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Kaiser v. Utica Community Schools11/20/2001
UNPUBLISHED
Plaintiffs Kaiser, Thompson and Froberger appeal as of right the circuit court's order granting defendant's motion for summary disposition of plaintiffs' age discrimination claims under MCR 2.116(C)(7) (statute of limitations). Plaintiffs Beckingham-Okragleski, Rose and Hotton-Lykins appeal as of right the order dismissing their age discrimination claims under MCR 2.116(C)(10). We affirm.
I.
Plaintiffs Kaiser, Thompson and Froberger argue that their age discrimination claims are not barred by the three-year statute of limitations, see MCL 600.5805(9), because the continuing violation doctrine is applicable to their claims. We disagree.
Whether a claim is within the period of limitation is a question of law that we review de novo. Solowy v Oakwood Hosp Corp, 454 Mich 214, 216; 561 NW2d 843 (1997). This Court also reviews de novo a decision on a motion for summary disposition. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). When reviewing a motion for summary disposition under MCR 2.116(C)(7), "the contents of the complaint are accepted as true unless contradicted by documentation submitted by the movant." Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999), citing Patterson v Kleiman, 447 Mich 429, 434 n 6; 526 NW2d 879 (1994). " movant . . . is not required to file supportive material, and the opposing party need not reply with supportive material," but the reviewing court must consider such material if it is submitted. Maiden, supra at 119, citing MCR 2.116(G)(5). If the pleadings or documentary evidence reveal no genuine issues of material fact, the reviewing court must decide whether the claim is statutorily barred as a matter of law. Holmes v Michigan Capital Medical Center, 242 Mich App 703, 706; 620 NW2d 319 (2000); Novak v Nationwide Mut Ins Co, 235 Mich App 675, 681-682; 599 NW2d 546 (1999).
Under the continuing violation doctrine, "an alleged timely actionable event will allow consideration of and damages for connected conduct that would be otherwise barred." Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 510; 398 NW2d 368 (1986). Application of the continuing violation doctrine is appropriate where a plaintiff demonstrates either a policy of discrimination or a continuing course of discriminatory conduct. Id. at 528. See also Jackson v Quanex Corp, 191 F3d 647, 667 (CA 6, 1999), citing Sumner, supra, and Kresnak v Muskegon Heights, 956 F Supp 1327, 1331 (WD MI, 1997), citing Dixon v Anderson, 928 F2d 212, 216 (CA 6, 1991). The Sumner Court discussed the subtheories of the continuing violation doctrine:
The first subtheory involves allegations that an employer has engaged in a continuous policy of discrimination. In such a case, the plaintiff is alleging that "he is challenging not just discriminatory conduct which has affected him, but also, or alternatively, the underlying employment system which has harmed or which threatens to harm him and other members of his class." Schlei & Grossman, [Employment Discrimination Law,] p 901.
The second subtheory, the "continuing course of conduct" or "series of events" situation is relevant where an employee challenges a series of allegedly discriminatory acts which are sufficiently related so as to constitute a pattern, only one of which occurred within the limitation period. [Sumner, supra at 528.]
The Sumner court emphasized that the existence of a continuing violation is insufficient if none of the relevant conduct occurred within the limitation period. Id. at 539 (stating: "The mere existence of some vague or undefined relationship between the timely and untimely acts is an insufficient basis upon which
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