Mack v. City of Detroit
| Decision Date | 31 July 2002 |
| Docket Number | Docket No. 118468, Calendar No. 2. |
| Parties | Linda MACK, Plaintiff-Appellee, v. The CITY OF DETROIT, a Michigan Municipal Corporation, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Macuga & Liddle, P.C. (by Peter W. Macuga, II, and David R. Dubin) Detroit, for the plaintiff-appellee.
City of Detroit Law Department (by Daryl Adams and Valerie A. Colbert Osamuede) Detroit, for the defendant-appellant.
Plaintiff alleges in this action that she was discriminated against in her employment as a Detroit police officer on the basis of her sex and sexual orientation in violation of the declaration of rights contained in the Charter of the city of Detroit. Plaintiff further contends that the charter creates a private cause of action allowing recovery for violation of the rights set forth in it. Assuming the charter provides no explicit private right of recovery, plaintiff alternatively urges this Court to create, as a cumulative remedy available under the charter, such a cause of action.
We hold that regardless of whether the charter provides a private cause of action against the city for sexual orientation discrimination, such a cause of action would contravene the governmental tort liability act (GTLA), M.C.L. § 691.1407. Accordingly, we do not accept plaintiff's invitation to recognize such a cause of action.
Further, because the plaintiff failed to plead a recognized claim in avoidance of governmental immunity, her sexual orientation discrimination claim should have been dismissed. Governmental immunity is a characteristic of government and thus a plaintiff must plead her case in avoidance of immunity. To the extent that it holds otherwise, McCummings v. Hurley Medical Ctr., 433 Mich. 404, 446 N.W.2d 114 (1989), is overruled.
Accordingly, we reverse the Court of Appeals decision, reinstate the trial court's order of summary disposition in favor of the city of Detroit regarding the sexual orientation claim, and remand the case to the Court of Appeals for reconsideration of the sex discrimination claim in light of this opinion.1
In 1974, plaintiff was hired by the city as a police officer. During the course of her employment, she attained the status of lieutenant and held the positions of acting inspector, acting command lieutenant, acting administrative lieutenant, and acting inspector of the sex crimes unit. The claims before the Court arose during plaintiff's tenure with the sex crimes unit.
Plaintiff alleges that, while working in the sex crimes unit, she was repeatedly propositioned by male supervisors for sex and that she rebuffed the unwelcome advances, in part because she is a lesbian. Plaintiff complained to her superiors, who allegedly refused to take any action because of her sexual orientation. Plaintiff also claims that she endured further discrimination and harassment as a result of her sexual orientation. Specifically, she complains that the police department gave her an afternoon desk job answering phones, prohibited her from participating in any investigative work, and restricted her from taking more than two weekends off a month. She has since retired from the police force.
Plaintiff filed suit, alleging intentional infliction of emotional distress and violations of the charter of the city of Detroit. Regarding the latter claims, plaintiff maintained that the city violated § 2 of the charter's declaration of rights by discriminating on the basis of sex and sexual orientation.2 The city moved for summary disposition, asserting that plaintiff failed to state a claim upon which relief can be granted, MCR 2.116(C)(8). Specifically, the city argued that plaintiff's tort claims were barred by governmental immunity and that the city charter did not give plaintiff a private cause of action. The trial court agreed with the city and granted its motion for summary disposition. Plaintiff appealed, arguing that the violation of the rights guaranteed by the city charter created a private cause of action.3
In a two-to-one decision, the Court of Appeals reversed, holding that plaintiff had a private cause of action for sex and sexual orientation discrimination. The majority reasoned that there is an express civil right to be free from employment discrimination based on one's sex arising under the Civil Rights Act, M.C.L. § 37.2101 et seq., and that the city extended that protection to its charter.4 Relying on Pompey v. General Motors, 385 Mich. 537, 189 N.W.2d 243 (1971), the majority concluded that equal opportunity in the pursuit of employment was a protected right, and because the city extended that protection to include sexual orientation discrimination, the courts could recognize, as a cumulative remedy, a civil action for such a claim.
The dissent opined that it was not clear that a city had authority to create a cause of action and questioned whether Pompey should be extended to rights created by city charters.
The city appealed the Court of Appeals holding that the judiciary could recognize a private cause of action for sexual orientation discrimination. We granted leave to appeal. 464 Mich. 874, 630 N.W.2d 624 (2001).
The issues presented are whether the city charter may create a cause of action against the city for sexual orientation discrimination in the face of state governmental immunity law and whether governmental immunity is an affirmative defense or a characteristic of government so that a plaintiff must plead in avoidance of it. These are questions of law that the Court reviews de novo. Burt Twp. v. Dep't of Natural Resources, 459 Mich. 659, 662-663, 593 N.W.2d 534 (1999). We also review a trial court's decision to grant or deny a motion for summary disposition de novo. Beaudrie v. Henderson, 465 Mich. 124, 129, 631 N.W.2d 308 (2001). Because this is a motion for summary disposition brought under MCR 2.116(C)(8), we test the legal sufficiency of the complaint on the basis of the pleadings alone. Id.
Plaintiff contends that the charter expressly creates a private cause of action for sexual orientation discrimination.5 However, whether the charter attempted to create a private cause of action for sexual orientation, discrimination is an irrelevant inquiry because we hold that the charter could not create a cause of action against the city without contravening state governmental immunity law.6 Const 1963, art 7, § 22 governs the authority of a city to enact a charter:
Under general laws the electors of each city and village shall have the power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or enacted by the legislature for the government of the city or village. Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law. No enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section. [Emphasis added.]
Thus, although art 7, § 22 grants broad authority to municipalities, it clearly subjects their authority to constitutional and statutory limitations.7
One such statutory limitation involves governmental immunity. In the governmental tort liability act (GTLA), the Legislature expressly stated that "[e]xcept as otherwise provided in this act, a governmental agency is immune from tort liability if [it] is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). Accordingly, a governmental agency is immune unless the Legislature has pulled back the veil of immunity and allowed suit by citizens against the government. The GTLA allows suit against a governmental agency in only five areas.8 However, there are other areas outside the GTLA where the Legislature has allowed specific actions against the government to stand, such as the Civil Rights Act.9 Further, municipalities may be liable pursuant to 42 USC 1983. Monell v. New York City DSS, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
However, none of the exceptions where a suit is allowed against the government can be read to allow suit for sexual orientation discrimination. Likewise, no statute grants governmental agencies the authority to create an immunity exception for sexual orientation discrimination or waive immunity in the area of civil rights. Notably, the CRA, which makes a municipality liable for specific civil rights violations, neither provides a cause of action for sexual orientation discrimination nor grants municipalities the authority to create one. MCL 37.2101 et seq.10 Moreover, the CRA limits complaints to causes of action for violations of the act itself:
A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both. [MCL 37.2801(1) (emphasis added).]11
In sum, without some express legislative authorization, the city cannot create a cause of action against itself in contravention of the broad scope of governmental immunity established by the GTLA. No such legislative act has recognized sexual orientation discrimination claims. Accordingly, this Court declines to circumvent the limitations placed on a municipality by the Legislature and recognize a cause of action against the city for sexual orientation discrimination.12
Because the city abandoned its assertion of governmental immunity to this Court and the law regarding the nature of governmental immunity has been misguided for some time, we will address the viability of plaintiff's complaint here as it pertains to governmental immunity.13
A governmental agency is immune from tort liability if the governmental...
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