Hawthorne-Burdine v. Oakland Univ.

Full title: DOROTHY HAWTHORNE-BURDINE, Plaintiff-Appellant, v. OAKLAND UNIVERSITY…

Court: STATE OF MICHIGAN COURT OF APPEALS

Date published: Apr 17, 2018

No. 338605 (Mich. Ct. App. Apr. 17, 2018)

Opinion

No. 338605 No. 339188

04-17-2018

DOROTHY HAWTHORNE-BURDINE, Plaintiff-Appellant, v. OAKLAND UNIVERSITY, Defendant-Appellee.

PER CURIAM.

UNPUBLISHED Court of Claims
LC No. 17-000048-MZ Court of Claims
LC No. 17-000010-MZ Before: SERVITTO, P.J., and MARKEY and O'CONNELL, JJ. PER CURIAM.

In these consolidated¹ appeals, plaintiff appeals as of right two orders of the Court of Claims granting summary disposition in favor of defendant, plaintiff's former employer. In Docket No. 338605, the Court of Claims granted defendant summary disposition under MCR 2.116(C)(7) on the ground of governmental immunity in plaintiff's action alleging libel and related claims arising from an article written by freelance journalist Eric Freedman² summarizing the dismissal of plaintiff's lawsuit against defendant in federal court. In Docket No. 339188, the Court of Claims granted defendant summary disposition under MCR 2.116(C)(7) in plaintiff's employment discrimination action on the ground that plaintiff failed to comply with MCL 600.6431, the notice provision of the Court of Claims Act, MCL 600.6401 et seq. We affirm in both appeals.

1 Hawthorne-Burdine v Oakland Univ, unpublished order of the Court of Appeals, entered August 7, 2017 (Docket Nos. 338605 and 339188).

2 Plaintiff brought a separate action raising similar claims against Freedman, who is not a party to either of these consolidated appeals.

I. BACKGROUND FACTS

Plaintiff was an associate professor of nursing for defendant. Plaintiff alleges that, during the 2013-2014 school years, the last of her four-year contract with defendant, defendant ordered that she be removed from campus and that she undergo independent medical examinations.³ Defendant's "Behavioral Concerns Committee" had apparently determined that plaintiff posed a "safety threat" on the basis of an audio recording of her made by one of her students. Defendant terminated plaintiff's employment effective August 2014, the date that her employment contract expired. In September 2015, plaintiff brought suit against defendant and others in federal district court, raising various discrimination claims. In January 2016, the federal court dismissed all of plaintiff's claims.⁴ In February 2016, Freedman published an article summarizing the federal court's decision. The article, "Judge Sides with Oakland University in Bias Suit," appeared on two websites. Freedman stated in an affidavit that this "short case summary" was based solely on the federal court's decision.

3 Because the Court of Claims in both cases granted summary disposition under MCR 2.116(C)(7), we will accept plaintiff's well-pleaded allegations as true for purposes of this appeal, except as contradicted by the evidence. Pierce v Lansing, 265 Mich App 174, 177; 694 NW2d 65 (2005).

4 Hawthorne-Burdine v Oakland Univ, 158 F Supp 3d 586 (ED Mich, 2016).

II. PROCEDURAL HISTORY

In Docket No. 339188, in January 2017, plaintiff filed a complaint in Oakland Circuit Court against defendant, alleging numerous violations of the Civil Rights Act (CRA), MCL 37.2101 et seq., and the Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq. The case was transferred to the Court of Claims, where defendant moved for summary disposition on the ground that plaintiff failed to file a written claim or notice of intent to file a claim with the Court of Claims clerk within one year after her claims accrued, as required by MCL 600.6431(1). The Court of Claims agreed and granted summary disposition on that basis. Rejecting plaintiff's assertion that, given the nature of her claims, MCL 600.6431 should not apply, the court concluded that MCL 600.6431 applies regardless of the type of claim being brought.

