COTTON v. BANKS, 310 Mich. App. 104

M. J. KELLY, J. In this employment dispute, defendant Representative Brian Banks of the Michigan House of Representatives appeals by right the trial court’s order denying his motion for

summary disposition of the claims by Banks’s former staff member, plaintiff, Tramaine Cotton. The primary issue on appeal is whether Banks has absolute immunity from suit under the Speech or Debate Clause of Michigan’s Constitution for personnel decisions involving those members of his staff who might have involvement in the legislative process. See Const 1963, art 4, § 11. For the reasons fully explained below, we conclude that there were no errors warranting relief. Accordingly, we affirm. I. BASIC FACTS According to Cotton, Banks hired him in January 2013 to serve as a driver.

Cotton alleged that, after his hire, Banks continuously expressed his desire to have a dating relationship with him, but Cotton rejected Banks’s advances. After Cotton made it clear that he would not agree to a romantic relationship, Cotton maintained that Banks began to assign him tasks that were beyond the scope of his employment and asked him to work on days he was not supposed to work. Cotton alleged that he was constructively discharged in April 2013. Banks, however, presented a very different version of events in the trial court.

Banks stated that he hired Cotton in February 2013 to serve as a legislative assistant and that Cotton’s duties included responding to constituent concerns, attending functions, and driving Banks and other representatives between Detroit and Lansing. Banks claimed that he began proceedings to terminate Cotton’s employment after he learned that Cotton had been arrested for driving on a suspended license and had missed a court date, after which a bench warrant issued for Cotton’s arrest. He stated that Cotton was terminated from his employment in May 2013 for those reasons.

In May 2013, Cotton sued Banks and the state of Michigan for wrongful termination. Cotton alleged that Banks violated Michigan’s Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., by discriminating against him on the basis of his sex, by demanding sexual favors as a condition of employment, by creating a hostile work environment, and by retaliating against him. Cotton also alleged that Banks’s sexual harassment constituted the intentional infliction of emotional distress. Cotton alleged that the state, as Banks’s employer, was vicariously liable for Banks’s wrongful conduct. In August 2013, the state moved for

summary disposition under MCR 2.116(C)(4) and (10). The State argued that, because employees of the House of Representatives were excluded from state civil service, the State was not Cotton’s employer for purposes of the Civil Rights Act. The state also argued that the circuit court did not have jurisdiction over Cotton’s intentional tort claim — that claim had to be brought in the Court of Claims. Banks moved for

summary disposition under MCR 2.116(C)(7) and (8) in September 2013. Banks argued that he was absolutely immune, under MCL 691.1407(5), from claims arising out of his termination of Cotton’s employment. He claimed he was entitled to immunity under an unpublished decision from a circuit court because his decision to terminate Cotton involved an integral part of the legislative process, but Banks did not specifically argue that he had immunity under Const 1963, art 4, § 11.

Additionally, Banks argued that the trial court must dismiss Cotton’s claim of retaliation because Cotton did not plead that he reported the alleged sexual harassment to anyone before his discharge. Cotton’s claim for intentional infliction of emotional distress similarly had to be dismissed, Banks stated, because that claim, as alleged, involved wrongful sexual discrimination in employment, and the Civil Rights Act is the exclusive remedy for such a claim.

In response, Cotton argued that the Civil Rights Act constitutes an exception to the immunity provided under MCL 691.1407 and, in any event, the acts of sexual harassment were outside the scope of Banks’s authority as a representative. He also maintained that the Civil Rights Act is not the exclusive remedy for the harms occasioned by sexual harassment. Therefore, he argued, the trial court should deny Banks’s motion for

summary disposition. In his reply brief, Banks cited Const 1963, art 4, § 11, and for the first time argued that he had absolute immunity from suit under the Speech or Debate Clause of Michigan’s Constitution for any personnel decisions involving his staff. Banks argued that the undisputed evidence — namely the job description for a legislative assistant and copies of correspondence — showed that Cotton’s job duties were integrally related to the legislative process. On that basis, Banks claimed he was immune from liability for his actions related to Cotton’s employment.

In October 2013, the trial court held a hearing on the motions. At the hearing, the trial court expressed its belief that the Civil Rights Act created an exception to all governmental immunity, including immunity provided under the Speech or Debate Clause. The trial court also did not believe that Cotton was so integrally related to the legislative process that immunity would apply. As for Cotton’s retaliation claim, the trial court refused to consider Banks’s evidence that Cotton did not report the alleged harassment because Banks’s motion was brought under MCR 2.116(C)(8). See MCR 2.116(G)(5).

