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Topic: Court of Appeals-Neithercutt wrong, Gleason right

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untanglingwebs
El Supremo

Case Search - Michigan Courts
courts.mi.gov/opinions_orders/case_search/pages/default.aspx...

Use the By Docket Number search to locate the Court docket sheet for a specific docket number. The docket ... Select Court: Supreme Court Court of Appeals.


Last edited by untanglingwebs on Tue Sep 06, 2016 5:23 am; edited 1 time in total
Post Mon Sep 05, 2016 12:12 pm 
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untanglingwebs
El Supremo

STATE OF MICHIGAN
COURT OF APPEALS
MELISSA CALVERT,
Plaintiff-Appellee,
UNPUBLISHED
September 22, 2015
v
No. 320847; 321024
Genesee Circuit Court
JOHN GLEASON,
LC No. 13-100248-CD
Defendant-Appellant.
and
GENESEE COUNTY,
Defendant.
Before: OWENS, P.J., and SAAD andGADOLA, JJ.
PER
CURIAM
.
Defendant appeals the trial court’s denial of his motion for summary disposition. For the reasons stated below, we reverse and remand for entry of an order that grants summary
disposition to defendant.
I. FACTS
Defendant John Gleason served as a state senator, and employed
plaintiff Melissa Calvert, a white woman, as his secretary in his Lansing office.
Facing term limits, Gleason decided to run for Genesee County Clerk, and gave Calvert good reason to believe that she would receive a secretary’s position in the County Clerk’s Office, if he won election.
In November 2012, the voters elected Gleason as Genesee County Clerk. Soon thereafter, he resigned from the Michigan Senate and dismissed his staff, including Calvert. In December and January 2012, as Gleason transitioned to his new position, he continued to give
Calvert reason to believe she would have a job in his new office. Gleason, who believed that he had funding to hire multiple employees, also opined,to most anyone who would listen, that he desired to affirm his commitment to “diversity” by hiring minorities, veterans, and the physically
disabled.
Once the cold reality became clear that, due to budget problems, Gleason would only be allowed funding for a single staff member, he hired a white female to be his secretary—but not


Last edited by untanglingwebs on Mon Sep 05, 2016 12:44 pm; edited 2 times in total
Post Mon Sep 05, 2016 12:20 pm 
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untanglingwebs
El Supremo

-2-
Calvert. Understandably disappointed, Calvert sued Gleason and the county, and alleged that both parties: (1) discriminated against her based on her race and gender, in violation of the Elliot Larsen Civil Rights Act (ELCRA), MCL 37.2701, et seq;
(2) discriminated against her based on the disability status of another
job applicant, contrary to the mandates of the Persons with
Disabilities Civil Rights Act, MCL 37.1101, et seq
; (3) breached a contract to employ her; and
(4) should be estoppled from not fulfilling their promise to give her a job under the doctrine of promissory estoppel.
Both Gleason and the county moved for summary disposition pursuant to MCR 2.116(C)(10). After it held a hearing on the motions, the trial court unsurprisingly ruled that
Calvert could not bring suit against either Gleason or the county under the Persons with Disabilities Act, because she was not disabled. It allowed her remaining allegations against Gleason as an individual—(1) race and sex discrimination under the ELCRA, (2) breach of
contract, and (3) promissory estoppel—to proceed to trial. The court dismissed Calvert’s suit against the county in its entirety.

On appeal, Gleason says that the trial court erred when it denied his motion for summary disposition. Calvert asks us to uphold the ruling of the trial
court with regard to her claims against Gleason. She failed to appeal the trial court’s dismissal of: (1) her claims against the
county; or (2) her claim against Gleason under the Persons with
Disabilities Act.
Accordingly, we must address whether the trial court correctly
denied Gleason’s motion for summary disposition, as to Calvert’s claims for: (1) breach of contract; (2) promissory estoppel; and (3)race and sex discrimination in violation of the ELCRA.
II. ANALYSIS
1
Though we appreciate why Calvert would be disappointed by Gleason’s hiring decision, we must apply the law, which requires that her case be dismissed.
The reason for our ruling is found in both black-letter contract and employment-discrimination law. Under the law of employment contracts, the county is the putative employer and contracting party—not Gleason, who merely functioned as the county’s agent in making a



