Lichon v. Morse
| Decision Date | 14 March 2019 |
| Docket Number | No. 339972, No. 341082, No. 340513,339972 |
| Citation | 933 N.W.2d 506,327 Mich.App. 375 |
| Parties | Samantha LICHON, Plaintiff-Appellant, v. Michael MORSE, and Michael J. Morse, PC, Defendant-Appellees. Jordan Smits, Plaintiff-Appellant, v. Michael Morse, Defendant-Appellee. Jordan Smits, Plaintiff-Appellant, v. Michael Morse, and Michael J. Morse, PC, Defendant-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Fieger, Fieger, Kenney & Harrington, PC (by Geoffrey N. Fieger, Southfield and Sima G. Patel) for plaintiffs.
Deborah Gordon Law (by Deborah L. Gordon and Benjamin I. Shipper, Bloomfield Hills) and Starr, Butler, Alexopoulos & Stoner, PLLC (by Joseph A. Starr, Bloomfield Hills and Thomas Schramm, Detroit) for defendants.
Before: Jansen, P.J., and Beckering and O'Brien, JJ.
In Docket No. 339972, referred to by the parties as the Lichon case , plaintiff, Samantha Lichon (Lichon), appeals as of right the June 22, 2017, order granting summary disposition in favor of defendants, Michael Morse (Morse) and Michael J Morse, PC (the Morse firm), and compelling arbitration. We reverse, vacate the Oakland Circuit Court’s June 22, 2017 order, and remand for proceedings consistent with this opinion.
In Docket No. 341082, referred to by the parties as Smits I , plaintiff, Jordan Smits (Smits), appeals as of right the July 18, 2017 written order and opinion granting summary disposition in favor of defendants and compelling arbitration. We reverse, vacate the Wayne Circuit Court’s July 18, 2017 written opinion and order, and remand for proceedings consistent with this opinion.
In Docket No. 340513, referred to by the parties as Smits II , Smits appeals as of right the October 2, 2017 order granting summary disposition in favor of Morse. We affirm.
Docket Nos. 339972, 341082, and 340513 were consolidated by this Court in an order dated December 27, 2017. Lichon v. Morse , unpublished order of the Court of Appeals, entered December 27, 2017 (Docket Nos. 339972, 340513, and 341082). The parties have filed consolidated briefs on appeal, and this Court will address the merits of the cases together when possible.
The Lichon case arises out of Morse’s alleged sexual assault and harassment of Lichon while Lichon was working for the Morse firm as a receptionist. Lichon alleges that Morse frequently sexually harassed her through unwelcome comments or conduct of an offensive or sexual nature. Lichon alleges that on multiple occasions, Morse sexually assaulted her during work hours by physically touching her in a sexual manner without her permission. According to Lichon, the unwanted touching included groping Lichon’s breasts and groin area, while making comments including " ‘you make me so hard’ " and " ‘I want to take you into my office.’ " Lichon claimed that she "complained to her superiors," and to the human resources department at the Morse firm, but no action was taken and the sexual assaults and sexual harassment continued. On February 17, 2017, Lichon was terminated from the Morse firm because of poor professional performance.
On May 24, 2017, Lichon filed a four-count complaint against the Morse firm and against Morse individually. Lichon alleged workplace sexual harassment in violation of the Elliott-Larsen Civil Rights Act (the ELCRA), MCL 37.2101 et seq ., against the Morse firm and Morse; sexual assault and battery against Morse individually; negligent and intentional infliction of emotional distress against the Morse firm and Morse; and negligence, gross negligence, and wanton and willful misconduct against the Morse firm and Morse. On May 26, 2017, Lichon filed a first amended complaint, adding a fifth count of civil conspiracy against the Morse firm and Morse, alleging that defendants had sought to intimidate, pressure, or attempt to persuade or coerce her not to file a lawsuit.
In lieu of an answer, defendants moved to dismiss and compel arbitration, arguing that as a condition of her employment, Lichon had signed a Mandatory Dispute Resolution Procedure agreement (MDRPA), which requires Lichon to arbitrate her claims. Because Lichon’s claims arise out of her "employment with and termination from" the Morse firm, pursuant to MCR 2.116(C)(7) and MCR 3.602, defendants requested that the Oakland Circuit Court "compel [Lichon] to prosecute her claims exclusively by way of compulsory and binding arbitration and to dismiss this action."
The MDRPA, signed by Lichon on September 29, 2015, provides, in pertinent part:
The dispute-resolution procedure is outlined as follows: first, within one year an employee must file with a direct supervisor a "request for review of your concern stating your disagreement or concern and the action you request the Firm to take." The supervisor will date the request, provide the employee with a copy, and then "generally schedule a meeting with [the employee] to hear [the employee’s] concerns and will provide [the employee] with a written decision within" 15 business days. Second, if the dispute is not resolved to the employee’s satisfaction, a written request for review must be filed directly with Morse within 15 days. Morse, or his "designated representative," will issue a written decision within 15 days. If the employee is still not satisfied, the final recourse is to submit a written request for arbitration to the firm within 15 days, and the employee "must deposit with the Firm $500.00 or Five (5) Days' pay, whichever is less."
Lichon responsed, arguing that her claims are related to the "sexual assault and harassment that she suffered at the hands of" Morse and accordingly do not " ‘arise out of her employment and termination’ " from the Morse firm. Lichon asserted that simply because a sexual assault happened at work does not mean that it is related to the plaintiff’s employment and, in particular, that "[b]eing the victim of sexual assault has no relationship with [Lichon’s] employment obligations as a receptionist, and is not a foreseeable consequence of her employment." She further argued that in fact the arbitration agreement Thus, Lichon asserted that she is not required to arbitrate her claims.
The Oakland County Court held a hearing on defendants’ motion on June 21, 2017. The parties argued consistently with their briefs. At the end of the hearing, the court granted defendants’ motion, concluding on the record:
I find that this is a valid and enforceable arbitration agreement. I find that all of plaintiff’s claims are inextricably intertwined and therefore all fall within the arbitration agreement and the workplace policies. I also find that Michael Morse named individually is also bound by the terms of the arbitration agreement as her employer of Michael Morse, P.C., and I'm sending all of the claims to arbitration granting defendant[s'] [summary disposition] motion.
An order to the same effect was entered on June 22, 2017. Lichon moved for reconsideration; the court denied the motion in an order dated August 18, 2017. This appeal followed.
Smits I and Smits II share an identical fact pattern and arise out of Morse’s alleged sexual assault of Smits while Smits was working for the Morse firm as a paralegal. In December 2015, the Morse firm held a company Christmas party for all staff at the Masonic Temple in Detroit, Michigan. According to Smits, during that party, Morse approached her from behind and grabbed her breasts in front of two other senior attorneys. Smits immediately removed Morse’s hands from her breasts.
In January 2016, Smits reported the incident to the human resources department of the Morse firm. However, a representative from human resources told Smits that " ‘her number one priority [was] to protect Morse’s reputation.’ " Smits then "expressed her concerns" to one of the attorneys who had witnessed Morse sexually assault her. That attorney responded, " ‘[W]hat was I supposed to do, you know how Michael is.’ " In February 2016, Smits...
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