Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
FILED JULY 30, 2010
STATE OF MICHIGAN
SUPREME COURT
BRANDON BRIGHTWELL,
Plaintiff-Appellant,
v No. 138920
FIFTH THIRD BANK OF MICHIGAN,
Defendant-Appellee.
SHARON CHAMPION,
Plaintiff-Appellant,
v No. 138921
FIFTH THIRD BANK OF MICHIGAN,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH
KELLY, C.J.
In these consolidated cases, we must determine the proper interpretation of the
venue statute1 in the Civil Rights Act (CRA).2 Specifically, we are asked to decide
whether venue was proper in Wayne County under MCL 37.2801(2).
Plaintiffs filed their suits in Wayne County, alleging that defendant terminated
their employment in violation of the CRA. The Court of Appeals, relying on its decision
in Barnes v Int’l Business Machines Corp,3 concluded that venue was proper only in
Oakland County, where defendant made the decisions to terminate plaintiffs’
employment. Consequently, the Court of Appeals reversed the trial courts’ orders
denying defendant’s motions to change venue to Oakland County.4
We disagree with the Barnes decision and overrule it.5 In the cases before us, part
of the alleged discrimination occurred in Wayne County, where plaintiffs worked and
where the allegedly discriminatory actions were implemented. Therefore, we reverse the
1
MCL 37.2801.
2
MCL 37.2101 et seq.
3
Barnes v Int’l Business Machines Corp, 212 Mich App 223; 537 NW2d 265
(1995).
4
Brightwell v Fifth Third Bank of Michigan, unpublished opinion per curiam of
the Court of Appeals, issued April 9, 2009 (Docket Nos. 280820 and 281005).
5
In Barnes, the Court of Appeals did not explicitly limit venue to the place where
the employment decisions were made. However, later panels of the Court have
interpreted it that way. See, e.g., Green v R J Reynolds Tobacco Co, unpublished opinion
per curiam of the Court of Appeals, issued May 26, 1998 (Docket No. 196355).
2
judgment of the Court of Appeals and remand these cases to the Wayne Circuit Court for
further proceedings on plaintiffs’ claims.
FACTS AND PROCEDURAL HISTORY
Plaintiffs are African-Americans formerly employed by defendant. They worked
for defendant at banking centers in Wayne County. On or around May 17, 2007,
defendant terminated their employment for alleged misconduct. Plaintiff Sharon
Champion learned of her dismissal through a telephone call from defendant’s office in
Oakland County to her home in Wayne County. The parties dispute where plaintiff
Brandon Brightwell received notice of his dismissal.6
Plaintiffs filed separate lawsuits in Wayne County, each alleging that defendant
had terminated their employment for reasons of racial discrimination in violation of the
CRA.7 Defendant moved in both lawsuits to change venue to Oakland County. It
supported the motions with an affidavit from Michael Andrzejewski, an employee
relations consultant who worked in defendant’s Southfield regional office in Oakland
County.
Andrzejewksi averred in his affidavit that he was personally involved in the final
decisions to terminate plaintiffs’ employment and that those decisions were made in the
6
Brightwell claims that defendant communicated his termination to him at his
place of employment in Wayne County. Defendant asserts that Brightwell received
notification of his termination at his home in Oakland County. This factual dispute is
irrelevant to our conclusion in this case.
7
We do not discuss the merits of plaintiffs’ CRA claims here because they are not
before us.
3
Southfield regional office. Defendant claimed that because it made the decisions in
Oakland County, venue was proper only there. Both trial courts declined to change
venue. Defendant sought interlocutory appeals in both cases.
The Court of Appeals granted both applications for leave to appeal, consolidated
the appeals, and reversed the trial courts’ rulings in a divided decision. Relying on
Barnes, the lead opinion concluded that “the appropriate venue for a CRA cause of
action . . . depends on where the defendant’s violation occurred, not where the plaintiff
was injured.”8 It noted that “[t]his Court has held that the alleged violation of the CRA is
the action which gives rise to liability under the act, i.e., the corporate decision affecting
the plaintiff’s employment.”9
The Court of Appeals concurrence agreed that “venue is appropriate where the
CRA was violated through the use of improper characteristics in making an employment
decision.”10 It criticized the dissenting opinion’s discussion of the statutory tort venue
provision, MCL 600.1629, as interpreted in our decision in Dimmett & Owens Financial,
Inc v Deloitte & Touche (ISC), LLC.11
The Court of Appeals dissent argued that the employment decisions constituted
only a “potential violation” of the CRA and that it was the actual discharges that
8
Brightwell, unpub op at 3 (opinion by BANDSTRA, J.).
9
Id. at 2.
10
Id. at 4 (TALBOT, P.J., concurring).
11
Dimmett & Owens Financial, Inc v Deloitte & Touche (ISC), LLC, 481 Mich
618; 752 NW2d 37 (2008).
4
constituted the adverse employment actions.12 The dissent would have held that venue
was proper in Wayne County.13 Plaintiffs sought review in this Court, and we granted
their applications for leave to appeal.14
ANALYSIS
An appellate court uses the clearly erroneous standard to review a trial court’s
ruling on a motion to change venue.15 Statutory interpretation involves questions of law
that are reviewed de novo.16
The relevant statutory provision, MCL 37.2801, provides in part:
(1) A person alleging a violation of this act may bring a civil action
for appropriate injunctive relief or damages, or both.
(2) An action commenced pursuant to subsection (1) may be brought
in the circuit court for the county where the alleged violation occurred, or
for the county where the person against whom the civil complaint is filed
resides or has his principal place of business.
As always, our analysis begins with the language of the statute.17 The primary
goal of statutory interpretation is to give effect to the intent of the Legislature as
expressed in the statute.18
12
Brightwell, unpub op at 3-4 (GLEICHER, J., dissenting).
13
Id. at 5.
14
Brightwell v Fifth Third Bank of Michigan, 485 Mich 902 (2009).
15
Shock Bros, Inc v Morbark Industries, Inc, 411 Mich 696, 698-699; 311 NW2d
722 (1981).