1 A trial court’s decision to grant or deny a motion for summary
disposition is reviewed de novo.
Derderian v Genesys Health Care Sys
, 263 Mich App 364, 374; 689 NW2d 145 (2004).
“Summary disposition is proper under MCR 2.116(C)(10) if the documentary evidence submitted by the parties, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.”
Pennington v Longabaugh
, 271 Mich App 101, 104; 719 NW2d 616 (2006).
Likewise, matters of statutory interpretation, and the existenceandinterpretation of a contract reviewed de novo on appeal.
Midamerican Energy Co v Dept of Treasury
, 308 Mich App
362, 369; 863 NW2d 387 (2014);
Kloian v Domino’s Pizza LLC
, 273 Mich App 449, 452; 733
NW2d 766 (2006).


Last edited by untanglingwebs on Mon Sep 05, 2016 12:53 pm; edited 1 time in total
Post Mon Sep 05, 2016 12:26 pm 
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untanglingwebs
El Supremo

hiring decision.

Thus, any contract-based claim must be lodged against the county, not its
agent, Gleason. Because the trial court dismissed the county from the suit, and Calvert did not appeal this decision, any contractclaims she may have had are
now dismissed with prejudice.

And, though Gleason may, in theory, be sued for employment discrimination under the ELCRA

as an individual,Calvert’s race and gender discrimination claims against him lack

an agent of a contracting party is not normally liable for the breach of his principal, unless the agent acts fraudulently or outside the scope of the authority delegated to him by his principal.


3
Hallett v Gordon
, 122 Mich 567, 572; 81 NW 556 (1900).
Needless to say, breach of contract is a contract claim. And as plaintiff’s counsel asserted at oral argument before our Court, promissory estoppel sounds in contract as well.
See State Bank
of Standish v Curry
, 442 Mich 76, 83-84; 500 NW2d 104 (1993).
4
Were we nonetheless to permit Calvert to sue Gleason as an individual for breach of contract and promissory estoppel, her claims would still lack merit.
“Employment contracts can generally be described as unilateral
contracts, a unilateral contract being one in which the promisor does not receive a promise in return as consideration. The employer makes an offer or promise which the employee accepts by performing the act upon which the promise is expressly or impliedly based.”
Cunningham v 4-D Tool Co
, 182 Mich App
99, 106; 451 NW2d 514 (1989). Accordingly, a potential employe
e generally does not “accept”
an unwritten offer of employment until he performs his side of
the bargain—i.e., begins work.
Id
. Although Gleason offered Calvert employment, Calvert did not
accept this offer through performance—i.e., starting work—because Gleason revoked his offer of employment before Calvert was able to do so. Further, had she actually started to perform the job, her employment
would have been at will, and thus she could have been discharged without cause or reason at any time.
“The elements of promissory estoppel are (1) a promise, (2) that the promisor should reasonably have expected to induce action of
a definite and substantial character on the part of the promisee, and (3)that in fact produced reliance or forbearance of that nature in circumstances such that the promise must be enforced if injustice is to be avoided.”
Klein v HP Pelzer Automotive Sys, Inc
, 306 Mich App 67, 83; 854 NW2d 521 (2014).

Calvert has failed to show that she actually relied, to her detriment, on Gleason’s promise of a job.
Id
. In an affidavit, she merely asserts that she “could have easily sought and obtained other employment with the State of Michigan and/or another lobbying f
irm,” but did not because
Gleason offered her a job. This
conclusory statement does noth
ing to demonstrate that “the State
of Michigan and/or another lobbying firm” actually had a job available for a person with her skill set between January 2 and February 11, 2013. Nor did Gleason induce Calvert to resign her
position with the state—indeed, she was required to do so because Gleason could not seek reelection as state senator. And she provides no evidence that
she turned down another job offer or incurred any financial hardship in reliance on Gleason’s offer of a job at the county clerk’s office.