Additionally, the trial court did not agree that the Civil Rights Act preempted Cotton’s claims for intentional infliction of emotional distress. Finally, the trial court agreed that the state was not Cotton’s employer and that the claims against it should be dismissed. The trial court entered an order granting the state’s motion for

summary disposition and dismissed the state without prejudice. It also entered a separate order allowing Cotton to amend his complaint to include the House of Representatives as a defendant. Finally, the trial court entered an order denying Banks’s motion for

summary disposition. Cotton soon filed his first amended complaint naming the Michigan House of Representatives as a defendant. In his amended complaint, Cotton alleged that he reported the sexual harassment to his superiors. Cotton again alleged four counts against Banks and the House of Representatives premised on violations of the Civil Rights Act, and a fifth claim of intentional infliction of emotional distress against Banks alone. Banks then appealed in this Court. II. THE SPEECH OR DEBATE CLAUSE A. STANDARDS OF REVIEW Banks first argues that the trial court erred when it denied his motion for

summary disposition, which was based on the ground that he was absolutely immune from suit under Const 1963, art 4, § 11. He maintains that Michigan courts should construe Michigan’s Speech or Debate Clause similarly to the federal courts’ construction of the federal Speech or Debate Clause. Relying on federal authority, Banks contends that this Court should conclude that the Speech or Debate Clause applies to bar any claims premised on acts or omissions arising from the legislative process.

According to Banks, because his decision to terminate Cotton implicated the legislative process, the trial court should have determined that he had absolute immunity under Const 1963, art 4, § 11. This Court reviews de novo a trial court’s decision on a motion for

summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). This Court also reviews de novo whether the trial court properly interpreted and applied Michigan’s Constitution. Wayne Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004). B.

CIVIL IMMUNITY UNDER THE SPEECH OR DEBATE CLAUSE Michigan’s Speech or Debate Clause provides legislators with a privilege against civil arrest and civil process during sessions of the Legislature and immunity from liability for their speech in either house: Except as provided by law, senators and representatives shall be privileged from civil arrest and civil process during sessions of the legislature and for five days next before the commencement and after the termination thereof.

They shall not be questioned in any other place for any speech in either house. [Const 1963, art 4, § 11.] The purpose of the privilege from civil arrest and civil process, our Supreme Court explained, is “to protect the legislators from the trouble, worry and inconvenience of court proceedings during the session, and for a certain time before and after, so that the State could have their undivided time and attention in public affairs.” Auditor General v Wayne Circuit Judge, 234 Mich 540, 542; 208 NW 696 (1926) (construing Const 1908, art 5, § 8, the predecessor to the present Speech or Debate Clause).

Although an unreasonably long period of immunity might result in the denial of due process in an extreme case, the privilege must generally be construed to give effect to the policy which underlies it: to prevent both actual distraction and potential distraction from public duty during the legislative session. Bishop v Wayne Circuit Judge, 395 Mich 672, 677; 237 NW2d 465 (1976). The immunity provision in the Speech or Debate Clause is similarly intended to protect legislators from the distraction of litigation. See Prelesnik v Esquina, 132 Mich App 341, 347; 347 NW2d 226 (1984).

Read literally, the clause only provides senators and representatives with immunity for speeches made in either house — that is, from being “questioned in any other place for any speech in either house.” See Const 1963, art 4, § 11. Because Michigan’s Speech or Debate Clause is substantially similar to the Speech or Debate Clause found in the Constitution of the United States, it should be similarly construed. See Prelesnik, 132 Mich App at 347, citing Eastland v United States Servicemen’s Fund, 421 US 491; 95 S Ct 1813; 44 L Ed 2d 324 (1975).

The United States Supreme Court has stated that the Speech or Debate Clause was the product of the English experience and was intended to ensure the independence of the legislative branch from interference by the executive branch or a possibly hostile judiciary. Eastland, 421 US at 502.

But, the Court noted, it had not limited the protection provided by the Speech or Debate Clause to acts of interference by public officials: The applicability of the Clause to private civil actions is supported by the absoluteness of the term “shall not be questioned,” and the sweep of the term “in any other Place.” In reading the Clause broadly we have said that legislators acting within the sphere of legitimate legislative activity “should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.” Just as a criminal prosecution infringes upon the independence which the Clause is designed to preserve, a private civil action, whether for an injunction or damages, creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks to defend the litigation.