16
People v Swafford, 483 Mich 1, 7; 762 NW2d 902 (2009).
17
People v Davis, 468 Mich 77, 79; 658 NW2d 800 (2003).
5
These cases involve only the first clause of subsection (2), which makes venue
proper “in the circuit court for the county where the alleged violation occurred.”19 In
Barnes, the Court of Appeals held, without citation or analysis, that the “violations
alleged are adverse employment decisions” and that “the place of corporate decision
making is an appropriate venue.”20 Judge WHITE concurred separately, opining that
“[d]iscrimination also ‘occurs’ in the county where the decision is implemented and the
discrimination is inflicted.”21 She rejected the majority’s implication that “venue of a
civil rights action is proper only in the county where the discriminatory decision is
made.”22
18
Brown v Detroit Mayor, 478 Mich 589, 593; 734 NW2d 514 (2007).
19
Defendant claims, and plaintiffs do not dispute, that it “resides” in Oakland
County and that its principal place of business is in Kent County.
20
Id. at 226-227 & n 3. We note that Barnes relied heavily on the policy rationale
articulated in Gross v Gen Motors Corp, 448 Mich 147, 164; 528 NW2d 707 (1995), that
one of the goals of venue provisions is to discourage forum-shopping. Barnes, 212 Mich
App at 226. As a general matter, this statement is correct.
However, Gross interpreted the tort venue provision, MCL 600.1629, which was
added as part of the tort reforms enacted in 1986. One of the Legislature’s explicit goals
was to reduce forum-shopping by plaintiffs. Gross, 448 Mich at 157-158. By contrast,
MCL 37.2801 has not been amended since it was enacted as part of the CRA in 1976.
Thus, we find wanting Barnes’s determination that Gross’s reasoning was applicable to
discrimination cases. On the contrary, much more persuasive reasons exist to interpret
the CRA venue provision as we do today.
21
Barnes, 212 Mich App at 227 (WHITE, P.J., concurring) (citation omitted).
22
Id.
6
The question of where venue properly lies for a lawsuit brought under the CRA
turns on the meaning of the phrase “where the alleged violation occurred” found in MCL
37.2801(2). “Violation” is defined in part as “1. the act of violating or the state of being
violated. 2. a breach or infringement, as of a law or promise.”23 Plaintiffs alleged that
defendant violated MCL 37.2202(1), which provides in part:
An employer shall not do any of the following:
(a) Fail 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.
A “violation” of MCL 37.2202, therefore, is equally dependent on an adverse
employment action (in these cases the act of “discharg[ing]”) and an improper motive for
taking that action (a decision to discriminate “because of” a protected status). We believe
it logically follows that a violation of the CRA “occur[s]” when the discriminatory
decision is made and adverse employment actions are implemented.
Thus, we agree with Judge WHITE’s concurrence in Barnes, which is also
consistent with other courts’ interpretations of similar venue provisions. The majority in
Barnes erred by restricting what constitutes a violation of the CRA to “adverse
employment decisions.”24 Relying heavily on Barnes, the Court of Appeals lead and
concurring opinions here reached the same erroneous conclusion.
23
Random House Webster’s College Dictionary (2001).
24
Barnes, 212 Mich App at 226.
7
We overrule Barnes because it restricted the analysis of a violation of the CRA to
the adverse employment decision. Barnes is inconsistent with MCL 37.2202(1)(a) and
the meaning of “violation” and “occurred” in MCL 37.2801.
However, this determination does not fully resolve the issue before us. A
remaining question is: What specific actions constitute the unlawful discharge that
establishes the CRA violation? Venue in these cases was clearly proper in Oakland
County because it is undisputed that defendant resides in Oakland County. However,
plaintiffs filed suit in Wayne County. The Court of Appeals determined that the trial
courts erred by denying defendant’s motions to change venue to Oakland County because
venue did not properly lie in Wayne County. Therefore, we must determine whether a
CRA violation occurred in Wayne County that would provide a basis for venue in that
location as well.
Defendant asserts that, even if Barnes is overruled, venue is proper only in
Oakland County because that is where defendant completed several actions necessary to
effectuate each plaintiff’s discharge. For example, it removed plaintiffs from its payroll
system at its Oakland County office. Plaintiffs counter that the only action that was
relevant was the communication of the discharge decisions to them.
We reject both parties’ arguments. It would be arbitrary to consider any of the
suggested actions entirely dispositive of where the CRA violation occurred.
Discrimination claims often involve numerous actions concerning employers’ practices.
Moreover, often it is unclear where the actions occurred that the parties claim are
dispositive. Indeed, these cases provide a good illustration of the problem. If the
8
location where the employment decision was communicated to a plaintiff is solely
dispositive, a court must still determine where that decision was “communicated.”25
Finally, under this approach, defendants could unilaterally control venue by
completing administrative tasks related to terminating a plaintiff’s employment in their
choice of locales. Or they could order an employee to report to a location in the venue
they desire and fire the employee there. We believe these are not results that the
Legislature intended in enacting the CRA.26
We conclude that the adverse employment actions in these cases occurred where
plaintiffs’ place of employment was located.27 That is where most relevant actions
involving the employer-employee relationship occur. Moreover, it is the severing of the
employment relationship that is the truly adverse employment action. This action
25
For example, was the decision in Champion’s case communicated in Oakland
County, where the phone call to her was placed, or in Wayne County, where she received
it? In Brightwell’s case, this burden is potentially even greater, as the facts regarding
where Brightwell was informed of his termination are in dispute.
26
We are not alone in that belief. The Massachusetts Appeals Court has written:
“[T]he place where the employee is notified of his discharge does not necessarily
establish the place where the alleged unlawful discharge occurred. To hold otherwise
would allow employers to circumvent [Mass Gen L ch 151B] by simply notifying
employees of their discharge when they are not in the Commonwealth.” Cormier v
Pezrow New England, Inc, 51 Mass App 69, 73; 743 NE2d 390 (2001), quoted with
approval in Cormier v Pezrow New England, Inc, 437 Mass 302, 305-306; 771 NE2d 158
(2002).
