Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Hostile work environment claims under Title VII & Michigan’s Elliott-Larsen Civil Rights Act (ELCRA); Whether plaintiff was subject to a hostile work environment because of a client’s sexual harassment; When or whether an employer can be vicariously liable for harassment by a non-employee; EEOC v Costco Wholesale Corp (7th Cir); An employer’s direct liability for intending for the harassment to occur; Dunn v Washington Cnty Hosp (7th Cir); Retaliation; Racial discrimination; Forfeited issue as to the denial of a motion to compel discovery; Reduction-in-force (RIF)
[This appeal was from the ED-MI.] In this case under Title VII and the ELCRA, the court held that under agency principles and the text of the statutes, defendant-employer (Zep) could not be held vicariously liable for its former employee’s (plaintiff-Bivens) alleged sexual harassment by a customer. After Zep terminated her employment as a sales representative, Bivens sued for hostile work environment harassment, retaliation, and discrimination under Title VII and Michigan's ELCRA. She claimed that she was fired because she complained that a client had sexually harassed her or because she is black. Zep argued that she was fired as part of an RIF targeting representatives with a territory that had a projected annual revenue below a certain amount. The district court granted Zep summary judgment. On appeal, the court focused on whether an employer can be vicariously liable for the harassment of an employee by a non-employee. It reviewed agency principles and the Title VII text. In an agency context, “employer liability is imputed … only due to the agency relationship between the perpetrator (an employee) and the employer.” This was critical here, “as the client who harassed Bivens was not Zep’s agent.” The Seventh Circuit held in Costco that “‘an employer is not vicariously liable for the sexual harassment of its employee by a customer.’” As to whether Zep was directly liable, the question was whether it made an “intentional 'decision to expose women to [discriminatory] working conditions’ that would give rise to direct liability of the employer.” Applying this intent standard, the court considered the incident as described by the district court. “A client asked Bivens to meet him at the client’s office (ostensibly to discuss a sale). Bivens arrived and entered the office. The client then locked the door, started staring at Bivens, and asked (seemingly twice) if the two could date. The encounter ended when Bivens refused the client’s invitation. None of this would allow a jury to conclude that Zep ‘desired’ such an interaction to occur or was ‘substantially certain’ that it would.” The court concluded “no jury could find that the company violated Title VII by ‘intentionally treat[ing]’ Bivens ‘worse based on sex.’” The same reasoning applied to Michigan’s ELCRA. Her retaliation claim also failed where she could not establish “that ‘her protected activity’—complaining about a customer who sexually harassed her—'was known to those who made th[e] decision’ to lay her off as part of the” RIF. The court further determined that she did not offer “‘additional direct, circumstantial, or statistical evidence tending to indicate that [Zep] singled [her] out . . . for discharge’ because of her race.” Affirmed.
Retaliation claim under the Americans with Disabilities Act (ADA); Vicarious liability; Prima facie case; Whether defendant-former employer established a legitimate, nondiscriminatory reason for plaintiff’s discharge; Pretext; Whether plaintiff was “singled out for adverse treatment”; Hubbell v FedEx SmartPost, Inc; Whether a biased supervisor’s motives could be imputed to the decisionmakers who fired plaintiff; Proximate causation
The court held that plaintiff-Gray established her prima facie claim of ADA retaliation and presented enough evidence to show that a supervisor’s (defendant-Kyle) “stated reason for reporting her” for alleged timecard irregularities “was a pretext designed to mask retaliation.” Further, she supported her vicarious liability theory against defendant-former employer (State Farm) with “enough evidence to show that Kyle proximately caused her termination” even though he was not among those who made the decision to discharge her. Gray helped a fellow employee receive an ADA accommodation, contrary to the wishes of Kyle, the colleague’s supervisor. A few months later, Kyle “reported Gray for timecard falsification. State Farm investigated the report and fired Gray.” She then brought this suit, alleging that Kyle “singled her out for conduct widespread in the agency” for assisting her colleague in securing the accommodation. The district court granted State Farm summary judgment. On appeal, the court concluded Gray could “proceed on a theory of vicarious liability based on the supervisor’s alleged bias.” It noted that vicarious liability, also “known as ‘cat’s paw’ liability, hinges on a neutral decisionmaker acting on a biased subordinate’s input.” Kyle was the subordinate here. The court held that Gray established her prima facie case. Her support for her colleague during the colleague’s ADA process qualified as “protected activity” and she offered “evidence that Kyle and others knew about her involvement.” She also established the causation element where she showed that she had undergone increased scrutiny after she helped the colleague, which led to a broader inquiry resulting in her termination. The court noted the temporal proximity (only two or three months) between the time Gray assisted the colleague and the investigation that led to her discharge. As to the issues of pretext and vicarious liability, the court held that Gray offered sufficient “evidence of differential scrutiny to raise a material dispute over Kyle’s motives.” There was evidence that despite “knowing about their similar conduct, Kyle did not treat” another employee (P) “and Gray in the same way.” Further, the court noted the “heightened scrutiny seemed to come only after Gray engaged in protected activity, with no other prevailing reason to justify it.” Turning to the issue of causal nexus for purposes of the vicarious liability claim against State Farm, “Kyle reported Gray for conduct that was ‘virtually identical’ to” P’s, and a jury “could conclude that State Farm relied on Kyle’s ‘biased report’ when it chose to investigate and ultimately terminate Gray.” Reversed and remanded.
