Opinion
No. 339972 No. 340513 No. 341082
03-14-2019
Samantha LICHON, Plaintiff-Appellant, v. Michael MORSE, and Michael J. Morse, PC, Defendant-Appellees. Jordan Smits, Plaintiff-Appellant, v. Michael Morse, Defendant-Appellee. Jordan Smits, Plaintiff-Appellant, v. Michael Morse, and Michael J. Morse, PC, Defendant-Appellees.
Fieger, Fieger, Kenney & Harrington, PC (by Geoffrey N. Fieger, Southfield and Sima G. Patel) for plaintiffs. Deborah Gordon Law (by Deborah L. Gordon and Benjamin I. Shipper, Bloomfield Hills) and Starr, Butler, Alexopoulos & Stoner, PLLC (by Joseph A. Starr, Bloomfield Hills and Thomas Schramm, Detroit) for defendants.
Fieger, Fieger, Kenney & Harrington, PC (by Geoffrey N. Fieger, Southfield and Sima G. Patel) for plaintiffs.
Deborah Gordon Law (by Deborah L. Gordon and Benjamin I. Shipper, Bloomfield Hills) and Starr, Butler, Alexopoulos & Stoner, PLLC (by Joseph A. Starr, Bloomfield Hills and Thomas Schramm, Detroit) for defendants.
Before: Jansen, P.J., and Beckering and O'Brien, JJ.
Jansen, P.J. In Docket No. 339972, referred to by the parties as the Lichon case , plaintiff, Samantha Lichon (Lichon), appeals as of right the June 22, 2017, order granting summary disposition in favor of defendants, Michael Morse (Morse) and Michael J Morse, PC (the Morse firm), and compelling arbitration. We reverse, vacate the Oakland Circuit Court’s June 22, 2017 order, and remand for proceedings consistent with this opinion.
In Docket No. 341082, referred to by the parties as Smits I , plaintiff, Jordan Smits (Smits), appeals as of right the July 18, 2017 written order and opinion granting summary disposition in favor of defendants and compelling arbitration. We reverse, vacate the Wayne Circuit Court’s July 18, 2017 written opinion and order, and remand for proceedings consistent with this opinion.
In Docket No. 340513, referred to by the parties as Smits II , Smits appeals as of right the October 2, 2017 order granting summary disposition in favor of Morse. We affirm.
Docket Nos. 339972, 341082, and 340513 were consolidated by this Court in an order dated December 27, 2017. Lichon v. Morse , unpublished order of the Court of Appeals, entered December 27, 2017 (Docket Nos. 339972, 340513, and 341082). The parties have filed consolidated briefs on appeal, and this Court will address the merits of the cases together when possible.
I. RELEVANT FACTUAL BACKGROUND
A. THE LICHON CASE
The Lichon case arises out of Morse’s alleged sexual assault and harassment of Lichon while Lichon was working for the Morse firm as a receptionist. Lichon alleges that Morse frequently sexually harassed her through unwelcome comments or conduct of an offensive or sexual nature. Lichon alleges that on multiple occasions, Morse sexually assaulted her during work hours by physically touching her in a sexual manner without her permission. According to Lichon, the unwanted touching included groping Lichon’s breasts and groin area, while making comments including " ‘you make me so hard’ " and " ‘I want to take you into my office.’ " Lichon claimed that she "complained to her superiors," and to the human resources department at the Morse firm, but no action was taken and the sexual assaults and sexual harassment continued. On February 17, 2017, Lichon was terminated from the Morse firm because of poor professional performance. On May 24, 2017, Lichon filed a four-count complaint against the Morse firm and against Morse individually. Lichon alleged workplace sexual harassment in violation of the Elliott-Larsen Civil Rights Act (the ELCRA), MCL 37.2101 et seq ., against the Morse firm and Morse; sexual assault and battery against Morse individually; negligent and intentional infliction of emotional distress against the Morse firm and Morse; and negligence, gross negligence, and wanton and willful misconduct against the Morse firm and Morse. On May 26, 2017, Lichon filed a first amended complaint, adding a fifth count of civil conspiracy against the Morse firm and Morse, alleging that defendants had sought to intimidate, pressure, or attempt to persuade or coerce her not to file a lawsuit.
In lieu of an answer, defendants moved to dismiss and compel arbitration, arguing that as a condition of her employment, Lichon had signed a Mandatory Dispute Resolution Procedure agreement (MDRPA), which requires Lichon to arbitrate her claims. Because Lichon’s claims arise out of her "employment with and termination from" the Morse firm, pursuant to MCR 2.116(C)(7) and MCR 3.602, defendants requested that the Oakland Circuit Court "compel [Lichon] to prosecute her claims exclusively by way of compulsory and binding arbitration and to dismiss this action."
The MDRPA, signed by Lichon on September 29, 2015, provides, in pertinent part:
This Mandatory Dispute Resolution Procedure shall apply to all concerns you have over the application or interpretation of the Firm’s Policies and Procedures relative to your employment, including, but not limited to, any disagreements regarding discipline, termination, discrimination or violation of other state or federal employment or labor laws. This includes any claim over the denial of hire. This Procedure includes any claim against
another employee of the Firm for violation of the Firm’s Policies, discriminatory conduct or violation of other state or federal employment or labor laws. Similarly, should the Firm have any claims against you arising out of the employment relationship, the Firm also agrees to submit them to final and binding arbitration pursuant to this Procedure.
