Sumner v. Goodyear Tire & Rubber Co.

Riley, J.

(concurring in part and dissenting in part). I agree with the majority’s adoption of the continuing violation doctrine. However, I disagree with the majority’s application of the doctrine in Sumner. Thus, I dissent.

The majority finds as persuasive United Air Lines, Inc v Evans, 431 US 553 ; 97 S Ct 1885 ; 52 L *555 Ed 2d 571 (1977). Under Evans , essential to the establishment of an actionable continuing violation is a present violation within the limitation period. The present violation must be a discriminatory act sufficiently connected to the prior acts by more than a "vague or undefined relationship.” Ante, p 539. Without the showing of sufficient connection, the timely act (assuming it is discriminatory) is actionable only in and of itself. Any alleged prior discriminatory acts are barred. However, if sufficient connection is shown, the entire series of acts is actionable.

A discriminatory policy is analyzed in much the same manner. Plaintiff must allege a discriminatory policy, applied at some point within the limitation period, which caused a deprivation. Ante, pp 536-537.

In Robson, plaintiff alleged that he was the victim of a discriminatory policy which caused him to lose his job as a test driver and, subsequently, be laid off. Plaintiff made numerous attempts within the limitation period to regain his position, but each attempt was rebuffed, allegedly due to the policy. Thus, plaintiff sufficiently plead a discriminatory policy, applied within the limitation period. Therefore, I agree with the majority’s reversal of the trial court’s grant of summary judgment.

Furthermore, I agree with the majority’s disposition in Knight. Plaintiff’s discharge was the only act occurring within the limitation period. However, the jury found that plaintiff’s termination was not significantly influenced by her rejection of her supervisor’s sexual advances. Thus, plaintiff could not establish a present violation, without which there was no continuing violation. Therefore, the decision of the Court of Appeals must be affirmed.

*556 In Sumner, as in Knight, the only act occurring within the limitation period was plaintiff’s termination. Also, as in Knight, the discharge was found to be nondiscriminatory. 1 However, at this point, the majority’s reasoning in Knight and Sumner begins to diverge.

In his complaint to the Civil Rights Commission, and in his appeal to the Ingham Circuit Court, Mr. Sumner alleged that his discharge was racially discriminatory. He presented data which he claimed tended to show that white employees were not discharged for this type of altercation, whereas black employees were. Although this was adequate to state a claim under a continuing violation theory, the circuit court rejected this contention as a matter of fact on review.

Mr. Sumner’s allegation that the discharge itself was discriminatory is, in part, an implicit recognition of a basic requirement of the continuing violation theory, i.e., in order to maintain a cause of action, at least one of the discriminatory acts must be within the applicable period of limitation. The circuit court, in deciding the facts of this case, rejected this allegation, and its findings should not be overturned unless clearly erroneous. The decision to discharge Mr. Sumner has been found to be a neutral determination and, thus, no act of discrimination has been found to be within the ninety days required for a claim under the Fair Employment Practices Act. 2 _

*557 In order to link the nondiscriminatory termination with the earlier discriminatory acts, the majority is willing to impute, to the decision to discharge plaintiff, the discriminatory purpose of plaintiff’s supervisors. The majority states:

While the decision to terminate was ultimately made by company officials not involved with the harassment, there was substantial evidence to indicate that the very purpose of the harassment was to provoke plaintiff into an action for which he could be terminated. The termination therefore may have been part of the plan or course of conduct and the discriminatory provocation a substantial factor in the resulting discharge. If this is in fact the Case, the neutral mechanism of company rules and the decision to fire in this case would not have been invoked due to a fortuitous and unforeseen series of events, but instead because the supervisors may have consciously worked toward the opportunity to employ this neutral mechanism for a discriminatory purpose. . . .

. . . [W]e think that to interpret the limitation period of the statute in a way that would allow racial provocation to be isolated from its possible ultimate intended purpose when the accomplishment of that purpose is timely would be to allow and encourage the worst kinds of blatant discrimination that the act was intended to eradicate. Provocation is not only connected with the intended result, but directed to it. Unlike more typical continuing violations, the alleged timely act, i.e., the discharge was not ordered by parties themselves possessing discriminatory intent. However, if plaintiffs supervisors intentionally provoked Sumner, and he was subsequently discharged for his response to the untimely harassment, the discharge is, for purposes of the continu *558 ing violation doctrine, a present violation, since, while not actionable for purposes of reinstatement, it carries the discriminatory intent into the timely period, thus allowing for jurisdiction over the unlawful harassment. [Ante, pp 539-541.]

