The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
KENNETH MCKENZIE, UNPUBLISHED
August 11, 2025
Plaintiff-Appellee, 1:51 PM
v Nos. 367982; 368115
Wayne Circuit Court
DEPARTMENT OF CORRECTIONS, STATE OF LC No. 18-002451-CD
MICHIGAN, and MACOMB CORRECTIONAL
FACILITY WARDEN,
Defendants-Appellants.
FATIMA OLDEN,
Plaintiff-Appellee,
v No. 367995; 368132
Wayne Circuit Court
DEPARTMENT OF CORRECTIONS, STATE OF LC No. 18-001424-CD;
MICHIGAN, and MACOMB CORRECTIONAL 18-002451-CD
FACILITY WARDEN,
Defendants-Appellants.
Before: PATEL, P.J., and RIORDAN and SWARTZLE, JJ.
PER CURIAM.
These four consolidated appeals arise from two separate actions filed in the Wayne Circuit
Court: one by plaintiff Kenneth McKenzie (Case No. 18-002451-CD), and one by plaintiff Fatima
Olden (Case No. 18-001424-CD). Plaintiffs were correctional officers at the Macomb
Correctional Facility and alleged claims under Michigan’s Persons With Disabilities Civil Rights
Act (PWDCRA), MCL 37.1101 et seq., the federal Americans With Disabilities Act (ADA), 42
USC 12101 et seq., and the federal Rehabilitation Act, 29 USC 794 et seq.
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In Docket Nos. 367982 and 367995, defendants appeal as of right the trial court’s order
denying their motion for summary disposition brought under MCR 2.116(C)(7) on governmental
immunity grounds. In Docket Nos. 368115 and 368132, defendants appeal by leave granted the
same order denying their motion for summary disposition brought under MCR 2.116(C)(10) on
the underlying merits of plaintiffs’ claims. Because the trial court erred by denying defendants’
motion for summary disposition on governmental immunity grounds, we reverse and remand to
the trial court for entry of summary disposition in favor of defendants.
I. BASIC FACTS
This is the second time these cases have been to this Court. The background facts can be
found in this Court’s prior opinion, McKenzie v Dep’t of Corrections, 332 Mich App 289; 957
NW2d 341 (2020):
The facts in both cases are similar and largely undisputed. Plaintiffs,
Kenneth McKenzie and Fatima Olden, (plaintiffs) are long-term employees of the
Michigan Department of Corrections (MDOC) as corrections officers at the
Macomb Correctional Facility (the Facility). In 2015, the Facility began a program
in which inmates trained dogs to become leader dogs for the blind. The program
only took place in certain housing units in the Facility. Plaintiffs were both
assigned to one of those housing units and, therefore, frequently came into contact
with dogs. Plaintiffs alleged that they were allergic to dogs and would suffer
allergic symptoms whenever they came into close contact with the dogs. Plaintiffs
alleged that they informed their supervisors of their allergic reactions and then filed
“Disability Accommodation Request and Medical Statements” with the MDOC,
requesting that they be assigned to the housing units that did not have dogs.
While the Facility warden allowed plaintiffs to briefly move to different
housing units, plaintiffs were ultimately returned to the housing units in which dogs
were kept and trained. The MDOC denied plaintiffs’ requests for accommodation,
and the Facility warden also refused to accommodate their claimed allergies by
assigning them to any other housing units or positions. Thereafter, plaintiffs each
filed a charge of disability discrimination with the Equal Employment Opportunity
Commission (EEOC), after which they were allegedly subjected to retaliatory acts
at the Facility. The EEOC found probable cause that the MDOC was in violation
of the Americans with Disabilities Act (ADA) and proposed conciliation
agreements between the MDOC and plaintiffs, but the MDOC refused the terms
and plaintiffs’ charges were transferred to the Department of Justice (DOJ). The
DOJ determined that it would not pursue charges on behalf of either plaintiff, and
plaintiffs thereafter filed complaints against the Facility warden, the MDOC, and
the state of Michigan. In their complaints, plaintiffs alleged violations of the
Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq., retaliation in
violation of the same act, violation of Title I of the ADA, 42 USC 12111 et seq., by
the Facility warden, and violation of § 504 of the Rehabilitation Act, 29 USC 794,
by the state and the MDOC. [Id. at 293-294.]
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Defendants had moved for summary disposition on the ADA and Rehabilitation Act
claims, arguing that the trial court lacked subject-matter jurisdiction over these federal claims. The
trial court denied the motion, and this Court affirmed. Id. at 293.