Breach of contract; Damages; Liquidated damages clause; Ambiguity; Surplusage
The court held that the trial court did not err by enforcing the liquidated damages clause in the parties’ contract. Plaintiff hired defendant to install window and door guards at its residential rental property. The property sustained significant fire damage as a result of vandalism. Plaintiff sued defendant for breach of contract, alleging the vandals were able to get in because of its failure to properly secure two windows and a door. The trial court granted summary disposition for defendant and enforced the liquated damages clause in the parties’ rental contract, limiting damages to $600. On appeal, the court agreed with the trial court that the liquidated damages clause applied beyond the failure of the leased equipment. Because “defendant’s installation obligations are addressed within paragraph seven as ‘leased equipment,’ the limitation of damages applies comprehensively to both warranties claims and breach of contract claims.” Thus, to the extent plaintiff claimed “defendant was contractually obligated to install certain equipment and that it failed to do so, that failure and that equipment would be covered by the provision in question.” Further, while “the paragraph at issue generally involves ‘Inspection and Warranties,’ the provision nevertheless is drafted broadly. In particular, [it] limits liability ‘howsoever arising and whether or not caused by negligence.’ To interpret this phrase the way plaintiff argues would create surplusage,” which the court avoids. Affirmed.
Admissibility of character evidence; Evidence of a victim’s aggressive character where self-defense is an issue; MRE 404(a)(2); MRE 405; People v Wright; Sufficiency of the evidence; Self-defense; People v Dupree; Voluntary-manslaughter instruction; Self-defense instruction only as to a murder charge & not firearm-related charges; Duress instruction as to CCW; Right to present a defense
The court held that: 1) the trial court did not abuse its discretion by excluding some of the victim’s messages as inadmissible character evidence, 2) the evidence was sufficient to prove defendant did not shoot the victim in self-defense, 3) the trial court did not err as to the jury instructions, and (4) the trial court did not deprive him of his right to present a defense. He was convicted of first-degree premeditated murder, FIP of a firearm, FIP of ammunition, CCW, and felony-firearm, arising out of a fatal shooting. On appeal, the court rejected his argument that the trial court abused its discretion by excluding as improper character evidence several of the victim’s text messages to other individuals. It noted the messages were “remote in time from the shooting and devoid of any clear references to defendant. Meanwhile, the trial court admitted the messages that occurred on the day of the shooting, in which the victim sent a picture of the back of defendant’s car and indicated that he wished he had a gun because he would ‘kill [defendant] right now’—even though those messages were never communicated to defendant. This ruling comported with Wright, and” there was no abuse of discretion. The court also rejected his claim that the prosecution failed to prove beyond a reasonable doubt that he did not act in self-defense when he shot the victim. Defendant stressed his version of the events, “but the jury clearly did not find that version credible, and” the court saw no basis to second-guess its assessment. “[A] reasonable jury could have readily concluded that, when he shot and killed the victim, defendant did not honestly and reasonably believe that he was in imminent danger of death or serious bodily harm such that shooting the victim was immediately necessary. The evidence was more than sufficient to disprove [his] self-defense claim beyond a reasonable doubt, and we see no merit in [his] arguments otherwise.” The court next rejected his contention that the trial court committed several instructional errors, finding it did not abuse its discretion by: 1) determining that a voluntary-manslaughter instruction was inapplicable to the facts, 2) determining that a self-defense instruction was unwarranted, or 3) declining to provide a duress instruction on his CCW offense. Finally, the trial court’s exclusion of the victim’s messages and refusal to provide defendant’s requested instructions did not deprive him of his right to present a defense. Affirmed.
