Mays v. Int'l Mkt. Place

UNPUBLISHED

Oakland Circuit Court LC No. 2019-175066-CD

Before: Murray, C.J., and Jansen and Riordan, JJ.

PER CURIAM.

Plaintiff appeals as of right the circuit court order granting summary disposition to defendant, International Market Place, Inc., doing business as Fishbones Rhythm Kitchen Café, under MCR 2.116(C)(8) and (10), denying plaintiff's cross-motion for summary disposition under MCR 2.116(C)(9), and dismissing plaintiff's complaint in its entirety. We affirm.

Plaintiff was employed as a server at Fishbones restaurant in Southfield from March 2, 2018, to May 29, 2018. Plaintiff was an at-will employee. On May 15, 2018, plaintiff was in a verbal altercation with Richard Bassett, another employee, during which she called Bassett a b***h. Bassett was terminated because he threatened plaintiff during this altercation; plaintiff was suspended for one day. The employee disciplinary report resulting from this incident stated that the next disciplinary step for plaintiff was termination. On May 21, 2018, plaintiff was involved in another incident. Plaintiff testified that she was in the kitchen talking with two other employees when Donald Knoll, the general manager of Fishbones, ran out of the office and accused her of getting into an argument with the two employees with whom she was speaking. On May 29, 2018, plaintiff was terminated from employment.

Following plaintiff's termination, she filed a cursory pro se complaint seeming to allege sexual discrimination, invasion of privacy, and defamation. Defendant moved for summary disposition in response. Defendant contended that summary disposition was proper under MCR 2.116(C)(8) because plaintiff failed to plead any legal claim, but rather, merely set forth a series

of conclusory statements. Defendant argued that summary disposition was proper under MCR 2.116(C)(10) because plaintiff failed to establish a claim for quid pro quo sexual harassment, invasion of privacy, or defamation.

Plaintiff filed a response to defendant's motion for summary disposition and a cross-motion for summary disposition under MCR 2.116(C)(9), contending that defendant did not have a valid defense. Plaintiff argued that she was subject to sexual harassment in the form of a hostile work environment after declining a sexual advance from Knoll. After declining Knoll, he discriminated against her by not giving her large parties to serve, while giving employees with whom he had a sexual relationship the large parties, which resulted in those employees making more money. Plaintiff argued that she was subject to quid pro quo sexual harassment by Bassett, who promised plaintiff that she would make more money "if she dated/implied having sex" with him, and that Bassett demonstrated sexual positions while looking plaintiff directly in the eyes. After she declined Bassett, he became aggressive and demeaning toward plaintiff, which ultimately resulted in her termination. Plaintiff argued that she was defamed because a falsified document regarding the May 21, 2018 incident with Bassett was included in her personnel file, and malicious statements were made to other employees by the managers after plaintiff was terminated. Finally, plaintiff argued that defendant violated her privacy because Jessica Pensom, a manager, disclosed to individuals plaintiff did not know plaintiff's personal information that she lived in a motel.

Without holding oral argument, the circuit court granted summary disposition to defendant. The court first concluded that summary disposition was appropriate under MCR 2.116(C)(8) because plaintiff's complaint was facially deficient, consisting of "broad statements and generalizations of mistreatment that are not expanded upon. The facts that Plaintiff does include are vague and disorganized and do not inform Defendant of the nature of her claims." The court also concluded that, assuming plaintiff's complaint was facially sufficient, summary disposition was proper under MCR 2.116(C)(10) because plaintiff failed to present evidence to establish a prima facie case of sexual discrimination under hostile work environment or quid pro quo harassment, invasion of privacy, or defamation. The court denied plaintiff's cross-motion for summary disposition under MCR 2.116(C)(9), because defendant denied liability in its answer to the complaint, and listed several defenses in its affirmative defenses. The court dismissed plaintiff's complaint in its entirety. Plaintiff now appeals.

