JAGER v. NATIONWIDE TRUCK BROKERS, INC
Case Details
- Citation
- 252 Mich. App. 464
- Judge(s)
- Before: Wilder, P.J., and Bandstra and Hoekstra, JJ.
- Procedural Posture — the stage the case had reached
- appeal
- State
- Michigan
- Circuit
- 6th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Court of Appeals affirmed summary disposition for employer and individual supervisor in sexual harassment case. Plaintiff failed to establish quid pro quo harassment (no adverse employment action) and hostile environment harassment (inadequate notice to higher management).
Excerpt
JAGER v NATIONWIDE TRUCK BROKERS, INC Docket Nos. 226007, 228672. Sumitted May 8, 2002, at Grand Rapids. Decided August 9, 2002, at 9:20 am. Leave to appeal sought. Brenda S. Jager brought an action in the Kent Circuit Court against Nationwide Truck Brokers, Inc., James Wilkerson, Designed Administrative Resources and Technologies, Inc., and Simplified Employment Services, Inc., seeking damages under the Michigan Civil Rights Act (ora), MCL 37.2101 et seq. The plaintiff was employed with defendants Designed and Simplified and worked, through an employee lease agreement, for defendant Nationwide under the supervision of defendant Wilkerson. The plaintiff alleged that defendant Wilkerson made unwanted sexual advances toward her and that she told certain employees of defendant Nationwide about Wilkerson’s conduct before she left work at Nationwide. On the plaintiff’s last day of work, an attorney on behalf of the plaintiff sent a letter to the president of Nationwide concerning the alleged harassment. After Nationwide, Designed, and Simplified had conducted a prompt investigation and were unable to substantiate the plaintiff’s allegations of harassment, Nationwide invited the plaintiff to return to work for Nationwide in a capacity in which she would not have to have any contact with Wilkerson, arid Designed and Simplified offered to assist the plaintiff with finding a new job assignment if she preferred not to return to Nationwide. The plaintiff declined both offers and commenced her action. Following discovery, Nationwide and Wilkerson moved for summary disposition, arguing that the plaintiff could not demonstrate quid pro quo sexual harassment because the defendants took no adverse employment action against the plaintiff and that the plaintiff could not show a hostile work environment because she had not properly notified Nationwide of the harassment. The plaintiff argued that she had been subjected to severe and pervasive harassment and that her communications with Nationwide employees concerning the harassment provided adequate notice to Nationwide. The court, Robert A. Benson, X, granted summary disposition for Nationwide and Wilkerson and dismissed the plaintiff’s complaint, holding that the plaintiff had not demonstrated that any adverse employment action had been taken against her, that the plaintiff had not demonstrated that Nationwide had been properly notified of the sexual harassment before receiving the letter from her attorney that resulted in its prompt investigation of the plaintiff’s charges, and that there was no authority for holding an individual employee liable under the cra for sexual harassment where the employer had been dismissed. The court denied the plaintiff’s motion to amend her complaint to add a count of assault and battery against Wilkerson. Nationwide and Wilkerson moved for attorney fees pursuant to the case evaluation provisions of MCR 2.403(0), which the court, George S. Buth, J., granted, albeit in an amount less than requested, on the basis of the affidavits of defense counsel, the itemized billing statements, and the surveys of hourly rates of Michigan attorneys that had been provided in support of the motion. The plaintiff appealed separately the order granting summary disposition and dismissing her complaint (Docket No. 226007) and the order granting case evaluation sanctions (Docket No. 228672). The appeals were consolidated. The Court of Appeals held: 1. The cra prohibits an employer from discriminating on the basis of sex, which includes sexual harassment. Subsection 103(i) of the cra, MCL 37.2103(i), defines sexual harassment as sexual advances, requests for sexual favors, or other verbal or physical conduct or communication of a sexual nature where submission to such conduct or communication is made a term or condition to obtain employment, where submission to or rejection of such conduct or communication by an individual is used as a factor in a decision affecting employment, or where such conduct or communication has the purpose or effect of substantially interfering with employment. The first two situations are commonly labeled quid pro quo harassment, while the third situation is commonly labeled hostile environment harassment. 2. In order to establish a claim of quid pro quo harassment, an employee must show, by a preponderance of the evidence, subjection to any of the types of unwelcome sexual conduct or communication described in the statute and that the employer or the employer’s agent used submission to or rejection of the proscribed conduct as a factor in a decision affecting employment. 