Meyer v. City of Center Line

• Decision Date: 16 November 2000
• Docket Number: Docket No. 209280,Docket No. 212506.
• Citation: 619 N.W.2d 182,242 Mich. App. 560
• Parties: Carrie MEYER, Plaintiff-Appellant, v. CITY OF CENTER LINE, City of Warren, Lieutenant Arthur Rostow, Jim Conrad, Gerald Solai, and Thirty Seventh District Court, Defendants-Appellees, and Sergeant Hughes and Phil Smart, Defendants.
• Court: Court of Appeal of Michigan — District of US

619 N.W.2d 182

242 Mich. App. 560

Carrie MEYER, Plaintiff-Appellant, v. CITY OF CENTER LINE, City of Warren, Lieutenant Arthur Rostow, Jim Conrad, Gerald Solai, and Thirty Seventh District Court, Defendants-Appellees, and Sergeant Hughes and Phil Smart, Defendants.

Docket Nos. 209280, 212506.

Court of Appeals of Michigan.

Submitted June 13, 2000, at Detroit.

Decided September 15, 2000, at 9:10 a.m.

Released for Publication November 16, 2000.

Lucetta V. Franco, Birmingham, for Carrie Meyer.

O'Connor, DeGrazia & Tamm, P.C. (by Julie McCann O'Connor and James I. De Grazia ), Bloomfield Hills, for city of Center Line, Arthur Rostow and Gerald Solai.

Garan, Lucow, Miller & Seward, P.C. (by Rosalind Rochkind), Detroit, for 37th District Court and Jim Conrad.

Before: MARKEY, P.J., and DOCTOROFF and MURPHY, JJ.

PER CURIAM.

In this action alleging sex discrimination and retaliation under the Civil Rights Act, M.C.L. § 37.2101 et seq.; MSA 3.548(101) et seq., plaintiff appeals as of right from a Macomb Circuit Court judgment of no cause of action in favor of defendants. We affirm in part and reverse in part.

Plaintiff was employed by the 37th District Court as a file clerk. She was later assigned to an accounting position at the 37th District Court's location in the city of Center Line. After being denied a position as a reserve police officer with the city of Center Line, plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that she was improperly denied the position because she was a woman. The EEOC ultimately found that plaintiff failed to establish a civil rights violation.

Plaintiff alleged that, while the EEOC proceedings were pending, Jim Conrad, the administrator of the 37th District Court, told her that he had heard that she had filed a lawsuit against the city of Center Line and that the fact that she had filed the lawsuit might affect her position at the court. Plaintiff further alleged that, thereafter, she was subjected to a series of demotions, that she was subjected to harassment by co-workers, and that Conrad failed to take action in response to her complaints of harassment. As a result, plaintiff suffered from depression and anxiety, which eventually forced her to quit her job at the 37th District Court.

Thereafter, plaintiff filed the instant case. Plaintiff's claims of sex discrimination and retaliation against the city of Center Line, Reserve Lieutenant Arthur Rostow, and Director of Public Safety Gerald Solai, and plaintiff's retaliation claim against the 37th District Court and Conrad went to trial. The jury returned a verdict finding that the city of Center Line discriminated against plaintiff, but that the discrimination was not the cause of any injury for which damages could be awarded to the plaintiff. The jury further found that none of the defendants retaliated against plaintiff. A judgment of no cause of action was entered against plaintiff.

On appeal, plaintiff first argues that the trial court erred in denying her motion for a new trial brought on the ground that the trial court's answer to a question from the jury and the subsequent loss of the note containing the question and answer were prejudicial. We disagree. A trial court's decision regarding a motion for a new trial is reviewed for an abuse of discretion. Setterington v. Pontiac General Hosp., 223 Mich.App. 594, 608, 568 N.W.2d 93 (1997).

According to testimony given at the hearing on plaintiff's motion for a new trial, the jury sent out a note during its deliberations asking whether, once it answered "no" to a certain question on the verdict form, it was required to continue to answer the remaining questions. The trial judge indicated that he wrote the response "no" on the jury's note, and the deputy delivered the written response to the jury. Thereafter, the trial judge informed counsel of the note and his response, and counsel did not object to his handling of the note. Plaintiff's counsel claims that the note was never discussed with counsel and that the loss of the note violated MCR 6.414(A), which provides that the court may not communicate with the jury with respect to the case without notifying the parties and permitting them to be present and that the court must ensure that all communications pertaining to the case between the court and the jury be made part of the record.

