Department of Civil Rights ex rel. Johnson v. Silver Dollar Cafe

• Decision Date: 01 April 1992
• Docket Number: Docket No. 91348,No. 3,3
• Parties: DEPARTMENT OF CIVIL RIGHTS, ex rel Mary H. JOHNSON, Plaintiff-Appellee, v. SILVER DOLLAR CAFE, Paul Anson and Margaret Anson, Defendants-Appellants. Calendar,
• Court: Michigan Supreme Court

Page 337

490 N.W.2d 337

441 Mich. 110

DEPARTMENT OF CIVIL RIGHTS, ex rel Mary H. JOHNSON, Plaintiff-Appellee, v. SILVER DOLLAR CAFE, Paul Anson and Margaret Anson Defendants-Appellants.

Docket No. 91348.

Calendar No. 3, April Term, 1992.

Supreme Court of Michigan.

Argued April 7, 1992.

Decided Sept. 29, 1992.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Counsel of Record, Robert L. Willis, Jr., Susan I. Leffler, Mary Louise Pridmore, Asst. Attys. Gen., Lansing, Mich., for plaintiff-appellee.

Mary Louise Pridmore, Asst. Atty. Gen., Detroit, Mich., for plaintiff-appellee.

Kurt Berggren, Ann Arbor, Mich., for defendants-appellants.

LEVIN, Justice.

The circuit judge, on appeal from the Civil Rights Commission, reduced an award for sexual harassment to Mary Helen Johnson against her employers, Paul and Margaret Anson, doing business as Silver Dollar Cafe. The Court of Appeals reinstated the award. ¹

We reverse and remand to the Court of Appeals to consider whether the circuit judge clearly erred in awarding $4,515 compensatory damages for humiliation, extreme embarrassment, emotional distress, indignities to Johnson and her character, and great mental anguish.

I

Johnson worked for the Silver Dollar Cafe for approximately fifteen months during 1983 and 1984. The owners, Paul Anson and his wife, Margaret Anson, both worked in the restaurant. Almost immediately after Johnson was hired, Paul Anson made explicit sexual remarks, including that he would like to suck Johnson's breasts and engage in cunnilingus. He offered her money to go to bed with him. When she bent over to pick up a pad on the floor, he grabbed her buttocks.

Johnson complained to Margaret Anson, who sometimes observed this behavior. Margaret Anson would apologize and promise that she would speak to Paul Anson and see that such conduct ceased, and asked Johnson not to quit. But the harassment continued until, eventually, Johnson was discharged. The stated basis was that she had failed to report all the tips she had received.

Johnson claimed that she experienced nightmares, crying spells, and great emotional pain and distress. The Civil Rights Commission awarded Johnson $2,660 in back wages and $30,000 for humiliation, extreme embarrassment, emotional distress, indignities to her person and character, and great mental anguish.

The circuit judge affirmed the award of $2,660 in back wages, but reduced the compensatory award from $30,000 to $4,515, approximately twice the wages. The Court of Appeals reinstated the compensatory award of $30,000.

II

The Ansons do not challenge the finding of sexual harassment or the award of $2,660 in back pay. They contend that the Court of Appeals erred in stating that "the circuit court is permitted to substitute its findings of fact only when it has determined that the referee's findings were not supported by competent, material, and substantial evidence" and may not "substitute its own findings of fact merely because it disagrees with those reached by the referee." ²

In Walker v. Wolverine Fabricating & Mfg. Co., 425 Mich. 586, 391 N.W.2d 296 (1986), this Court held that a person who is aggrieved by a decision of the Civil Rights Commission may not introduce evidence on review by the circuit court, and that review by the circuit court is on the record made before the commission.

The Civil Rights Commission contends that Walker also ruled that the review de novo contemplated by the constitution ³ and the statute ⁴ is limited to a determination whether there is competent, material, and substantial evidence to support the decision of the Civil Rights Commission, and, accordingly, the circuit court may not make its own findings of fact unless there is an absence of competent, material, and substantial evidence.

The Ansons did not seek to introduce additional evidence in circuit court, and thus there is no need to reconsider whether the decision in Walker, barring the introduction of additional evidence in the circuit court, should be reconsidered. ⁵ We thus do not readdress the question actually presented and decided in Walker. As set forth in Walker, additional evidence may not be introduced in the circuit court on review of a decision of the Civil Rights Commission. Review by the circuit court shall continue to be on the record made before the commission.

III

Although not necessary to decision, this Court in Walker opined regarding the scope of circuit court appellate review, stating:

"[T]he circuit court shall review the record produced at the CRC anew, drawing its own inferences and conclusions from that record. The court shall determine whether the CRC's factual findings and legal conclusions are supported by competent, material, and substantial evidence on the whole record, and whether it acted arbitrarily or without authority." ⁶ (Emphasis added.)