* * *
The only exceptions to the scope of this Mandatory Dispute Resolution Procedure shall be for questions that may arise under the Firm’s insurance or benefit programs (such as retirement, medical insurance, group life insurance, short-term or long-term disability or other similar programs). These programs are administered separately and may contain their own separate appeal procedures. In addition, this Procedure does not apply to claims for unemployment compensation, workers' compensation or claims protected by the National Labor Relations Act. While this Procedure does not prohibit the right of an employee to file a charge with the Equal Employment Opportunity Commission ("EEOC") or a state civil rights agency,
it would apply to any claims for damages you might claim under federal or state civil rights laws. In addition, either Party shall have the right to seek equitable relief in a court of law pending the outcome of the arbitration proceeding.
The dispute-resolution procedure is outlined as follows: first, within one year an employee must file with a direct supervisor a "request for review of your concern stating your disagreement or concern and the action you request the Firm to take." The supervisor will date the request, provide the employee with a copy, and then "generally schedule a meeting with [the employee] to hear [the employee’s] concerns and will provide [the employee] with a written decision within" 15 business days. Second, if the dispute is not resolved to the employee’s satisfaction, a written request for review must be filed directly with Morse within 15 days. Morse, or his "designated representative," will issue a written decision within 15 days. If the employee is still not satisfied, the final recourse is to submit a written request for arbitration to the firm within 15 days, and the employee "must deposit with the Firm $500.00 or Five (5) Days' pay, whichever is less."
Lichon responsed, arguing that her claims are related to the "sexual assault and harassment that she suffered at the hands of" Morse and accordingly do not " ‘arise out of her employment and termination’ " from the Morse firm. Lichon asserted that simply because a sexual assault happened at work does not mean that it is related to the plaintiff’s employment and, in particular, that "[b]eing the victim of sexual assault has no relationship with [Lichon’s] employment obligations as a receptionist, and is not a foreseeable consequence of her employment." She further argued that in fact the arbitration agreement "is neither valid nor enforceable.... The agreement is unenforceable as a matter of law because, in the context of the claims alleged here, the agreement is unconscionable, illusory and contrary to public policy." Thus, Lichon asserted that she is not required to arbitrate her claims.
The Oakland County Court held a hearing on defendants’ motion on June 21, 2017. The parties argued consistently with their briefs. At the end of the hearing, the court granted defendants’ motion, concluding on the record:
I find that this is a valid and enforceable arbitration agreement. I find that all of plaintiff’s claims are inextricably intertwined and therefore all fall within the arbitration agreement and the workplace policies. I also find that Michael Morse named individually is also bound by the terms of the arbitration agreement as her employer of
Michael Morse, P.C., and I'm sending all of the claims to arbitration granting defendant[s'] [summary disposition] motion.
An order to the same effect was entered on June 22, 2017. Lichon moved for reconsideration; the court denied the motion in an order dated August 18, 2017. This appeal followed.
B. SMITS I
Smits I and Smits II share an identical fact pattern and arise out of Morse’s alleged sexual assault of Smits while Smits was working for the Morse firm as a paralegal. In December 2015, the Morse firm held a company Christmas party for all staff at the Masonic Temple in Detroit, Michigan. According to Smits, during that party, Morse approached her from behind and grabbed her breasts in front of two other senior attorneys. Smits immediately removed Morse’s hands from her breasts.
In January 2016, Smits reported the incident to the human resources department of the Morse firm. However, a representative from human resources told Smits that " ‘her number one priority [was] to protect Morse’s reputation.’ " Smits then "expressed her concerns" to one of the attorneys who had witnessed Morse sexually assault her. That attorney responded, " ‘[W]hat was I supposed to do, you know how Michael is.’ " In February 2016, Smits e-mailed "various supervising employees" at the Morse firm, indicating that she "was not comfortable working at the firm due to the Christmas incident" and tendering her resignation. After leaving the Morse firm, an attorney from the firm contacted Smits and "indicated that [Morse] would offer two weeks pay if [Smits] signed a non-disclosure agreement." Smits declined the offer. Morse then personally contacted Smits and told her to "be careful" because given his connections in the legal community, he could make it difficult for Smits to find work.
On May 30, 2017, in Smits I , Smits filed a four-count complaint against the Morse firm and against Morse individually. Smits alleged workplace sexual harassment in violation of the ELCRA against the Morse firm and Morse, sexual assault and battery against Morse individually, negligent and intentional infliction of emotional distress against the Morse firm and Morse individually, and negligence, gross negligence, and wanton and willful misconduct against the Morse firm and Morse individually.
In lieu of an answer, defendants moved for summary disposition pursuant to MCR 2.116(C)(7), asserting that there was a valid agreement to arbitrate or, alternatively, pursuant to MCR 2.116(C)(7), that the period of limitations had passed. In sum, defendants argued that Smits’s claims should be dismissed pursuant to MCR 2.116(C)(7) because Smits had signed "a valid and enforceable agreement to arbitrate all aspects of her employment, including, but not limited to, allegations of discrimination discipline, termination, and discrimination, and other state and federal employment laws." Alternatively, defendants argued, Smits’s claims should be dismissed pursuant to MCR 2.116(C)(7) because as part of her employment, Smits had agreed to a shortened limitations period with respect to litigation and that period had lapsed.
The MDRPA signed by Smits on February 7, 2014 is identical to the MDRPA signed by Lichon in Docket No. 339972. Additionally, in Smits I defendants attached to their motion the Employee Acknowledgment Form from the Employee Policy Manual for the Morse firm, signed by Smits on February 20, 2014. The form provides, in relevant part:
I agree that any claim or lawsuit relating to my employment with Michael J. Morse, P.C. must be filed no more than six (6) months after the date of employment action that is the subject of the claim or lawsuit unless a shorter period is provided by law. I waive any statute of limitations to the contrary.
