McCLEMENTS v. FORD MOTOR COMPANY
Case Details
- Citation
- 473 Mich. 373
- Judge(s)
- TAYLOR, C.J., and CORRIGAN and YOUNG, JJ., concurred with MARKMAN, J.; Kelly, J., concurred with Cavanagh, J.
- Procedural Posture — the stage the case had reached
- summary judgment
- State
- Michigan
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Michigan Supreme Court affirmed summary disposition in favor of Ford Motor Company, holding that plaintiff (a non-employee cafeteria worker) cannot pursue a common-law negligent retention claim based on workplace sexual harassment and failed to establish that Ford affected or controlled the terms, conditions, or privileges of her employment under the Civil Rights Act.
Excerpt
McCLEMENTS v FORD MOTOR COMPANY Docket No. 126276. Argued April 13, 2005 (Calendar No. 9). Decided July 26, 2005. Amended and rehearing denied 474 Mich 1201. Milissa McClements brought an action in the Oakland Circuit Court against Ford Motor Company and Daniel E Bennett, a supervisor employed by Ford, alleging violations of the Civil Rights Act (CRA), MCL 37.2101 et seq., specifically that she was exposed to a sexually hostile work environment as a result of actions by Bennett. The plaintiff, an employee of a company that operates cafeterias at a Ford plant, also alleged that Ford was negligent in retaining Bennett as an employee. The court, Wendy Eotts, J., granted summary disposition in favor of the defendants. The plaintiff appealed, and the Court of Appeals, Boerello, EJ., and White and Smolensk, JJ., reversed the trial court’s dismissal of the common-law negligent retention claim and affirmed with regard to the remaining claims. Unpublished opinion per curiam, issued April 22, 2004 (Docket No. 243764). The Supreme Court granted Ford’s application for leave to appeal and the plaintiffs application for leave to file a cross-appeal. 471 Mich 937 (2004). In an opinion by Justice Markman, joined by Chief Justice Taylor, and Justices Corrigan and Young, the Supreme Court held,-. A common-law claim for negligent retention cannot be premised on workplace sexual harassment. Further, the plaintiff has failed to establish a genuine issue of material fact that Ford affected or controlled the terms, conditions, or privileges of her employment and, therefore, she cannot bring a claim against Ford under the CRA. The part of the Court of Appeals judgment that holds that the plaintiff has failed to establish a claim under the CRA against Ford must be affirmed, the part of the Court of Appeals judgment that holds that the plaintiff has an actionable claim for negligent retention must be reversed, and the circuit court’s order of judgment in favor of Ford must be reinstated. 1. The CRA provides the right to be free from workplace sexual harassment and accords an aggrieved worker the remedy of a civil action for appropriate injunctive relief, damages, or both. The plaintiffs protections against workplace sexual harassment are wholly creatures of statute and, therefore, the plaintiff’s remedy is limited to those provided by the CEA. Accordingly, there is no common-law claim for negligent retention in the context of workplace sexual harassment. 2. A worker can only bring an action under the CEA for discriminatory acts, including sexual harassment, against a non-employer defendant if the worker can establish that the nonemployer affected or controlled the terms, conditions, or privileges of the worker’s employment. In this case, however, the plaintiff failed to establish that Ford affected or controlled the terms, conditions, or privileges of her employment by the company that operated the cafeterias at Ford’s plant. Justice Weaver, concurring in part and dissenting in part, agreed that a worker may bring a claim against a nonemployer defendant under the Civil Eights Act if the worker can establish that the nonemployer defendant affected or controlled a term, condition, or privilege of the worker’s employment. Justice Weaver dissented from the majority’s conclusion that the plaintiff failed to present a genuine issue of material fact regarding that question, however, believing that statements made to the plaintiff raise a question whether the defendant had the ability to affect or control a term, condition, or privilege of the plaintiffs employment. The parties should be allowed to present evidence on the issue, and the question should go to the jury. Justice Weaver also dissented from the majority’s conclusion that the plaintiff may not pursue a common-law claim for negligent retention. The plaintiffs claim is not premised solely on the statutorily based tort of sexual harassment, but implicates other torts such as assault and battery. The plaintiff should have the opportunity to establish her negligent retention claim. Affirmed in part and reversed in part; circuit court order of judgment for Ford reinstated. Justice Cavanagh, joined by Justice Kelly, dissenting, stated there is ample evidence for a jury to decide whether the defendant had adequate notice of Bennett’s sexual harassment and assault of women, including information and reports provided by other women who were the defendant’s employees. The jury should be allowed to determine whether the defendant adequately investigated these claims and took appropriate remedial action. With regard to the plaintiffs claim under the Civil Eights Act for sex discrimination in the form of sexual harassment, Bennett allegedly affected a condition of the plaintiffs employment by creating a sexually hostile work environment at the plaintiffs workplace and the defendant was the only one that had the authority to control Bennett, who was the defendant’s employee. The plaintiff can also bring a claim for negligent retention. The Civil Rights Act did not abolish this claim. Bennett’s behavior allegedly was assaultive in addition to being sexual harassment. The jury should be allowed to determine whether the defendant acted reasonably in retaining Bennett. The decision of the Court of Appeals should be reversed in part and affirmed in part, and the plaintiff should be allowed to proceed on her claim for negligent retention and her claim under the Civil Rights Act. 1. Civil Rights - Civil Rights Act — Sexual Harassment. , The Civil Rights Act provides the sole remedy for alleged acts of sexual harassment in the workplace; there is no common-law claim for an employer’s negligent retention of an offending employee in the context of workplace harassment (MCL 37.2101 et seq.). 