JOYCE STOLL, Plaintiff-Appellant/Cross-Appellee, v CITY OF DETROIT,

Defendant-Appellee/Cross-Appellant.

No. 226889

COURT OF APPEALS OF MICHIGAN

2002 Mich. App. LEXIS 426

March 12, 2002, Decided

NOTICE: [*1] THIS IS AN UNPUBLISHED

OPINION. IN ACCORDANCE WITH MICHIGAN

COURT OF APPEALS RULES, UNPUBLISHED

OPINIONS ARE NOT PRECEDENTIALLY BINDING

UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY: Wayne Circuit Court. LC No.

96-639538-CZ.

DISPOSITION: Affirmed.

JUDGES: Before: Jansen, P.J., and Zahra and Meter, JJ.

OPINION

PER CURIAM.

Plaintiff appeals as of right from an order granting

defendant summary disposition of plaintiff's claims for

defamation, sex discrimination, intentional infliction of

emotional distress, and invasion of privacy, pursuant to

MCR 2.116(C)(10). Defendant cross-appeals, challenging

the trial court's determination that plaintiff's claims for

defamation, intentional infliction of emotional distress,

and invasion of privacy were not barred by governmental

immunity. We affirm.

Turning first to the issue of governmental immunity,

we conclude that the trial court erred in rejecting this

defense in regard to the alleged conduct of Archie Ward,

defendant's Chief of Firefighting Operations. Tort

immunity is broadly granted to governmental agencies

pursuant to MCL 691.1407(1), which provides:

Except as otherwise provided in this act,

a governmental agency is immune from

tort [*2] liability if the governmental

agency is engaged in the exercise or

discharge of a governmental function.

Except as otherwise provided in this act,

this act does not modify or restrict the

immunity of the state from tort liability as

it existed before July 1, 1965, which

immunity is affirmed.

A "governmental function" is an activity "expressly

or impliedly mandated or authorized by constitution,

statute, local charter or ordinance, or other law." MCL

691.1401(f); Coleman v Kootsillas, 456 Mich. 615, 619;

575 N.W.2d 527 (1998). A governmental agency can be

held vicariously liable only when its officer, employee, or

agent, acting during the course of employment and within

the scope of authority, commits a tort while engaged in

an activity that is nongovernmental or proprietary, or

which falls within a statutory exception. If the activity in

which the tortfeasor was engaged at the time the tort was

committed constituted the exercise or discharge of a

governmental function, the agency is immune pursuant to

§ 7 of the governmental immunity act. Ross v Consumers

Power Co (On Rehearing), 420 Mich. 567, 624-625; [*3]

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363 N.W.2d 641 (1984); Scameheorn v Bucks, 167 Mich.

App. 302, 310-311; 421 N.W.2d 918 (1988). For high

level executives, the test for immunity is whether they are

acting within their executive authority. MCL

691.1407(5); American Transmissions, Inc v Attorney

General, 454 Mich. 135, 144; 560 N.W.2d 50 (1997);

Payton v Detroit, 211 Mich. App. 375, 394; 536 N.W.2d

233 (1995); Meadows v Detroit, 164 Mich. App. 418,

426-427; 418 N.W.2d 100 (1987).

In this case, the evidence establishes that Warde was

acting within his executive authority when he sent a

memo to all firefighter division personnel advising of the

risks of exposure to carbon monoxide and the importance

of wearing a Self-Contained Breathing Apparatus

(SCBA). Contrary to plaintiff's suggestion, Warde's intent

or motive is irrelevant to the analysis of whether he acted

within his executive authority. Armstong v Township of

Ypsilanti, ___ Mich App ___; ___ N.W.2d ___ (Docket

No. 222924, issued 12/7/01), slip op at 12-13 (discussing

American Transmissions, supra at 143-144). [*4]

Accordingly, the trial court erred in concluding that

defendant was not entitled to immunity. Although the

court dismissed plaintiff's claims for defamation,

intentional infliction of emotional distress, and invasion

of privacy for other reasons, and not on the basis of

immunity, it reached the right result and, therefore, we

affirm the dismissal of those claims. Hall v McRea Corp,

238 Mich. App. 361, 369; 605 N.W.2d 354 (1999).

Plaintiff also argues that the trial court erred in

dismissing her claim for sex discrimination under MCL

37.2101 et seq. To establish a prima facie case of sexual

discrimination under a disparate-treatment theory, as is

alleged here, plaintiff was required to show that she was a

member of a class deserving of protection under the

statute, and that, for the same conduct, she was treated

differently than a man. Schultes v Naylor, 195 Mich.

App. 640, 645; 491 N.W.2d 240 (1992). The crux of a

sexual discrimination case is that there are similarly

situated individuals who have been treated differently

because of their sex. Id. It is plaintiff's burden to establish

[*5] a prima facie case of sexual discrimination with

evidence that is legally admissible and sufficient to state

a prima facie claim. Id.

In this case, plaintiff failed to show that any man

similarly situated to her was treated differently. Although

plaintiff presented evidence that other male firefighters

had been taken to the hospital with chest pains and that

their names did not appear in any memo, there was no

evidence that any of these men reported injuries from an

alleged failure to utilize a SCBA, which was the basis for

including plaintiff's name in the memo in question.

Moreover, even assuming plaintiff established a prima

facie case of sexual discrimination, defendant offered a

legitimate nondiscriminatory reason for placing plaintiff's

name in the memo, and plaintiff failed to show that there

was a triable issue that this reason was a mere pretext for

discrimination. Lytle v Malady (On Rehearing), 458

Mich. 153, 173-174, 579 N.W.2d 906 (Weaver, J.); 579

N.W.2d 906 (1998)

Plaintiff also contends that she has a viable

discrimination claim based on a hostile work

environment. Discrimination because of sex includes

"sexual harassment," which [*6] consists of verbal or

physical conduct of a sexual nature that has the purpose

or effect of creating an intimidating, hostile or offensive

employment environment. MCL 37.2103(i). Here,

however, plaintiff relies on a series of allegedly offensive

acts that occurred years earlier and, in order to overcome

the applicable limitations period for such claims, relies on

the continuing violation doctrine adopted in Sumner v

The Goodyear Tire & Rubber Co, 427 Mich. 505; 398

N.W.2d 368 (1986). Under Sumner, a continuing

violation may not be established if none of the relevant

conduct occurred within the limitations period. Id. at 539.

Moreover, the mere existence of a vague or undefined

relationship between the timely and untimely acts is an

insufficient basis upon which to find a continuing

violation. Id.

In this case, plaintiff claims that distribution of the

SCBA memo constitutes the timely event; in other words,

the final straw in a series of discriminatory conduct.

However, viewed in a light most favorable to plaintiff, a

reasonable factfinder could not conclude that the memo

was related in any way to the prior alleged [*7] incidents

or that it was the last in a series of hostile acts against

plaintiff. Accordingly, the trial court did not err in

dismissing plaintiff's claim for sex discrimination.

Affirmed.

/s/ Kathleen Jansen

/s/ Brian K. Zahra

/s/ Patrick M. Meter

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