Defendants also filed a supplement to their motion to dismiss. Following the Wayne Circuit Court’s order requiring that defendants provide Smits with a copy of her personnel file and a complete copy of the "Firms Policies and Procedures," defendants supplemented their motion with an additional copy of the MDRPA, a copy of the Morse firm’s Employee Policy Manual, and a copy of the Morse firm’s Agreement for At-Will Employment and Agreement For Resolution of Disputes. The latter agreement, signed by Smits on September 29, 2015, provides, in relevant part:
IV. ARBITRATION OF DISPUTES:
As a condition of my employment, I agree that any dispute or concern relating to my employment or termination of employment, including but not limited to claims arising under state or federal civil rights statutes, must be resolved pursuant
to the Firm’s [MDRPA] which culminates in final and binding arbitration. I have been provided with a copy of the Firm’s [MDRPA] and agree to be bound by this Dispute Procedure.
Smits responded, arguing that her sexual-assault claims are not related to her employment such that they come within the purview of the MDRPA. Likewise, Smits argued, "the policy manual truncating the statute of limitations only applies to a ‘claim or lawsuit relating to’ " employment with the Morse firm. Smits further stated that because her claims are not "related" to her employment but, rather, stem "solely from Michael Morse’s sexual assaults," the arbitration provision and the policy manual are inapplicable to her claims. Smits also argued that the "arbitration provision itself is unenforceable because: it is procedurally and substantively unconscionable and illusory; Michael Morse personally is not a party to the [MDRPA] so it is inapplicable to him; and [d]efendants have forfeited enforcement of the agreement by not adhering to the supposed dispute resolution process when plaintiff made multiple complaints to her supervisors and the Human Resources department regarding the assault and [d]efendants did nothing."
The Wayne Circuit Court heard arguments on defendants’ motion on July 6, 2017. At the end of the hearing, the court took the matter under advisement and indicated its intent to issue a written opinion and order. On July 18, 2017, the court entered its written opinion and order granting defendants’ motion and directing this matter to arbitration. The court concluded that the MDRPA signed by Smits is "a valid and enforceable agreement, supported by consideration and mutuality of obligation." The court further stated that given the "allegations set forth in [Smits’s] own verified complaint," her claims are related to her employment and therefore governed by the MDRPA. Accordingly, the court ordered the matter to arbitration and retained "jurisdiction only to enforce any such arbitration award."
Smits moved for reconsideration; the court denied the motion in an order dated November 3, 2017. This appeal followed.
C. SMITS II
The Smits II case arises out of the same set of facts as the Smits I case. However, in Smits II , on July 25, 2017, Smits filed a three-count complaint solely against Morse as an individual, alleging sexual assault and battery, negligent and intentional infliction of emotional distress, and negligence, gross negligence, and willful and wanton misconduct.
In lieu of an answer, Morse moved to dismiss pursuant to MCR 2.116(C)(7), arguing that Smits's complaint should be dismissed with prejudice because it was barred by the doctrine of res judicata, the doctrine of collateral estoppel, an agreement to arbitrate, and/or a six-month contractual period of limitations. In response, Smits argued that because the Wayne Circuit Court in Smits I had dismissed the case on jurisdictional grounds, it did not make a determination on the merits and that she was therefore not precluded from filing the instant case against Morse individually. Smits asserted that because Morse did not sign the MDRPA, there is no valid contractual agreement between Morse and Smits to arbitrate and that "[a]bsent such a contract, [Smits] has the right to vindicate her rights in a court of law."
The Wayne Circuit Court heard argument on Morse’s motion on September 29, 2017. Ruling from the bench, the court found that:
[B]ecause that prior suit included the same parties as this current Complaint
and because [Smits] concedes any claims here "arise out of the same transaction or occurrence" as were alleged in her former Complaint, res judicata and [the] compulsory joinder rule preclude the subsequent action.
[Morse’s] Motion for Summary Disposition is accordingly granted under MCR 2.116(C)(7), no costs, fees, or penalties of any kind.
An order to the same effect was entered on October 2, 2017. The appeal in Docket No. 340513 followed. II. CONDUCT "RELATED TO EMPLOYMENT" UNDER THE MDRPA
In Docket Nos. 339972 and 341082, plaintiffs first argue that because the MDRPA limits the scope of arbitration to only those claims that are "related to" plaintiffs' employment and because sexual assault at the hands of an employer or supervisor cannot be related to their employment, the MDRPA is inapplicable to their claims against Morse and the Morse firm. We agree.
This Court has previously announced that it will review de novo a motion for summary disposition brought under MCR 2.116(C)(7). Galea v. FCA U.S., LLC , 323 Mich. App. 360, 368; 917 N.W.2d 694 (2018). Specifically, this Court explained:
We review de novo a trial court’s decision to grant or deny a motion for summary disposition under MCR 2.116(C)(7). Hicks v. EPI Printers, Inc. , 267 Mich. App. 79, 84, 702 N.W.2d 883 (2005). A motion under MCR 2.116(C)(7) is appropriately granted when a claim is barred by an agreement to arbitrate. Maiden v. Rozwood , 461 Mich. 109, 118 n. 3, 597 N.W.2d 817 (1999). "A party may support a motion under MCR 2.116(C)(7) by affidavits, depositions, admissions, or other documentary evidence." Id . at 119 [597 N.W.2d 817 ]. However, "a movant under MCR 2.116(C)(7) is not required to file supportive material, and the opposing party need not reply with supportive material. The contents of the complaint are accepted as true unless contradicted by documentation submitted by the movant." Id . Whether an arbitration agreement exists and is enforceable is a legal question that we review de novo. Hicks , 267 Mich. App. at 84. 702 N.W.2d 883 [ Galea , 323 Mich. App. at 363.]