3. In order to establish a claim of hostile environment harassment, an employee must show, by a preponderance of the evidence, membership in a protected group, subjection to unwelcome sexual conduct or communication, that the unwelcome sexual conduct or communication was either intended to or did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment, and respondeat superior. 4. Although the plaintiffs proffered evidence created a genuine issue of material fact concerning whether she was subjected to unwelcome sexual conduct and communication, the plaintiff failed to present any evidence of a decision affecting her employment that was related to her submission to or rejection of the unwelcome sexual conduct and communication. Accordingly, the trial court properly granted summary disposition for Nationwide with respect to the plaintiff’s claim of quid pro quo sexual harassment under the cra. 5. To establish the respondeat superior element of a hostile environment harassment claim, a plaintiff must show that the employer knew of the harassment, which can be shown by evidence that a complaint was made to higher management, or that the employer should have known about the harassment because of its pervasiveness. Higher management is someone in the employer’s chain of command who possesses the ability to exercise significant influence in the decision-making process of hiring, firing, and disciplining the employee who was engaging in the offensive behavior. 6. The plaintiff failed to show on the record that she had specifically informed any person who had management authority over Wilkerson of his harassment of her at any significant time before she left her employment with Nationwide. The plaintiff further failed to show that the harassment was so pervasive that Nationwide should have been alerted to the possibility that she was being harassed. Because the plaintiffs threats to Wilkerson to stop his harassment does not constitute notice to higher management, the trial court properly granted summary disposition for Nationwide with respect to the claim of hostile environment harassment under the cra. 7. The language of the cra indicates a clear intent that liability for violation of the civil rights protected by the act rests solely on employers even though that liability may arise from the acts of employees who have the authority to act on the employer’s behalf. Because the cra imposes liability only on employers and not on individual employees of an employer, the trial court properly held that Wilkerson could not be held liable with respect to the plaintiffs claims under the cra and, accordingly, properly granted summary disposition for Wilkerson with respect to those claims. 8. The trial court did not abuse its discretion in denying the plaintiff’s motion to amend her complaint to add a claim against Wilkerson for assault and battery, given the fact that the motion to amend was made more than l'A years after the original complaint was filed, and after the close of discovery, after case evaluation, and after summary disposition had been granted to the defendants. 9. There was sufficient evidence on the record to support the trial court’s award of attorney fees and, accordingly, there was no need to hold an evidentiary hearing concerning the reasonableness of those fees. Affirmed. Civil Rights — Civil Rights Act — Employers — Agents — Individual Liability. The Michigan Civil Rights Act imposes liability on an employer for violation of the civil rights of an employee that are protected under the act; the act creates liability on the part of the employer for acts committed by an agent of the employer, but the act does not impose on the agent any individual liability for a violation of the civil rights of an employee that are protected under the act (MCL 37.2201[a], 37.2202). Eardley Law Offices, P.C. (by Eugenie B. Eardley), for the plaintiff. Warner Norcross & Judd LLP (by Paul T. Sorensen and Andrea J. Bernard) for Nationwide Truck Brokers, Inc., and James Wilkerson. Before: Wilder, P.J., and Bandstra and Hoekstra, JJ. Hoekstra, J. In these consolidated appeals stemming from plaintiffs sexual harassment action against her employers and her supervisor, plaintiff appeals as of right the trial court’s grant of summary disposition in favor of defendant Nationwide Truck Brokers, Inc. (ntb), and defendant James Wilkerson (Docket No. 226007), and the trial court’s grant of case evaluation sanctions to those defendants (Docket No. 228672). We affirm. I. FACTS AND PROCEDURAL HISTORY Plaintiff was employed with defendants Designed Administrative Resources and Technologies, Inc. (dart), and Simplified Employment Services, Inc. (ses). Through an employee lease agreement, plaintiff worked for ntb under the supervision of Wilkerson as a log entry clerk in ntb’s safety department. According to plaintiff, in August 1996, Wilkerson began making unwanted sexual advances toward her, including