Sua sponte entry of an order of acquittal after a jury guilty verdict; Motions for a directed verdict of acquittal; MCR 6.419; Court rule interpretation; People v Owens; People v McEwan; Distinguishing People v Lemmon
Holding that the trial “court did not have authority under the court rules to sua sponte grant a directed verdict of acquittal after the jury returned its guilty verdict[,]” the court reversed the order of acquittal and remanded. The jury found defendant guilty of CCW. The court noted that motions for a directed verdict of acquittal are governed by MCR 6.419. It concluded that a plain reading of the rule “does not authorize a trial court to sua sponte direct a verdict of acquittal after a jury has rendered a verdict in a criminal case.” While the rule “expressly states that a court may consider a directed verdict of acquittal on its own motion before the case is submitted to the jury for deliberation” (MCR 6.419(A)), “similar language is absent from the provision governing how such relief may be pursued and granted after the jury returns its verdict, MCR 6.419(C). Rather, that subrule provides that only ‘the defendant’ may move for a directed verdict of acquittal after a jury verdict is rendered.” The Michigan “Supreme Court included similarly limited language in MCR 6.431(B), providing that, ‘[o]n the defendant’s motion, the court may order a new trial on any ground that would support appellate reversal of the conviction or because it believes that the verdict has resulted in a miscarriage of justice.’” The court noted that it “has interpreted such language as allowing a trial court to order a new trial in a criminal case only after a motion for a new trial has been brought by the defendant.” Given that the “language in MCR 6.419(C) is similarly plain and unambiguous,” it saw no reason why it should interpret that provision differently. Nothing in the record indicated “the trial court ever considered a directed verdict of acquittal on its own motion before the case was submitted to the jury.” Further, the record did not indicate “defendant ever moved for a directed verdict of acquittal[.]” While he cited Lemmon, that case “did not involve or purport to speak to a trial court’s authority to enter a directed verdict of acquittal sua sponte after a jury verdict. Nor did Lemmon suggest that the due-process considerations underlying a directed verdict of acquittal conflict with the parameters that our court rules have placed on how that relief may be pursued and granted.”
Habeas corpus; 28 USC § 2254; Ineffective assistance of trial counsel; Strickland v Washington; Deference under the Antiterrorism & Effective Death Penalty Act (AEDPA); Whether the state courts’ application of Strickland was objectively unreasonable; Deficient cross-examination; Whether petitioner could show a reasonable probability that the result of the trial would have been different; Advice to waive the jury right
The court held that the district court erred by granting petitioner-Hartman habeas relief based on his ineffective assistance claim relating to his counsel’s cross-examination of the victim. It concluded that counsel’s strategy was a “reasonable attempt” to reveal inconsistencies in the testimony, even though it may have introduced information harmful to Hartman’s defense. The court found that the district court properly denied habeas relief based on his jury-waiver claim. Hartman, an Ohio prisoner, was convicted at a bench trial of three counts of rape. He argued that his trial counsel provided ineffective assistance when cross-examining witnesses during his trial, and by inducing him to waive a jury trial by giving him incorrect information about his choices and then failing to obtain his informed consent to the waiver. The Ohio state courts affirmed his convictions. Hartman argued that they misapplied Strickland. The district court granted him relief on the cross-examination claim, finding that “trial counsel had introduced evidence of force that hadn’t been proven during direct examination” and failed to object to prejudicial statements. On appeal, the court first considered whether Hartman received ineffective assistance through his counsel’s deficient cross-examination of the victim and two other witnesses at trial. It reversed the district court’s conclusion that the state appellate court misapplied Strickland. The Ohio appellate court found, contrary to petitioner’s assertions, that the state “had introduced evidence of force” during the victim’s direct testimony. “Counsel reasonably attempted to reveal inconsistencies and biases during cross-examination to aid the judge in assessing [the victim’s] credibility.” Even though additional information about force was brought forward, this was done to emphasize inconsistencies in her testimony. The court held that the district court erred by failing to give AEDPA deference to those determinations. As to Hartman’s jury-waiver claim, the state appellate court ruled that his counsel’s advice that he waive his right to a jury trial was reasonable, and he failed to show on appeal “that this conclusion was based on an unreasonable determination of fact or an unreasonable application of federal law.” The court held that the state court “did not unreasonably apply Strickland[.]” Reversed in part, affirmed in part, and remanded with instructions to deny Hartman’s habeas petition.