The Court of Appeals acknowledged that the foregoing statement is "confusing and contradictory," ⁷ stating:

"The first sentence states that the review is de novo; however, the second describes the more limited review to determine if the findings are supported by 'competent, material, and substantial' evidence. This language is usually associated with the standard of review provided in Const 1963, art 6, Sec. 28 and Sec. 106 of the Administrative Procedures Act [M.C.L. Sec. 24.306(d); M.S.A. Sec. 3.560(206)(d) ]." ⁸

In an apparent effort to harmonize the "confusing and contradictory" language of Walker, the Court of Appeals said: "While the review of CRC orders is labeled 'de novo,' we conclude that the scope of review is qualified by the inclusion of this limiting language" ⁹--"competent, material, and substantial evidence" language.

IV

The Civil Rights Commission was established pursuant to Const 1963, art. 5, Sec. 29, which provides in part:

"Appeals from final orders of the commission, including cease and desist orders and refusals to issue complaints, shall be tried de novo before the circuit court having jurisdiction provided by law."

The constitution also provides for judicial review of agency decisions, and that such review shall include "as a minimum" a determination whether an agency decision, in which a hearing is required, is supported The Civil Rights Commission would read out of the clause "tried de novo" the words "de novo" as well as the word "tried."

by "competent, material and substantial evidence on the whole record." ¹⁰

The term "de novo" has been defined as "anew; afresh; again; a second time; once more; in the same manner, or with the same effect." ¹¹ It has been said:

"The very concept, 'de novo' hearing, means that all matters therein in issue are to be considered 'anew; afresh; over again,'...." People v. Bourdon, 10 Cal.App.3d 878, 881, 89 Cal.Rptr. 415 (1970). ¹²

To give meaning to the term "de novo," we must hold that a circuit court, in reviewing a decision of the Civil Rights Commission, may substitute its assessment for the findings, conclusion, and decision of the Civil Rights Commission.

V

Because it is clear that the circuit judge substituted his judgment for the judgment of the Civil Rights Commission, there is no need to remand to the circuit court for further consideration.

It is, however, necessary to remand to the Court of Appeals to reconsider its decision. We agree with the Civil Rights Commission that the governing standard on review by the Court of Appeals of a decision of the circuit court, following review by that court of a decision of the Civil Rights Commission, is set forth in Dixon v. Ford Motor Co., 402 Mich. 315, 318-319, 262 N.W.2d 666 (1978).

In Dixon, the Civil Rights Commission determined that the plaintiff had been discharged because of race. The circuit court affirmed. The Court of Appeals reversed on the ground that the circuit court's decision was not "supported by competent, material and substantial evidence." This Court reversed and reinstated the judgment of the circuit court. This Court said that the Court of Appeals reviews a decision of the circuit court under the clearly erroneous standard, and that the Court of Appeals shall "substitute its own appraisal of the record where, on review of the 'whole record,' it is 'left with the definite and firm conviction that a mistake has been committed.' Tuttle v. Dep't of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244 (1976)." ¹³ See Beason v. Beason We reverse and remand to the Court of Appeals to consider whether the circuit judge clearly erred in awarding $4,515 compensatory damages for humiliation, extreme embarrassment, emotional distress, indignities to Johnson and her character, and great mental anguish.

35 Mich. 791, 802, 460 N.W.2d 207 (1990).

MICHAEL F. CAVANAGH, C.J., and BRICKLEY and ROBERT P. GRIFFIN, JJ., concur.

BOYLE, Justice concurring in part and dissenting in part.

I agree with Justice Levin that the scope of review to be used by the circuit court in reviewing the decision of the Civil Rights Commission is review de novo as expressly provided both in the constitution ¹ and in the statute. ² I write separately to state that I cannot agree that, in this instance, the circuit court reviewed the Civil Rights Commission decision de novo. In that respect I agree with Justice Riley.

I

The full factual background is uniquely relevant to the claims of emotional distress, mental anguish, and humiliation. Mary Johnson began ³ working as a waitress for the owners of the Silver Dollar Cafe, defendants Paul and Margaret Anson, in July 1983. Almost from the beginning, Ms. Johnson became the object of crude, explicit sexual remarks made by Mr. Anson. ⁴ On one occasion, Mr. Anson "grabbed [Ms. Johnson's] buttocks when she bend [sic] over to pick up her bill pad." Ms. Johnson became upset and, in response, grabbed "a knife out of the drawer and threatened to use it if Paul Anson touched her again."

Mr. Anson's conduct "often reduced [Ms.] Johnson to tears." ⁵ She would become visibly upset and...