Barnes v. International Business MacHines Corp. , 212 Mich. App. 223 ( 1995 )

212 Mich. App. 223 (1995) 537 N.W.2d 265

BARNES
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION

Docket No. 171240.

Michigan Court of Appeals.

Submitted March 8, 1995, at Detroit. Decided July 21, 1995, at 9:05 A.M.

Sommers, Schwartz, Silver & Schwartz, P.C. (by Joseph A. Golden, Gary E. Abeska, and Patrick Burkett), for the plaintiff.

Miller, Canfield, Paddock & Stone (by Donna J. Donati and Megan P. Norris), Covington & Burling (by Jeffrey G. Huvelle, Anthony Herman, and Eric Dodson Greenberg) (Adam Pomerantz, of Counsel), for the defendants.

Before: WHITE, P.J., and BANDSTRA and W.P. CYNAR,^[*] JJ.

PER CURIAM.

Plaintiff sued his employer in the Wayne Circuit Court, alleging racial discrimination, MCL 37.2202(1); MSA 3.548(202)(1), and intentional infliction of emotional distress. Defendants appeal by leave granted from the trial court's denial of their motion for a change of venue. We reverse.

Defendants argue that the trial court erred in denying their motion for a change of venue. They also argue that plaintiff failed to carry his burden of submitting credible factual evidence that venue was proper in Wayne County. We agree.

The venue provision of the Civil Rights Act states that an action "may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil complaint is filed resides or has his principal place of business." MCL 37.2801(2); MSA 3.548(801)(2). The venue provision for tort actions states that an action may be brought in "[a] county in which all or part of the cause of action arose and in which either" defendant resides, has a place of business or conducts business, or where defendant's registered corporate office is located. MCL 600.1629(1)(a); MSA 27A.1629(1)(a). Other options are provided in the event that no county satisfies the criteria in subdivision a. See MCL 600.1629(1)(b)-(d); MSA 27A.1629(1)(b)-(d).

It is undisputed that venue in this case would be proper under either statute in Oakland County because that is the location of defendants' corporate headquarters in Michigan and where the allegedly discriminatory and tortious decisions were made. Plaintiff argues, however, that venue is also proper in Wayne County because that is where he experienced at least some of the effects of defendants' decisions and where he suffered resulting damages. We disagree.

Plaintiff's position is based upon Lorencz v Ford Motor Co, 439 Mich 370, 375, 377; 483 NW2d 844 (1992), and Witt v CJ Barrymore's, 195 Mich App 517, 521-522; 491 NW2d 871 (1992).^[1] In Lorencz, our Supreme Court held that the "all or part of the cause of action" language meant that an action could be brought where any of the elements of the cause of action arose. Lorencz, supra at 375. The Court listed "damages" as one of the elements of a cause of action. Id. In Witt, this Court explicitly held, following Lorencz, that an action could be brought where damages accrued. Witt, supra at 521-522.

The Supreme Court has recently clarified its decision in Lorencz and implicitly overruled Witt. The Court held that, in determining where a tort action accrues, the place where damages were sustained (if different from where the injury or the breach of duty occurred) does not constitute a proper venue. Gross v General Motors Corp, 448 Mich 147, 165; 528 NW2d 707 (1995). Plaintiff therefore may not pursue his tort action in Wayne County because he has alleged only that damages resulted in that county.^[2]

Although the Supreme Court's decision in Gross does not technically apply to discrimination cases, we believe that its reasoning does. As noted by the Court, allowing an action to be brought where its effects or damages occur would encourage forum shopping in contravention of the goals of the venue provisions. Id. at 164. Further, the civil rights statute clearly provides that venue is proper where "the alleged violation occurred," not where its effects were felt or where the damages accrued. See MCL 37.2801(2); MSA 3.548(801)(2). The violations alleged are adverse employment decisions. Although plaintiff performed some work in Wayne County, he has provided no credible factual evidence that any of the allegedly discriminatory decisions were made in Wayne County, as distinguished from their effects being felt there.^[3]

Reversed.

WHITE, P.J. (concurring).

I join in the opinion per curiam but write separately to state that I do not do so on the basis that venue of a civil rights action is proper only in the county where the discriminatory decision is made. Discrimination also "occurs," MCL 38.2801; MSA 3.548(801), in the county where the decision is implemented and the discrimination is inflicted.^[1] In the instant case, however, while plaintiff performed some work activities in Wayne County, that was not the locus of his employment, so that it does not appear that decisions made elsewhere were implemented, and discrimination was inflicted, in Wayne County, as distinguished from effects being felt there.

NOTES

[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.

[1] Witt was overruled on other grounds in Russell v Chrysler Corp, 443 Mich App 617, 621; 505 NW2d 263 (1993).

[2] We do not express an opinion with respect to the viability of plaintiff's tort action. See Meek v Michigan Bell Telephone Co, 193 Mich App 340, 346-347; 483 NW2d 407 (1992).

[3] In Gross, the Supreme Court stated that, in design defect cases, the place of corporate decision making did not provide an independent place for venue where the actual design of the product took place elsewhere. Gross, supra at 159-160. Here, however, the actions allegedly giving rise to liability are the corporate decisions themselves and therefore the place of corporate decision making is an appropriate venue.

[1] For example, an employee who works for a chain store in Berrien County need not sue in Wayne County regarding an alleged discriminatory decision made at corporate headquarters in Wayne County and implemented in Berrien County.