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Rymal v. Baergen6/8/2004
William B. Murphy, Janet T. Neff.
Kelly, J. (Concurring in part and dissenting in part) .
I respectfully dissent from the majority's decision that the trial court erred in granting summary disposition of plaintiff's retaliation claim against defendants MTD System, Inc. and Herman Baergen. First, plaintiff did not properly plead a retaliation claim under the CRA. Second, even if she had properly pleaded a retaliation claim, she failed to establish that she was engaged in a protected activity under the CRA. Third, plaintiff failed to establish a causal connection between the telephone calls to Brian Fraser and the adverse employment action. Finally, within the context of employment discrimination, the plain language of CRA, read as a whole, does not provide a cause of action against individuals under either article 2 or article 7.
I. Standard of Review
"The decision to grant or deny summary disposition is a question of law that is reviewed de novo." Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). "The interpretation and application of a statutory provision is a question of law that is reviewed de novo by this Court." Id. The following rules apply to judicial interpretation of the CRA:
We read the CRA in light of the primary goal of judicial interpretation, which is to ascertain and give effect to the intent of the Legislature. If the plain and ordinary meaning of a statute is clear, judicial construction is neither necessary nor permitted. We may not speculate about the probable intent of the Legislature beyond the words expressed in the statute. If a statute provides its own glossary, the terms must be applied as expressly defined. When reasonable minds may differ with respect to the meaning of a statute, the courts must look to the object of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the purpose of the statute. [ Barrett v Kirtland Community College, 245 Mich App 306, 313-314; 628 NW2d 63 (2001) (citations omitted).]
II. Retaliation
To establish a prima facie case of retaliation under MCL 37.2701(a), a plaintiff must show:
(1) that the plaintiff 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. [ Meyer v Centerline, 242 Mich App 560, 568-569; 619 NW2d 182 (2000).]
I agree with the majority that plaintiff's complaint is "fairly cursory." Although the word "retaliation" appears in Count I, the term is merely used to describe conduct that plaintiff identifies as sexual discrimination in violation of the CRA. More specifically, the word "retaliation" appears three times in Count I of plaintiff's complaint:
22. Plaintiff was sexually harassed and retaliated against by defendants' agent and employee, Defendant Baergen, throughout the course of her employment.
23. This sexual harassment and retaliation included, but is not limited to, unwelcome comments and conduct of an offensive and sexual nature directed at plaintiff, the creation of a hostile work environment, as described herein and constructively terminating plaintiff's employment withholding pay commissions due to her, based on her refusal to engage in a sexual relationship with Defendant Baergen.
25. The conduct of defendants' agent and employee in sexually harassing and retaliating against plaintiff constitutes sexual discrimination in violation of MCLA 37.2101 et seq.
The alleged se
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