Opinion
No. 87-CV-72782-DT.
September 19, 1989.
Robert Van Cleef, Southfield, Mich., for plaintiff.
Mary O'Donnell, Troy, Mich., for defendant.
ORDER GRANTING DEFENDANT'S MOTION IN LIMINE and ORDER OF DISMISSAL
Plaintiff commenced this racial discrimination suit pursuant to the Michigan Elliott-Larsen Civil Rights Act, M.C.L.A. § 37.2101, et seq., M.S.A. § 3.548(101), et seq. Plaintiff alleges that while in defendant's employ he has been subjected to continuous racial discrimination so as to render his work environment racially hostile (Plaintiff's complaint, ¶¶ 5, 12-13). Specifically, plaintiff alleges that he has been the subject of repeated racial epithets and slurs, verbal insults, physical abuse and demeaning and racially inciting literature (Plaintiff's complaint, ¶¶ 6-7).
Plaintiff asserts that these incidents have been continuous since his hire in 1977. According to plaintiff, the first incident occurred in 1977, when a General Motors employee carried out a racially motivated assault upon him. The next incident occurred in 1981, when the seniority system was allegedly skewed by defendant and the union to favor whites over blacks. In 1982, a Ku Klux Klan recruiting poster appeared on a bulletin board and, in 1983, plaintiff alleges that a co-worker called him a "black SOB." Also, in 1982 or 1983, plaintiff claims that a co-worker leveled a racial epithet at him and rushed up and pushed plaintiff, all of which prompted a struggle between them to ensue. The most recent incident occurred in 1986, when plaintiff found two Ku Klux Klan posters near his locker.
Defendant has moved in limine to preclude plaintiff from introducing into evidence at trial the incidents of racial harassment which occurred between 1977 and 1983. Defendant contends that these incidents are barred by the applicable three-year statute of limitations. Defendant argues that plaintiff cannot save these time-barred incidents because he is unable to establish a present timely violation or prove the existence of a continuous violation. Defendant asserts that the incidents do not involve the same type or subject-matter of discrimination and that they were infrequent and sporadic episodes of harassment. Defendant further asserts that these incidents possessed a degree of permanency so as to trigger plaintiff's awareness of a cause of action. Defendant concludes that because plaintiff has failed to establish a continuous violation, all of the incidents of racial harassment upon which he bases his claim must be excluded at trial.
Plaintiff contends that there exists a pattern of racial conduct and that all of these incidents may be considered at trial because a related discriminatory act falls within the three-year statute of limitations. Plaintiff argues that the three-year statute of limitations is inapplicable because the racially hostile environment in which he had to work can be attributed to a policy of discrimination carried out by defendant. Plaintiff concludes that because of this pattern of discrimination, he should be permitted to introduce these incidents of racial harassment at trial.
For the following reasons, the court agrees with defendant. Causes of action under the Elliott-Larsen Civil Rights Act of Michigan are subject to a three-year statute of limitations. M.C.L.A. § 600.5805(8), M.S.A. § 27A.5805(8); see also, Duke v. Pfizer, Inc., Div. of Pfizer Hospital Products Group, 668 F. Supp. 1031, 1041 (E.D.Mich. 1987), aff'd., 867 F.2d 611 (6th Cir. 1989); Slayton v. Michigan Host, Inc., 144 Mich. App. 535, 553, 376 N.W.2d 664, 674 (1985). In the instant matter, plaintiff filed suit on June 30, 1987. Accordingly, all incidents of racial discrimination that plaintiff alleges occurred before June 30, 1984, are precluded by the statute of limitations. The only alleged act of defendant that survives the statute is the 1986 event in which plaintiff claims that two Ku Klux Klan posters appeared near his locker.
Plaintiff argues, however, that application of the "continuing violations" theory permits this suit based on occurrences that predate 1984. The continuing violations theory relieves a plaintiff from the burden of proving that all incidents of racial discrimination occurred during the actionable period of the statute of limitations. It permits a plaintiff to show "a series of related acts, one or more of which falls within [the statutory period]." Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 979 (5th Cir. 1983), cert. denied, 479 U.S. 868, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986) (quoting B. Schlei P. Grossman, Employment Discrimination Law, 232 (Supp. 1979)).
Plaintiff may establish a series of continuous violations that reveal an organized scheme by defendant to discriminate against an employee. Id. (emphasis added). Individual acts by the employer will not satisfy application of the theory of continuous violations unless the plaintiff shows their clear and constant role in a discriminatory policy of the employer.
While the Berry court noted that courts have not yet developed a thorough test to determine when a set of events constitutes a continuing violation, that court did hold that at least three factors are relevant to such an inquiry: the subject matter of the acts, their frequency, and their degree of permanence. Id. at 981.
