DEPARTMENT OF CIVIL RIGHTS Ex Rel JOHNSON v. SILVER DOLLAR CAFE

490 N.W.2d 337, 441 Mich. 110
CourtMichigan Supreme Court
DecidedSeptember 29, 1992
Docket91348, (Calendar No. 3)
StatusPublished
Cited by16 cases

This text of 490 N.W.2d 337 (DEPARTMENT OF CIVIL RIGHTS Ex Rel JOHNSON v. SILVER DOLLAR CAFE) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DEPARTMENT OF CIVIL RIGHTS Ex Rel JOHNSON v. SILVER DOLLAR CAFE, 490 N.W.2d 337, 441 Mich. 110 (Mich. 1992).

Opinions

Levin, J.

The circuit judge, on appeal from the Civil Rights Commission, reduced an award for sexual harassment to Mary Helen Johnson against her employers, Paul and Margaret Anson, doing business as Silver Dollar Cafe. The Court of Appeals reinstated the award.1

We reverse and remand to the Court of Appeals to consider whether the circuit judge clearly erred in awarding $4,515 compensatory damages for humiliation, extreme embarrassment, emotional distress, indignities to Johnson and her character, and great mental anguish.

[112]*112I

Johnson worked for the Silver Dollar Cafe for approximately fifteen months during 1983 and 1984. The owners, Paul Anson and his wife, Margaret Anson, both worked in the restaurant. Almost immediately after Johnson was hired, Paul Anson made explicit sexual remarks, including that he would like to suck Johnson’s breasts and engage in cunniliiigus. He offered her money to go to bed with him. When she bent over to pick up a pad on the floor, he grabbed her buttocks.

Johnson complained to Margaret Anson, who sometimes observed this behavior. Margaret Anson would apologize and promise that she would speak to Paul Anson and see that such conduct ceased, and asked Johnson not to quit. But the harassment continued until, eventually, Johnson was discharged. The stated basis was that she had failed to report all the tips she had received.

Johnson claimed that she experienced nightmares, crying spells, and great emotional pain and distress. The Civil Rights Commission awarded Johnson $2,660 in back wages and $30,000 for humiliation, extreme embarrassment, emotional distress, indignities to her person and character, and great mental anguish.

The circuit judge affirmed the award of $2,660 in back wages, but reduced the compensatory award from $30,000 to $4,515, approximately twice the wages. The Court of Appeals reinstated the compensatory award of $30,000.

ii

The Ansons do not challenge the finding of sexual harassment or the award of $2,660 in back pay. They contend that the Court of Appeals erred [113]*113in stating that "the circuit court is permitted to substitute its findings of fact only when it has determined that the referee’s findings were not supported by competent, material, and substantial evidence” and may not "substitute its own findings of fact merely because it disagrees with those reached by the referee.”2

In Walker v Wolverine Fabricating & Mfg Co, Inc, 425 Mich 586; 391 NW2d 296 (1986), this Court held that a person who is aggrieved by a decision of the Civil Rights Commission may not introduce evidence on review by the circuit court, and that review by the circuit court is on the record made before the commission.

The Civil Rights Commission contends that Walker also ruled that the review de novo contemplated by the constitution3 and the statute4 is limited to a determination whether there is competent, material, and substantial evidence to support the decision of the Civil Rights Commission, and, accordingly, the circuit court may not make its own findings of fact unless there is an absence of competent, material, and substantial evidence.

The Ansons did not seek to introduce additional evidence in circuit court, and thus there is no need to reconsider whether the decision in Walker, barring the introduction of additional evidence in the circuit court, should be reconsidered.5 We thus [114]*114do not readdress the question actually presented and decided in Walker. As set forth in Walker, additional evidence may not be introduced in the circuit court on review of a decision of the Civil Rights Commission. Review by the circuit court shall continue to be on the record made before the commission.

iii

Although not necessary to decision, this Court in Walker opined regarding the scope of circuit court appellate review, stating:

[T]he circuit court shall review the record produced at the cec anew, drawing its own inferences and conclusions from that record. The court shall determine whether the cec’s factual findings and legal conclusions are supported by competent, material, and substantial evidence on the whole record, and whether it acted arbitrarily or without authority.[6] [Emphasis added.]