After the case returned to the trial court, defendants again sought summary disposition, this
time under MCR 2.116(C)(7) and (10). Regarding the (C)(7) aspect of their motion, defendants
argued that they were entitled to judgment because of governmental immunity. Specifically, while
relying on the recent Supreme Court decision Christie v Wayne State Univ, 511 Mich 39; 993
NW2d 203 (2023), defendants maintained that because plaintiffs did not file the requisite notice
of intention to file a claim within a year of the accrual of their claims, the suit was barred by
governmental immunity. Defendants also noted that plaintiffs’ filing of the notice after Christie
was issued does not cure this deficiency because plaintiffs were required to file their notices within
a year of their claims accruing. With respect to MCR 2.116(C)(10), defendants argued that there
were no questions of fact and that they were entitled to judgment as a matter of law on the merits.
The trial court denied defendants’ motion, finding that “[a]pplying Christie retroactively is
going to have a disastrous effect . . . on a number of these cases that are already pending where the
plaintiffs did in fact comply with the law that was in existence at the time.”
II. ANALYSIS
Defendants argue that the trial court erred by not applying Christie and by denying their
motion for summary disposition. We agree.
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). Whether a plaintiff was required
to comply with the notice provision of MCL 600.6431 is an issue of statutory interpretation that
this Court reviews de novo. Fairley v Dep’t of Corrections, 497 Mich 290, 296; 871 NW2d 129
(2015). Whether a judicial decision is to be applied retroactively is a question of law that this
Court reviews de novo. McNeel v Farm Bureau Gen Ins Co of Mich, 289 Mich App 76, 94; 795
NW2d 205 (2010).
A party is entitled to summary disposition under MCR 2.116(C)(7) if, among other things,
the plaintiff’s claims are barred because of “immunity granted by law.” Parties may support their
respective positions with affidavits, depositions, admissions, or other documentary evidence.
MCR 2.116(G)(5). “The contents of the complaint are accepted as true unless contradicted by the
evidence provided.” Odom, 482 Mich at 466 (quotation marks and citation omitted).
Relying on Christie, 511 Mich 39, defendants moved for summary disposition on
governmental immunity grounds, arguing that because plaintiffs did not satisfy the notice
requirements of MCL 600.6431, their suits were barred. MCL 600.6431(1) provides:
Except as otherwise provided in this section, a claim may not be maintained
against this state unless the claimant, within 1 year after the claim has accrued, files
in the office of the clerk of the court of claims either a written claim or a written
notice of intention to file a claim against this state or any of its departments,
commissions, boards, institutions, arms, or agencies.
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In Christie, our Supreme Court unanimously held that, although this statutory provision is
contained in the Court of Claims Act, MCL 600.6401 et seq., it nonetheless applies to any suit
against the state, even if that suit is filed in circuit court. Christie, 511 Mich at 64. In doing so,
our Supreme Court overruled this Court’s opinion in Tyrrell v Univ of Mich, 335 Mich App 254;
966 NW2d 219 (2020), which had held that because the above statutory language was contained
in the Court of Claims Act, it only applied to suits filed in the Court of Claims. Id. at 268-272.
As a general rule, judicial decisions generally are to be given retroactive application.
Curtis v City of Flint, 253 Mich App 555, 564; 655 NW2d 791 (2002). As such, prospective
application usually is limited to decisions that overrule clear and settled precedent. Id. For
prospective application to apply, a threshold question needs to be addressed: whether the decision
clearly establishes a new principle of law. League of Women Voters of Mich v Secretary of State,
508 Mich 520, 565; 975 NW2d 840 (2022). If the decision establishes a new principle of law,
then a court is to weigh the following three factors in determining whether a decision should have
retroactive application: “(1) the purpose to be served by the new rule, (2) the extent of reliance on
the old rule, and (3) the effect of retroactivity on the administration of justice.” Pohutski v City of
Allen Park, 465 Mich 675, 696; 641 NW2d 219 (2002).
In Flamont v Dep’t of Corrections, ___ Mich App ___; ___ NW3d ___ (2024) (Docket
No. 367863), this Court recently was confronted with the same question and held that Christie is
to have full retroactive application. Id. at ___; slip op at 6. In particular, Flamont determined that
the threshold requirement was not satisfied. Id. This Court reasoned that our Supreme Court in
Christie based its decision on the plain and unambiguous language of MCL 600.6431. Id. at ___;
slip op at 5-6. Significantly, our Supreme Court does not announce a new rule of law when it
overrules a decision of the Court of Appeals that misinterpreted a statute contrary to its plain
meaning. Id. at ___; slip op at 6, citing Mich Ed Employees Mut Ins Co v Morris, 460 Mich 180,
196-197; 596 NW2d 142 (1999). Consequently, because Christie was giving effect to the plain
and unambiguous language of MCL 600.6431(1), it did not announce a new rule of law, even
though it overruled this Court’s earlier interpretation. Flamont, ___ Mich App at ___; slip op at
6. And, because Christie did not announce a new rule of law, any further analysis of the factors
for retroactivity is unwarranted, and Christie is entitled to full retroactive application. Id.