Last edited by untanglingwebs on Mon Sep 05, 2016 1:03 pm; edited 1 time in total
Post Mon Sep 05, 2016 12:31 pm 
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untanglingwebs
El Supremo

merit. Because Calvert is a white female, and the county hired a white female, by definition,
race and sex did not make a difference in the employer’s ultimate hiring decision.6
See Matras v
Amoco Oil Co, 424 Mich 675, 682; 385 NW2d 586 (1986).
We reverse and remand with direction to enter an order of summary disposition for
Gleason as to all claims. We do not retain jurisdiction.
/s/ Donald S. Owens
/s/ Henry William Saad
/s/ Michael F. Gadola
5
MCL 37.2201(a) defines “employer” as “a person who has 1 or more employees, and includes
an agent of that person.” “Person” is defined in MCL 37.2103(g) as “an individual, agent,
association, corporation, joint apprenticeship committee, joint stock company, labor
organization, legal representative, mutual company, partnership, receiver, trust, trustee in
bankruptcy, unincorporated organization, the state or a political subdivision of the state or an
agency of the state, or any other legal or commercial entity.” See also Elezovic v Ford Motor
Co, 472 Mich 408, 419; 697 NW2d 851 (2005).
6
See Sniecinski v BCBSM, 469 Mich 124, 136; 666 NW2d 186 (2003) (holding that plaintiff
must demonstrate that the prohibited discrimination had a causal relationship to the negative
employment outcome he suffered).
Post Mon Sep 05, 2016 12:37 pm 
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untanglingwebs
El Supremo

Genesee County off the hook but lawsuit continues against Clerk-Register John Gleason

Gary Ridley | gridley@mlive.com By Gary Ridley | gridley@mlive.com
Follow on Twitter
on March 04, 2014 at 4:45 PM


FLINT, MI -- Genesee County is off the hook in a lawsuit over a jobs, but the case will still move forward against Clerk-Register John Gleason, accused of promising a former employee a new job when he moved into county government but never delivered.

Genesee Circuit Judge Geoffrey Neithercut ruled Monday, March 3, during a summary disposition hearing that allegations filed against Gleason by Melissa Calvert could move forward but that he would dismiss Calvert's allegations against the county.

"I think that's a good thing," County Commission Chairman Jamie Curtis said of the ruling. "The county Board of Commissioners did not act in bad faith."

Melissa Calvert of Flushing filed the lawsuit in April 2013 alleging that Gleason promised her a position with the county, had her train for the job and fill out paperwork for new employees. The lawsuit claims that she even took the required drug test and was issued an employee identification badge.

However, before the hiring was approved by the county Board of Commissioners, Gleason pulled the offer, telling Calvert he was under pressure to hire a minority or a disabled job candidate instead, the lawsuit claims.

Calvert worked for Gleason as a secretary when he served as a state senator. He resigned from the position when he was elected clerk-register in November 2012.

Attorney William Reising, who represented the county in the case, argued that the county never entered into an employment agreement with Calvert and was therefore unable to breach any contract. He also argued that Gleason's hirings are done independently of the county commissioners.

"As the county lacks control over Mr. Gleason's determination of appointments to his office -- which is an independent, constitutional office -- he cannot be said to be acting on behalf of the county for that purpose," Reising argued in his summary disposition motion.

The lawsuit claims Gleason assured Calvert she would have a job working for him in the county until commissioners were about to consider her hiring. At that time, Gleason asked commissioners to delay the decision because the application of a disabled veteran had come to his attention.

Gleason said in April 2013 that the veteran and Calvert were never candidates for the same job. The position was eventually filled by Leslie Raleigh.

Gleason defended his actions following Neithercut's ruling.

"I hired the most qualified person for the job," said Gleason, adding that he believes the lawsuit is politically motivated. "I should be able to hire who I'd like to work on behalf of the public."

The judge did dismiss a claim accusing Gleason of violating the Michigan Persons With Disabilities Civil Right Act that suggested Calvert, who is not disabled, was passed over for the position in favor of a disabled veteran.

Gleason's attorney, Timothy Winship, argued that state law does not support a "reverse" disability discrimination claim and that the disabled veteran who had applied was never hired.

Calvert's attorney, Tom Pabst, could not be reached for comment on the ruling decision.

The lawsuit seeks more than $100,000 over allegations that Gleason discriminated against Calvert during the hiring process, breached an express contract with her and that she relied on Gleason's promise of a job in making other decisions "to her great detriment."

A jury trial is scheduled for June 17.
Post Mon Sep 05, 2016 1:18 pm 
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