Likewise, questions regarding the interpretation of contractual language are subject to de novo review. VHS Huron Valley-Sinai Hosp., Inc. v. Sentinel Ins. Co. (On Remand) , 322 Mich. App. 707, 715, 916 N.W.2d 218 (2018). Neither plaintiffs nor defendants dispute the existence of an arbitration agreement. Both Lichon and Smits signed the MDRPA. However, the parties disagree whether the conduct at issue here—the alleged sexual assaults and batteries perpetrated by Morse as an individual—is conduct related to Lichon’s and Smits’s employment with the Morse firm such that plaintiffs must arbitrate their claims against Morse and the Morse firm. In short, this Court is asked to decide whether the sexual assault and battery of an employee at the hands of a superior is conduct related to employment. We conclude that it is not.
In Bienenstock & Assocs., Inc. v. Lowry , 314 Mich. App. 508, 515, 887 N.W.2d 237 (2016), this Court explained that an agreement to arbitrate presents a contractual matter between parties and that those parties are not required to submit matters they did not agree to arbitrate to an arbitrator. Specifically, this Court stated:
"[A]rbitration is simply a matter of contract between parties; it is a way to
resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration." First Options of Chicago Inc. v. Kaplan , 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). In other words, " ‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ " Howsam v. Dean Witter Reynolds, Inc. , 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002), quoting United Steelworkers of America v. Warrior & Gulf Navigation Co. , 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). "In this endeavor, as with any other contract, the parties' intentions control." Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. , 559 U.S. 662, 682, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) (quotation marks and citations omitted). [ Bienenstock & Assoc., Inc. , 314 Mich. App. at 515, 887 N.W.2d 237 (alteration in Bienenstock & Assoc., Inc. ).]
Our Supreme Court has also announced that it is the party seeking to avoid the arbitration agreement that bears the burden of "establishing that his or her claims fall outside the ambit of the arbitration agreement." Lebenbom v. UBS Fin. Servs., Inc., 326 Mich. App. 200, 211; 926 N.W.2d 865 (2018), 2018 WL 5275314, citing Altobelli v. Hartmann , 499 Mich. 284, 295; 884 N.W.2d 537 (2016). "Moreover, when deciphering whether plaintiff’s claims are covered by the parties’ arbitration clause, this Court is not permitted to analyze ‘the substantive merits’ of plaintiff’s claims. Rather, if the dispute is subject to arbitration, the merits of the dispute are left to the arbitrator to decide." Lebenbom , 326 Mich. App. at 211, 926 N.W.2d at 870, (citation omitted).
As noted earlier, the MDRPA provides, in relevant part:
This [MDRPA] shall apply to all concerns you have over the application or interpretation of the Firm’s Policies and Procedures relative to your employment, including, but not limited to, any disagreements regarding discipline, termination, discrimination or violation of other state or federal employment or labor laws. This includes any claim over the denial of hire. This Procedure includes any claim against another employee of the Firm for violation of the Firm’s Policies, discriminatory conduct or other state or federal employment or labor laws. Similarly, should the Firm have any claims against you arising out of the employment relationship, the Firm also agrees to submit them to final and binding arbitration pursuant to this Procedure.
The only exceptions to the MDRPA are for insurance benefits, claims for unemployment compensation, workers' compensation, or claims protected by the National Labor Relations Act. Additionally, the Morse firm’s policies (Firm Policies) provide, in relevant part:
We are committed to preventing workplace violence and making Michael J. Morse, P.C. a safe place to work. This policy explains our guidelines for dealing with intimidation, harassment, violent acts, or threats of violence that might occur on our premises at anytime, at work-related functions, or outside work if it affects the workplace.
* * *
The Firm does not allow behavior in the workplace at any time that threatens, intimidates, bullies, or coerces another employee, a client, or a member of the public. We do not permit any act of harassment, including harassment that is based on an individual’s sex, race, religion, age, national origin, height, weight, marital status, disability, sexual
orientation, or any characteristic protected by federal, state, or local law.
The sole issue for us to decide is whether the MDRPA "encompasses the subject matter of the dispute at issue in this case." Altobelli , 499 Mich. at 299, 884 N.W.2d 537.
Generally speaking, to ascertain whether the subject matter of a dispute is of the type that parties intended to submit to arbitration, we again begin with the plain language of the arbitration clause. We then consider whether a plaintiff’s particular action falls within that scope. We note that the gravamen of an action is determined by considering the entire claim. We look beyond the mere procedural labels to determine the exact nature of the claim. This is to avoid "artful pleading." [ Id. at 299-300, 884 N.W.2d 537 (citations omitted).]
See also Lebenbom , 326 Mich. App. at 211, 926 N.W.2d at 870–71, in which this Court explained that "we must review the arbitration clause and determine ‘whether the subject matter ’ of the instant dispute is covered by the arbitration clause." (Citation omitted.) "If plaintiff’s claims can be characterized as ‘arguably’ falling within the confines of the arbitration clause, any doubts are resolved in favor of arbitration and the trial court should have granted defendant’s motion to compel arbitration." Id. , 926 N.W.2d at 870, citing DeCaminada v. Coopers & Lybrand, LLP , 232 Mich. App. 492, 500, 591 N.W.2d 364 (1998).
