McClements v. Ford Motor Co.

Order Supreme Court
Lansing, Michigan

September 23, 2005 Clifford W. Taylor,
Chief Justice

Michael F. Cavanagh
126276 Elizabeth A. Weaver
Marilyn Kelly
Rehearing No. 525 Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman,
Justices
MILISSA McCLEMENTS,

Plaintiff-Appellee/

Cross-Appellant,

v SC: 126276
COA: 243764
Oakland CC: 01-034444-CL
FORD MOTOR COMPANY,

Defendant-Appellant/

Cross-Appellee,

and
DANIEL P. BENNETT,

Defendant.

_________________________________________/

On order of the Court, a motion for rehearing is considered and, in lieu of granting
rehearing, the opinion of the Court is amended in the following respects:

At slip opinion pages 2, 14, 17, 20 and 22 and in footnote 10 the phrase “the
terms, conditions or privileges” is amended to read: “a term, condition, or privilege.”

In the third sentence of footnote 14 the phrase “alter the terms and conditions of
employment” is amended to read: “affect an individual’s employment.”

In all other respects, the motion for rehearing is DENIED.

CAVANAGH and WEAVER, JJ., would grant rehearing.

KELLY, J., dissents and states as follows:

I would grant rehearing and remand the case to allow plaintiff to proceed on both
her claim under the Civil Rights Act (CRA), MCL 37.2101 et seq., and her negligent
retention claim.

By switching its reference from “the terms, conditions, or privileges of
employment” to “a term, condition, or privilege of employment,” the majority has
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significantly undermined the reasoning of its opinion. Much of the majority’s analysis
rests on an analogy to § 202 of the Persons with Disabilities Civil Rights Act
(PWDCRA), MCL 37.1202. But, the PWDCRA does not use the phrase “a term.” It
uses the phrase “the terms.” This majority has repeatedly stressed that it perceives a
difference between “the” and “a” when used by the Legislature. See Robinson v Detroit,
462 Mich 439, 458-459 (2000). Under the majority’s logic, since one contains “a” and
the other contains “the,” the PWDCRA and the CRA must have different meanings. The
CRA must be construed more broadly than the PWDCRA. However, the majority
instead reads both acts the same way, narrowly. It fails to recognize its inconsistency.

If defendant Ford adversely affected a single term or condition of plaintiff’s
employment, it should be held liable under the CRA. Plaintiff alleged that Ford did
adversely affect a term or condition of her employment through its employee Bennett
when Bennett created a hostile work environment. She also asserted that Ford had notice
and did not adequately respond to Bennett’s harassment. I believe that plaintiff stated a
claim under the CRA.

In addition, I would allow her to amend her claim of negligent retention. Claims
of negligent retention can be based on assault and battery. Given that the majority held
that plaintiff’s claim cannot be based on sexual harassment, as plaintiff alleged, plaintiff
should be allowed to amend her complaint.

I, CORBIN R. DAVIS, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 23, 2005
_________________________________________
p0919 Clerk