27
Judge WHITE’s concurrence in Barnes implied a similar approach. She rejected
the plaintiff’s claim that venue was proper in Wayne County because Wayne County
“was not the locus of his employment . . . .” Barnes, 212 Mich App at 227 (WHITE, P.J.,
concurring).
9
happens when the employee is no longer entitled to enter his or her place of work and
perform the responsibilities of employment.
As Judge WHITE observed, it is also at this point that the allegedly unlawful
discharge is fully “implemented and the discrimination is inflicted.”28 Applying that
logic to these cases, we note that plaintiffs worked in Wayne County. Because
defendant’s allegedly unlawful actions precluded plaintiffs from continuing to do so, the
CRA violations occurred in Wayne County.29
The concurrence/dissent erroneously limits the occurrence of a violation solely to
the place where a discriminatory decision is communicated to an employee. In doing so,
it attaches too much significance to where the disclosure of the allegedly discriminatory
discharge occurs. Indeed, the essence of the concurrence/dissent’s conclusion is found in
its statement that “it can only be the actual communication, which itself implements a
discriminatory decision, that amounts to the actual ‘discharge’ . . . .”30 Our reaction to
this assertion is to ask: Why is this inherently so?
The concurrence/dissent offers no persuasive analysis to support its conclusion
that the CRA violation must occur where the discharge is communicated. The right being
28
Id. “Implement” is defined in part as “to fulfill; carry out [or] to put into effect
according to a definite plan or procedure.” Random House Webster’s College Dictionary
(2001). “Inflict” is defined in part as “1. to impose as something that must be borne or
suffered: to inflict punishment. 2. to impose (anything unwelcome).” Id.
29
Interpreting an almost identically worded statute, the Massachusetts Supreme
Judicial Court similarly concluded that “an unlawful employment practice may occur
where ‘the core of the employment relationship’ lies.” Cormier, 437 Mass at 307.
30
Post at ___ n ___.
10
violated under the CRA is not the right to be free from communication of adverse
employment actions. Rather, it is the right to be free from actions that actually separate
the employee from gainful employment for discriminatory reasons.31 The justices joining
the concurrence/dissent convey an incorrect interpretation of this opinion when they write
“that scarcely one in a thousand people would believe that a person is not ‘discharged’
from employment at the moment an employer says to an employee: ‘You’re fired.’”32 In
a world where snappy soundbites often distort the facts, this statement fits well and has
face appeal. In truth, we justices do not disagree that “You’re fired” means “You are
discharged from your employment.” Rather, this case addresses a quite different
question, which is: If you are fired, in what location are you entitled to bring suit?
31
MCL 37.2102(1) makes this clear. It provides that
[t]he opportunity to obtain employment, housing and other real estate, and
the full and equal utilization of public accommodations, public service, and
educational facilities without discrimination because of religion, race, color,
national origin, age, sex, height, weight, familial status, or marital status as
prohibited by this act, is recognized and declared to be a civil right.
The CRA prohibits discrimination in a variety of employment decisions, so this right
implicitly includes the right to retain employment free from discrimination based on a
protected status.
Therefore, an interpretation of MCL 37.2801(2) resulting in an outcome such as
the one posited in the concurrence/dissent’s hypothetical example, post at ___ n ___,
does indeed find support in the statutory language. The concurrence/dissent’s argument
on this point is essentially that our approach would lead to inappropriate venues. It is in
effect a policy argument asserting that the concurrence/dissent’s approach is a preferable
one; it is not an argument that the statutory language provides greater support for its
approach.
32
Post at ___.
11
It is true that the actus reus and mens rea of a CRA violation converge when a
defendant communicates a discriminatory decision to an employee. But while that
convergence causes the CRA violation, it does not settle the issue of what constitutes
discharging the employee: the communication of the discriminatory decision or removing
the employee’s right to work at his or her place of employment.33
Decisions from other jurisdictions involving similar statutes have generally taken a
more nuanced approach in evaluating where an employment discrimination violation
occurs.34 Other jurisdictions have consistently analyzed similar statutory language as
33
The concurrence/dissent correctly notes that the removal of an employee’s right
to work will usually occur simultaneously with the “the point of communication of a
discriminatory decision . . . .” Post at ___ n ___. However, our fundamental
disagreement is about where (not when) the discharge takes place. We hold that it occurs
at the place of employment because the removal of the right to work at the workplace
constitutes a discharge. By contrast, the concurrence/dissent would hold that the
discharge occurs wherever the communication of that discharge is uttered and heard.
Thus, because the disagreement between the majority and the concurrence/dissent
does not relate to the timing of when a discharge occurs, the concurrence/dissent misses
the mark with several of its criticisms of our analysis. Post at ___, ___ & n ___, ___.
This misunderstanding of our approach is particularly evident in the last sentence of the
concurrence/dissent. We do not “interpret[] this state’s civil rights laws in a way that
prevents a putative plaintiff’s claims from becoming actionable the moment a violation of
the CRA occurs . . . .” Post at ___. The pertinent question and point of disagreement
between this opinion and the concurrence/dissent is where, not when, the violation is
actionable.
34
Pope-Payton v Realty Mgt Servs Inc, 149 Md App 393, 395; 815 A2d 919
(2003) (interpreting a statute providing for venue in the county “in which the alleged
discrimination took place”); Cormier, 437 Mass at 305 (interpreting a statute providing
for venue in the county “in which the alleged unlawful practice occurred”); Passantino v
Johnson & Johnson Consumer Prods, Inc, 212 F3d 493, 504 (CA 9, 2000) (interpreting a
Title VII provision making venue proper “in any judicial district in the State in which the
unlawful employment practice is alleged to have been committed”); Cox v Nat’l Football
12
including “‘the place where the decisions and actions concerning the employment
practices occurred.’”35 We believe that it is the severance of the employment relationship
that constitutes the actual discharge, not the mere communication of an adverse
employment decision.36
League, 1997 WL 619839; 1997 US Dist LEXIS 15307 (ND Ill, Sept 29, 1997) (same);
McDonald v American Federation of Musicians, 308 F Supp 664 (ND Ill, 1970) (same).
