Alleged violations of the Elliott-Larsen Civil Rights Act (ELCRA); Sexual harassment; Sexually-hostile educational environment; Whether plaintiff stated a claim under the ELCRA; Principle that governmental immunity is not an available defense to an ELCRA claim; Whether a trial court’s order is appealable as of right; MCR 7.202(6)(a)(v); Distinguishing Hamed v Wayne Cnty; The law-of-the-case doctrine; Rott v Rott

Holding that it lacked jurisdiction to hear defendants’ (school district and employees) appeal as of right, the court dismissed it. Plaintiff-student sued defendants alleging multiple violations of the ELCRA arising out of “a sexual relationship she had with a teacher.” She claimed defendants knew or should have known about it but turned a blind eye. She did not allege that they were “vicariously liable under the ELCRA for the teacher’s sexual abuse . . . .” Defendants unsuccessfully sought summary disposition on the basis they were entitled to governmental immunity. They then filed this appeal. Plaintiff responded by arguing that governmental employees and entities do not have immunity from suit for claims under ELCRA, thus eliminating the court’s jurisdiction to hear defendants’ appeal as one as of right. The court previously denied plaintiff’s motion to dismiss without offering any analysis. It now found that the main issue here was whether the complaint stated “an actionable claim under the ELCRA” and that it lacked jurisdiction because “the resolution of this issue has nothing to do with governmental immunity[.]” As to defendants’ contention a footnote in Hamed controlled, the “actual holding in Hamed has nothing to do with governmental immunity.” In addition, this case did “not involve public services under the ELCRA, . . . it does not involve quid pro quo sexual harassment, and [plaintiff] has not alleged that defendants are vicariously liable for unforeseeable criminal acts.” The court noted that in Hamed the Supreme Court “explained that an employer may be held liable for an employee's criminal conduct if the employer knew of or reasonably should have foreseen the misconduct and did nothing about it. The allegations in [plaintiff’s] complaint track that theory of liability.” The only legal issue presented in defendants’ brief on appeal was whether her complaint stated “a valid claim under the ELCRA, not whether governmental immunity applies.” Given that their “motion did not implicate governmental immunity, the order denying the motion to dismiss the ELCRA claims was not a final order within the meaning of MCR 7.202(6)(a)(v)” and the court did not have jurisdiction to consider this appeal as an appeal of right. Finally, because the order denying plaintiff’s motion to dismiss “did not decide the merits of the claims at issue on appeal, the law-of-the-case doctrine does not apply.”