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Rymal v. Baergen6/8/2004
to hold that Baergen cannot be held individually liable for the sexual harassment claims asserted by plaintiff. Of course, plaintiff's former employer, defendant MTD, does not benefit from the decision in Jager. With regard to plaintiff's retaliation claim, however, we find that Baergen could indeed be held individually liable because Jager is distinguishable in that Jager specifically dealt with the interpretation of the language in the antidiscrimination provision of the CRA, and we are required to interpret the antiretaliation provision of the CRA that contains language variant from that relied on by the Jager panel.
As noted earlier, the antiretaliation provision of the CRA, MCL 37.2701, clearly prohibits " wo or more persons . . . or a person" from retaliating or discriminating against a person who has opposed a violation of the CRA or who has made a charge or lodged a complaint under the CRA. Contrary to MCL 37.2202(1), which prohibits an "employer" from engaging in discriminatory practices and which was the focus in Jager , § 2701 refers merely to a "person." And a "person" includes an "individual," MCL 37.2103(g), such as Baergen. The "employer" definition contained in § 2201(a), and referenced in § 2202(1), is simply not implicated in the antiretaliation provision of the CRA.
Reiterating the well-embedded rules of statutory construction in our jurisprudence, our Supreme Court in Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002), stated:
When faced with questions of statutory interpretation, our obligation is to discern and give effect to the Legislature's intent as expressed in the words of the statute. We give the words of a statute their plain and ordinary meaning, looking outside the statute to ascertain the Legislature's intent only if the statutory language is ambiguous. Where the language is unambiguous, "we presume that the Legislature intended the meaning clearly expressed - no further judicial construction is required or permitted, and the statute must be enforced as written." Similarly, courts may not speculate about an unstated purpose where the unambiguous text plainly reflects the intent of the Legislature. [Citations omitted.]
MCL 37.2701 could not be drafted in a manner that is any more clear or unambiguous; a "person" shall not retaliate, which by statute and necessity includes an individual, and thus the term invokes individual liability. There is no language that could conceivably be interpreted as limiting an action for retaliation under the CRA against only an employer. Giving effect to the Legislature's intent as expressed in the words of the statute leads us to the conclusion that a CRA retaliation claim under § 2701 can be maintained against individuals apart from employers. There is no need to look outside the statute to ascertain the Legislature's intent. We acknowledge that the Jager panel framed its holding with a broad brush, enunciating that individual liability is precluded under the CRA. But it is abundantly clear, and beyond any reasonable dispute, that the sole basis for the Court's ruling was the language found in the antidiscrimination provision of the CRA, and that the Court never referenced, addressed, or mentioned the antiretaliation provision of the CRA. The language in § 2701 is much broader than that in § 2202. As such, we find that the issue whether there is individual liability under the antiretaliation provision of the CRA was not determined in Jager , thereby giving us the opportunity to address the issue.
Although not binding authority, we find persuasive and agree with the decision by the United States District Court for the Eastern District of Michigan in Poches v Electronic Data S
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