Burchett v. Rx Optical

591 N.W.2d 652, 232 Mich. App. 174

• Court: Michigan Court of Appeals
• Decided: January 8, 1999
• Docket: Docket 196681
• Status: Published

Opinions

Murphy, J.

Plaintiff appeals as of right from the order granting in part and denying in part defendant’s motion for summary disposition. We affirm.

This case arises out of Lisa Burchett’s termination of employment as an optician with defendant. However, this appeal only addresses the claims involving plaintiff’s son, Jacob. Lisa began working at Rx Optical in 1992. In December 1994, she became pregnant and informed her supervisor. On January 1, 1995, Lisa received a paycheck from which defendant had deducted money pursuant to its policy that its opticians would be responsible for mistakes made on accounts. On January 4, 1995, plaintiff contacted the Michigan Department of Labor to report defendant’s policy of requiring opticians to reimburse defendant for mistakes that they made on certain accounts. Upon discovering that defendant’s policy was illegal, Lisa informed both the owner and the president of Rx Optical. That same day, Lisa experienced vaginal bleeding and her doctor instructed her to go home. The next day, she was placed on a two-week disability leave; however, before the end of this two-week period she was terminated from her job for allegedly having a bad attitude.

On March 16, 1995, Lisa and John Burchett, her husband, filed an action alleging that Lisa’s termination violated the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq., the Michigan Handicappers’ Civil Rights Act (hora), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and the Family and Medical Leave Act (fmla), 29 USC 2601 et seq. John Burchett alleged that because of Lisa’s termination, he suffered loss of consortium. Following the premature birth of their son, Jacob, the Burchetts amended their complaint to add Jacob as a party, alleging that defendant’s actions caused Lisa to suffer stress, which resulted in Jacob’s premature birth and associated injuries.

Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). Although plaintiff may very well have had considerable problems establishing that defendant’s alleged violations of the statutes proximately caused the alleged injuries to Jacob, the trial court did not reach the issue of proof. Rather, the trial court granted the motion with respect to the claims involving Jacob under MCR 2.116(C)(8) (failure to state a claim on which relief can be granted). The trial court denied defendant’s motion for summaiy disposition with respect to John and Lisa Burchett’s claims; however, the parties settled those claims after the trial court’s order. Plaintiff appeals from the trial court’s dismissal of Jacob’s claims.

We review de novo a trial court’s decision to grant a motion for summary disposition. Citizens Ins Co v Bloomfield Twp, 209 Mich App 484, 486; 532 NW2d 183 (1995). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim and only permits consideration of the pleadings. Wade v Dep’t of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992). A trial court should grant a motion for summary disposition under MCR 2.116(C)(8) only where a claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Id.

Plaintiff argues that Jacob should be allowed to maintain a cause of action under the cra, the hcra, and the wpa. Plaintiff does not challenge the trial court’s decision with respect to the fmla. The fundamental purpose of statutory construction is to discover and give effect to the intent of the Legislature. Ansell v Dep’t of Commerce (On Remand), 222 Mich App 347, 355; 564 NW2d 519 (1997). Once discovered, the Legislature’s intent must prevail, any existing rule of construction to the contrary notwithstanding. Id. Where reasonable minds may differ about the meaning of the statute, we look to the objective of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the Legislature’s purpose. Id.

Although we appreciate the remedial nature of these acts and recognize that appellate courts have consistently construed these acts liberally, see Chmielewski v Xermac, Inc, 457 Mich 593; 580 NW2d 817 (1998) (the HCRA); Chandler v Dowell Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210 (1998) (the wpa); Reed v Michigan Metro Girl Scout Council, 201 Mich App 10, 15; 506 NW2d 231 (1993) (the CRA), we are not prepared to say that the Legislature, by its adoption of these acts, intended to create a cause of action for physical injuries to an infant, allegedly resulting from a stress-induced premature birth caused by unlawful employment discrimination directed at the infant’s mother.

We first address whether Jacob can maintain a cause of action under the CRA. In Eide v Kelsey-Hayes Co, 431 Mich 26; 427 NW2d 488 (1988), our Supreme Court addressed a distinctly different question. In that case, the Court addressed whether a derivative cause of action for loss of consortium is precluded by the CRA. Id., 28. According to the majority in Eide, “a claim for loss of consortium is simply one for loss of society and companionship,” which needs no independent statutory authority for it to be brought. Id., 29-30. What is necessary is that the impaired spouse has sustained some legally cognizable harm or injury — in Eide, injuries from sexual harassment in violation of the CRA — resulting in a loss of society and companionship to the unimpaired spouse. Id., 29. Because “courts have consistently treated loss of consortium not as an item of damages, but as an independent cause of action,” Justice Boyle, writing for the majority, framed the issue before the Court as “not whether a cause of action [for loss of consortium] is available under the Civil Rights Act, but whether there is anything in the act which would preclude this independent cause of action.” Id., 29-30 (emphasis added). Stated differently, a loss of consortium claim is not a claim under the CRA at all, but a claim at common law. Id., 33-34, citing Prosser & Keeton, Torts (5th ed), § 125, pp 931-934. Our Supreme Court concluded that neither the plain language of the CRA nor conventional rules of statutory construction support the argument that the Legislature intended to preclude a cause of action for loss of consortium. Id., 31, 34.