In Docket No. 338605, in March 2017, plaintiff filed a complaint against defendant in the Court of Claims alleging libel, false light invasion of privacy, and intentional infliction of emotional distress. The basis of these claims was plaintiff's assertion that defendant had contributed false information to Freedman for use in his article. Defendant asserted that it had no involvement in Freedman's article and sought summary disposition of plaintiff's tort claims on governmental immunity grounds. In response, plaintiff maintained that her compliance with the Court of Claims notice provision effectuated a waiver of governmental immunity. Plaintiff also disputed Freedman's assertion that his article derived solely from the federal court's opinion. The Court of Claims granted defendant summary disposition on the basis of governmental immunity. The court, noting that the alleged torts arose from defendant's conduct in the federal court proceedings, concluded that the allegedly tortious acts arose out of defendant's exercise of a governmental function, i.e., the general activity of "being sued." The court rejected plaintiff's assertion that compliance with the notice provision in MCL 600.6431 constitutes a waiver of governmental immunity; rather, the court observed, the notice provision establishes "a condition precedent for avoiding governmental immunity, but it neither confers nor displaces governmental immunity."

III. ANALYSIS

We review de novo a grant of summary disposition. Local Area Watch v Grand Rapids, 262 Mich App 136, 142; 683 NW2d 745 (2004). When reviewing a motion for summary disposition under MCR 2.116(C)(7), "[a]ll well-pleaded allegations are viewed in the light most favorable to the nonmoving party unless documentary evidence is provided that contradicts them." Haksluoto v Mt Clemens Regional Med Ctr, 500 Mich 304, 309; 901 NW2d 577 (2017). "If there is no factual dispute, whether a plaintiff's claim is barred under a principle set forth in MCR 2.116(C)(7) is a question of law for the court to decide." RDM Holdings, Ltd v Continental Plastics Co, 281 Mich App 678, 687; 762 NW2d 529 (2008). "But when a relevant factual dispute does exist, summary disposition is not appropriate." Moraccini v Sterling Heights, 296 Mich App 387, 391; 822 NW2d 799 (2012).

We also review de novo, as a matter of statutory interpretation, whether plaintiff provided sufficient notice of her claims under MCL 600.6431. See McCahan v Brennan, 492 Mich 730, 735-736; 822 NW2d 747 (2012). Likewise, "[t]he applicability of governmental immunity is a question of law that is reviewed de novo." Ray v Swager, 501 Mich 52, 61; 903 NW2d 366 (2017).

The foundational principles of statutory interpretation are well established:

When interpreting a statute, we follow the established rules of statutory construction, the foremost of which is to discern and give effect to the intent of the Legislature. To do so, we begin by examining the most reliable evidence of that intent, the language of the statute itself. If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted. Effect should be given to every phrase, clause, and word in the statute and, whenever possible, no word should be treated as surplusage or rendered nugatory. Only when an ambiguity exists in the language of the statute is it proper for a court to go beyond the statutory text to ascertain legislative intent. [Whitman v City of Burton, 493 Mich 303, 311-312; 831 NW2d 223 (2013) (citations omitted).]

In Docket No. 339188, plaintiff argues that the Court of Claims erred in granting defendant summary disposition for her failure to file a notice of her claim pursuant to MCL 600.6431. We disagree.

Under the Court of Claims Act, Chapter 64 of the Revised Judicature Act (RJA), MCL 600.6401 et seq., the Court of Claims generally has exclusive jurisdiction "[t]o hear and determine any claim or demand, statutory or constitutional, liquidated or unliquidated, ex contractu or ex delicto, or any demand for monetary, equitable, or declaratory relief or any demand for an extraordinary writ against the state or any of its departments or officers . . . ." MCL 600.6419(1)(a). MCL 600.6431 sets forth "conditions precedent to pursuing a claim against the state." Fairley v Dep't of Corrections, 497 Mich 290, 292; 871 NW2d 129 (2015). "One such condition on the right to sue the state is the notice provision," McCahan, 492 Mich at 736, which provides, in relevant part:

No claim may be maintained against the state unless the claimant, within 1 year after such 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 the state or any of its departments, commissions, boards, institutions,⁵ arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths. [MCL 600.6431(1).]

