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Rymal v. Baergen6/8/2004
FOR PUBLICATION
In Docket No. 248124, plaintiff appeals as of right the trial court's order granting summary disposition in favor of defendants Herman Baergen and MTD System, Inc., with respect to plaintiff's claims of sexual harassment and retaliation in the workplace brought pursuant to the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq. In Docket No. 243795, defendants Clark Products, Inc., and Clark Food Service, Inc., (hereinafter collectively referred to as "Clark") appeal by leave granted an order disqualifying Clark's counsel that was rendered by the trial court on the basis of a conflict of interest. Because there exists genuine issues of material fact in regard to all of plaintiff's claims against defendants Baergen and MTD, and because Baergen can be held individually liable solely for the retaliation claim under this Court's decision in Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464; 652 NW2d 503 (2002), we affirm in part and reverse in part the grant of summary disposition in Docket No. 248124 and remand for further proceedings. Because there was a lack of evidence showing a conflict of interest or improper use of confidential information requiring disqualification, and because Baergen expressly consented to counsel's continued participation should a conflict be discovered, we reverse the order disqualifying Clark's counsel in Docket No. 243795.
I. FACTUAL ALLEGATIONS and PROCEDURAL HISTORY
A. Plaintiff's Complaint
On July 26, 2001, plaintiff filed a two-count complaint against all defendants. The complaint alleged that plaintiff commenced her employment with Clark in 1983 as an accounts receivable manager. She later became an office manager, assistant division manager, acting division manager, and subsequently, in 1993, a sales manager. Baergen was an employeesupervisor of Clark having authority over plaintiff. During plaintiff's and Baergen's tenure with Clark, they formed MTD Systems, which plaintiff refers to as her employer, along with Clark. MTD is in the business of picking up movies from distribution points and delivering the movies to various theaters.
Plaintiff alleged that in October 1999, Baergen propositioned plaintiff to have a sexual relationship, and she declined. Shortly thereafter, Baergen asked plaintiff to sign a non-compete agreement that would reflect a promise not to engage in any business that was competitive with Clark. Plaintiff alleged that the request was an act of harassment and was made because of plaintiff's refusal to comply with Baergen's sexual advances. Plaintiff did not sign the non-compete agreement.
Further, plaintiff averred that, beginning in November 1999, Baergen started reassigning plaintiff's duties to other persons. These duties included creation of advertisements, approval of vacation requests, and assignment of new account leads to sales people. Additionally, plaintiff alleged that Baergen removed her as liaison to several customers, thereby interfering with sales commissions, questioned her about her work hours, and pressured plaintiff to relinquish her management position. Moreover, Baergen became verbally abusive and once became so enraged, because he thought plaintiff was on the phone too long, that he punched a wall in plaintiff's office, requiring him to seek medical attention. Plaintiff averred that Baergen started accusing her of having sexual relations with customers to obtain their business, and that she spent her lunch hours having sex with various men.
The complaint alleged that in January 2000, plaintiff demanded a sales review and a formal description of her job duties and responsibilities in response to a complaint that she was inadequa
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