In the case at hand, plaintiff has not established that all alleged acts of defendant relate to the same subject matter. Plaintiff's complaint refers to incidents involving an altercation between plaintiff and a General Motors employee who was beyond defendant's control, a transfer of plaintiff to a new job site where he received a decreased work load, a racially skewed promotion system, the shouting of racial epithets at plaintiff by an employee of defendant, the hanging of racially offensive posters near the employees' lunch room and near plaintiff's locker. Furthermore, the six incidents which plaintiff alleges in the complaint, and upon which plaintiff's opening argument relied, occurred over the course of 1977 to 1986. He therefore cannot meet the second standard of Berry, frequency. Those two incidents that do bear a resemblance to each other — the hanging of racially offensive posters at the workplace — occurred in 1982 and 1986, four years apart.
Neither has plaintiff met the third standard of Berry, permanence. Each incident of discrimination that plaintiff alleges, if true, should have triggered an awareness in plaintiff that defendant was practicing discrimination. Plaintiff probably could have filed suit after each occurrence. He does not appear to have found any alleged incident ambiguous. To now permit plaintiff to tack separate, distinct acts of defendant that transpired before June 30, 1984, to show a systemic policy of discrimination is an abuse of the continuing violations exception to the statute of limitations. It would in fact defeat the inherent purpose of the statute.
Berry is persuasive here. The Michigan Supreme Court adopted the Berry analysis of the theory of continuing violations in Sumner v. Goodyear Co., 427 Mich. 505, 398 N.W.2d 368 (1986). The court in Sumner held that "the mere existence of some vague or undefined relationship between the timely and untimely acts is an insufficient basis upon which to find a continuing violation." Sumner, 427 Mich. at 539, 398 N.W.2d at 383. The Sixth Circuit, while not specifically adopting the reasoning of Berry, has ruled similarly on the theory in its analysis of a claim under the federal Age Discrimination in Employment Act. "In the absence of [an over-arching policy of discrimination], there is no continuing violation [of a claim of discrimination]." Janikowski v. Bendix Corp., 823 F.2d 945 (6th Cir. 1987).
Further analysis of Michigan and United States civil rights law persuades this court that plaintiff must meet a substantial burden of proof even if he were to attempt to establish by amending his complaint that defendant created a hostile work environment in violation of Title VII of the federal Civil Rights Act of 1964. The courts have held that plaintiffs may seek damages from defendant employers who foster racially hostile work environments because such may affect the "term, condition or privilege of employment" that Title VII seeks to protect. Langlois, 149 Mich. App. at 313, 385 N.W.2d at 780. Under the hostile environment theory, however, a plaintiff must prove through the law of agency that the defendant bore respondeat superior liability for harassment that existed at the work site and that the employer failed to address the problem and to implement corrective action. Roby, 679 F. Supp. at 672. A plaintiff must further show that the hostile work environment then "affected seriously the psychological well-being of the plaintiff." Id. at 671. In the case at hand, however, defendant transferred plaintiff when a job incident occurred, removed offensive posters from the work environment, and significant amounts of time passed between the alleged incidents to show that defendant's reactions effected a reasonable solution to any problems. All alleged discriminatory acts in this matter appear to have been carried out by individual co-workers rather than perpetuated by defendant's corporate policy. Furthermore, plaintiff fails to show any tangible damages. He never sought medical treatment. The court thus concludes that his psychological well-being remained intact.
Legal analysis of violations of the Elliott-Larsen Act in Michigan utilizes the same standards of inquiry as those in Title VII. Roby v. Center Companies, 679 F. Supp. 664, 671 (E.D.Mich. 1987), appeal dismissed, 852 F.2d 1288 (6th Cir. 1988). "Michigan courts regard federal precedents on questions analagous to those presented under Michigan's civil rights statutes as highly persuasive, although not binding." Langlois v. McDonald's Restaurants of Michigan, Inc., 149 Mich. App. 309, 312, 385 N.W.2d 778, 780 (1986), lv. den., 426 Mich. 867 (1986).
The court has carefully examined the parties' briefs and listened to their oral arguments in support of this motion. Furthermore, the court permitted the parties to proceed to opening statements to the court and the jury before ruling on it. The court concludes that based on the record in this case plaintiff cannot prove by a preponderance of the evidence that defendant had "an established pattern" and "over-arching policy of discrimination" that constitutes a continuing violation. E.E.O.C. v. Penton Industrial Publishing Co., 851 F.2d 835, 838 (6th Cir. 1988). Isolated events cannot demonstrate that a defendant implemented a "standing operating procedure" of discrimination. Id., (quoting Jewett v. ITT Corp., 653 F.2d 89, 91-92 (3rd Cir.), cert. denied, 454 U.S. 969, 102 S.Ct. 515, 70 L.Ed.2d 386 (1981). Accordingly, no continuing violation existed and plaintiff may not refer during trial to any alleged acts of defendant that occurred before June 30, 1984. Defendant's motion in limine is GRANTED.
Based upon the above ruling, this court further finds as a matter of law that this case must be dismissed because Michigan law does not recognize a cause of action as pled based upon the sole surviving incident relied upon by plaintiff. Therefore,
IT IS ORDERED that this case hereby is dismissed.