The importance of the purpose of the discrimination is illustrated by the fact that the majority distinguishes this case from Glasgow v North Carolina Dep’t of Transportation, 522 F Supp 441 (ED NC, 1981), stating:

While Glasgow bears some resemblance to the instant case, it presents a fundamentally different situation in that the plaintiff in Glasgow did not allege or demonstrate that the harassment was intentionally designed to provoke her into taking prolonged sick leave. [Ante, p 540, n 13.]

In Glasgow , the only act within the limitations period — the plaintiff’s termination — was found to have been lawful. As such, there was no present violation, and plaintiff’s action was thereby dismissed.

I disagree with the majority’s reasoning in Sumner for two reasons. First, the majority declares that there was substantial evidence that the ultimate purpose of the harassment was plaintiff’s termination. This purpose is essential to the majority’s position as it links the discriminatory acts of harassment with the admittedly nondiscriminatory termination. Without this link, the majority will be unable to find a present violation and, as such, a continuing violation argument fails. However, the purpose behind the discrimination is a question of fact. No factfinder below considered, determined, or made findings as to the ultimate purpose of the harassment. To remedy this deficiency, the majority remands this case to the Civil *559 Rights Commission for further factfinding on the question of plaintiffs supervisors’ intent.

However, even if plaintiff can show intentional provocation upon remand, we would find no present violation and thus no continuing violation. There may be situations in which an admittedly neutral discharge is so tainted as a result of intentional provocation, by persons not involved in the decision to discharge, that the discriminatory purpose must be imputed to the decision. Such a situation could involve a circumstance whereby the plaintiff has no control over the events leading to, or reasons for, the decision to discharge. An. example of this would be a supervisor discriminatorily transferring an employee to a position for which the supervisor knows the employee is not qualified, with the intent that the employee will ultimately be discharged for incompetence. The employee has no control over the transfer and thus is not to blame for any inability to perform in the new position. As such, the termination is not precipitated by any actions of the employee, but by the supervisor’s discriminatory transfer.

Here, that is not the case. Plaintiff was discharged because he attacked his supervisors. Thus, plaintiffs own actions formed the basis of the decision to discharge him. His attack on his supervisors destroyed any link between the harassment and the discharge. There is no dispute that an employer may rightfully discharge an employee who attacks a supervisor. See Otis v Inland Container Corp, 25 FEP Cases 1280 (ND Ill, 1981). Thus, since plaintiff brought about the incident which precipitated his discharge, and the discharge was justified and not discriminatory, the intention of plaintiffs supervisors should not be imputed to the decision to discharge plaintiff.

Additionally, while the trial court found as a *560 matter of fact that the harassment provoked plaintiff into the attack, words alone may never justifiably incite an assault. See Gungrich v Anderson, 189 Mich 144 ; 155 NW 379 (1915); Goucher v Jamieson, 124 Mich 21 ; 82 NW 663 (1900). As such, the fact that the harassment provoked the attack does not provide the necessary link between the harassment and the termination. Since there is no link between the harassment and the termination, there is no present violation, and, therefore, no continuing violation.

My second disagreement with the majority’s reasoning is that Sumner is essentially the same case as Knight In both cases, the only timely event was the discharge. While both plaintiffs apparently were victims of harassment, both of their discharges were found to be nondiscriminatory. In each case, the discharge was arguably related to the harassment by the plaintiffs’ supervisors. However, in Knight, the majority accepts the finding that the termination was neutral, choosing not to impute a discriminatory purpose as it is willing to do in Sumner. I see no logical reason for reaching a different result in Sumner than in Knight. As such, I dissent from the majority opinion in Sumner, and would affirm the decision of the Court of Appeals.

Boyle, J., concurred with Riley, J.

The hearing referee made a specific finding that plaintiff’s discharge was not race-related. The Civil Rights Commission did not follow the referee’s recommendation, instead finding the termination to be discriminatory. However, after a review of the record de novo, the circuit court reversed the cue finding of discriminatory termination. The court found plaintiff’s discharge to be for a legitimate nondiscriminatory reason — his attack on his supervisors. The Court of Appeals affirmed that finding, as does the majority here.

I would note that this is not a case where an employer took into *557 account subjective and allegedly false evaluations of the employee in reaching its "neutral” discharge decision. See, e.g., Stoller v Marsh, 221 US App DC 22; 682 F2d 971 (1982), cert den 460 US 1037 (1983).