Garg v. Macomb County Community Mental Health Servs.

• Decision Date: 11 May 2005
• Docket Number: Docket No. 121361. Calendar No. 1.
• Citation: 696 N.W.2d 646,472 Mich. 263
• Parties: Sharda GARG, Plaintiff-Appellee/Cross-Appellant, v. MACOMB COUNTY COMMUNITY MENTAL HEALTH SERVICES, Defendant-Appellant/Cross-Appellee.
• Court: Michigan Supreme Court

696 N.W.2d 646

472 Mich. 263

Sharda GARG, Plaintiff-Appellee/Cross-Appellant, v. MACOMB COUNTY COMMUNITY MENTAL HEALTH SERVICES, Defendant-Appellant/Cross-Appellee.

Docket No. 121361. Calendar No. 1.

Supreme Court of Michigan.

Argued November 9, 2004.

Decided May 11, 2005.

As Amended on Denial of Rehearing July 18, 2005.¹

Pitt, Dowty, McGehee, Mirer & Palmer, P.C. (by Beth M. Rivers and Robert W. Palmer), Royal Oak, MI, and Monica Farris Linkner, Ann Arbor, MI and Allyn Carol Ravitz, Wolverine Lake, MI, for the plaintiff.

Kitch Drutchas Wagner DeNardis & Valitutti (by Susan Healy Zitterman and Karen B. Berkery), Detroit, MI, for the defendant.

Michael A. Cox, Attorney General, and Susan I. Leffler, Ron D. Robinson, and Suzanne D. Sonneborn, Assistant Attorneys General, Detroit, MI, for the Michigan Civil Rights Commission and the Department of Civil Rights, amici curiae.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Patrick J. O'Brien and Heather S. Meingast, Assistant Attorneys General, Lansing, MI, for the Attorney General, amicus curiae.

Sachs Waldman, P.C. (by Mary Katherine Norton), Detroit, MI, for the Michigan State AFL-CIO, the Michigan Trial Lawyers Association, and the Michigan Employment Lawyers Association, amici curiae.

Before the Entire Bench.

MARKMAN, J.

We granted leave to appeal to consider whether there was sufficient evidence to support plaintiff's claims of retaliatory discrimination and whether the "continuing violations" doctrine of Sumner v. Goodyear Tire & Rubber Co., 427 Mich. 505, 398 N.W.2d 368 (1986), should be preserved, modified, or abrogated in light of the language of the statute of limitations, M.C.L. § 600.5805(1). The jury found that plaintiff was not discriminated against on the basis of national origin, but was retaliated against on the basis of either her opposition to sexual harassment or because she filed a grievance claiming national-origin discrimination. The Court of Appeals affirmed. Because we conclude that, once evidence of acts that occurred outside the statute of limitations period is removed from consideration, there was insufficient evidence of retaliation based on either plaintiff's alleged opposition to sexual harassment or her filing of a grievance, we reverse the judgment of the Court of Appeals and remand to the trial court for entry of a judgment in favor of defendant. In so holding, we overrule the "continuing violations" doctrine of Sumner, supra, as inconsistent with the language of the statute of limitations, M.C.L. § 600.5805(1) and (10). As a result, we do not reach the other issues raised on appeal or the issues raised in plaintiff's cross-appeal.

I. Facts and Procedural History

Plaintiff Sharda Garg is of Asian Indian ancestry. She began her employment as a staff psychologist with defendant Macomb County Community Mental Health Services in 1978. Plaintiff testified that Donald Habkirk, the director of defendant's disability section, which included the facility where plaintiff worked, had during 1981 engaged in what plaintiff characterized as "sexually harassing" behavior with female coworkers. Specifically, plaintiff observed Habkirk pull one coworker's bra strap and snap the elastic panties of another. Plaintiff acknowledges that she herself was never treated in this manner or otherwise sexually harassed, and that she never reported to anyone the incidents she allegedly observed. Habkirk denied engaging in such conduct.

At "around the same time," plaintiff, while walking down an office corridor, felt someone's hand touch her upper back, near her shoulder. Plaintiff reacted as follows: "I felt somebody touching me, and I just turned around and swung at him." She further observed, "it was a very automatic reaction on my part." It was only after she hit this person that she realized it was Habkirk whom she had hit. She and Habkirk stared at each other for a moment before she proceeded into her office. Plaintiff did not file a grievance, tell anyone about the incident, or offer any explanation to anyone regarding why she had struck Habkirk. In response to a question concerning whether the touching was "improper," plaintiff did not characterize it as such.

