Cotton v. Banks
310 Mich. App. 104
| Mich. Ct. App. | 2015Background
- Cotton, hired by Rep. Brian Banks in early 2013 (described variously as driver or legislative assistant), alleged repeated sexual advances by Banks, refusal, retaliatory adverse job actions, and constructive discharge in April/May 2013.
- Cotton sued Banks and the State under the Elliot-Larsen Civil Rights Act (ELCRA) for sex discrimination, quid pro quo sexual harassment, hostile work environment, retaliation, and a common-law claim for intentional infliction of emotional distress (IIED).
- The State moved to dismiss, and the trial court dismissed the State (not an employer) but allowed amendment to add the Michigan House; Banks moved for summary disposition asserting immunity under MCL 691.1407(5) and later the Speech or Debate Clause (Const 1963, art 4, § 11).
- Banks argued his personnel decisions were integral to the legislative process and thus absolutely immune under the Speech or Debate Clause; Cotton argued ELCRA creates an exception to immunity and that the acts were nonlegislative.
- The trial court denied Banks’ motion; on appeal the Court of Appeals considered (1) whether the Speech or Debate Clause bars Cotton’s claims, (2) the sufficiency of Cotton’s pleaded retaliation allegation, and (3) whether ELCRA precludes IIED claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Michigan Speech or Debate Clause (Const 1963, art 4, § 11) bars Cotton’s ELCRA and IIED claims | Cotton: claims arise from nonlegislative, administrative personnel/sexual misconduct — Speech or Debate does not apply | Banks: personnel decisions regarding staff who assist legislative functions are protected; Clause provides absolute immunity | Held: Clause not a bar on the face of the pleadings or on the record; personnel/harassment allegations are nonlegislative and immunity denied (trial court affirmed) |
| Whether enactment of ELCRA waived Speech or Debate immunity | Cotton: ELCRA does not waive constitutional Speech or Debate protection | Banks: ELCRA creates employer liability and thus waives immunity | Held: Legislature did not explicitly and unequivocally waive the Clause; ELCRA did not effectuate such a waiver, but immunity still inapplicable on the facts here |
| Whether Cotton sufficiently pled/established retaliation (reporting harassment) | Cotton: alleged he reported harassment to superiors; satisfies pleading requirement for retaliation claim | Banks: Cotton never reported harassment; retaliation claim should be dismissed | Held: Pleading that he reported was sufficient under MCR 2.116(C)(8); trial court properly denied dismissal; Banks did not move under (C)(10) so evidentiary affidavit not resolved |
| Whether IIED claim is precluded because ELCRA is exclusive remedy | Cotton: IIED and ELCRA vindicate different rights and remedies; IIED remains available | Banks: ELCRA provides exclusive remedy for workplace sexual harassment/discrimination | Held: IIED not abrogated by ELCRA here; different common-law right preserved; dismissal denied |
Key Cases Cited
- Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (Speech or Debate Clause protects legislators from civil suits that would burden legislative independence)
- Forrester v. White, 484 U.S. 219 (functional test: immunity depends on nature of function, not actor; administrative acts are not absolutely immune)
- Gravel v. United States, 408 U.S. 606 (Speech or Debate extends to acts integral to legislative deliberation)
- Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 (evidentiary-privilege and functional approach to personnel decisions under Speech or Debate)
- Agromayor v. Colberg, 738 F.2d 55 (earlier test considering employee duties for Clause protection — discussed and rejected)
- Wilkins v. Gagliardi, 219 Mich. App. 260 (Michigan Court of Appeals: Speech or Debate immunity applies absent an explicit statutory waiver)
- Prelesnik v. Esquina, 132 Mich. App. 341 (Michigan precedent applying federal Speech or Debate principles)