2. Civil Rights — Civil Rights Act — Actions — Nonemployer Defendants. An employer’s liability for discrimination under the Civil Rights Act does not require an employment relationship with a plaintiff worker; a worker is entitled to bring an action against a nonemployer defendant if the worker can establish that the defendant affected or controlled a term, condition, or privilege of the worker’s employment (MCL 37.2202). Scheff & Washington, PC. (by George B. Washington and Miranda K.S. Massie), for the plaintiff. Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Elizabeth Hardy and Julia Turner Baumhart) (.Patricia J. Boyle, of counsel), for Ford Motor Company. MARKMAN, J. We granted leave to appeal in this case to resolve two questions: (1) whether a common-law claim of negligent retention can be premised on sexual harassment in light of the remedies provided by the Civil Rights Act (CRA), MCL 37.2101 et seq.; and (2) whether an employer can be held liable under the CRA for sexual harassment against a nonemployee. The trial court granted summary disposition to defendant on both issues, ruling that there was insufficient notice to Ford to support the negligent retention theory, and that plaintiff could not pursue a claim under the CRA without demonstrating at least a “quasi-employment” relationship. The Court of Appeals affirmed with respect to the CRA claim, but reversed with respect to plaintiffs negligent retention claim. We hold that: (1) a common-law claim for negligent retention cannot be premised upon workplace sexual harassment; and (2) because plaintiff has failed to establish a genuine issue of material fact that defendant affected or controlled a term, condition, or privilege of her employment, she cannot bring a claim against defendant under the CRA. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals, and reinstate the. trial court’s order of summary disposition in favor of defendant. I. FACTS AND PROCEDURAL HISTORY Defendant Ford Motor Company hired AVI Food Systems to operate three cafeterias at its Wixom assembly plant. Plaintiff Milissa McClements was hired by AVI as a cashier at the Wixom plant in March 1998. Plaintiff testified that Daniel Bennett, then a superintendent in the predelivery department of the plant, had in November 1998 invited her on “three or four” occasions to meet him at a local fast food restaurant. On each occasion, plaintiff rebuffed his invitation. According to plaintiff, Bennett “seemed very persistent, like he didn’t understand that I wasn’t interested.” Plaintiff acknowledged that, at this point, Bennett was polite, and there was no testimony that he used sexual or foul language. Bennett denies making any such invitations. Plaintiff described two additional encounters with Bennett that occurred during this same time period. During the first of these encounters, Bennett allegedly entered the cafeteria while it was closed, and approached plaintiff from behind. Plaintiff testified that “I was facing the opposite way. He came up and just grabbed me and turned me around and stuck his tongue in my mouth.” After “a few days,” plaintiff allegedly had a second encounter with Bennett in the closed cafeteria. According to plaintiff, Bennett again grabbed her from behind, attempted to stick his tongue in her mouth, and stated, “Come on, I know you want it. Isn’t there somewhere we can go and have sex?” Plaintiff refused this advance, and Bennett left the cafeteria. Plaintiff allegedly reported the incidents to her union steward, but claims that she was advised that if she reported the incident to defendant, it would “turn around and stab you in the back and you [would] end up losing your job.” Plaintiff did not report the incident to either defendant or AVI until the instant lawsuit was filed. In 2000, plaintiff was approached by another Ford employee, Justine Maldonado, who claimed that she had also been sexually harassed by Bennett. Specifically, Maldonado claimed that in January or February 1998, Bennett exposed himself to her and demanded oral sex in the parking lot of the Wixom plant. Bennett also allegedly followed Maldonado in his car, got out after she had stopped at a floral shop, and reached into her car and tugged on her blouse. In late-October 1998, Maldonado told Joe Howard, her uncle and a production manager at Wixom, about the incidents. During “the last couple days” in October, Maldonado told David Ferris, a former Ford superintendent who was on temporary assignment to her union, about the incidents. Maldonado testified that she spoke with Ferris just before undergoing knee surgery on November 2, 1998. Ferris testified that “two or three days” later, he confronted Bennett about Maldonado’s accusations. The next day, Ferris informed Jerome Rush, Wixom’s director of labor relations, about the alleged incidents of sexual harassment. Ferris testified that the conversation lasted a minute “at the most.” Rush allegedly