 42 USC 2000e-3(a). The Robinson Court determined that the term "employees" as used in § 704(a) included former employees so that the petitioner could bring suit against his former employer for postemployment actions allegedly taken in retaliation for the petitioner's having filed a charge with the Equal Employment Opportunity Commission (EEOC):

Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and "the statutory scheme is coherent and consistent."

The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. In this case, consideration of those factors leads us to conclude that the term "employees," as used in § 704(a), is ambiguous as to whether it excludes former employees.

At first blush, the term "employees" in § 704(a) would seem to refer to those having an existing employment relationship with the employer in question. This initial impression, however, does not withstand scrutiny in the context of § 704(a). First, there is no temporal qualifier in the statute such as would make plain that § 704(a) protects only persons still employed at the time of the retaliation. That the statute could have expressly included the phrase "former employees" does not aid our inquiry. Congress also could have used the phrase "current employees." But nowhere in Title VII is either phrase used--even where the specific context otherwise makes clear an intent to cover current or former employees....

Second, Title VII's definition of "employee" likewise lacks any temporal qualifier and is consistent with either current or past employment....

Third, a number of other provisions in Title VII use the term "employees" to mean something more inclusive or different than "current employees." For example, §§ 706(g)(1) and 717(b) both authorize affirmative remedial action ... "which may include ... reinstatement or hiring of employees." 42 U.S.C. §§ 2000e-5(g)(1) and 2000e-16(b). As petitioner notes, because one does not "reinstat[e]" current employees, that language necessarily refers to former employees. Likewise, one may hire individuals to be employees, but one does not typically hire persons who...