Sentencing; Enhancement of defendant’s base offense level under USSG § 2K2.1(a)(4)(B) because he was a “person described” under § 18 USC § 922(g)(3); As-applied constitutional challenge to § 922(g)(3); NY State Rifle & Pistol Ass’n v Bruen; Whether defendant could be classified as a “dangerous individual”; United States v Williams
[This appeal was from the WD-MI.] The court held that § 922(g)(3), which prohibits unlawful drug users from possessing a firearm, did not violate the Second Amendment as applied to defendant-VanOchten where he qualified as a “dangerous individual” under the statute. He pled guilty to possessing three unregistered firearms (pipe bombs). The district court enhanced his base level under § 2K2.1(a)(4)(B) because he was a “person described” under § 922(g)(3). VanOchten argued that § 922(g)(3) violated the Second Amendment as applied to him. The court explained that it must determine whether “the Second Amendment’s plain text” covers the proposed course of conduct, and if it does, whether the government can justifiably apply the regulation to the individual consistent with our nation’s regulatory tradition. It concluded its recent decision in Williams resolved “these questions in favor of the government in this case.” While it determined that VanOchten satisfied Bruen’s first step, the court agreed with the government that “Congress may, consistent with the Second Amendment’s historical scope, disarm an illegal drug user whose behavior shows that he is dangerous.” “The court held in Williams that “‘legislators may disarm groups of people, like felons, whom the legislature believes to be dangerous—so long as each member of that disarmed group has an opportunity to make an individualized showing that he himself is not actually dangerous.’” Thus, it followed “that § 922(g)(3) can be applied to dangerous drug users consistent with the Second Amendment.” The court noted that on the day he was arrested, VanOchten “‘was shooting’ a rifle ‘in the direction of a propane tank in a residential neighborhood’ while ‘drunk and high.’” Based on this incident by itself, he had “demonstrated—as the district court found—that he presents a clear ‘threat to the public.’” Affirmed.
Divorce; Compliance with remand orders; Glenn v TPI Petroleum, Inc; Modification of spousal support; MCL 552.28; Berger v Berger; New facts or changed circumstances; Luckow Estate v Luckow; A referee’s authority; MCL 552.507(2)(a); Harmless error; Due process; Retroactive modification of spousal support; The law-of-the-case doctrine; Rott v Rott; Attorney fees under MCR 3.206(D)
The court held that the trial court did not err by reducing the amount of monthly spousal support payable by plaintiff-ex-husband, or by denying defendant-ex-wife’s request for attorney fees. In a prior appeal, it vacated and remanded for the trial court to consider defendant’s request for attorney fees and explain how its reduction in spousal support was tied to its analysis of the Berger factors and how it was an equitable result. On remand, the trial court again found that a reduction in spousal support was equitable, and again denied defendant’s request for attorney fees. In the present appeal, the court rejected defendant’s argument that the trial court failed to comply with its remand order. It noted the trial court reiterated its “directives in its written opinion and order on remand and, contrary to defendant’s assertions on appeal, thoroughly addressed each of the issues on remand as directed.” As to attorney fees, it “duly explained why it believed that defendant was not entitled” to her requested fees. As to spousal support, it “expressly clarified how its reduction in support connected to its analysis of the Berger factors and why that reduction was equitable in light of that analysis.” And as to retroactive modification of spousal support, the trial court noted that the court concluded such modification “was inequitable given that defendant did not begin working a full-time job until [9/20], so [it] ordered ‘that the modification be retroactively applied to [9/1/20], when [she] first began working full-time.’” The court also rejected her direct challenges to the spousal support reduction. “In reviewing Berger factor 14 and general principles of equity,” it saw “no reversible error in the trial court’s conclusion that a reduction in spousal support” was equitable given the circumstances of this case. In addition, she failed to show how any error as to the referee’s role was not harmless. Further, defendant “was afforded ample notice and opportunity to be heard . . . including on remand, and . . . failed to show how she was nonetheless denied her” right to due process. The court next rejected plaintiff’s claim on cross appeal that the trial court erred by retroactively reducing the spousal support to 9/1/20, rather than to 2/1/20. While he clearly disagreed with the court’s “prior determination, plaintiff has offered, and we see, no colorable basis for disregarding the law-of-the-case doctrine here.” Finally, the court rejected defendant’s contention that the trial court abused its discretion by finding she was not entitled to attorney fees under MCR 3.206(D). She failed to show that decision “was outside the range of” reasonable and principled outcomes. Affirmed.