Private civil actions also may be used to delay and disrupt the legislative function. Moreover, whether a criminal action is instituted by the Executive Branch, or a civil action is brought by private parties, judicial power is still brought to bear on Members of Congress and legislative independence is imperiled.

We reaffirm that once it is determined that Members are acting within the “legitimate legislative sphere” the Speech or Debate Clause is an absolute bar to interference. [Id. at 503 (citations omitted).] Consequently, in the absence of a waiver of the immunity, the Speech or Debate Clause immunizes a legislator from civil suits premised on actions that he or she took within the legitimate sphere of legislative activity. Id. C.

WAIVER OF IMMUNITY UNDER THE ELLIOTT-LARSEN CIVIL RIGHTS ACT Banks initially argued that the trial court should dismiss Cotton’s claims because Banks had immunity under MCL 691.1407(5), and Cotton failed to plead in avoidance of that immunity. See Yono v Dep’t of Transp (On Remand), 306 Mich App 671, 682; 858 NW2d 128 (2014) (stating that a plaintiff must plead in avoidance of governmental immunity by alleging facts that, if true, would establish that his or her claim falls within an exception to governmental immunity).

Cotton did, however, plead claims under the Civil Rights Act, and our Supreme Court has recognized that the act constitutes an exception to the immunity provided by MCL 691.1407. See Mack v Detroit, 467 Mich 186, 195; 649 NW2d 47 (2002). Banks later asserted before the trial court that he was also entitled to immunity under the Speech or Debate Clause, Const 1963, art 4, § 11. On appeal, Banks has abandoned any contention that MCL 691.1407 immunizes him from claims brought under the Civil Rights Act; instead, he now relies exclusively on the Speech or Debate Clause as the source of his immunity.

Defendant Michigan House of Representatives notes that at the hearing on Banks’s motion for

summary disposition, the trial court expressed its belief that there was no immunity for a claim under the Civil Rights Act because that act — by its own terms— applies to governmental employers. It is unclear from the trial court’s decision whether it denied Banks’s motion on that basis. For that reason, the Michigan House of Representatives urges this Court to clarify that the enactment of the Civil Rights Act did not waive the immunity provided under Const 1963, art 4, §11.

In Wilkins v Gagliardi, 219 Mich App 260, 267-269; 556 NW2d 171 (1996), this Court had to determine whether the Speech or Debate Clause, Const 1963, art 4, § 11, provided immunity from suit for an alleged violation of the Open Meetings Act, MCL 15.261 et seq., by the Chairman of the House Oversight Committee. The Court concluded that the chairman was immune from suit under the Speech or Debate Clause because his actions fell within the scope of legislative activity and the Legislature did not waive the immunity by applying the Open Meetings Act to public officials. Wilkins, 219 Mich App at 269-271.

In reaching this decision, the Court first expressed doubt that the Legislature had the authority to make an institutional waiver of the immunity provided under Michigan’s Constitution. Id. at 270. Rather, “the history of the Speech or Debate Clause supported an argument that Congress, as a body, should not be free to strip individual congressmen of the protection guaranteed by that clause.” Id., citing United States v Helstoski, 442 US 477, 492-493; 99 S Ct 2432; 61 L Ed 2d 12 (1979).

But even if the Legislature had the authority, the Court stated, it could not make such a waiver by inference — it must explicitly and unequivocally express its intent to waive the immunity provided under the Speech or Debate Clause. Wilkins, 219 Mich App at 270. Because the Open Meetings Act did not explicitly waive the individual legislators’ immunity by referring to legislators, the Speech or Debate Clause still applied to bar applicable claims against a legislator under that act. Id. at 270-271.

The Wilkins Court also rejected the contention that the Speech or Debate Clause was subject to statutory modification, as provided by a then-recent amendment to the Constitution: Plaintiffs further argue that the amendment of

article 4, § 11 that added the words “except as provided by law,” gave the Legislature the power to waive the immunity granted under the Speech or Debate Clause. A clear reading of the constitutional provision does not support their argument. The quoted language refers only to the civil arrest and service of process portions of that section. The Speech or Debate Clause, being a totally separate provision in that

section of the constitution, was not affected by the change. [Id. at 271.] Although the Civil Rights Act, MCL 37.2101 et seq., generally applies to the “state or a political subdivision of the state or an agency of the state,” MCL 37.2103(g) (defining the term “person”), and MCL 37.2201(a) (defining “employer” to mean a person who has 1 or more employees and an agent of that person), it does not specifically mention legislators or the immunity provided under the Speech or Debate Clause.