In Docket No. 339972, Lichon alleges that Morse repeatedly sexually assaulted and sexually harassed her in the workplace. Lichon claims that Morse repeatedly touched her in a sexual manner during work hours without her consent or her permission. The unwanted touching involved Morse groping Lichon’s breasts and groin area, while pressing his own groin into her back and "audibly stating sexual comments, including ... ‘you make me so hard,’ and ‘I want to take you into my office[.]’ " In Docket No. 341082, Smits claims that Morse sexually assaulted her at a firm-sponsored Christmas party. Specifically, Smits claims Morse approached her from behind and groped her breasts without permission or consent in front of other senior attorneys. It is therefore clear that the gravamen of plaintiffs’ complaints is that while working at the Morse firm, they were sexually assaulted and/or harassed by Morse as an individual either during work hours or at work-sponsored events.
Despite the fact that the sexual assaults may not have happened but for plaintiffs’ employment with the Morse firm, we conclude that claims of sexual assault cannot be related to employment. The fact that the sexual assaults would not have occurred but for Lichon’s and Smits’s employment with the Morse firm does not provide a sufficient nexus between the terms of the MDRPA and the sexual assaults allegedly perpetrated by Morse. To be clear, Lichon’s and Smits’s claims of sexual assault are unrelated to their positions as, respectively, a receptionist and paralegal. Furthermore, under no circumstances could sexual assault be a foreseeable consequence of employment in a law firm. Accordingly, the circuit courts erroneously granted defendants’ motions to dismiss these actions and compel arbitration of plaintiffs’ claims. Both Lichon and Smits shall be permitted to litigate their claims in the courts of this state because the claims fall outside the purview of the MDRPA. Bienenstock & Assoc., Inc. , 314 Mich. App. at 515, 887 N.W.2d 237.
This issue, whether the sexual assault and battery of an employee at the hands of a superior is conduct related to employment, is an issue of first impression in Michigan. Although the parties have provided extensive authority in support of their respective positions, most is persuasive authority and none is directly on point. We therefore note that central to our conclusion in this matter is the strong public policy that no individual should be forced to arbitrate his or her claims of sexual assault. Though we acknowledge that "[t]he general policy of this State is favorable to arbitration," Detroit v. A. W. Kutsche & Co. , 309 Mich. 700, 703, 16 N.W.2d 128 (1944), the idea that two parties would knowingly and voluntarily agree to arbitrate a dispute over such an egregious and possibly criminal act is unimaginable. See Bienenstock & Assoc., Inc. , 314 Mich. App. at 515, 887 N.W.2d 237 ("[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.") (quotation marks and citation omitted). The effect of allowing defendants to enforce the MDRPA under the facts of this case would effectively perpetuate a culture that silences victims of sexual assault and allows abusers to quietly settle these claims behind an arbitrator’s closed door. Such a result has no place in Michigan law.
We note that our conclusion in this matter, that sexual assault is not related to employment in a law firm and that therefore claims of sexual harassment perpetrated by a superior are not subject to arbitration, is not an issue that has been directly confronted by other jurisdictions. However, our conclusion is consistent with the general conclusion reached by other courts in this country that sexual assault is not related to employment. See Jones v. Halliburton Co. , 583 F.3d 228 (CA 5, 2009) (holding that the plaintiff, a federal contractor residing in overseas housing, did not agree to arbitrate her claims stemming from the sexual harassment and gang rape of her by coworkers after-hours because those events were not related to her employment within the meaning of the arbitration provision); Doe v. Princess Cruise Lines, Ltd. , 657 F.3d 1204 (CA 11, 2011) (concluding that the broadly drafted arbitration agreement did not encompass certain claims arising from an employee being drugged and sexually assaulted by coworkers because those acts did not arise out of, and were not related to her employment and were not a foreseeable result of the employment relationship); Hill v. JJB Hilliard, W. L. Lyons, Inc., 945 S.W.2d 948, 951-952 (Ky. App., 1996) (holding that the plaintiff’s allegations of rape against a supervisor did not arise out of her employment for purposes of the arbitration agreement despite the fact that the alleged rape was committed "by a co-worker and occurred while on a business trip"); Smith ex rel. Smith v. Captain D’s, LLC , 963 So.2d 1116, 1121 (Miss., 2007) ("While recognizing the breadth of language in the arbitration provision, we unquestionably find that a claim of sexual assault neither pertains to nor has a connection with [the plaintiff’s] employment."); Club Mediterranee, S.A. v. Fitzpatrick , 162 So.3d 251, 252-253 (Fla. App., 2015) (stating that the fact that plaintiff’s claim of sexual assault by an unknown assailant while sleeping in a dormitory room provided by her employer would not have arisen "but for the existence of her employment agreement is insufficient by itself to transform a dispute into one ‘arising out of’ her employment" and that there was no nexus between the sexual assault and the plaintiff’s employment agreement); Arnold v. Burger King , 2015-Ohio-4485, ¶¶ 65, 67; 48 N.E.3d 69 (Ohio App., 2015) (holding that the plaintiff’s claims "relating to and arising from the sexual assault [by a supervisor during work hours] exist independent of the employment relationship as they may be ‘maintained without reference to the contract or relationship at issue’ " and that "ongoing verbal and physical contact culminating in sexual assault ... is not a foreseeable result of the employment").