The Court of Appeals acknowledged that the foregoing statement is "confusing and contradictory,”7 stating:

The first sentence states that the review is de novo; however, the second describes the more limited review to determine if the findings are supported by "competent, material, and substantial” evidence. This language is usually associated with the standard of review provided in Const 1963, art 6, § 28 and § 106 of the Administrative Procedures Act [MCL 24.306(d); MSA 3.560(206)(d)].[8]

In an apparent effort to harmonize the "confusing [115]*115and contradictory” language of Walker, the Court of Appeals said: "While the review of crc orders is labeled 'de novo,’ we conclude that the scope of review is qualified by the inclusion of this limiting language”9 — "competent, material, and substantial evidence” language.

IV

The Civil Rights Commission was established pursuant to Const 1963, art 5, § 29, which provides in part:

Appeals from final orders of the commission, including cease and desist orders and refusals to issue complaints, shall be tried de novo before the circuit court having jurisdiction provided by law.

The constitution also provides for judicial review of agency decisions, and that such review shall include "as a minimum” a determination whether an agency decision, in which a hearing is required, is supported by "competent, material and substantial evidence on the whole record.”10

The Civil Rights Commission would read out of the clause "tried de novo” the words "de novo” as well as the word "tried.”

The term "de novo” has been defined as "anew; afresh; again; a second time; once more; in the same manner, or with the same effect.”11 It has been said:_

[116]*116The very concept, "de novo” hearing, means that all matters therein in issue are to be considered "anew; afresh; over again,”. . . . [People v Bourdon, 10 Cal App 3d 878, 881; 89 Cal Rptr 415 (1970).][12]

To give meaning to the term "de novo,” we must hold that a circuit court, in reviewing a decision of the Civil Rights Commission, may substitute its assessment for the findings, conclusion, and decision of the Civil Rights Commission.

v

Because it is clear that the circuit judge substituted his judgment for the judgment of the Civil Rights Commission, there is no need to remand to the circuit court for further consideration.

It is, however, necessary to remand to the Court of Appeals to reconsider its decision.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bragg v. ABN AMRO North America, Inc.
579 F. Supp. 2d 875 (E.D. Michigan, 2008)
Kyser v. Kasson Township
755 N.W.2d 190 (Michigan Court of Appeals, 2008)
Heindlmeyer v. Ottawa County Concealed Weapons Licensing Board
707 N.W.2d 353 (Michigan Court of Appeals, 2005)
DEPT. OF CIVIL RIGHTS EX REL. BURNSIDE v. Fashion Bug of Detroit
702 N.W.2d 154 (Michigan Supreme Court, 2005)
Glennon v. State Employees' Retirement Board
674 N.W.2d 728 (Michigan Court of Appeals, 2004)
Buchanan v. Flint City Council
586 N.W.2d 573 (Michigan Court of Appeals, 1998)
Boyd v. Civil Service Commission
559 N.W.2d 342 (Michigan Court of Appeals, 1997)
Nummer v. Department of Treasury
533 N.W.2d 250 (Michigan Supreme Court, 1995)
Donahoo v. Turner Construction Co.
833 F. Supp. 621 (E.D. Michigan, 1993)
Fletcher v. Fletcher
504 N.W.2d 684 (Michigan Court of Appeals, 1993)
Department of Civil Rights Ex Rel. Johnson v. Silver Dollar Cafe
499 N.W.2d 409 (Michigan Court of Appeals, 1993)
Deal v. Deal
496 N.W.2d 403 (Michigan Court of Appeals, 1993)
DEPARTMENT OF CIVIL RIGHTS Ex Rel JOHNSON v. SILVER DOLLAR CAFE
490 N.W.2d 337 (Michigan Supreme Court, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
490 N.W.2d 337, 441 Mich. 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-civil-rights-ex-rel-johnson-v-silver-dollar-cafe-mich-1992.