Therefore, even assuming that the Legislature has the authority to effect an institutional waiver of the individual immunity provided under Const 1963, art 4, § 11, it did not, in the Civil Rights Act, explicitly and unequivocally waive the immunity provided under the Speech or Debate Clause. See Wilkins, 219 Mich App at 271. To the extent that the trial court determined that the Speech or Debate Clause did not apply to Banks in this case, it erred. D. SCOPE OF THE IMMUNITY A legislator is immune from civil liability for any activities that fall “within the legislative sphere.” See Prelesnik, 132 Mich App at 347.

An activity falls within the legislative sphere when it is integral to the legislative process. Id., citing Gravel v United States, 408 US 606, 625; 92 S Ct 2614; 33 L Ed 2d 583 (1972). And an activity is integral to the legislative process when it is essential to the consideration and passage or rejection of proposed legislation or involves a matter placed solely within the jurisdiction of either house. Legislative acts are not all-encompassing. The heart of the [Speech or Debate] Clause is speech or debate in either House.

Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.

As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but “only when necessary to prevent indirect impairment of such deliberations.” [Gravel, 408 US at 625 (citation omitted).] This Court has had only limited opportunities to apply the Speech or Debate Clause to specific facts.

The Court in Wilkins held that the Chairman of the House Oversight Committee had absolute immunity from suit for ordering the sergeant-at-arms to remove a camcorder from a visitor during a hearing because the committee was pursuing legislative business and the chairman was acting in his capacity as the chairman at the time. Wilkins, 219 Mich App at 269. This Court has also extended the immunity provided by the Clause to the preparation of an investigatory report by a legislative ombudsman because the job was “pertinent to legislative functions” and authorized by law. Prelesnik, 132 Mich App at 347-348.

But neither this Court nor our Supreme Court has considered whether, and to what extent, Michigan’s Speech or Debate Clause applies to a legislator’s personnel decisions. The United States Supreme Court has, however, examined whether a judge’s personnel decisions are immune from suit under the common-law absolute immunity for judicial acts.

In Forrester v White, 484 US 219, 220-221; 108 S Ct 538; 98 L Ed 2d 555 (1988), the United States Supreme Court had to determine whether a judge had absolute immunity from suit under the common law for allegedly terminating an employee on the basis of her sex in violation of the federal Civil Rights Act. The Court stated that it had “been quite sparing in its recognition of claims to absolute official immunity,” but that it had already recognized absolute immunity in one clear case — “the legislative immunity created by the Speech or Debate Clause.” Id. at 224.

The Court had similarly recognized “a comparatively sweeping form of immunity” to protect judicial independence “by insulating judges from vexatious actions prosecuted by disgruntled litigants.” Id. at 225. When applied to judicial acts involving the resolution of disputes between parties, the Court explained that “the doctrine of absolute judicial immunity has not been particularly controversial.” Id. at 227. “Difficulties have arisen,” the Court related, “in attempting to draw the line between truly judicial acts, for which immunity is appropriate, and acts that simply happen to have been done by judges.” Id.

In clarifying the proper test, the Forrester Court determined that the relevant inquiry should be on the nature of the function: “the nature of the function performed, not the identity of the actor who performed it,” should inform the immunity analysis. Id. at 229. Because the judge acted in his administrative capacity when he terminated the employee rather than in any judicial capacity, he was not entitled to absolute judicial immunity. Id.

Moreover, the fact that the judge’s employment decisions implicated the sound administration of the judiciary did not alter the fact that the decisions were administrative: “Those acts — like many others involved in supervising court employees and overseeing the efficient operation of a court — may have been quite important in providing the necessary conditions of a sound adjudicative system. The decisions at issue, however, were not themselves judicial or adjudicative.” Id.

Every federal circuit court to consider the issue since the decision in Forrester has adopted the functional test described there for determining whether a legislator’s conduct falls under the immunity provided by the federal Speech or Debate Clause.