"[A] claimant's failure to comply strictly with this notice provision warrants dismissal of the claim, even if no prejudice resulted." Rusha v Dep't of Corrections, 307 Mich App 300, 307; 859 NW2d 735 (2014), citing McCahan, 492 Mich at 746-747.

5 Defendant is "a state institution." MCL 390.151.

Plaintiff does not dispute that she failed to comply with MCL 600.6431(1).⁶ Rather, she asserts that MCL 600.6431(1) should not be applied to civil rights violations. However, the Legislature clearly intended for MCL 600.6431(1) to apply regardless of the type of claim being brought. MCL 600.6419(1)(a) makes no distinction among types of claims subject to the jurisdiction of the Court of Claims; rather, it grants the Court of Claims jurisdiction to "[t]o hear and determine any claim . . . against the state or any of its departments . . . ." (Emphasis added.) Nor does MCL 600.6431(1) distinguish between claims that are subject to its notice requirements, providing broadly that "[n]o claim may be maintained against the state unless" the claimant complies with the provision. (Emphasis added.) Therefore, according to its unambiguous language, MCL 600.6431(1) applies to plaintiff's discrimination claims. See also Rusha, 307 Mich App at 307-313 (applying the notice requirement in MCL 600.6431(3) to the plaintiff's claim of cruel or unusual punishment under the Michigan Constitution, and noting that the notice-of-claim requirement was "only a minimal procedural burden" that "in no way abrogate[d] the substantive constitutional protection" that the plaintiff asserted).

6 Nor does plaintiff dispute that her employment discrimination claims accrued, at the latest, when she was terminated from her position in August 2014. Therefore, her January 2017 complaint was untimely under MCL 600.6431(1).

Contrary to plaintiff's assertion otherwise, the Supremacy Clause of the United States Constitution does not bar application of MCL 600.6431(1) to plaintiff's claims. "The Supremacy Clause of the United States Constitution, US Const, art VI, cl 2, 'invalidates state laws that interfere with, or are contrary to, federal law.' " Neal v Detroit Receiving Hosp, 319 Mich App 557, 567; 903 NW2d 832 (2017) (citation omitted). In Felder v Casey, 487 US 131, 134, 141, 150-153; 108 S Ct 2302; 101 L Ed 2d 123 (1988), the United States Supreme Court, applying the Supremacy Clause, determined that a Wisconsin statute requiring notice to a state or local governmental entity or officer before bringing suit was inapplicable to "federal civil rights actions brought in state court under 42 USC 1983,"⁷ in part because the burden imposed by the notice requirement was "inconsistent in both design and effect with the compensatory aims of the federal civil rights laws." The Court concluded that "[p]rinciples of federalism, as well as the Supremacy Clause, dictate that such a state law must give way to vindication of the federal right when that right is asserted in state court." Felder, 487 US at 153 (emphasis added).

7 42 USC 1983 "provides a remedy for the violation of rights guaranteed by the federal constitution or federal statutes." York v Detroit (After Remand), 438 Mich 744, 757-758; 475 NW2d 346 (1991).

There is no basis for application of the Supremacy Clause or Felder to this case, because plaintiff has raised only state-law claims. Plaintiff notes the analogous association between the federal Civil Rights Act and Michigan's CRA. See Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001). There is simply no basis, however, for the suggestion that MCL 600.6431 is preempted when plaintiff is not bringing a claim under federal law. As the Felder Court acknowledged, "[n]o one disputes the general and unassailable proposition . . . that States may establish the rules of procedure governing litigation in their own courts." Felder, 487 US at 138.⁸ Accordingly, the Court of Claims correctly granted defendant summary disposition in Docket No. 339188.