We note, however, that MCR 6.414(A) is a rule of criminal procedure pertaining to the court's responsibility during criminal jury trials and is not applicable to the civil trial conducted in the instant case. The rule of civil procedure governing the conduct of trials, MCR 2.507, does not contain similar provisions. Furthermore, an ex parte communication between a judge and the jury requires reversal only where the reviewing court determines that a party has been prejudiced by the communication. People v. France, 436 Mich. 138, 163, 461 N.W.2d 621 (1990).¹ Before a court can determine whether a communication was prejudicial, it must first determine whether the communication was substantive, administrative, or housekeeping. Id. Here, the trial court's communication was administrative because it instructed the jury regarding the manner in which it should complete the verdict form, but it did not instruct the jury on substantive law. Id. An administrative communication has no presumption of prejudice. Id. Plaintiff's failure to object when the judge informed counsel of the communication is evidence that the communication was not prejudicial. Id. Moreover, plaintiff has not explained how she was prejudiced by the court's answer to the jury's question and we see no prejudice resulting from the trial court's answer to the jury's question. Therefore, the trial court did not abuse its discretion in denying plaintiff's motion for a new trial based on the court's answer to the jury's question.

Plaintiff next argues that the trial court erred in giving a supplemental jury instruction regarding the retaliation claim. We disagree. We review jury instructions in their entirety to determine whether they accurately and fairly presented the applicable law and the parties' theories. Head v. Phillips Camper Sales & Rental, Inc., 234 Mich.App. 94, 101, 593 N.W.2d 595 (1999). Because plaintiff failed to object to the instruction on the record before the jury retired to deliberate, MCR 2.516(C), this Court will review the issue only where necessary to avoid manifest injustice. Phinney v. Perlmutter, 222 Mich.App. 513, 557, 564 N.W.2d 532 (1997).

The trial court gave the following instructions regarding the retaliation claim against the city of Center Line, Arthur Rostow, and Gerald Solai:

Plaintiff also claims that the City of Center Line, and/or Arthur Rostow and/or Gerald Solai, that they, one or all, retaliated against her in violation of the Michigan Elliot Larsen Civil Rights Act.

In order to establish a case for retaliation Plaintiff must prove the following; that she engaged in protective [sic] activity which is the filing of EEOC charges against the City of Center Line; that her protected activity was known to her employer; that her employer retaliated against her, and that there was a causal connection between the protective [sic] activity and the retaliation.

Counsel, may I see you, please.

(Bench conference.)

Ladies and gentlemen, I need to add an instruction here. That in reading the instruction on retaliation as to the City of Center Line, Arthur Rostow and Gerald Solai, I don't believe that this instruction meets the law. And so I would add one other condition. I will write it in. And that—that there must be a connection between the City of Center Line and/or Arthur Rostow and Gerald Solai that causes the 37th District Court to retaliate.

The fact, if you would find that the 37th District Court retaliated that they did it on their own without input from the City of Center Line, Reserve Lt. Arthur Rostow or Director Solai, then of course, they couldn't be charged with retaliation. And that possibility of circumstances is not contained in this instruction. So I give that to you separately at this time so that you have a correct statement. And I'll write that in as item five. [Emphasis added.]

Supplemental instructions may be given on applicable law not covered by the jury instructions. MCR 2.516(D)(4); Bordeaux v. Celotex Corp., 203 Mich.App. 158, 169, 511 N.W.2d 899 (1993). Supplemental instructions "must be modeled as nearly as practicable after the style of the SJI, and must be concise, understandable, conversational, unslanted, and nonargumentative." MCR 2.516(D)(4).

Here, when the instructions are read as a whole, they accurately and fairly presented the applicable law and the parties' theories. Head, supra.

The supplemental instruction merely explained that, if the jury found that the 37th District Court retaliated, but that its retaliation was not the result of any action or encouragement on the part of the city of Center Line, Rostow, or Solai, then the city of Center Line, Rostow, and Solai could not be held liable for the retaliation. While we agree that the court's use of the term "they" in the last paragraph of the instruction to refer to the 37th District Court made the instruction somewhat unclear, the instruction was understandable and correctly presented the law to the jury. Similarly, contrary to plaintiff's argument, we find no error in the court's use of the term "input." In the context in which it was used, the term was understandable and was not vague. Accordingly, no manifest injustice resulted from the trial court's supplemental instruction.

Next, plaintiff claims that the trial court erred in excluding from evidence sixteen offensive notes or cartoons that were allegedly left on her desk or around her work station where the documents were relevant to demonstrating an adverse employment action for the purpose of establishing her retaliation claim. We agree. A trial court's...