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Rymal v. Baergen6/8/2004
ystems Corp, 266 F Supp 2d 623 (ED Mich, 2003). The federal court was faced with the exact question posed to us, i.e., whether there is individual liability under the antiretaliation provision of the CRA in the face of Jager. In regard to the all-encompassing language set forth in Jager, the Poches court stated:
Jager 's analysis rests entirely and exclusively upon the "employer" language found in the Elliott-Larsen Act's anti-discrimination provision. It follows, in this Court's view, that Jager does not purport to construe other provisions in the Act, such as the anti-retaliation provision, which are not directed solely at employers. As Jager itself recognizes, the Michigan Legislature "could have expressly stated" its intention to impose "individual, rather than employer, liability," but chose not to do so in the Act's anti-discrimination provision. The anti-retaliation provision, in contrast, does express this legislative intent, through its reference to "persons" rather than "employers." Accordingly, just as Jager 's holding rests on the language of the statutory provision at issue in that case, this Court's ruling rests on the different language of the statutory provision at issue here. [ Poches, supra at 627 (citation omitted; emphasis in original).]
The federal court in Poches concluded that the antiretaliation provision of the CRA, ยง 2701, authorized the imposition of individual liability for impermissible retaliatory acts. Id. at 628. We also so conclude. If this is not what the Legislature intended by its use of different terms in the two provisions, it is up to the Legislature to amend accordingly and not a matter for this Court.
Defendants argue, however, that plaintiff failed to even plead a retaliation claim. This argument lacks merit. We first note that the trial court ruled that plaintiff did in fact, although unartfully, plead a claim of retaliation. A portion of the argument presented by defendants relies on deposition testimony and relates to issues of fact, which are not pertinent to whether plaintiff pleaded a claim. A review of plaintiff's complaint indicates that a cause of action for retaliation was sufficiently plead.
In DeFlaviis v Lord & Taylor, Inc , 223 Mich App 432, 436; 566 NW2d 661 (1997), this Court stated that " o establish a prima facie case of unlawful retaliation under the Civil Rights Act, a plaintiff must show (1) that he engaged in a protected activity; (2) that this was known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action." (Citations omitted). Paragraphs 15 and 16 of the complaint alleged:
Plaintiff contacted Brian Fraser, Executive Vice President/General Counsel/Human Relations Director for the Clark defendants to complain of defendant Baergen's treatment toward her. Mr. Fraser stated he would be in Detroit and would meet with plaintiff at that time. Although Mr. Fraser came to Detroit, he never spoke with plaintiff despite her attempts to meet with him.
After plaintiff's attempts to speak with Brian Fraser, defendant Baergen refused to pay an expense voucher for plaintiff and removed her expense account entirely. Defendant Baergen also lowered her duties to those of an administrator.
Plaintiff's complaint further alleged that she was "retaliated against by defendants' agent and employee, Defendant Baergen, throughout the course of her employment." Although the complaint makes a single reference to the retaliation constituting sexual discrimination, we opine that the complaint was sufficient to inform defendants and place them on
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