The No-Fault Act (NFA); Request for interest & attorney fees; VHS of MI, Inc v Michigan Auto Ins Placement Facility; Personal protection insurance (PIP)
Concluding that the outcome here was governed by its decision in VHS, the court held that the trial court erred in denying plaintiff-Colon’s summary disposition motion as to his request for interest and attorney fees in this action under the NFA. While this appeal was “the first in this particular case, the underlying facts and proceedings” were not new to the court. It “detailed the relevant factual and procedural background” in VHS. In 2021, “Colon was severely injured in a motor vehicle collision after his motorcycle collided with another vehicle, which was owned by” nonparty-L. Colon “received extensive medical care from VHS of Michigan, Inc., to treat his injuries.” In separate cases, he “and VHS each filed a complaint seeking” PIP benefits from defendant-Falls Lake, L’s insurer, for those services. While “the appeal in this case was pending,” the court issued “its decision in VHS, holding that the trial court erred by denying VHS’s motion for summary disposition concerning its request for interest and attorney fees.” The court noted the “order that Colon challenges on appeal—the trial court’s order denying his motion for summary disposition concerning his request for interest and attorney fees—is the same order that VHS challenged, and on the same grounds. This Court squarely addressed and decided those challenges in VHS, concluding that Falls Lake could not use the rescission of [L’s] policy to escape liability for penalty interest under MCL 500.3142(2) and attorney fees under MCL 500.3148(1). VHS is precedentially binding,” and the court saw “no reason why it would not control” its disposition of this case. It reversed the trial court’s order denying Colon’s motion and remanded.
Termination at initial disposition; Aggravated circumstances; MCL 712A.19a(2)(a); MCL 722.638(1)(a)(ii) & (2); In re Simonetta; In re Smith-Taylor; Whether termination was premature; Child’s best interests; In re Simpson
Finding (1) no error meriting relief in the trial court’s determination that aggravated circumstances existed and (2) that it properly weighed all the available evidence in making its best-interests ruling, the court affirmed the order terminating respondent-mother’s parental rights to the child at initial disposition. The trial court “found that ‘[t]he acts that were stipulated to through the prior testimony and the pleadings in the file all put forth the aggravated circumstances of sexual abuse [by respondent’s boyfriend] and sexually based photographs which were taken by’ respondent.” The court noted that “the allegations in the petition served as the factual basis for respondent’s plea, and those allegations detailed the sexual abuse of [the child] by respondent’s boyfriend, [her] knowledge of that sexual abuse and failure to intervene, and [her] sexual exploitation of” the child. Thus, it was “clear from the record that the [trial] court made the judicial determination that aggravated circumstances existed such that reasonable efforts were not required.” Further, the court saw “no error in the trial court’s aggravated-circumstances finding. The allegations in the petition, as well as testimony by both the CPS investigator and the detective involved in the criminal investigation of the sexual-abuse and sexual-exploitation allegations, established that respondent’s boyfriend, who was undisputedly older than 18 years of age, sexually penetrated [the child] on multiple different occasions.” The court found no merit in respondent’s arguments that termination was premature. As to the child’s best interests, it rejected her claim “the trial court gave inadequate weight to the parent-child bond . . . .” The trial court acknowledged there was a bond and “that respondent ‘clearly love[d]’” the child, and still concluded termination was in the child’s “best interests because a ‘continued relationship’ between” them placed the child “‘at risk of harm’ and ‘would open [the child] up to continuing abuse any time that there would be potential access.’” The trial “court emphasized that respondent ‘d[id] not appreciate the depravity of the underlying acts’ of sexual abuse and sexual exploitation . . . , had shown no ‘insight into the physical and emotional harm that she’” had caused the child “‘through her actions,’ and had shown ‘no insight to be able to protect [the child] in the future.’” The record was consistent with its findings.