Additionally, aside from Flamont’s explicit holding, our Supreme Court itself has applied
its interpretation of MCL 600.6431 retroactively in Christie and Elia Cos, LLC v Univ of Mich
Regents, 511 Mich 66; 993 NW2d 392 (2023). The plaintiff in Christie filed her complaint in
2019, and yet the Court applied its 2023 ruling to that case. Christie, 511 Mich at 46. Further, in
an opinion issued the same day as Christie, our Supreme Court again applied the rule from Christie
retroactively to the plaintiff in Elia Cos that had filed its complaint in 2018. Elia Cos, 511 Mich
at 69. There is nothing distinguishable between plaintiffs in the present cases and the plaintiffs in
Flamont, Christie, and Elia Cos. They all filed their respective complaints before this Court issued
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its opinion in Tyrrell, making any reliance on Tyrrell as a justification for not complying with
MCL 600.6431 misplaced.1
On appeal, plaintiffs suggest that defendants have waived the defense of governmental
immunity through their conduct by not raising the defense until nearly five years after the lawsuits
were filed.2 However, when responding to defendants’ motion for summary disposition, plaintiffs
never asserted this position, making it not properly before this Court. While “an appellee who has
taken no cross appeal may still urge in support of the judgment in its favor reasons that were
rejected by a lower court,” Middlebrooks v Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774
(1994) (quotation marks and citations omitted), that is not what plaintiffs are doing. Because
plaintiffs never raised the issue of waiver in the trial court, the trial court never rejected it, let alone
addressed it.3 In any event, we note that “defective notice [under MCL 600.6431] need not be
pleaded as an affirmative defense because defendants are presumed to be entitled to governmental
immunity . . . .” Fairley, 497 Mich at 300. Thus, assuming that the question of waiver properly
was before this Court, it would not apply here.
Plaintiffs also assert that because they later filed a joint notice of intention in the Court of
Claims, they are “now in compliance” with the rule. However, this ignores the requirement that
such a notice be filed “within 1 year after the claim has accrued.” MCL 600.6431(1). Plaintiffs
do not dispute that the notice was untimely but instead cursorily suggest that this timing
requirement is inapplicable because their suit was filed in circuit court. Such an argument
disregards the import of Christie. Our Supreme Court emphatically held that the requirements of
MCL 600.6431(1) apply to “all parties with claims against the state,” even if those claims are filed
1
In this regard, we note that Landin v Dep’t of Health & Human Servs, ___ Mich App ___; ___
NW3d ___ (2024) (Docket No. 367356), held that Christie does not apply retroactively to “post-
Tyrrell/pre-Christie” cases. Id. at ___; slip op at 2. While the validity of Landin is, at the time of
this opinion, the subject of a special panel, see Hudson v Dep’t of Corrections, ___ Mich App ___;
___ NW3d ___ (2024) (Docket No. 367902), Landin would not apply to this case in any event
because the relevant facts predate Tyrrell.
2
While this five-year span technically is accurate, it provides an incomplete or inaccurate picture.
Importantly, while defendants pursued their appeal from the trial court’s first denial of their motion
for summary disposition, the cases were stayed from early 2019 until early 2023, a span of
approximately four years, which also encompassed the COVID-19 pandemic. In June 2023—
within four months of the cases being reinstated after the stays—defendants moved for summary
disposition on improper notice and governmental immunity grounds.
3
Moreover, the federal cases plaintiffs rely on are inapposite because those involve state
defendants voluntarily participating in litigation in federal court and then subsequently attempting
to invoke Eleventh Amendment immunity. The present case does not involve an invocation of
Eleventh Amendment immunity and does not involve defendants’ voluntarily involvement in this
case—defendants were brought involuntarily into state court by plaintiffs.
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in circuit court. Christie, 511 Mich at 64. Hence, plaintiffs’ filling of their notice more than a
year after their claims accrued does not satisfy the statutory requirement.
In sum, because Christie did not announce a new rule of law, it is to be given full retroactive
application. There is no dispute that plaintiffs did not comply with MCL 600.6431(1) within one
year of their claims accruing. As a result, the trial court erred by denying defendants’ motion for
summary disposition.4
III. CONCLUSION
We reverse and remand to the trial court for entry of summary disposition in favor of
defendants.5 We do not retain jurisdiction.
/s/ Sima G. Patel
/s/ Michael J. Riordan
/s/ Brock A. Swartzle
4
We briefly note that MCL 600.6431 applies not only to the state itself as a defendant, but also its
departments and agencies. See Christie, 511 Mich at 58. Thus, the MDOC is entitled to summary
disposition to the same extent as the state of Michigan. Moreover, because the Facility warden
was sued in his official capacity, he is treated as the state as well. See Mays v Snyder, 323 Mich
App 1, 88; 916 NW2d 227 (2018), aff’d 506 Mich 157 (2020).
5
Because defendants are entitled to summary disposition under MCR 2.116(C)(7) on
governmental immunity grounds, we decline to address whether the trial court also erred by
denying defendants’ motion under MCR 2.116(C)(10).
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