We caution future litigants that our conclusion with respect to the Morse firm is based on a very specific set of facts. Under different circumstances, we might have concluded that the gravamen of plaintiffs’ claims against the Morse firm were a failure to discipline, or adequately discipline, a fellow employee of the firm for offensive and egregious sexual misconduct and/or sexual harassment. Accordingly, in such different circumstances, we might have agreed with the circuit courts that the subject matter of plaintiffs’ claims against the Morse firm fell under the mantle of the MDRPA and that plaintiffs had to arbitrate those claims in light of the language of the MDRPA. Recall that the MDRPA provides, in relevant part, that "[the MDRPA] shall apply to all concerns you have over the application or interpretation of the Firm’s Policies and Procedures relative to your employment, including, but not limited to, any disagreements regarding discipline ...." (Emphasis added.) In these cases, however, the corporate structure of the Morse firm precludes such a result. Morse has never disputed that he is the owner of the Morse firm. In fact, the Morse firm’s most recent annual report, filed with the Michigan Department of Licensing and Regulatory Affairs, Corporations, Securities & Commercial Licensing Bureau, shows that Morse is the president, secretary, treasurer, director, and sole shareholder of the Morse firm. Essentially, Morse and the Morse firm are the same: Morse is the Morse firm, and he is solely legally responsible for the actions, or inaction, of the Morse firm. Any recovery plaintiffs obtain from a jury or from an arbitrator would come out of the same pocket. Under these circumstances, plaintiffs’ claims against the Morse firm and Morse individually are so intertwined that they are impossible to separate. In reality, a claim of failure to discipline a fellow employee of the firm for offensive and egregious sexual misconduct and/or sexual harassment in these cases is essentially a claim that Morse failed to discipline himself for committing sexual assault and harassment in the workplace. For these reasons, it is impossible to separate plaintiffs’ claims against defendants.
During oral argument, we took note of defendants’ argument that the Morse firm’s Firm Policies and Workplace Violence Prevention Plan, quoted earlier in this opinion, are expansive, which is unique. However we remain incredulous that these policies are stringently followed. In particular, given the nature of plaintiffs’ claims, we question the sincerity of the firm policies as articulated by Morse, the sole shareholder of the Morse firm.
Plaintiffs raise several other arguments related to the MDRPA, including whether the MDRPA is unconscionable or illusory, and whether Morse, a nonsignatory, can enforce the MDRPA against plaintiffs in his capacity as an individual. However, given our conclusion that the circuit courts erroneously dismissed plaintiffs’ complaints and compelled arbitration, we need not address plaintiffs’ remaining claims of error.
It is undisputed that an agent of the Morse firm, not Morse, signed the MDRPA on behalf of the Morse firm with respect to the agreements between the Morse firm, Lichon, and Smits. Additionally, no party has produced a copy of an MDRPA signed by Morse as an employee of the Morse firm agreeing to be bound as an individual by the terms of the MDRPA.
III. RES JUDICATA AND COMPULSORY JOINDER
In Docket No. 340513, Smits argues that the Wayne Circuit Court erred by dismissing Smits II . Specifically, Smits argues on appeal that because the court did not make a decision in Smits I on the merits, but rather dismissed the action on jurisdictional grounds by ordering the matter proceed in arbitration, dismissal on res judicata or compulsory-joinder grounds "was grossly improper."
"The question whether res judicata bars a subsequent action is reviewed de novo by this Court." Adair v. Michigan , 470 Mich. 105, 119, 680 N.W.2d 386 (2004). Likewise, "[w]e review de novo the proper interpretation and application of a court rule." Garrett v. Washington , 314 Mich. App. 436, 450, 886 N.W.2d 762 (2016).
Here, the circuit court did not dismiss Smits II solely on res judicata grounds. Rather, the court cited the doctrine of res judicata as well as the compulsory-joinder rule when dismissing Smits II . Regarding the doctrine of res judicata, our Supreme Court explained in Adair :
The doctrine of res judicata is employed to prevent multiple suits litigating the same cause of action. The doctrine bars a second, subsequent action when (1) the prior action was decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the second case was, or could have been, resolved in the first. Sewell v. Clean Cut Mgt., Inc. , 463 Mich. 569, 575, 621 N.W.2d 222 (2001). This Court has taken a broad approach to the doctrine of res judicata, holding that it bars not only claims already litigated, but also every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not. Dart v. Dart , 460 Mich. 573, 586, 597 N.W.2d 82 (1999). [ Adair , 470 Mich. at 121, 680 N.W.2d 386.]
Relatedly, the compulsory-joinder rule is laid out in MCR 2.203(A), which provides:
In a pleading that states a claim against an opposing party, the pleader must join every claim that the pleader has against that opposing party at the time of serving the pleading, if it arises out of the transaction or occurrence that is the subject matter of the action and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.
"In determining whether two claims arise out of the same transaction or occurrence for purposes of MCR 2.203(A), res judicata principles should be applied." Garrett , 314 Mich. App. at 451, 886 N.W.2d 762.
In Smits II , Smits filed a complaint alleging sexual assault and battery, negligent and intentional infliction of emotional distress, and negligence, gross negligence, and willful and wanton misconduct against Morse individually. Smits's claims against Morse in Smits II are nearly identical to Smits's claims against Morse in Smits I , and in fact, arise out of the same "transaction." Therefore, as already discussed, because Smits’s claims against Morse as an individual are alive and well, the doctrine of res judicata is not implicated. However, the circuit court correctly concluded that the compulsory-joinder rule, as articulated in MCR 2.203(A), bars her claims in Smits II . Accordingly, the court did not err by dismissing Smits II .
IV. ALTERNATIVE GROUNDS FOR AFFIRMANCE
Finally, in Docket No. 341082 and Docket No. 340513, defendants argue in the alternative that this Court should affirm the dismissal of Smits I and Smits II on the basis that Smits agreed to a contractual limitations period of six months.