Undoubtedly, as the concurrence/dissent observes, the venue provision in Title
VII, 42 USC 2000e-5(f)(3), provides for venue in more locations than does MCL
37.2801(2). But that fact fails to undermine our interpretation of the statutory language.
It is guesswork to conclude that “the Michigan Legislature declined to adopt comparable
language when it crafted Michigan’s CRA.” Post at ___. The precursor of MCL
37.2801, enacted before Title VII, contained similar language allowing venue in “the
county wherein the alleged unlawful discriminatory practice is alleged to have
occurred . . . .” Former MCL 37.4, repealed by 1976 PA 453. One could just as easily
surmise that the Legislature recycled that language when it crafted MCL 37.2801. Again,
absent clear indications of the Legislature’s intent, this is an exercise in futility.
Whether our construction of MCL 37.2801(2) would render some provisions of
Title VII “redundant” or “surplusage,” post at ___ n ___, is irrelevant. The language of
the CRA venue provision, as illustrated by the concurrence/dissent, is quite different from
that used in Title VII.
35
Cox, 1997 WL 619839, at *2; 1997 US Dist LEXIS 15307, at *6, quoting Hayes
v RCA Serv Co, 546 F Supp 661, 663 (D DC, 1982).
36
The concurrence/dissent cites one case from the United States District Court for
the Southern District of New York that supports its position, but ignores contrary
authority from the same district. Lucas v Pathfinder’s Personnel, Inc, 2002 WL 986641,
*1; 2002 US Dist LEXIS 8529, *3 (SD NY, 2002) (“The allegation that the decision to
terminate Plaintiff was made in New York City . . . is insufficient to establish a violation
of the [New York City human rights law] where, as here, the impact of that decision
occurred outside of New York City.”); Wahlstrom v Metro-North Commuter R Co, 89 F
Supp 2d 506, 527 (SD NY, 2000) (stating that courts in the southern district of New York
“have held that the [New York City human rights law] only applies where the actual
impact of the discriminatory conduct or decision is felt within the five boroughs, even if a
discriminatory decision is made by an employer’s New York City office”); Duffy v Drake
Beam Morin, 1998 WL 252063, *12; 1998 US Dist LEXIS 7215, *35 (SD NY, 1998)
13
The concurrence/dissent’s definition of “discharge” provides greater support for
our interpretation.37 To “relieve of obligation,” “deprive of . . . employment,” or “dismiss
from service” involves many decisions and actions. One is the communication of the
dismissal to the employee, which the concurrence/dissent concludes is the basis for a
CRA violation. However, it is not the communication of the discharge that violates the
CRA, it is the actual discharge of the employee from his or her employment. This act
occurs where the employee works because the employer has discharged the employee by
removing his or her ability to work in that location.
The concurrence/dissent’s determination of when a CRA violation occurs leads it
to assert that the doctrine of expressio unius est exclusio alterius undermines our
conclusion.38 However, this argument is premised on the concurrence/dissent’s
(“[E]ven if, as [the plaintiffs] claim, the decision to fire them was made by [Drake Beam
Morin] at its headquarters in New York City, that fact, standing alone, is insufficient to
establish a violation of the City Human Rights Law when the employees affected by that
decision did not work in New York City.”).
37
See post at ___ n ___ (‘“Discharge’ is not defined in the statute, but is
commonly defined, in relevant form, as ‘to relieve of obligation, responsibility’; ‘to
relieve or deprive of office, employment, etc.; dismiss from service.’”).
38
We disagree that the canon of expressio unius est exclusio alterius applies for
two reasons. First, MCL 37.2801(2) lists only locations related to the person against
whom the civil complaint is filed and makes no mention of the person filing the
complaint. Thus, only locations related to the defendant in a CRA action could properly
be considered excluded by implication under this canon. The lack of any reference in
MCL 37.2801(2) to the plaintiff, the person filing the CRA complaint, undermines the
concurrence/dissent’s application of the canon to this statute.
Second, as the United States Supreme Court has observed, proper application of
the canon requires the “essential extrastatutory ingredient of an expression-exclusion
demonstration, the series of terms from which an omission bespeaks a negative
14
erroneous construction of the term “discharge” and of the language “where the alleged
violation occurred” in MCL 37.2801(2). Since the Legislature intended the interpretation
we ascribe to the language, there was no reason to expressly include an employee’s place
of employment as an alternative basis for venue. Hence, if “where the alleged violation
occurred” encompasses acts precluding an employee from continuing to work at his or
her place of employment, why would additional language be necessary?
Moreover, the last portion of the provision furnishing a basis for venue in MCL
37.2801(2) is explicitly tied to locations over which the employer has exclusive control;
specifically, it provides for proper venue in “the county where the person against whom
the civil complaint is filed resides or has his principal place of business.” Presumably, if
the Legislature had also intended that “where the alleged violation occurred” be a place
over which a defendant had full control, it would have said so.
The Legislature certainly could have provided venue in “the county where the
person against whom the civil complaint is filed resides, has its principal place of
business, or communicates the alleged violation to the employee.” It did not do so. This
omission suggests that the phrase “where the alleged violation occurred” was not
implication. The canon depends on identifying a series of two or more terms or things
that should be understood to go hand in hand.” Chevron USA Inc v Echazabal, 536 US
73, 80-81; 122 S Ct 2045; 153 L Ed 2d 82 (2002). Here, the provisions establishing
venue where a defendant “resides” or has its “principal place of business” refer to fixed
and readily ascertainable locations. By contrast, where “the alleged [CRA] violation
occurred” is a more amorphous concept that does not go hand in hand with the others.
15
similarly meant to be limited to locations subject to a defendant’s exclusive control.39 In
sum, there is no textual basis in the CRA for reading the language of MCL 37.2801(2) as
the concurrence/dissent reads it.
