By: Claudia D. Orr, Attorney, Plunkett Cooney
The Clash of the Titans Results in Published Sexual Harassment Case
I don’t know about you, but I have to chuckle at all of the television ads by lawyers. None is more entertaining than the battle of the ads between Michael Morse and Geoffrey Fieger complete with snarky comments towards each other.
Morse, whose ads (and phone number) brand him as “Mike Wins”, was counter-punched by Fieger who is now using “a winner” as part of his phone number. Fieger, who brought sexual harassment cases against Mike, was then pictured from behind in an ad by Morse in which Morse proclaims he takes on the “big mouths”. Ok, so I am easily entertained.
But this time, Fieger is doing a victory lap having had his clients’ sexual assault claims reinstated by the Michigan Court of Appeals in a new published opinion that combined the cases brought by Samantha Lichon and Jordan Smits against Michael Morse and Michael J. Morse, PC. Let’s look at what the Court of Appeals said because it is not that often it publishes one of its opinions.
Lichon, who worked as a receptionist at the law firm, claims that Morse not only made unwelcome comments, but also sexually assaulted her “during work hours by physically touching her in a sexual manner without her permission. The unwanted touching included groping Lichon’s breasts and groin area, while audibly commenting things like, ‘you make me so hard,’ and ‘I want to take you into my office.’” Lichon complained to human resources and was thereafter terminated for poor professional performance.
Lichon, represented by Fieger, filed a four-count complaint in the Oakland County Circuit Court alleging sexual harassment under the Elliott-Larsen Civil Rights Act (“ELCRA”), sexual assault and battery against Mike Morse individually, negligent and intentional infliction of emotional distress, and negligence/gross negligence and wanton and willful misconduct. A fifth count was added thereafter alleging a civil conspiracy between Morse and his firm to intimidate, pressure or coerce Lichon not to file the lawsuit.
Deborah Gordon, who is a well-known plaintiffs’ attorney, a titan in her own right and famous for championing women’s rights (and very successfully), is defending Morse and his firm in the Lichon case. I found this fascinating that she would switch sides and represent defendants in a sexual harassment case. Morse, like some employers, has the employees of his firm enter arbitration agreements. One of the primary benefits of an arbitration agreement is supposed to be privacy. Well, apparently not so much for this case which has been splashed about in the news. In lieu of answering the complaint, Gordon filed a motion for dismissal pointing to the arbitration agreement that Lichon signed on September 29, 2015. The civil lawsuit was dismissed on this basis and the parties were ordered to arbitration.
Smits’ claims are based on an identical fact pattern and arise out of the alleged sexual assault that occurred while she was employed as a paralegal. Smits claims that during the firm’s 2015 Christmas party, Morse approached Smits from behind and grabbed both of her breasts in front of two attorneys. Smits complained to human resources and was told “her number one priority [was] to protect Morse’s reputation.” Smits also complained to one of the attorneys to no avail. Smits tendered her resignation indicating she was not comfortable working at the firm after the incident at the Christmas party.
After leaving the firm, Smits was offered two weeks severance in exchange for a non-disclosure agreement. Smits also alleges that, after she declined, Morse contacted her personally and said “be careful’ because given his connections in the legal community, he could make it difficult for Smits to find work”.
Smits, also represented by Fieger, filed the same claims, but in the Wayne County Circuit Court (“Smits I”). Instead of answering the complaint, Morse and his firm filed a motion for dismissal because of the arbitration agreement Smits signed and because Smits had also agreed to a six month contractual limitations period. This case was also dismissed and the parties were ordered to arbitration.
In response, Smits filed a second lawsuit against Morse only (“Smits II”). While Smits argued there was no arbitration agreement between her and Morse, the court found that this case should also be sent to arbitration under “res judicata” and the “compulsory joinder rule”. Thus, this case would not be tried in a public forum either.
Without going into all of the nuisances, this case is interesting not just because of the drama surrounding these well-known lawyers, but because the arbitration clause was written in such a way as to limit the claims it covered. Specifically, it stated:
This [arbitration agreement] shall apply to all concerns you have over the application or interpretation of the Firm’s Policies and Procedures relative to your employment, including, but not limited to, any disagreements regarding discipline, termination, discrimination or violation of other state or federal employment or labor laws. This includes any claim over the denial of hire. This Procedure includes any claim against another employee of the Firm for violation of the Firm’s Policies, discriminatory conduct or other state or federal employment of labor laws. Similarly, should the Firm have any claims against you arising out of the employment relationship, the Firm also agrees to submit them to final and binding arbitration pursuant to this Procedure.
The plaintiffs argued that the scope of the agreement was limited “to only those claims that are ‘related to’ plaintiffs’ employment, and because sexual assault at the hands of an employer or supervisor cannot be related to their employment,” it is inapplicable to the claims now brought against Morse and his firm.
The Court of Appeals framed the issue as follows: “whether the sexual assault and battery of an employee at the hands of a superior is conduct related to employment.” The court concluded that it is not. “Despite the fact that the sexual assaults may not have happened but for plaintiffs’ employment with the Morse firm, we conclude that claims of sexual assault cannot be related to employment. The fact that the sexual assaults would not have occurred but for Lichon’s and Smits’ employment with the Morse firm does not provide a sufficient nexus between the terms of the [arbitration agreement] and the sexual assaults perpetrated by Morse. … Under no circumstances could sexual assault be a foreseeable consequence of employment in a law firm.” Therefore, the trial courts erred in dismissing the complaints and compelling arbitration.
The appellate court noted that the issue of whether sexual assault at the hands of a superior is conduct related to employment was an issue of first impression in Michigan. Central to its conclusion is “the strong public policy that no individual should be forced to arbitrate his or her claims of sexual assault. …the idea that two parties would knowingly and voluntarily agree to arbitrate a dispute over such an egregious and possibly criminal act is unimaginable. The effect of allowing defendants to enforce [the arbitration agreement] under the facts of this case would effectively perpetuate a culture that silences victims of sexual assault and allows abusers to quietly settle these claims behind an arbitrator’s closed door. Such a result has no place in Michigan law.” [citations omitted] The court then limited its ruling to the specific facts of the case, noting that Morse and his firm are essentially the same and any recovery comes out of the same pocket.
What struck me is how the court seems to conclude that Morse did what he was accused of doing without any proceedings or findings below on the merits. Not once during the rendition of “facts” did the court use the word “alleged.” What also struck me is that there was a case in 1993 [Radtke v Everett] in which one of the owners of a veterinary practice sexually assaulted an employee and that act was found to be sexual harassment under ELCRA. I thought it strange that the court never mentioned this Supreme Court decision.
Then I read the dissent by Judge Colleen O’Brien. She cited Radtke, noting she would hold that sexual assault is sexual harassment, a form of discrimination under the ELCRA which the parties agreed to arbitrate. Thus based on the clear language of the arbitration agreement, and the strong public policy favoring arbitration, she would have affirmed the decision of the lower courts to require the claims to be arbitrated. However, while Judge O’Brien felt constrained to reach that result, she does not believe that an employee should be required to arbitrate sexual assault claims. But the Legislature is the proper forum for addressing such policy matters, not the courts.
While I am intrigued by the legal battle that looms, the lesson to remember is that if an arbitration agreement is limited in its scope (connected to employment, for example), then other claims may not be covered. That clearly happened in this case.
Well, stay tuned. Unless these cases get dismissed on another basis, or eventually settled, there will be lots of drama as the clash of the titans continues!
This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at firstname.lastname@example.org or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. March 2019.