This issue, although raised by defendants in the Wayne Circuit Court, was not addressed and decided by the court. Accordingly, it is unpreserved. Mouzon v. Achievable Visions , 308 Mich. App. 415, 419, 864 N.W.2d 606 (2014). However, this Court had authority to address the argument because the issue concerns "a legal question and all of the facts necessary for its resolution are present." Dell v. Citizens Ins. Co. of America , 312 Mich. App. 734, 751 n. 40, 880 N.W.2d 280 (2015). Regardless, we do not find defendants’ alternative grounds for affirmance to be persuasive.
The Employee Acknowledgment Form that imposes a six-month limitations period reads:
I agree that any claim or lawsuit relating to my employment with Michael J. Morse, P.C. must be filed no more than six (6) months after the date of employment action that is the subject of the claim or lawsuit unless a shorter period is provided by law. I waive any statute of limitations to the contrary.
Smits agreed to the contractual limitations period when she signed the Policy Manual Acknowledgment Form. However, this provision does not apply to the instant case. As discussed, Smits’s claims against the Morse firm and Morse are not related to her employment as a paralegal at the Morse firm. Accordingly, the contractual limitations period does not apply to her claims, and defendants’ argument is without merit.
In Docket No. 339972, we reverse, vacate the Oakland Circuit Court’s June 22, 2017 order, and remand for proceedings consistent with this opinion.
In Docket No. 341082, we reverse, vacate the Wayne Circuit Court’s July 18, 2017 written opinion and order, and remand for proceedings consistent with this opinion.
In Docket No. 340513, we affirm.
Beckering, J., concurred with Jansen, P.J.
O'Brien, J. (dissenting).
The parties agreed to arbitrate "any claim against another employee" for "discriminatory conduct." Based on this language, I would hold that plaintiffs' claims arguably fall within the scope of the arbitration agreement, and therefore I respectfully dissent.
In Docket No. 341082, plaintiff Jordan Smits’s complaint alleged that defendant Michael Morse (Morse) approached Smits from behind at a company party and intentionally "groped her breasts without ... permission" for purposes of sexual gratification. In Docket No. 339972, plaintiff Samantha Lichon’s complaint alleged in pertinent part that Morse, "on multiple occasions," approached her "from behind, groped her breasts, and touched his groin to her rear while audibly stating sexual comments[.]" The complaint also alleged that Morse "stated sexually motivated comments" to Lichon and that he "made intentional and unlawful threats to physically and inappropriately touch [Lichon’s] body in a sexual manner...." Plaintiffs, individually, filed claims against Morse and defendant Michael J Morse, PC (the Morse firm) as described by the majority. Both complaints included claims for sex discrimination under the Elliott-Larsen Civil Rights Act (the ELCRA), MCL 37.2101 et seq ., and sexual assault and battery against Morse.
Both Smits and Lichon signed an arbitration agreement—the Mandatory Dispute Resolution Procedure agreement—with the Morse firm, which states, in pertinent part:
This Mandatory Dispute Resolution Procedure shall apply to all concerns you have over the application or interpretation of the Firm’s Policies and Procedures relative to your employment, including, but not limited to, any disagreements regarding discipline, termination, discrimination or violation of other state or federal employment or labor laws. This includes any claim over the denial of hire. This Procedure includes any claim against another employee of the Firm for violation of the Firm’s Policies, discriminatory conduct or violation of other state or federal employment or labor laws. Similarly, should the Firm have any claims
against you arising out of the employment relationship, the Firm also agrees to submit them to final and binding arbitration pursuant to this Procedure.
The trial courts relied on this language to hold, respectively, that Smits and Lichon had agreed to arbitrate their claims. The question on appeal is whether those decisions were proper.
"Arbitration is a matter of contract." Altobelli v. Hartmann , 499 Mich. 284, 295, 884 N.W.2d 537 (2016) (quotation marks and citation omitted). The interpretation of contractual language is reviewed de novo. VHS Huron Valley-Sinai Hosp. Inc. v. Sentinel Ins. Co. (On Remand) , 322 Mich. App. 707, 715, 916 N.W.2d 218 (2018).
"Michigan jurisprudence favors arbitration, and the employment context is no exception." Rembert v. Ryan’s Family Steak Houses, Inc. , 235 Mich. App. 118, 130, 596 N.W.2d 208 (1999). "[T]he parties’ agreement determines the scope of arbitration." Rooyakker & Sitz, PLLC v. Plante & Moran, PLLC , 276 Mich. App. 146, 163, 742 N.W.2d 409 (2007). As explained by this Court:
To ascertain the arbitrability of an issue, [a] court must consider whether there is an arbitration provision in the parties’ contract, whether the disputed issue is arguably within the arbitration clause, and whether the dispute is expressly exempt from arbitration by the terms of the contract. The court should resolve all conflicts in favor of arbitration. However, a court should not interpret a contract’s language beyond determining whether arbitration applies and should not allow the parties to divide their disputes between the court and an arbitrator. Dispute bifurcation defeats the efficiency of arbitration and considerably undermines its value as an acceptable alternative to litigation. [Id . (quotation marks and citations omitted; alteration in Rooyakker ).]
There is no dispute about the existence of the arbitration agreement, nor do the parties contend that the issues to be arbitrated are exempted by the terms of the agreement. The only issue is whether the claims to be arbitrated—which include claims that plaintiffs were sexually assaulted by their superior—are arguably within the scope of the parties’ arbitration agreement.
The majority concludes that we must decide "whether the sexual assault and battery of an employee at the hands of a superior is conduct related to employment." If that were the question before this Court, I would agree that sexual assault is not conduct related to employment. But I would more broadly frame the question before us as whether plaintiffs’ claims arguably fall within the scope of the arbitration agreement.