Finally, our analysis avoids the arbitrariness of the approaches suggested by the
parties and accepted by the concurrence/dissent. Employers and employees generally
both have some influence in determining where an employment relationship is
formulated. “Venue rules traditionally have served to ensure that proceedings are held in
the most convenient forum,”40 and it defies common sense to conclude that the county in
which the employee actually worked for the employer would be an inconvenient forum
for either party.
39
It is irrelevant whether the concurrence/dissent “subscribe[s]” to the view that
venue is limited to places over which defendant has exclusive control. Post at ___ n ___.
The relevant point is that the concurrence/dissent’s approach, equating communication of
the discharge decision with the CRA violation, would place all the venue alternatives in
MCL 37.2801(2) under defendant’s exclusive control.
Consider the example of an employee who works for her employer exclusively in
Wayne County. Under the concurrence/dissent’s approach, venue for a discriminatory
discharge case would not be proper in Wayne County if the employer invited her to lunch
in Windsor, Canada to tell her she was discharged. Similarly, the employee might attend
a work retreat in the Upper Peninsula at her employer’s request and be informed there
that she was discharged. The concurrence/dissent would find venue proper in the Upper
Peninsula rather than in Wayne County, notwithstanding that the Upper Peninsula may
have no other connection to either the employer or the employee.
Moreover, the “parallel venue provisions” found in MCL 600.1629 that the
concurrence/dissent cites are inapposite to MCL 37.2801(2). MCL 600.1629(1)(b)
merely refers to a plaintiff’s residence or place of business as an alternative venue to be
invoked if venue cannot be established under MCL 600.1629(1)(a). MCL 37.2801
contains no such alternative venue provision.
40
Gross, 448 Mich at 155.
16
We again reject the dissent’s assertion that our decision is policy driven and that
our analysis is merely justification for a predetermined interpretation. In fact, our
decision is reasonably derived from the language of the statute. This decision invokes at
least the following exercises in statutory interpretation: (1) an attempt to reasonably
comprehend the meaning of “violation,” “occurred,” and “discharge” in the CRA, (2) an
attempt to reasonably comprehend the meaning of these terms in the context of MCL
37.2801(2) as a whole, (3) an attempt to assess where the actus reus and the mens rea of
the statute converge, (4) an attempt to compare the language of MCL 37.2801(2) with
that of its predecessor statute, (5) an assessment of the relevance of traditional maxims of
statutory construction, in this case expressio unius est exclusio alterius, (6) an attempt to
assess alternative meanings of the relevant statutory terms, including those adopted by
the dissent, in light of the overall purposes of the statute, and (7) an attempt to compare
and contrast the caselaw of other states construing similar language. That we additionally
point out that our interpretation results in a considerably more convenient forum than that
of the dissent does not detract from the focus of our interpretative approach.
APPLICATION
Plaintiffs both worked for defendant in Wayne County. Because adverse
employment actions—the severance of plaintiffs’ employment relationships—took place
in Wayne County, the CRA violations occurred in Wayne County. Thus, venue properly
lay in Wayne County under MCL 37.2801(2). Therefore, the Court of Appeals
incorrectly held that the trial courts clearly erred by denying defendant’s motion to
change venue to Oakland County.
17
CONCLUSION
We conclude that, under MCL 37.2801(2), a violation of the CRA occurs when the
alleged discriminatory decision is made and the allegedly adverse employment actions
are implemented. We overrule the Court of Appeals’ decision in Barnes v Int’l Business
Machines Corp to the extent that it held otherwise.
We further conclude that the CRA violation in a case alleging discharge from
employment is the severance of the employment relationship. The decisions and actions
constituting that violation are implemented, and therefore occur, when the employee is no
longer entitled to enter the workplace and perform the responsibilities of employment.
In these cases, each plaintiff’s employment relationship with defendant was based
and severed in Wayne County. Thus, defendant’s alleged violations of the CRA occurred
in Wayne County. Accordingly, we reverse the judgment of the Court of Appeals and
remand these cases to the Wayne Circuit Court for further proceedings there on plaintiffs’
claims.
CAVANAGH, MARKMAN, and HATHAWAY, JJ., concurred with KELLY, C.J.
18
STATE OF MICHIGAN
SUPREME COURT
BRANDON BRIGHTWELL,
Plaintiff-Appellant,
v No. 138920
FIFTH THIRD BANK OF MICHIGAN,
Defendant-Appellee.
SHARON CHAMPION,
Plaintiff-Appellant,
v No. 138921
FIFTH THIRD BANK OF MICHIGAN,
Defendant-Appellee.
YOUNG, J. (concurring in part and dissenting in part).
I concur with the majority to the extent that it reverses the judgment of the Court
of Appeals and instead holds that venue is proper under the Civil Rights Act (CRA) in the
places where the allegedly discriminatory decision was made and implemented. I
dissent, however, from the majority’s analysis regarding when this implementation
occurs. In order to justify its interpretation that venue is always proper at an employee’s
place of work, the majority holds that a violation of the CRA has not occurred at the
moment when an employer communicates a discriminatory employment decision to an
employee. This conclusion is contrary to the basic principle that the CRA violation
occurs with the convergence of a prohibited act and a discriminatory intent. In light of
that principle, I believe that the communication of the discriminatory decision is itself the
CRA violation. Thus, once an adverse employment action is actually communicated, a
violation has occurred and the plaintiff’s claim becomes actionable, thereby making
venue proper under the plain language of the CRA only in those places where the
violation occurred. I also dissent from the majority’s related holding that where an
employee physically works provides an independently proper place of venue, even when
a violation of the CRA did not occur in that location. While the location of employment
may present a convenient or logical forum, because it is not necessarily where a statutory
violation occurs for the purposes of the CRA’s venue provision, I dissent from the
portion of the majority’s opinion manufacturing it as a proper venue.
ANALYSIS
The venue provision within the CRA provides, in relevant part: “An action
commenced pursuant to [MCL 37.2801(1)] may be brought in the circuit court for the
county where the alleged violation occurred, or for the county where the person against
whom the civil complaint is filed resides or has his principal place of business.”1 The
CRA itself describes what constitutes a violation. It provides, among other things, that an
1
MCL 37.2801(2) (emphasis added). The word “occur” is defined as “to happen;
take place; come to pass.” Random House Webster’s College Dictionary (2001).