In our view, the question before this Court is entirely different. Unlike the loss of consortium claim, the claim presented here is not an independent cause of action rooted in the common law. While it is true that Michigan common law recognizes a claim of negligence on behalf of a fetus for prenatal injury if (1) the fetus is later bom alive, or (2) the fetus was viable at the time of injury, Jarvis v Providence Hosp, 178 Mich App 586, 591; 444 NW2d 236 (1989), the cause of action presented in this case is not a negligence claim. Rather, the claim made by lisa Burchett, as next friend of her son Jacob, can only be perceived as a civil rights claim brought directly under the CRA. In other words, we are asked to decide not whether there is anything in the CRA that would preclude an infant’s independent cause of action for physical injuries, resulting from a premature birth that was allegedly caused by employment discrimination against the infant’s pregnant mother, but whether the infant can maintain such a cause of action directly under the CRA. We believe that the CRA cannot be so broadly construed as to authorize such a claim.

Statutory analysis necessarily begins with the language of the statute in question. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). The civil enforcement provision of the CRA provides:

A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both. [MCL 37.2801(1); MSA 3.548(801)(1).]

Although remedial statutes are to be liberally construed to suppress the evil and advance the remedy, Eide, supra, 34, we are not convinced that the Legislature intended to allow an infant to pursue a cause of action for injuries that the infant has incurred as a result of a civil rights violation inflicted upon the infant’s mother, irrespective of whether the infant has alleged that prenatal or postnatal injuries were incurred as a result of the civil rights violation.

Enacted by the Michigan Legislature in 1976 to supplant the Fair Employment Practices Act, the CRA prohibits discrimination based on sex, race, national origin, religion, height, weight, or marital status in employment, housing, use of public accommodations, public service, and educational facilities. With respect to discrimination in employment, the CRA provides:

(1) An employer shall not do any of the following:

(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.

(b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.

(c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including, but not limited to, a benefit plan or system. [MCL 37.2202; MSA 3.548(202).]

In our view, when this portion of the CRA is read with the civil enforcement provision of the act, we are compelled to conclude that the Legislature intended to authorize only the person whose civil rights were violated to bring a cause of action under the CRA. Because plaintiff does not claim that defendant violated Jacob’s civil rights but, rather, alleges that Jacob suffered damages as a result of the violation of the civil rights of Jacob’s mother, we conclude that Jacob cannot maintain a cause of action directly under the CRA.

Plaintiff next argues that Jacob should be allowed to maintain a cause of action under the HCRA. However, the HCRA has the same purposes and goals as the CRA, and this Court has held that claims under the hcra should be treated similarly to those under the cra. Milnikel v Mercy-Memorial Medical Center, Inc, 183 Mich App 221, 223-224; 454 NW2d 132 (1989). Further, the civil enforcement provision of the hcra is identical to that of the CRA. See MCL 37.1606(1); MSA 3.550(606)(1). Therefore, for the reasons set forth above, we likewise decline to interpret the hcra as authorizing Jacob’s claim.

Plaintiff also argues that Jacob should be allowed to maintain a cause of action under the wpa. Although the wpa and the civil rights acts do not share identical purposes and goals — the wpa is designed to protect the public by protecting employees who report violations or suspected violations of the law to a public body, Dolan v Continental Airlines, 454 Mich 373, 378; 563 NW2d 23 (1997) — case law nonetheless supports the conclusion that the wpa, the cra, and the HCRA deserve like treatment. See Stewart v Fairlane Community Mental Health Centre (On Remand), 225 Mich App 410, 421; 571 NW2d 542 (1997); Anzaldua v Band, 216 Mich App 561, 580-581; 550 NW2d 544 (1996). Further, the civil enforcement provision of the wpa is substantively the same as those of both the CRA and the HCRA. See MCL 15.362; MSA 17.428(2). Accordingly, for the reasons discussed above, we are also satisfied that the Legislature, by its adoption of the wpa, did not intend to establish a cause of action for a person other than the person against whom a violation of the WPA was directed. Because the alleged violation of the wpa in this case was directed at Jacob’s mother and not Jacob, we conclude that Jacob cannot maintain a cause of action against defendant under the statutory scheme established in the WPA.

In sum, a court’s decision regarding whether a statute creates a private right of action must be consistent with legislative intent while furthering the Legislature’s purpose in enacting the statute. See Gardner v Wood, 429 Mich 290, 301; 414 NW2d 706 (1987). We conclude that the Legislature, by its adoption of the cra, the hcra, and the wpa did not intend to create the private right of action brought in this case by lisa Burchett, as next friend of her son Jacob. Further, because these areas of law have been so extensively addressed by the Legislature, we are not prepared to recognize a new derivative cause of action in the area of civil rights or the wpa for prenatal injuries allegedly inflicted on the child of the person whose rights were violated. Such recognition is best left to the Legislature, if it is so inclined.

Accordingly, the trial court did not err in granting defendant’s motion for summary disposition with respect to Jacob’s claims.

Affirmed.

Sawyer, J., concurred.