sending her sexually explicit electronic mail “pop up” messages, repeatedly asking her to go out with him, and telling her that she “smelled” good. Further, Wilkerson allegedly grabbed her breasts and buttocks, put his face close to her breasts, pulled her skirt up over her waist, ran a toy golf club up the slit of her skirt, presented her with a gift of lingerie, and made sexually explicit remarks to her. Plaintiff testified at a deposition that she told certain employees of ntb about Wilkerson’s conduct, including Dave Wojtaszek and Mark Doyle, and talked to Dave Birge about possibly transferring to his department. On February 17, 1997, plaintiff left work at NTB. Thereafter, plaintiff contacted an attorney, who sent a letter on that same date to Henry Schwarz, the president of ntb, notifying NTB of the harassment. Plaintiff was given paid leave, as she requested, and Wilkerson was placed on suspension pending the outcome of an investigation. Ntb, dart, and ses conducted an investigation and were unable to substantiate plaintiff’s allegations of harassment. Thereafter, ntb invited plaintiff to return to work at ntb, but indicated that plaintiff would not have any contact with Wilkerson, either directly or indirectly. Similarly, dart and ses offered to assist plaintiff with finding a new job assignment if she preferred not to return to NTB. Plaintiff declined both offers. On June 8, 1998, plaintiff filed a complaint against NTB, DART, SES, and Wilkerson, alleging two counts of discrimination in violation of Michigan’s Civil Rights Act (CRA), MCL 37.2101 et seq. The only count at issue on appeal is plaintiff’s claim of “sexual discrimination and harassment.” Defendants answered the complaint, and Wilkerson also filed a counterclaim alleging slander and intentional infliction of emotional distress. Discovery ensued and in September 1999, NTB and Wilkerson moved for summary disposition under MCR 2.116(C)(10). These defendants argued, in essence, that plaintiff could not demonstrate quid pro quo sexual harassment because defendants took no adverse employment action against plaintiff and that plaintiff could not demonstrate a hostile work environment because she had not properly notified ntb of the harassment. In response, plaintiff claimed she was subjected to severe and pervasive harassment and that notice had been given to defendant ntb because plaintiff told ntb employees Dave Wojtaszek, Mark Doyle, and Al Szukala about the harassment. After a hearing on the motion, on February 4, 2000, the trial court granted summary disposition in favor of ntb and Wilkerson and dismissed the sexual harassment count of plaintiffs complaint. The trial court noted that under the quid pro quo theory of sexual harassment, plaintiff had not demonstrated that any adverse job action was taken against her. The trial court also rejected plaintiffs hostile environment sexual harassment clafitt because ntb was not notified of the sexual harassment until ntb received the letter from plaintiffs attorney and thereafter ntb suspended Wilkerson, provided plaintiff with paid leave, and conducted a prompt investigation. Further, the trial court explained that plaintiff provided no authority for the proposition that an individual employee could be held liable for sexual harassment where the employer had been dismissed. In another order relevant to this appeal, the trial court denied plaintiff’s oral motion to amend the complaint to add an assault and battery count against Wilkerson. Further, ntb and Wilkerson moved for case evaluation sanctions in accordance with MCR 2.403(0), which the trial court awarded, albeit in an amount less than requested. H. SUMMARY DISPOSITION OF PLAINTIFF’S SEXUAL HARASSMENT CLAIMS AGAINST NTB On appeal, plaintiff first argues that the trial court erred in granting summary disposition pursuant to MCR 2.116(C)(10) in favor of ntb under two separate theories of liability, quid pro quo sexual harassment and hostile environment sexual harassment. Plaintiff claims that she produced sufficient evidence to create a question of fact and, thus, that her sexual harassment claims under these theories should have gone to a jury. We review de novo a trial court’s grant of summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the claim. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). “When reviewing a motion for summary disposition brought under MCR 2.116(C)(10), the trial court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence submitted by the parties in the light most favorable to the party opposing the motion.” Meyer v Center Line, 242 Mich App 560, 574; 619 NW2d 182 (2000). Summary disposition is appropriate where the proffered evidence fails to establish a genuine issue of material fact. Maiden, supra; Smith v Globe Life Ins Co, 460 Mich 446, 455-456, n 2; 597 NW2d 28 (1999). The CRA prohibits an employer from, among other things, discriminating because of sex, which includes sexual harassment. MCL 37.2202(1); MCL 37.2103(i); Chambers v Trettco, Inc (On Remand), 244 Mich App 614, 617; 624 NW2d 