8 Plaintiff cites cases from other jurisdictions holding that various state notice-of-claim statutes are inapplicable in certain contexts. We have reviewed these cases and have concluded that they are inapposite. See, e.g., Brennan v Norton, 350 F 3d 399, 431-432 (CA 3, 2003) (determining, based on prior state decisions, that the 90-day notice requirement in New Jersey's Tort Claims Act (TCA), NJ Stat Ann 59:8-3, did not apply to claims brought against a public entity under a state whistleblower statute, because the statutes governed different subject matters); Tannenbaum v City of New York, 30 App Div 3d 357, 358; 819 NYS2d 4 (2006), abrogated in part on other grounds by Kapon v Koch, 23 NY3d 32; 11 NE3d 709 (2014) (holding that a state statute requiring notice in tort and negligence actions did not apply to federal civil rights claims).

Next, in Docket No. 338605, plaintiff argues that the Court of Claims erred in ruling that defendant was entitled to governmental immunity. We disagree.

Under the government tort liability act (GTLA), MCL 691.1401 et seq., "[e]xcept as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1).⁹ "Governmental function" is defined, in relevant part, as "activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law." MCL 691.1401(b). "[T]his definition is to be broadly applied and requires only that there be some constitutional, statutory or other legal basis for the activity in which the governmental agency was engaged." Harris v Univ of Mich Bd of Regents, 219 Mich App 679, 684; 558 NW2d 225 (1996) (quotation marks and citation omitted). "Conversely, governmental agencies are not entitled to immunity under the act for injuries arising out of ultra vires activity, defined as activity not expressly or impliedly mandated or authorized by law." Richardson v Jackson Co, 432 Mich 377, 381; 443 NW2d 105 (1989). "To determine whether a governmental agency is engaged in a governmental function, the focus must be on the general activity, not the specific conduct involved at the time of the tort." Pardon v Finkel, 213 Mich App 643, 649; 540 NW2d 774 (1995). "The GTLA does not contain an 'intentional tort exception to governmental immunity' from tort liability." Genesee Co Drain Comm'r v Genesee Co, 309 Mich App 317, 328; 869 NW2d 635 (2015) (citation omitted).

9 "Governmental agency" is defined as "this state or a political subdivision." MCL 691.1401(a). "State includes a public university or college of this state, whether established as a constitutional corporation or otherwise." MCL 691.1401(g).

Again, plaintiff's tort claims were based on the allegation that defendant provided false information to Freedman. The Court of Claims implicitly ruled that any information that defendant provided Freedman would have occurred through defendant's filings in the federal court proceedings.¹⁰ Defendant undoubtedly has statutory authority to defend itself in litigation, see MCL 390.151, and was therefore engaged in the exercise of a governmental function when the allegedly tortious acts occurred. Harris, 219 Mich App at 684; MCL 691.1401(b). Further, "ultra vires activity is not activity that a governmental agency performs in an unauthorized manner. Instead, it is activity that the governmental agency lacks legal authority to perform in any manner." Richardson, 432 Mich at 387. Regardless if defendant submitted evidence or documents to the federal court in an unauthorized or improper manner, as plaintiff suggests, it had general authority to defend itself in the litigation. In sum, focusing on defendant's general activity of defending its lawsuit, Pardon, 213 Mich App at 649, it was engaged in a governmental function authorized by law when it provided information to the federal court. Accordingly, defendant is entitled to governmental immunity for its conduct during the federal court proceedings. MCL 691.1407(1).