While Habkirk never took any formal action against plaintiff for striking him, and indeed testified that he could not even remember the incident, plaintiff claims that her formerly cordial relationship with Habkirk deteriorated as he became increasingly cold and distant. While plaintiff generally enjoyed a good employment relationship with defendant and its management initially, she asserted that she began to perceive changes in this relationship following the touching incident. After six years of being rated as either "outstanding" or "very good," plaintiff's 1983 performance review was downgraded to "satisfactory." It was also at this point that plaintiff applied for several job promotions, in each case unsuccessfully. The first position she applied for in 1983 was given to someone from outside the organization, despite a general inclination by defendant in favor of internal promotions. Two other promotion applications in 1983 were also rejected. Over the next three years, plaintiff applied unsuccessfully for four more promotions. Plaintiff was denied a total of eighteen promotion opportunities, including eleven during the period of 1983 through 1987. During this period, Habkirk always served in plaintiff's chain of command. Once at a dinner party with plaintiff's immediate supervisor, Robert Slaine, plaintiff's husband asked why plaintiff had not been promoted. Slaine responded that, in his opinion, it was because Habkirk did not like plaintiff. Slaine denied making this statement, and Habkirk denied telling Slaine that he disliked plaintiff.

In 1986, Kent Cathcart was chosen by Habkirk as the new program director in plaintiff's facility. However, little changed for plaintiff because she failed to receive any of the next three promotions for which she applied. In December 1986, she was denied a promotion in favor of a contract employee with less seniority. Following this rejection in February 1987, plaintiff filed her first promotion-related grievance with the union representing defendant's employees. When plaintiff was again denied a promotion in early 1987, this time in favor of a person from outside the company, she filed a second promotion-related grievance with the union in June 1987, alleging that the denial was due to discrimination based on her national origin and color. The grievance was forwarded to Cathcart, and was denied without investigation. Plaintiff next applied for a promotion in 1989, but was again denied. Plaintiff was denied seven promotions during the period of 1989 through 1997.

Plaintiff claims that the "retaliation" against her for filing these grievances also took the form of poor overall treatment by defendant. Specifically, she claims that Cathcart, and the two supervisors who succeeded Cathcart after plaintiff was transferred to defendant's First North facility in 1995, treated her "in a degrading and humiliating manner." Plaintiff claims that Cathcart would criticize her for not participating in agency activities, but would then deny her requests to participate in meetings, conferences, and committees. In addition, plaintiff testified that Cathcart would reprimand her for being even two minutes late for work, but would let her coworkers "come and go as they pleased." Plaintiff also testified that Cathcart once chastised her for going outside to look at a rainbow, but that her coworkers were routinely allowed to go outside for cigarette breaks on company time. Cathcart also refused to give her keys to the facility. Finally, when she moved to First North, plaintiff was given an office that was formerly a storage closet. The office was uncarpeted and had no windows. In addition, it was located next to a bathroom, forcing plaintiff to hear "people defecating and urinating" throughout the day. Plaintiff was assigned to this office despite her seventeen years of seniority and the availability of more desirable office spaces.

Plaintiff also claims that Cathcart demonstrated a predisposition against "people of color" during the period that she was employed by defendant under his supervision. Specifically, plaintiff testified regarding four separate displays of this predisposition. First, when Cathcart learned that plaintiff's son had been accepted to medical school, he allegedly stated that "there are enough Indian doctors already." Second, Cathcart allegedly complained about the accent of an Indian psychiatrist, stating that "these people have been here long enough, they ought to speak good English." Third, Cathcart allegedly stated that he would not have hired an African-American nurse if a white candidate had been available. Finally, Cathcart allegedly used a racially derogatory term when referring to African-Americans. Cathcart denies making any of these statements. On July 21, 1995, plaintiff brought this action under the Civil Rights Act, M.C.L. § 37.2101 et seq., claiming that her promotion denials and poor treatment were due to national-origin discrimination and were in retaliation for engaging in activities protected by the act. Plaintiff originally claimed retaliatory discrimination based solely on the union grievance claiming national-origin discrimination. She later amended her complaint to allege that she was also retaliated against for opposing sexual harassment. Defendant denied the allegations and asserted that some of the allegations were barred by the three-year period of limitations. M.C.L. § 600.5805(1) and (10). Defendant moved for partial summary disposition on that basis, but the trial court denied the motion, citing the "continuing violations" doctrine adopted in Sumner.

Following a three-week trial, the jury found that plaintiff was not discriminated against because of national origin or color....