See Fowler-Nash v Democratic Caucus of Pa House of Representatives, 469 F3d 328, 332 (CA3, 2006); Fields v Office of Eddie Bernice Johnson, Employing Office, United States Congress, 373 US App DC 32; 459 F3d 1, 13-17 (2006); Bastien v Office of Senator Ben Nighthorse Campbell, 390 F3d 1301, 1318 (CA 10, 2004) (“A personnel decision is not a ‘legislative act,’ as defined by the Supreme Court, and is therefore not entitled to immunity.

The Speech or Debate Clause therefore provides protection only if legislative acts must be proved to establish the claim challenging the personnel action.”); Chateaubriand v Gaspard, 97 F3d 1218, 1220-1221 (CA 9, 1996) (“Applying these factors, courts generally consider legislators’ employment and personnel decisions to be administrative, rather than legislative, acts.”); Negron-Gaztambide v Hernandez-Torres, 35 F3d 25, 27-28 (CA 1, 1994).

Nevertheless, on appeal, Banks argues that this Court should adopt a legislative duties test similar to that described in Agromayor v Colberg, 738 F2d 55, 58-60 (CA 1, 1984), for determining whether a legislator’s employment decisions are immune from suit. In Agromayor, which was decided before the Supreme Court’s decision in Forrester, the court considered whether the immunity from civil suit under the federal Speech or Debate Clause extended to a legislator’s decision not to authorize the hire of an applicant for press officer. Id. at 57.

Although the United States Supreme Court had not yet considered whether an employment decision amounted to a legislative act, the Agromayor court noted that three United States Supreme Court justices had expressed the opinion that congressional employment decisions should be covered by the clause. Id. at 59. The Agromayor court also agreed that the dissenting opinion joined by those three justices reflected the proper common-law concern with protecting legislators for acts beyond strict speech and debate. Id. at 60.

The Agromayor court stated that the immunity should only apply to a personnel decision concerning an employee with “enough opportunity for ‘meaningful input’ into the legislative process,” but warned that courts should not inquire too deeply into “the functions performed by a particular personal legislative aide, inasmuch as such an inquiry itself threatens to undermine the principles that absolute immunity was intended to protect.” Id. at 60.

Because the Agromayor court believed that the press officer position offered “enough opportunity for ‘meaningful input’ into the legislative process,” the court concluded that the clause applied and “the employment decision should be immunized.” Id. Under the test stated in Agromayor, courts must look to the employee’s duties to determine if legislative immunity applies; if the employee has meaningful input into the legislative process, the legislator has absolute immunity for his or her decisions regarding that employee under the Speech or Debate Clause.

Notably, the only other federal circuit court to adopt a test similar to the Agromayor test has since disavowed it. See Fields, 459 F3d at 11-12, rejecting the test previously adopted in Browning v United States House of Representatives, 252 US App DC 241; 789 F2d 923, 928-929 (1986).

In Fields, the United States Court of Appeals for the District of Columbia examined whether the Speech or Debate Clause immunized legislators from suits challenging their personnel decisions concerning employees who assist in performing legislative functions; more specifically, the court had to address the continuing validity of the approach it applied in Browning. Fields, 459 F3d at 9 (opinion by Randolph, J.).

Under the Browning test, immunity turned on the nature of an employee’s duties; if the employee’s duties were directly related to the due functioning of the legislative process, the legislator’s employment decision with regard to that employee would merit immunity under the Speech or Debate Clause. Id. at 11 (quotation marks and citation omitted). But, the Fields court stated, it had come to believe that this approach was too crude: We now see that an employee’s duties are too crude a proxy for protected activity.

Our holding in Browning presumes that a personnel decision with regard to an employee whose duties are “directly related to the due functioning of the legislative process,” is always “an integral part of the deliberative and communicative processes.” But the presumption is, at a minimum, overinclusive and therefore inconsistent with the Court’s practice of being “careful not to extend the scope of the protection further than its purposes require.” Any number of counterexamples reveal as much: a legislative aide may be discharged because of budgetary cutbacks; a staff member may be demoted solely for consistent tardiness; a person seeking a top-level staff position might be rejected for having a poor college transcript; and so forth.

That the person targeted by the personnel decision performs duties “directly related to .. . the legislative process” is not enough — conduct must be “part of,” not merely “related to,” the “due functioning” of the “legislative process” to be protected by the Speech or Debate Clause.