2
employer shall not “[f]ail or refuse to hire or recruit, discharge, or otherwise discriminate
against an individual with respect to employment . . . because of . . . race . . . .”2
Our interpretation of this statute is governed by clear and uncontroversial rules of
statutory construction. “In interpreting statutory language, this Court’s primary goal is to
give effect to the Legislature’s intent. If the Legislature has clearly expressed its intent in
the language of the statute, that statute must be enforced as written, free of any ‘contrary
judicial gloss.’”3 In doing so, “[w]e first review the language of the statute itself. If it is
clear, no further analysis is necessary or allowed to expand what the Legislature clearly
intended to cover.”4
The language of the CRA clearly requires that a defendant commit an actus reus
(an adverse employment action, such as a “discharge”) with a specific mens rea (a
discriminatory intent) in order to violate its provisions. Moreover, a violation of the CRA
only occurs when an improper discriminatory intent is actually communicated within the
2
MCL 37.2202(1)(a). “Discharge” is not defined in the statute, but is commonly
defined, in relevant form, as “to relieve of obligation, responsibility”; “to relieve or
deprive of office, employment, etc.; dismiss from service.” Random House Webster’s
College Dictionary (2001).
3
Dep’t of Agriculture v Appletree Mktg, LLC, 485 Mich 1, 8; 779 NW2d 237
(2010) (citation omitted).
4
Miller v Mercy Mem Hosp, 466 Mich 196, 201; 644 NW2d 730 (2002).
Similarly, this Court has held that “a court may read nothing into an unambiguous statute
that is not within the manifest intent of the Legislature as derived from the words of the
statute itself.” Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663
(2002).
3
context of the adverse employment action.5 Stated otherwise, for venue purposes, I
believe that a violation occurs under the statute only at the time and in the place or places
where the actus reus and the mens rea converge: where the defendant implements the
discriminatory adverse employment action.6
The majority disagrees with this straightforward understanding and application of
the CRA’s venue provision, although it cannot explain why the convergence of the mens
rea and actus reus does not equate with a statutory violation—here, two discharges. The
majority confusingly explains that “it is not the communication of the discharge that
violates the CRA, it is the actual discharge of the employee from his or her
5
This communication is an obvious and necessary element of the statutory
violation and singularly demonstrates why the line of decisions from the Court of
Appeals holding that a violation occurs only at the place where the employer makes a
discriminatory decision (and thus forms the discriminatory intent) was in error. See
Barnes v Int’l Business Machines Corp, 212 Mich App 223, 226; 537 NW2d 265 (1995).
The making of the discriminatory decision represents only the mens rea element of a
CRA violation, while the communication or other implementation provides the necessary
act depriving an employee of his job, which completes the statutory violation.
6
Because of modern technologies, a violation may occur simultaneously in
multiple locations, as this case demonstrates. Plaintiff Sharon Champion alleged just
such a simultaneous violation in multiple locations in the instant case: defendant fired
Champion via telephone; at the time, defendant was in Oakland County, while Champion
was in Wayne County. I note, however, that these multiple locations are explicitly
related to the communication, and thus implementation, of the discriminatory discharge,
which is itself the violation of the statute. Regarding plaintiff Brandon Brightwell,
though, there is a factual dispute about his location when defendant communicated the
adverse employment decision to him. If, as defendant says is the case, Brightwell was at
home in Oakland County and the phone call terminating his employment was also placed
from Oakland County, then the statutory violation occurred completely in Oakland
County, irrespective of the fact that Brightwell worked in Wayne County.
4
employment.”7 Yet when an employer fires an employee for a discriminatory purpose, as
was alleged here, why is the communication of that adverse employment decision not
itself the violation of the CRA?
I think that scarcely one in a thousand people would believe that a person is not
“discharged” from employment at the moment an employer says to the employee:
“You’re fired.” Yet in the context of discriminatory discharges under the CRA, the
majority holds otherwise. The majority thus believes that the communication or
implementation of a discriminatory decision only causes a future violation of the CRA at
some later, indeterminate time (when an employee is actually prevented from returning to
the workplace or performing his work duties) and is not itself the actual violation of the
CRA. I fail to see how this can be true. An employer who tells an employee that he is
fired actually severs the employment relationship at that time; if he also communicates a
discriminatory intent to the employee at this time, he has violated the CRA. Such a
convergence is more than a mere discriminatory statement devoid of meaning or
7
Ante at ___. This analysis is made even more confusing by the majority’s
admission that “the actus reus and mens rea constituting a CRA violation converge when
a defendant communicates a discriminatory decision to an employee” and that this
“convergence causes the CRA violation . . . .” This accepts precisely my stated
formulation. However the majority then states that “it does not settle the issue of what
constitutes discharging the employee: the communication of the discriminatory decision
or removing the employee’s right to work at his or her place of employment.” Ante at
___. I fail to see why not. If, as the majority admits, the convergence causes a violation
at the time of convergence and the statute specifically and plainly defines “violation” as a
“discharge,” then the issue is settled: the discharge/violation occur at the point of
communication of a discriminatory decision, which by definition, is also the same time as
the employee’s right to work has been removed.
5
consequence until some later time. The majority fails to understand that the issue of
when a person is fired is inextricably linked to where the person is fired, given that the
location(s) at the time the discharge occurs establish the statutory venue.8
The majority’s analysis on this point is also internally inconsistent. If the
communication terminating employment only caused a later violation that occurred at the
employee’s place of work, then only the place of employment could ever be the locus of
the violation that establishes venue under the CRA. However, the majority opinion also
holds that a violation may occur elsewhere at some place other than the place of
employment. Under the majority’s theory, why would the place where the
communication is received, if it is not the place of actual employment, ever be a proper
venue if it were not the place where the actus reus and mens rea converge to cause the
violation? The majority cannot explain this anomaly.