543 (2001). Section 103(i) of the act, MCL 37.2103(i), defines sexual harassment: Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions: (i) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment.... (ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment.... (iii) The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment ... or creating an intimidating, hostile, or offensive employment. . . environment. When sexual harassment falls under one of the first two subsections, it is commonly labeled quid pro quo harassment, and when it falls under the third subsection, it is commonly labeled hostile environment harassment. Chambers v Trettco, Inc, 463 Mich 297, 310; 614 NW2d 910 (2000). With regard to each of these two categories of sexual harassment, our Supreme Court has identified the elements that a plaintiff must establish to make out a claim. Id. Quoting its previous decisions in Champion v Nation Wide Security, Inc, 450 Mich 702; 545 NW2d 596 (1996), and Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993), our Supreme Court explained: In order to establish a claim of quid pro quo harassment, an employee must, by a preponderance of the evidence, demonstrate: “(1) that she was subject to any of the types of unwelcome sexual conduct or communication described in the statute, and (2) that her employer or the employer’s agent used her submission to or rejection of the proscribed conduct as a factor in a decision affecting her employment. [Champion, supra at 708-709.]” In order to establish a claim of hostile environment harassment, an employee must prove the following elements by a preponderance of the evidence: “(1) the employee belonged to a protected group; “(2) the employee was subjected to communication or conduct on the basis of sex; “(3) the employee was subjected to unwelcome sexual conduct or communication; “(4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and “(5) respondeat superior. [Radtke, supra at 382-383.]” [Chambers, supra, 463 Mich 310-311.] However, when hostile environment harassment is committed by an agent of the employer, an employer may avoid liability if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged harassment. Chambers, supra, 463 Mich 312. “The bottom line is that, in cases involving a hostile work environment claim, a plaintiff must show some fault on the part of the employer.” Id. “An employer, of course, must have notice of alleged harassment before being held liable for not implementing action.” Radtke, supra at 396-397. When considering whether the employer was provided adequate notice, courts must apply an objective standard. Chambers, supra, 463 Mich 319 (“notice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that sexual harassment was occurring”). A. QUID PRO QUO HARASSMENT We first address plaintiff’s claim of quid pro quo harassment and conclude that plaintiff satisfied only the first of the two elements. Viewing the evidence in a light most favorable to plaintiff, plaintiff did present evidence that created a genuine issue of material fact concerning whether she was subjected to unwelcome sexual conduct and communication. Plaintiff presented evidence that Wilkerson made sexually explicit comments to her and made inappropriate sexual contact with her. However, plaintiff must also present evidence that her submission to or rejection of the sexual advances was used as a factor in a decision affecting her employment. Chambers, supra, 463 Mich 310. Here, plaintiff offers no evidence of a decision affecting her employment made by Wilkerson that related to her submission to or rejection of his sexual advances. Rather, on appeal, she argues that she was constructively discharged because her efforts to alert someone to the harassment appeared to be futile, she felt hopeless, she thought she needed outside help, she felt humiliated after ntb conducted its investigation but found her charges unsubstantiated, and she was dissatisfied with ntb’s request that she return to work under a different supervisor or seek reassignment through DART and SES, while Wilkerson returned to his job. While we acknowledge that under certain circumstances a constructive discharge can be an adverse employment action resulting from submission to or rejection of sexual advances, see Champion, supra at 710-713, plaintiff has not shown that connection in this case. Chambers, supra 463 Mich 317. In other words, the events on whic
Similar Rulings
Browse Related
Facing something similar at work?
Court rulings like this one are useful, but every situation is different. Take 2 minutes to see which laws may protect you — it's free, private, and no account is required to start.
This ruling information is sourced from public court records via CourtListener.com. Case outcomes, claim types, and summaries are extracted using AI analysis and may be incomplete or inaccurate. It is provided for informational and educational purposes only and does not constitute legal advice.
See something wrong, or named in this ruling and want it corrected or redacted? Request a correction.