I. PLAINTIFF'S CLAIMS

Plaintiff argues that the circuit court erred by granting defendant's motion for summary disposition because she stated plausible causes of action and presented sufficient evidence to establish her claims.

A. STANDARDS OF REVIEW

"A trial court's decision granting summary disposition is reviewed de novo." Eplee v Lansing, 327 Mich.App. 635, 644; 935 N.W.2d 104 (2019). "A motion made pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint, and a court only considers the pleadings." Id. (citation and quotation marks omitted). "All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant." Id. (citation and quotation marks omitted). "Summary disposition is proper under MCR 2.116(C)(8) where the claims alleged are

so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Id. (citation and quotation marks omitted).

A motion for summary disposition under MCR 2.116(C)(10) challenges the "factual adequacy of a complaint on the basis of the entire record, including affidavits, depositions, admissions, or other documentary evidence." Gorman v American Honda Motor Co, Inc, 302 Mich.App. 113, 115; 839 N.W.2d 223 (2013). A trial court's grant of summary disposition under MCR 2.116(C)(10) is proper when the evidence, "viewed in the light most favorable to the nonmoving party, show[s] that there is no genuine issue as to any material fact and the moving party is therefore entitled to judgment as a matter of law." Lowrey v LMPS & LMPJ, Inc, 500 Mich. 1, 5; 890 N.W.2d 344 (2016). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." Richardson v Allstate Ins Co, 328 Mich.App. 468, 471; 938 N.W.2d 749 (2019) (citations and quotation marks omitted).

1. DISCRIMINATION ON THE BASIS OF SEX

Plaintiff contends that her rights were violated when she was subject to sexual harassment while employed at Fishbones. Although plaintiff did not plead her claims under the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq., in an effort to address the substance of plaintiff s claims, we address her arguments under the applicable Michigan law.

In Michigan, the CRA governs plaintiffs claims of sexual discrimination. MCL 37.2202(1)(a) provides that an employer may not "[f]ail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status." "In pursuit of equality in the workplace, the [CRA] broadly defines sexual discrimination to include sexual harassment[.]" Radtke v Everett, 442 Mich. 368, 379-380; 501 N.W.2d 155 (1993). MCL 37.2103(i) of the CRA provides, in relevant part:

(i) Discrimination because of sex includes sexual harassment. Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:

(i ) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment. . . .

(ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual's employment. . . .

(iii) The conduct or communication has the purpose or effect of substantially interfering with an individual's employment, . . . or creating an intimidating, hostile, or offensive employment . . . environment.

"The first two subdivisions of MCL 37.2103(i) describe quid pro quo sexual harassment, while the third subdivision refers to hostile-environment sexual harassment." Hamed v Wayne Co, 490 Mich. 1, 9-10; 803 N.W.2d 237 (2011).

Plaintiff argues that she was subject to both hostile work environment sexual harassment and quid pro quo sexual harassment. Plaintiff did not allege that submission to conduct or communication was made a term or condition to obtain employment as required by MCL 37.2103(i)(i). Thus, MCL 37.2103(i)(ii) is applicable to plaintiffs quid pro quo sexual harassment claim, and MCL 37.2103(i)(iii) is applicable to plaintiffs hostile work environment sexual harassment claim. In regard to both forms, the court found that defendant was entitled to summary disposition under MCR 2.116(C)(8) because plaintiffs complaint failed to allege sufficient facts to state a cause of action, and under MCR 2.116(C)(10) because plaintiff failed to produce evidence to establish a prima facie cause of either form of sexual harassment.

a. HOSTILE WORK ENVIRONMENT

Plaintiff argues that she established a claim for sexual discrimination on the basis of a hostile work environment. We agree that plaintiff alleged hostile work environment harassment sufficient to survive summary disposition under MCR 2.116(C)(8); however, plaintiff failed to establish a prima facie claim for hostile work environment harassment to survive summary disposition under MCR...