Similarly, the majority opinion additionally provides that the “adverse
employment actions in these cases occurred where the plaintiffs’ place of employment
was located”9—that is, where plaintiffs physically worked. It is difficult to see how the
majority’s “place of employment” theory of violation relates in any relevant way to the
8
See ante at ___ & ___ n ___. It is this failure that allows the majority simply to
assert that this opinion’s criticisms “miss[] the mark” rather than address the substance of
those criticisms.
9
Ante at ___.
6
occurrence of the actual discharge.10 In effect, the majority’s analysis establishes as a
matter of law that venue is proper not only where the discriminatory communication
terminating the employment occurred, but also where the “effects” of the discrimination
occurred, namely at an employee’s place of work.11
The majority’s position is further undermined by the fact that the CRA explicitly
makes the defendant’s place of business a proper venue, while at the same time it says
nothing about plaintiff’s place of employment. The CRA’s venue provision provides that
a CRA action “may be brought in the circuit court for the county where . . . the person
10
I agree with the majority that it is the severance of employment that amounts to
a discriminatory discharge. Ante at ___. The CRA’s venue provision only allows proper
venue where the actual severance occurred, though, which need not necessarily be in the
place where the employee worked.
To advance its argument, the majority erroneously relies on this dissent’s
definition of “discharge,” which again is commonly defined as “to relieve of obligation,
responsibility”; “to relieve or deprive of office, employment, etc.; dismiss from service.”
Ante at ___ & n ___. For our purposes, the relevant words here are the verbs “relieve,”
“deprive,” and “dismiss” because they add context to the statutory verb “discharge,”
which is the prohibited act relevant here. Thus, it can only be the actual communication,
which itself implements a discriminatory decision, that amounts to the actual “discharge”
or relieving of, depriving of, or dismissing from employment. And, again, this act need
not occur at the place of actual employment. Since, it is the very act of communicating a
discriminatory discharge that constitutes a violation of the CRA, if that communication or
implementation is not made at the workplace, then the workplace is not a proper venue
for a CRA action.
11
Cf. Rylott-Rooney v Alitalia-Linee Aeree Italiane-Societa Per Azioni, 549 F
Supp 2d 549, 554 (SD NY, 2008) (applying New York City’s and New York State’s
human rights laws and making the distinction that “when an employee is terminated in a
location other than his workplace, the act of termination is the original tortious act . . .
and the experience of being removed from employment is the original event causing
injury,” only the latter of “which occurs at the employee’s workplace”). Notably, unlike
New York City’s and New York State’s laws, Michigan’s CRA provision provides venue
only in the place of the original tortious act, and not in the place of injury.
7
against whom the civil complaint is filed resides or has his principal place of business.”12
This language underscores the fact that the majority essentially creates a new venue
provision that is contrary or in addition to the statutory language regarding where a
violation occurs, as well as the structure and specific language chosen by the
Legislature.13
If the Legislature had wished to make a plaintiff’s place of employment a proper
venue, it could have easily and explicitly done so.14 Indeed, if the Legislature wishes to
12
MCL 37.2801(2). Because plaintiffs asserted that venue was proper in Wayne
County, a place where defendant neither resides nor has its principal place of business,
this portion of the CRA’s venue provision was not relevant to venue for this action,
which instead turned on whether a violation of the CRA had occurred in Wayne County.
However, this language is instructive for our purposes in determining how to interpret the
disputed language relevant here.
Additionally, I do not subscribe, as the majority curiously implies, to the view that
venue is limited to the places over which defendant has exclusive control. See ante at
___. This is an altogether odd argument that, to the best of my knowledge, has not been
advanced by any party or justice, and certainly not by me, as such a construction would
be contrary to the language of the statute. Indeed, my construction of the statute permits
what the wording explicitly provides: venue is proper in the place of the violation (here, a
discharge), regardless under whose control that place falls. Accordingly, venue exists
where the Legislature has stated that venue should exist, and “our judicial role ‘precludes
imposing different policy choices than those selected by the Legislature . . . .’”
Robertson v DaimlerChrysler Corp, 465 Mich 732, 759; 641 NW2d 567 (2002), quoting
People v Sobczak-Obetts, 463 Mich 687, 694; 625 NW2d 764 (2001).
13
General rules of statutory construction support this position. “Michigan has
recognized the principal of expressio unius est exclusio alterious [sic]—express mention
in a statute of one thing implies the exclusion of other similar things.” Stowers v
Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971), citing Dave’s Place, Inc v Liquor
Control Comm, 277 Mich 551; 269 NW 594 (1936), and Sebewaing Indus, Inc v Village
of Sebewaing, 337 Mich 530; 60 NW2d 444 (1953).
14
The majority contends that “since the Legislature intended the interpretation we
ascribe to the language [regarding the terms ‘discharge’ and ‘violation’], there was no
8
establish parallel venue provisions, it is capable of doing and has done so.15 However,
when the Legislature has not done so, this Court may not expand upon the clear language
chosen by the Legislature. Simply put, the CRA’s venue provision says nothing about
the plaintiff’s place or locus of employment as an independent site of proper venue.
That the majority is expanding the scope of the CRA is further underscored when
considering potential violations that are not discriminatory discharges, but are
nonetheless CRA violations that will therefore be implicated by this decision. As
previously noted, the CRA prohibits discriminatory “fail[ures] or refus[als] to hire or
recruit” and other unnamed types of general employment discrimination against a
person.16 Under the majority’s formulation, venue would be proper in a plaintiff’s place
of potential employment even if the plaintiff never worked in that place because of a
refusal to hire.17 By way of contrast, my interpretation of the venue provision
reason to expressly include an employee’s place of employment as an alternative basis
for venue.” Ante at ___ (emphasis added). There is no indication, however, that the
Legislature intended the majority’s broad construction that interprets “violation” as
something other than where the actus reus and mens rea come together. Moreover, if the
Legislature intended to give those terms the meanings I have fairly ascribed to them, it
would have needed to include additional language regarding the plaintiff’s place of
employment as an additional venue. Thus, the majority’s assertion in this regard only
advances its argument if one accepts its underlying premise that an overly broad reading
of the statutory terms is required.