At best, that an employee’s duties are directly related to the legislative process establishes merely “some nexus” between the personnel decision and that process. [Fields, 459 F3d at 11-12 (citations omitted).] The Speech or Debate Clause, the Fields court explained, was intended to protect the legislative process, not an individual legislator’s legislative goals: It may be integral to a Member’s legislative goals — indeed, integral even to accomplishing his “constitutionally delegated duties” — to send newsletters to constituents or deliver speeches outside of Congress to generate support for prospective legislation.

But such acts are “political,” not “legislative,” and therefore not protected by the Speech or Debate Clause. [Id. at 12 (citations omitted).] For those reasons, the court in Fields rejected the test applied in Browning and adopted a functional test. Id. We agree that, in the employment context, the immunity provided by the Speech or Debate Clause should not turn on the nature of the employee’s duties; whether the employee’s duties have some connection to the legislative process is simply “too crude a proxy for protected activity.” Id. at 11.

Accordingly, we reject the tests stated in Agromayor and Browning and join those jurisdictions that have adopted the functional approach stated in Forrester. In applying that approach, courts should be careful to distinguish between true legislative acts, which are entitled to absolute immunity, and acts that merely happen to have been performed by a legislator, but are otherwise administrative in nature. See Forrester, 484 US at 227-229.

Instead of looking at the employee’s duties to determine whether the employee had some meaningful input into the legislative process, courts must examine whether the acts on which the plaintiff predicates liability were legislative acts. See id. at 229; Fields, 459 F3d at 13. Courts should first examine the pleadings to see if it is necessary to inquire into the legislator’s legislative acts — “how [the legislator] spoke, how he debated, how he voted, or anything he did in the chamber or in committee” — in order to prove the claim. Fields, 459 F3d at 13 (quotation marks and citations omitted).

If, on the face of the pleadings, the plaintiff can make out his or her claims without venturing into a defendant’s protected conduct, the Speech or Debate Clause will not bar the claims. Id. at 13-14. E. APPLYING THE LAW Cotton alleged that Banks used his position and authority as an employer to subject Cotton to inappropriate sexual conduct, which amounted to unlawful discrimination under the Civil Rights Act. According to Cotton, when he refused to enter into a romantic relationship with Banks, Banks retaliated against him and ultimately terminated his employment.

None of these allegations involve a legislative act; even the ultimate decision to terminate Cotton’s employment did not involve legislative concerns, and an analysis of it did not require an investigation of Banks’s legislative acts. Banks’s conduct was merely administrative. See Forrester, 484 US at 229-230; Fields, 459 F3d at 14. Therefore, on the face of the pleadings, the immunity provided under the Speech and Debate Clause does not apply to bar Cotton’s claims. See Yono, 306 Mich App at 682.

Moreover, even considering Banks’s version of events and his evidentiary submissions in support, the result is the same. See id. at 679-680 (recognizing that a governmental defendant may submit evidence to contradict the allegations stated in the complaint and, if the undisputed evidence demonstrates that the defendant is entitled to immunity, the trial court must dismiss the claims). Banks did not submit any evidence that Cotton’s employment and dismissal would require inquiry into prohibited areas.

Banks denied having engaged in any inappropriate sexual conduct with Cotton and stated that he terminated Cotton’s employment because Cotton misused his status as a legislative assistant and did not have a valid driver’s license. The proffered reasons do not implicate Cotton’s involvement in any legislative acts and do not require inquiry into Banks’s legislative acts or the motivation behind his legislative acts. See Fields, 459 F3d at 14. The trial court did not err when it denied Banks’s motion to dismiss premised on the immunity provided under Const 1963, art 4, § 11. F.

ADDITIONAL SAFEGUARDS The Michigan House of Representatives asks this Court to adopt the approach for absolute immunity under the Speech or Debate Clause provided by the Court of Appeals for the D.C. Circuit in Fields, which we have done. But it also urges this Court to address and adopt the additional safeguards discussed by that court — namely, the evidentiary privilege as the court applied it to the burden-shifting approach for claims of discrimination.

Although the court in Fields determined that the claims at issue there were not barred on the face of the pleadings, it nevertheless concluded that the Speech or Debate Clause might still require dismissal. Fields, 459 F3d at 14.