Arbitration agreements are treated as ordinary contracts, and so we apply general principles of contract to their interpretation. Oakland-Macomb Interceptor Drain Drainage Dist. v. Ric-Man Constr., Inc. , 304 Mich. App. 46, 55-56, 850 N.W.2d 498 (2014). Unambiguous contracts are not open to interpretation and must be enforced as written. Rory v. Continental Ins. Co. , 473 Mich. 457, 468, 703 N.W.2d 23 (2005).
The majority focuses on the phrase "relative to your employment" in the first sentence of the arbitration agreement. In so doing, I believe that the majority overlooks other portions of the contract that explain what claims the parties intended—and therefore arguably agreed—to arbitrate. Most relevant here, the parties agreed to arbitrate "any claim against another employee of the Firm for violation of the Firm’s Policies, discriminatory conduct or violation of other state or federal employment or labor laws." Thus, the parties unambiguously agreed to arbitrate "any claim against another employee of the Firm for ... discriminatory conduct ...."
Under the ELCRA—which both plaintiffs filed claims under—"[d]iscrimination because of sex includes sexual harassment." MCL 37.2103(i). The ELCRA then broadly defines conduct constituting sexual harassment:
Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:
(i ) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing.
(ii ) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment, public accommodations or public services, education, or housing.
(iii ) The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment. [Id .]
Given this definition, sexual assault is sexual harassment. See Radtke v. Everett , 442 Mich. 368, 394-395, 501 N.W.2d 155 (1993) (acknowledging that sexual assault is a form of sexual harassment that can form the basis for a claim for sex discrimination under the ELCRA). And sexual harassment is, under the ELCRA, discrimination because of sex. MCL 37.2103(i). The parties agreed to arbitrate any claim for discriminatory conduct against another employee. Therefore, in light of the unambiguous language in the parties’ arbitration agreement, I believe that plaintiffs’ claims arguably fall within the scope of the agreement.
I base my reasoning solely on the language in the parties' arbitration agreement. I believe that the majority highlights an interesting, yet potentially problematic, national trend. When courts label an instance of "sexual harassment" as "sexual assault," they generally find that the conduct is unrelated to employment. See the cases listed in note 1 of the majority opinion. But see Barker v. Halliburton Co. , 541 F.Supp.2d 879, 886, 889 (S.D. Tex., 2008) (holding that the parties agreed to arbitrate the plaintiff’s claim of sexual assault because the parties agreed to arbitrate all claims " ‘related to ... employment’ "). Yet when courts use the term "sexual harassment," they generally find that the conduct is related to employment. See Lyster v. Ryan’s Family Steak Houses, Inc. , 239 F.3d 943, 946 -94747 (C.A. 8, 2001) (holding that the plaintiff agreed to arbitrate her "claim of sexual harassment ... which arose during [the plaintiff’s] employment with [the defendant]" because she agreed to arbitrate " ‘any and all employment-related disputes’ "); Cruise v. Kroger Co. , 233 Cal. App. 4th 390, 397, 183 Cal.Rptr. 17 (2015) (holding that the plaintiff’s claims "for retaliation, sexual harassment, sexual and racial discrimination, failure to investigate and prevent harassment and retaliation, as well as her common law claims for wrongful termination in violation of public policy, intentional infliction of emotional distress and defamation, are all ‘employment-related disputes’ within the meaning of the above arbitration clause, and therefore clearly are covered disputes subject to the arbitration agreement"); Kindred v. Second Judicial Dist. Court , 116 Nev. 405, 411, 996 P.2d 903 (2000) (holding that the plaintiff agreed to arbitrate her sexual-harassment claim when the agreement that " ‘any controversy or dispute arising between [the plaintiff] and [the defendant] in any respect to this agreement or your employment by [the defendant] shall be submitted for arbitration’ "); Freeman v. Minolta Business Sys., Inc. , 699 So.2d 1182, 1187; 29,655 (La. App. 2 Cir. 09/24/97) (holding that the plaintiff’s sexual-harassment claim "involve[d] violation of a term or condition of her employment" and therefore was "included in the scope of the arbitration clause of her employment contract"); Arakawa v. Japan Network Group , 56 F.Supp.2d 349, 353 (S.D.N.Y., 1999) ("All of [the plaintiff’s] claims—sexual harassment, wrongful discharge and discrimination—arise out of or relate to her employment and are therefore claims that are subject to binding arbitration pursuant to the agreement."). While it is clear from the majority’s holding that sexual assault is conduct unrelated to employment, it is unclear whether the majority is bucking the national trend and holding that all sexual harassment is conduct unrelated to employment.
Although I do not believe that an employee should be required to arbitrate allegations of sexual assault, I am constrained by the law and the terms of the employment contract to dissent in this case. I believe that our Legislature is the appropriate forum for addressing this policy matter. See Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (explaining that "[h]aving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue") (quotation marks and citation omitted; alteration in Gilmer ).
I offer no opinion on the majority’s policy reasoning, though it appears to run counter to this Court’s extensive reasoning in Rembert , 235 Mich. App. at 135-159, 596 N.W.2d 208, for why civil-rights claims in general are arbitrable. Among other things, the Rembert Court acknowledged arguments that "the public policy advanced by [civil-rights] statutes would be undermined if these disputes were addressed in the relatively private forum of arbitration," but rejected those arguments, in part, because they "were thoroughly considered and rejected by the United States Supreme Court in a trio of cases known as the Mitsubishi trilogy and, later, in Gilmer [500 U.S. 20, 111 S.Ct. 1647 ]." Id . at 135, 596 N.W.2d 208 (citations omitted).
For these reasons, I respectfully dissent.