15
See, e.g., MCL 600.1629. Michigan’s general venue provision for torts
explicitly makes distinctions between where the plaintiff and defendant reside in its
framework establishing where venue is proper.
16
MCL 37.2202(1).
17
Consider, for example, a hypothetical case analogous to the facts here: a large
corporation with its principal place of business in Oakland County recruits a student who
9
appropriately prevents venue from being established in such a location because neither
the actus reus nor the mens rea—which together comprise a violation—would occur in
that place. Moreover, whereas Title VII of the federal Civil Rights Act explicitly
contemplates such a result,18 the Michigan Legislature declined to adopt comparable
language when it crafted Michigan’s CRA.19 Thus, the majority’s construction ascribes
additional meaning to the words of Michigan’s CRA not contemplated by the Legislature.
also lives in Oakland County for a position in Detroit (Wayne County), yet
discriminatorily refuses to hire the student for the Detroit position in violation of the
CRA. Even though the student never set foot or worked in Wayne County, venue would
nonetheless be proper in Wayne County under the majority’s theory that Detroit would
have been the place of employment and thus the employer “remov[ed] the [potential]
employee’s right to work at his or her [never-established] place of employment.” Ante at
___. Such a construction finds no support in the language of Michigan’s CRA venue
provision.
18
See 42 USC 2000e-5(f)(3) (“Such an action may be brought in any judicial
district in the State in which the unlawful employment practice is alleged to have been
committed . . . or in the judicial district in which the aggrieved person would have
worked but for the alleged unlawful employment practice . . . .”) (emphasis added). If
one were to adopt the majority’s reasoning when interpreting this federal venue
provision, the resulting construction would either render these alternative clauses
redundant or render the latter clause surplusage because under the first clause, venue
would always be proper in the place of potential employment.
19
The Missouri Supreme Court has come to a similar conclusion. See Igoe v
Dep’t of Labor and Indus Relations, 152 SW3d 284, 288-289 (Mo, 2005). Using
language that is nearly identical to Michigan’s CRA, the venue provision of Missouri’s
Human Rights Act provides venue where the “unlawful discriminatory practice is alleged
to have occurred.” The Missouri Supreme Court held that vacant positions in St. Louis to
which plaintiff had applied did not establish St. Louis as a proper venue because “all of
the acts—the receipt and review of applications, the interviews, and the decision
making—all occurred” in a separate county and thus no discriminatory practice had
occurred in St. Louis. Id. at 288. Most important, this was true notwithstanding the fact
that venue would have been proper in St. Louis under the federal venue provision of Title
VII.
10
Finally, the majority notes several policy considerations supporting its position,
but I believe that each is unavailing to displace the clear language of the statute. The
majority argues that its additional rule creates another convenient forum and that it also
prevents an employer from controlling the place of venue by choosing where he fires an
employee. First, the resort to “convenience” as a justification for the rule in this case
conflates forum non conveniens theory with the statutory venue provision.20 They are not
based on similar principles—the latter being predicated on where the forum is proper, not
convenient. Additionally, even if a defendant tries to control venue by firing the plaintiff
from a place wholly unrelated to the actual place of employment, the plaintiff’s remedy at
that time is a motion for a change of venue based on forum non conveniens.21 It is not
20
The majority opinion states that “it defies common sense to conclude that the
county in which the employee actually worked for the employer would be an
inconvenient forum for either party.” Ante at ___. The convenience of the forum is not
at issue in this case. Moreover, when a statute makes clear where venue is proper, I am
not sure why any argument that meets the low threshold of being “common sense” can
vary this statutory determination. I believe that the Legislature’s choice makes “sense”—
even if the majority would prefer another or an additional choice.
21
This is the precise response and remedy to the hypothetical example posed in
the majority opinion regarding an employer who fires a Wayne County employee while
on retreat in the Upper Peninsula. See ante at ___ n ___. Indeed, the majority’s
hypothetical only reaffirms and proves my criticism that the majority improperly
conflates forum non conveniens theory with venue rules. Similarly, the majority’s
alternative hypothetical example regarding an employee who is fired while at lunch in
Canada again does nothing to disprove the reality that a statutory violation occurs when
the mens rea and actus reus converge. In such a case, the CRA venue provision provides
alternative venues to ensure that the plaintiff would have a Michigan forum in which to
litigate his claim. See MCL 37.2801(2). And again, this forum may be relocated if it is
determined to be inconvenient pursuant to forum non conveniens theory.
11
this Court’s duty to manufacture alternative forums as a matter of law merely because
they would also be convenient to the parties.
For these reasons, I would restrict venue solely to the place of the violation, as
defined by where the mens rea and actus reus converge, in accordance with the clear
terms of the statute. To the extent that the majority interprets this state’s civil rights laws
in a way that prevents a putative plaintiff’s claims from becoming actionable the moment
a violation of the CRA occurs, I dissent.
CORRIGAN, J., concurred with YOUNG, J.
Moreover, the mere fact that one can conceive of an exceptional hypothetical case
does not mean that we should rewrite the general rule contrary to the plain meaning of the
statute. I note that most cases will likely not implicate the distinction drawn between
these opinions because many, if not most, employment violations occur at a person’s
place of employment. Thus, my interpretation of the venue provision does not lead to a
situation that is contrary to common sense, that would deprive the parties of a convenient
forum, or that will work a hardship against prosecuting potential CRA violations.
12
STATE OF MICHIGAN
SUPREME COURT
BRANDON BRIGHTWELL,
Plaintiff-Appellant,
v No. 138920
FIFTH THIRD BANK OF MICHIGAN,
Defendant-Appellee.
SHARON CHAMPION,
Plaintiff-Appellant,
v No. 138921
FIFTH THIRD BANK OF MICHIGAN,
Defendant-Appellee.
WEAVER, J. (dissenting)
I dissent. I would not have granted leave to appeal in this case because I am not
persuaded that the Court of Appeals erred or that there was any material injustice.
Elizabeth A. Weaver