This opinion is subject to revision before final publication in the Michigan Court of Appeals reports.
Wayne Circuit Court. LC No. 13-006579-CD.
For TRAMAINE COTTON, PLAINTIFF-APPELLEE: DARRYL SEGARS, PONTIAC, MI.
For BRIAN BANKS, DEFENDANT-APPELLANT: ANDREA J BRADLEY, DETROIT, MI.
For MICHIGAN HOUSE OF REPRESENTATIVES, DEFENDANT-APPELLEE: PETER H ELLSWORTH, LANSING, MI.
Before: SERVITTO, P.J., and STEPHENS and M. J. KELLY, JJ.
[310 Mich.App. 107] M. J. Kelly, J.
In this employment dispute, defendant, Representative Brian Banks of the Michigan House of Representatives, appeals by right the trial court's order denying his motion for summary disposition of the claims by Banks's former staff member, plaintiff, Tramaine Cotton. The primary issue on appeal is whether Banks has absolute immunity from suit under the Speech or Debate clause of Michigan's Constitution for personnel decisions involving those members of his staff who might have involvement in the legislative process. See Const 1963, art 4, § 11. For the reasons fully explained below, we conclude that
there were no errors warranting relief. Accordingly, we affirm.
I. BASIC FACTS
According to Cotton, Banks hired him in January 2013 to serve as a driver. Cotton alleged that, after his hire, Banks continuously expressed his desire to have a dating relationship with him, but Cotton rejected Banks's advances. After Cotton made it clear that he would not agree to a romantic relationship, Cotton maintained that Banks began to assign him tasks that were beyond the scope of his employment and asked him to work on days he was not supposed to work. Cotton alleged that he was constructively discharged in April 2013.
Banks, however, presented a very different version of events in the trial court. Banks stated that he hired Cotton in February 2013 to serve as a legislative assistant and that Cotton's duties included responding to constituent concerns, attending functions, and driving Banks and other representatives between Detroit [310 Mich.App. 108] and Lansing. Banks claimed that he began proceedings to terminate Cotton's employment after he learned that Cotton had been arrested for driving on a suspended license and had missed a court date, after which a bench warrant issued for Cotton's arrest. He stated that Cotton was terminated from his employment in May 2013 for those reasons.
In May 2013, Cotton sued Banks and defendant, State of Michigan, for wrongful termination. Cotton alleged that Banks violated Michigan's Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq, by discriminating against him on the basis of his sex, by demanding sexual favors as a condition of employment, by creating a hostile work environment, and by retaliating against him. Cotton also alleged that Banks's sexual harassment constituted the intentional infliction of emotional distress. Cotton alleged that the State, as Banks's employer, was vicariously liable for Banks's wrongful conduct.
In August 2013, the State moved for summary disposition under MCR 2.116(C)(4) and (C)(10). The State argued that, because employees of the House of Representatives were excluded from state civil service, the State was not Cotton's employer for purposes of the Civil Rights Act. The State also argued that the circuit court did not have jurisdiction over Cotton's intentional tort claim--that claim had to be brought in the Court of Claims.
Banks moved for summary disposition under MCR 2.116(C)(7) and (C)(10) in September 2013. Banks argued that he was absolutely immune, under MCL 691.1407(5), from claims arising out of his termination of Cotton's employment. He claimed he was entitled to immunity under an unpublished decision from a circuit court because his decision to terminate Cotton involved [310 Mich.App. 109] an integral part of the legislative process, but Banks did not specifically argue that he had immunity under Const 1963, art 4, § 11. Additionally, Banks argued that the trial court must dismiss Cotton's claim of retaliation because Cotton did not plead that he reported the alleged sexual harassment to anyone before his discharge. Cotton's claim for intentional infliction of emotional distress similarly had to be dismissed, Banks stated, because that claim, as alleged, involved wrongful sexual discrimination in employment, and the Civil Rights Act is the exclusive remedy for such a claim.
In response, Cotton argued that the Civil Rights Act constitutes an exception to the immunity provided under MCL 691.1407 and, in any event, the acts of sexual harassment were outside the scope of Banks's authority as a representative. He also maintained that the Civil Rights
Act is not the exclusive remedy for the harms occasioned by sexual harassment. Therefore, he argued, the trial court should deny Banks's motion for summary disposition.
In his reply brief, Banks cited Const 1963, art 4, § 11, and for the first time argued that he had absolute immunity from suit under the Speech or Debate Clause of Michigan's Constitution for any personnel decisions involving his staff. Banks argued that the undisputed evidence--namely the job description for a legislative assistant and copies of correspondence--showed that Cotton's job duties were integrally related to the legislative process. On that basis, Banks claimed he was immune from liability for his actions related to Cotton's employment.
In October 2013, the trial court held a hearing on the motions. At the hearing, the trial court expressed its belief that the Civil Rights Act created an exception to all governmental immunity, including immunity provided [310 Mich.App. 110] under the Speech or Debate Clause. The trial court also did not believe that Cotton was so integrally related to the legislative process that immunity would apply. As for Cotton's retaliation claim, the trial court refused to consider Banks's evidence that Cotton did not report the alleged harassment because Banks's motion was brought under MCR 2.116(C)(8). Additionally, the trial court did not agree that the Civil Rights Act preempted Cotton's claims for intentional infliction of emotional distress. Finally, the trial court agreed that the State was not Cotton's employer and that the claims against it should be dismissed.
The trial court entered an order granting the State's motion for summary disposition and dismissed the State without prejudice. It also entered a separate order allowing Cotton to amend his complaint to include the House of Representatives as a defendant. Finally, the trial court entered an order denying Banks's motion for summary disposition.
Cotton soon filed his first amended complaint naming the Michigan House of Representatives as a defendant. In his amended complaint, Cotton alleged that he reported the sexual harassment to his superiors. Cotton again alleged four counts against Banks and the House of Representatives premised on violations of the Civil Rights Act, and a fifth claim of intentional infliction of emotional distress against Banks alone.
Banks then appealed in this Court.
II. THE SPEECH OR DEBATE CLAUSE
A. STANDARDS OF REVIEW
Banks first argues that the trial court erred when it denied his motion for summary disposition, which was [310 Mich.App. 111] based on the ground that he was absolutely immune from suit under Const 1963, art 4, § 11. He maintains that Michigan courts should construe Michigan's Speech or Debate Clause similarly to the federal courts' construction of the federal Speech or Debate Clause. Relying on federal authority, Banks contends that this Court should conclude that the Speech or Debate clause applies to bar any claims premised on acts or omissions arising from the legislative process. According to Banks, because his decision to terminate Cotton implicated the legislative process, the trial court should have determined that he had absolute immunity under Const 1963, art 4, § 11. This Court reviews de novo a trial court's decision on a motion for summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich.App. 362, 369; 775 N.W.2d 618 (2009).
This Court also reviews de novo whether the trial court properly interpreted and applied Michigan's Constitution. Wayne Co v Hathcock,