This, the court maintained, was because the Clause also provides legislators with an evidentiary privilege: When the Clause does not preclude suit altogether, it still “protect [s] Members from inquiry into legislative acts or the motivation for actual performance of legislative acts.” This evidentiary privilege includes a “testimonial privilege.” A Member “may not be made to answer” questions — in a deposition, on the witness stand, and so forth — regarding legislative activities. “Revealing information as to a legislative act... to a jury” — whether by testimony or other evidence — “would subject a Member to being ‘questioned’ in a place other than the House or Senate, thereby violating the explicit prohibition of the Speech or Debate Clause.” [Id. (citations omitted; alteration in original).] “[E]ven if the challenged personnel decisions are not legislative acts, inquiry into the motivation for those decisions may require inquiry into legislative acts,” which would not be permitted under the Speech or Debate Clause.

Id. For that reason, the court felt that the Speech or Debate Clause posed special problems in the context of employment actions involving the burden-shifting approach. Id. at 15, citing McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). A plurality of the Fields court went on to provide a framework for addressing the evidentiary problem posed by the Speech or Debate Clause as applied to motions for

summary disposition. Fields, 459 F3d at 15-17. Because we have decided this issue on the limited record before us, and that record does not implicate any of these concerns, we decline to consider whether, and to what extent, an evidentiary privilege might apply, and we decline to adopt the additional safeguards discussed in Fields. Such issues would best be addressed in the first instance before the trial court after the parties have had an adequate opportunity to develop the record and their arguments.

Nevertheless, nothing in this opinion should be construed to preclude Banks from asserting the immunity provided under the Speech or Debate Clause to prevent inquiries into his legislative acts or, after conducting further discovery, from bringing a properly supported motion for

summary disposition under MCR 2.116(C)(7), on the ground that one or more of Cotton’s claims cannot be established without impermissible inquiry into legislative acts. III. RETALIATION CLAIM A. STANDARD OF REVIEW Banks next argues that the trial court erred when it denied his motion to dismiss Cotton’s claim premised on retaliation for reporting Banks’s sexual harassment.

Specifically, Banks argues that the trial court should have dismissed Cotton’s retaliation claim because Cotton failed to allege that he actually reported the harassment to a supervisor and because Cotton failed to present evidence to establish a question of fact on this issue after Banks submitted evidence that Cotton had not reported it. This Court reviews de novo a trial court’s decision on a motion for

summary disposition. Barnard Mfg, 285 Mich App at 369. B. ANALYSIS Banks stated in the factual recitation of his brief in support of his motion for

summary disposition that Cotton “had never made any reports to any person . . . concerning harassment or discrimination he may have encountered during his employment [with the Michigan House of Representatives].” He cited an affidavit by the Michigan House of Representatives’ office director in support of this factual assertion. Banks further argued that Cotton’s retaliation claim had to be dismissed under MCR 2.116(C)(8) because Cotton failed to plead that he had reported the harassment or discrimination before the alleged acts of retaliation.

Although Banks did assert that Cotton would be unable to plead such facts because he never in fact reported any harassment or discrimination, Banks did not move for

summary disposition as to this claim under MCR 2.116(0(10). Furthermore, at the hearing on Banks’s motion for

summary disposition, the trial court made it clear that it was not going to consider the evidentiary submissions or otherwise consider the office director’s affidavit as an oral motion under (0(10): So he claims, he alleges in his Complaint that he did make a complaint. And you’re saying he didn’t make a complaint and I told you we’re not going into issues of fact because this is merely a failure to state a claim. You submitted an affidavit which is improper in this kind of a motion. You need to do discovery. That is a factual thing and he’s alleged in his Complaint that he made a complaint.

And I have to accept his allegations as true, so that doesn’t fly at least at this point. In ¶ 11 of his complaint, Cotton alleged that Banks engaged in various acts of sexual harassment against him. He then alleged in ¶ ll(

k) that he “reported all of the above acts to his superiors, however, the acts continued and never ceased.” Cotton, incorporated these allegations into his claim for retaliation and further alleged that Banks retaliated against him in several ways for exercising his rights under the Civil Rights Act. These allegations were sufficient to state a claim of retaliation under MCL 37.2701(a). See Barrett v Kirtland Community College, 245 Mich App 306, 315; 628 NW2d 63 (2001). The trial court did not err when it denied Banks’s motion for

summary disposition of Cotton’s retaliation claim under MCR 2.116(C)(8). IV. EXCLUSIVE REMEDY A. STANDARD OF REVIEW Finally, Banks argues that the trial court erred when it denied his motion to dismiss Cotton’s claim of intentional infliction of emotional distress on the ground that the Civil Rights Act is the exclusive remedy for claims of sexual harassment and discrimination. This Court reviews de novo a trial court’s decision on a motion for

summary disposition. Barnard Mfg, 285 Mich App at 369. B. ANALYSIS In his motion for

summary disposition, Banks argued that the Civil Rights Act provided the right to be free from sexual harassment in the work environment and provided the exclusive remedy for violations of that right. Citing Monroe Beverage Co, Inc v Stroh Brewery Co, 454 Mich 41, 45; 559 NW2d 297 (1997), Banks maintained that Cotton could not maintain a common-law claim for intentional infliction of emotional distress premised on the statutorily prohibited sexual discrimination. Banks’s reliance on Monroe Beverage is misplaced.