10 To the extent that plaintiff may be understood to suggest that defendant contributed libelous information directly to Freedman and was not engaged in the exercise of a governmental function when it did so, she has abandoned any such claim by failing to provide "a meaningful argument in support of [her] position." Berger v Berger, 277 Mich App 700, 712; 747 NW2d 336 (2008). In any event, plaintiff has failed to identify an issue of fact with respect to this allegation. All of the information in the published statement at issue plainly traces back to the federal court's opinion. Because there is not a factual dispute as to whether Freedman contacted defendant in writing his article, summary disposition under MCR 2.116(C)(7) was appropriate. RDM Holdings, 281 Mich App at 687. --------

Finally, plaintiff argues that her compliance with MCL 600.6431(1) with respect to her tort claims effectively "waived" defendant's entitlement to governmental immunity. Plaintiff does not provide any authority supporting this position. See Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Further, "[o]n appeal, in order for the appellant to receive relief, [she] has the burden to demonstrate that the lower court erred as governed by the relevant standard of review." Menard, Inc v Escanaba, 315 Mich App 512, 521 n 3; 891 NW2d 1 (2016). Nor does plaintiff address the basis of the Court of Claims' ruling on this issue. See Joerger v Gordon Food Serv, Inc, 224 Mich App 167, 175; 568 NW2d 365 (1997). Plaintiff has therefore abandoned this issue and is not entitled to appellate relief.

In any event, it is clear that the Legislature did not intend compliance with the Court of Claims Act to effectuate a waiver of governmental immunity. "[T]he GTLA's broad grant of immunity, MCL 691.1407(1), . . . grants immunity to governmental entities from 'tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function,' " with six exceptions as set forth elsewhere in the GTLA. Hannay v Dep't of Transp, 497 Mich 45, 60 n 34, 61; 860 NW2d 67 (2014). "[G]overnmental immunity is not an affirmative defense, but is instead a characteristic of government," and "[i]t is the responsibility of the party seeking to impose liability on a governmental agency to demonstrate that its case falls within one of the exceptions [to governmental immunity]." Fairley, 497 Mich at 298 (quotation marks and citation omitted; third alteration in original).

"[B]ecause the government may voluntarily subject itself to liability, it may also place conditions or limitations on the liability imposed." McCahan, 492 Mich at 736 (citation omitted). The GTLA expressly provides that "[c]laims against the state authorized under this act shall be brought in the manner provided in" the Court of Claims Act. MCL 691.1410(1). "In accordance with MCL 691.1410(1), a claim satisfying an exception to governmental immunity against a state agency must be 'brought in the manner provided in [the Revised Judicature Act],' including MCL 600.6431." Fairley, 497 Mich at 297 (alteration in original). "MCL 600.6431 sets forth several requirements that must be met in order to bring suit against a governmental entity in derogation of governmental immunity." McCahan, 492 Mich at 737. "[W]hile MCL 600.6431 does not 'confer governmental immunity,' it establishes conditions precedent for avoiding the governmental immunity conferred by the GTLA, which expressly incorporates MCL 600.6431," and a plaintiff therefore "must adhere to the conditions precedent in MCL 600.6431(1) to successfully expose [a governmental agency] to liability." Fairley, 497 Mich at 297-298 (citations omitted and emphasis added).

Critically, the GTLA provides that "[e]xcept as otherwise provided in this act, this act does not modify or restrict the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed." MCL 691.1407(1). Further, the GLTA provides that "[c]laims against the state authorized under this act shall be brought in the manner provided in" the Court of Claims Act. MCL 691.1410(1) (emphasis added). Simply put, it is the GTLA that authorizes certain claims against the state, and there is no support for plaintiff's bald assertion that compliance with the Court of Claims notice provision somehow waives the "broad grant of immunity" from tort liability that the GTLA confers upon a governmental entity engaged in the exercise or discharge of a governmental function. Hannay, 497 Mich at 61; see also Manion v State Highway Comm'r, 303 Mich 1, 19; 5 NW2d 527 (1942) (explaining the "distinction between sovereign immunity from suit and sovereign immunity from liability"). Accordingly, the Court of Claims correctly ruled that compliance with MCL 600.6431 does not effectuate a waiver or displacement of governmental immunity.

Affirmed.

/s/ Deborah A. Servitto

/s/ Jane E. Markey

/s/ Peter D. O'Connell