Slayton v. Michigan Host, Inc., Docket No. 59710

• Decision Date: 06 May 1983
• Docket Number: Docket No. 59710
• Citation: 43 Fair Empl.Prac.Cas. (BNA) 1164,122 Mich.App. 411,332 N.W.2d 498
• Parties: Donna Mae SLAYTON, Plaintiff-Appellant, v. MICHIGAN HOST, INC., a Delaware corporation, Jack Vogel and Betty Twill, Defendants-Appellees. 122 Mich.App. 411, 332 N.W.2d 498, 43 Fair Empl.Prac.Cas. (BNA) 1164, 32 Empl. Prac. Dec. P 33,663
• Court: Court of Appeal of Michigan — District of US

Page 498

332 N.W.2d 498

Donna Mae SLAYTON, Plaintiff-Appellant, v. MICHIGAN HOST, INC., a Delaware corporation, Jack Vogel and Betty Twill, Defendants-Appellees.

Docket No. 59710.

122 Mich.App. 411, 332 N.W.2d 498,

43 Fair Empl.Prac.Cas. (BNA) 1164,

32 Empl. Prac. Dec. P 33,663

Court of Appeals of Michigan.

Submitted July 21, 1982.

Decided Jan. 10, 1983.

Released for Publication May 6, 1983.

[122 MICHAPP 413] Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Richard E. Shaw, Detroit, for plaintiff-appellant.

[122 MICHAPP 414] Butzel, Long, Gust, Klein & VanZile, P.C. by Donald B. Miller, Detroit, for defendants-appellees.

Before CAVANAGH, P.J., and RILEY and HOEHN ^*, JJ.

CAVANAGH, Presiding Judge.

Plaintiff was employed as a waitress by defendant Michigan Host, Inc.; defendants Vogel and Twill were her supervisors. Prior to this action, the plaintiff and other female employees sued defendant Michigan Host in federal court, alleging that the work uniform requirement of high-heeled shoes and a short skirt was discriminatory and subjected them to sexual harassment. The action was dismissed without prejudice. Plaintiff then brought this present suit in circuit court, alleging gender discrimination and harassment and alleging that defendant Michigan Host forced her to quit her job in retaliation for her suit in federal court. She also alleged that defendants Vogel and Twill, through the uniform policy of defendant Michigan Host, intentionally inflicted emotional distress upon her and that they intentionally interfered with her contract of employment by forcing her to resign. Defendants moved for accelerated judgment pursuant to GCR 1963, 116.1(2), claiming that the circuit court lacked subject matter jurisdiction over the controversy because the plaintiff's exclusive remedy was to seek compensation under the Worker's Disability Compensation Act. Defendant's motion for accelerated judgment was granted, and the plaintiff now appeals by right.

Plaintiff argues that the Legislature did not intend discrimination claims brought under the Elliott-Larsen Civil Rights Act, M.C.L. Sec. 37.2101 et [122 MICHAPP 415] seq.; M.S.A. Sec. 3.548(101) et seq., to be heard by the Bureau of Workers' Disability Compensation but rather intended such claims to be brought in circuit court. Defendant counters that the exclusive remedy provision of the Worker's Disability Compensation Act bars the plaintiff's suit in circuit court because the plaintiff's alleged injuries are covered by the act.

The Worker's Disability Compensation Act provides that: "The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer." M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131). When an employee suffers "a personal injury arising out of and in the course of [the injured party's] employment", physical and mental disabilities are compensable under the act. ¹ M.C.L. Sec. 418.301; M.S.A. Sec. 17.237(301); Cole v. Dow Chemical Co., 112 Mich.App. 198, 204, 315 N.W.2d 565 (1982). Furthermore, if a plaintiff alleges both injuries covered by the act and injuries not covered by the act, he or she must pursue the workers' compensation remedy for those injuries covered by the act. Cole, supra, p. 206, 315 N.W.2d 565; Stimson v. Michigan Bell Telephone Co., 77 Mich.App. 361, 369, 258 N.W.2d 227 (1977).

To begin with, we agree with the defendants that the applicability of the exclusive remedy provision of the act turns not upon the characterization of the asserted cause of action but upon whether the employee has a right to recover benefits under the act. Stimson, supra, p. 367, 258 N.W.2d 227. Therefore, the fact that the plaintiff's suit is based on a discrimination claim is not dispositive of which forum should hear the case. A civil suit for damages based upon an alleged violation of the plaintiff's[122 MICHAPP 416] right to employment without sex discrimination is in the nature of a tort action and, as such, concerns a personal injury to the plaintiff. Stimson, supra, fn. 3, p. 366, 258 N.W.2d 227. The act provides compensation for disabilities resulting from a personal injury suffered by an employee during the course of his or her employment. Thus, certain elements of damages in a sex discrimination suit may be barred by the act's exclusive remedy provision, although generally a nonphysical tort such as sex discrimination falls outside the scope of the act. Stimson, supra, p. 366, 258 N.W.2d 227.

For example, if as a result of sex discrimination in employment a plaintiff suffers disabling mental and nervous injuries resulting in some psychoneurotic or psychotic condition, the plaintiff's mental injuries would result in a compensable injury under the act. See Deziel v. Difco Laboratories, Inc. (After Remand), 403 Mich. 1, 268 N.W.2d 1 (1978). The compensable injury would be the resulting disability; however, we agree with this Court's holding in Pacheco v. Clifton, 109 Mich.App. 563, 575, 311 N.W.2d 801 (1981), that any prior claims for mental suffering arising from the discrimination do not merge with the resulting disability claim. As the Court stated in Freeman v. Kelvinator, Inc., 469 F.Supp. 999, 1000 (E.D.Mich., 1979):

"The source of defendant's misconception is perhaps its belief that the...