In that case, our Supreme Court analyzed a statute that established a cause of action unknown at common law. Id. at 45. Because the Legislature created new rights and remedies with this statute, the Court explained, the Court must enforce the statute’s limits on who may avail themselves of the rights and may not infer remedies other than those provided by the statute. Id. The Court did not hold that the creation of a statutory right necessarily abrogates any common-law action which could conceivably arise from the same set of facts.

Michigan courts have recognized that the common-law tort of intentional infliction of emotional distress vindicates a person’s “right to be free from serious, intentional and unprivileged invasions of mental and emotional tranquility.” Campos v Gen Motors Corp, 71 Mich App 23, 25; 246 NW2d 352 (1976). By contrast, the Civil Rights Act protects a person from discrimination in employment, housing, and public accommodations. See MCL 37.2102(1). Courts will not lightly presume the abrogation or modification of the common law. See Dawe v Dr Reuven Bar-Levav & Assoc, PC, 485 Mich 20, 28; 780 NW2d 272 (2010).

Because the Civil Rights Act claim and the common-law claim vindicate different rights, we cannot infer that, with the enactment of the Civil Rights Act, the Legislature intended to abrogate any common-law claims where the facts giving rise to a claim might also give rise to a claim under the Civil Rights Act. Moreover, the Legislature specifically provided that the Civil Rights Act should “not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of the state.” MCL 37.2803.

Therefore, Cotton could properly allege a claim for intentional infliction of emotional distress premised on facts which might also support a claim under the Civil Rights Act. The trial court did not err when it concluded that the Civil Rights Act did not provide the exclusive remedy for claims involving sexual harassment and denied Banks’s motion for

summary disposition of Cotton’s intentional infliction of emotional distress claim. V. CONCLUSION The Legislature did not waive the immunity provided under Michigan’s Speech or Debate Clause, Const 1963, art 4, § 11, by the enactment of the Civil Rights Act. Because Cotton’s claims do not on the face of the pleadings, or considering the record evidence, implicate Banks’s legislative acts, the Speech or Debate Clause does not bar Cotton’s claims. Therefore, the trial court did not err when it denied Banks’s motion for

summary disposition premised on the immunity provided by the Speech or Debate Clause. The trial court also did not err when it determined that Cotton sufficiently pleaded the elements of a retaliation claim under the Civil Rights Act to survive a motion under MCR 2.116(C)(8). Finally, the trial court correctly determined that the enactment of the Civil Rights Act did not abrogate the common-law claim for intentional infliction of emotional distress even though the common-law claim involved acts that might also amount to unlawful discrimination under the Civil Rights Act. There were no errors warranting relief.

Affirmed. There being an important question of public policy on appeal, we order that none of the parties may tax their costs. MCR 7.219(A). SERVITTO, P. J., and STEPHENS, J., concurred with M. J. Kelly, J. See Davis v Passman, 442 US 228, 249-250; 99 S Ct 2264; 60 L Ed 2d 846 (1979) (Burger, C.J., dissenting). Notably, the majority in Davis did not reach the question whether the employment decision there implicated the Speech or Debate Clause. Although it never specifically overruled Agromayor, the First Circuit Court of Appeals apparently no longer applies the test from that case.

See Fowler-Nash, 469 F3d at 334 (“The Court of Appeals for the First Circuit has repeatedly undermined or ignored Agromayor .. ..”). It has instead applied an approach similar to the functional approach stated in Forrester. Id. at 334-335 (examining precedent from the First Circuit). Because Judge Rodgers joined Judge Randolph’s opinion in every respect except for “how the [Speech or Debate] Clause may limit evidence offered by parties in [Congressional Accountability Act] litigation,” Judge Randolph’s opinion constituted a majority as to those issues. See Fields, 459 F3d at 18 (Rodgers, J., concurring in part).