told Ferris that he “need not be involved in these types of issues” and took no further action. Even after learning of the Maldonado incidents, plaintiff did not come forward with her allegations. However, plaintiffs attitude changed after Maldonado informed her in August 2001 that Bennett had exposed himself to three teenage girls. In 1995, Bennett was convicted of misdemeanor indecent exposure, for exposing himself to three teenage girls on 1-275 while he was driving a company car. Defendant was aware of the incident, because the police determined Bennett’s identity by tracing the car through Ford. After learning about the indecent exposure arrest and conviction, plaintiff filed the instant lawsuit in September 2001. Plaintiff claimed that defendant: (1) negligently retained Bennett, whom it knew had a propensity to sexually harass women; and (2) breached its obligation under the CRA to prevent Bennett from sexually harassing her. The trial court granted defendant’s motion for summary disposition. First, the trial court found that there was no evidence that defendant knew of Bennett’s propensity to sexually harass women in the workplace. Maldonado’s complaints to her uncle and friend were not sufficient to give defendant notice of Bennett’s sexually harassing behavior and the 1995 conviction alone is insufficient to establish that propensity. Thus, defendant could not be held liable under the negligent retention theory. Second, the trial court found that plaintiff as a nonemployee could not hold defendant liable under the CRA. However, even if defendant were potentially liable under the CRA, it could not be held liable under these circumstances, because its higher management was never made aware of the allegedly sexually harassing behavior. In an unpublished opinion, the Court of Appeals affirmed in part and reversed in part the judgment of the trial court. Unpublished opinion per curiam of the Court of Appeals, issued April 22, 2004 (Docket No. 243764). The Court of Appeals held that defendant’s knowledge of the indecent exposure arrest and Maldonado’s allegations created a genuine issue of material fact whether defendant “knew or should have known of Bennett’s sexually derogatory behavior toward female employees.” However, the Court of Appeals also applied the “economic reality test,” Ashker v Ford Motor Co, 245 Mich App 9, 14; 627 NW2d 1 (2001), and held that defendant was not plaintiffs employer. As a result, the Court of Appeals concluded that plaintiff could not maintain a CRA complaint against an entity that is not her employer. This Court granted defendant’s application for leave to appeal, as well as plaintiffs application for leave to file a cross-appeal. 471 Mich 937 (2004). II. STANDARD OF REVIEW We review de novo the grant or denial of a motion for summary disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). A motion under MCR 2.116(C)(10) tests the factual support of a plaintiffs claim. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Summary disposition is only permitted if the evidence, while viewed in a light most favorable to the plaintiff, fails to establish a claim as a matter of law. Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000). We review de novo the questions whether the CRA displaces a common-law claim for negligent retention based upon sexual harassment in the workplace and whether an employer can be held liable under the CRA for sexual harassment against a nonemployee because they are questions of law. Morales v Auto-Owners Ins Co (After Remand), 469 Mich 487, 490; 672 NW2d 849 (2003). III. ANALYSIS The issue in this case is not whether Bennett has engaged in reprehensible conduct either inside or outside the workplace. Rather, the issues are: (1) whether defendant negligently retained Bennett as a supervisor as of the time Bennett allegedly sexually harassed plaintiff, despite the fact that it knew or should have known of his propensity to sexually harass women; and (2) whether defendant is responsible under the CRA for failing to prevent sexual harassment of plaintiff even though plaintiff was not a direct employee of defendant. A. NEGLIGENT RETENTION CLAIM Plaintiffs first theory is that defendant negligently retained Bennett as a supervisor aftef learning of his propensity to sexually harass women. In general, an employer is not responsible for an intentional tort in the workplace committed by its employee acting outside the scope of employment. Martin v Jones, 302 Mich 355, 358; 4 NW2d 686 (1942). However, this Court has previously recognized an exception to this general rule of liability when the employer “ ‘knew or should have known of his employee’s propensities and criminal record before commission of an intentional tort by [that] employee ....’” Hersh v Kentfield Builders, Inc, 385 Mich 410, 412; 189 NW2d 286 (1971) (citation omitted). Plaintiff argues that defendant knew of Bennett’s “propensity” to engage in sexually harassing behavior because of: (1) Bennett’s 1995 indecent exposure conviction; and (2) Maldonado’s complaints to defendant’s supervisor (Howard) and labor relations representative (Rush) concerning Bennett’s harassment. Plaintiff concludes that defendant breached its duty of reasonable care by retaining Bennett despite its knowledge of his previous actions. The Court of Appeals held that whether defendant “knew or should have known” of Bennett’s propensities was a question of fact for the jury. However, in those cases in which we have held that an employer can be held liable on the basis of its knowledge of an employee’s propensities, the underlying conduct comprised the common-law tort of assault. See Hersh, supra at 412; Bradley v Stevens, 329 Mich 556, 563; 46 NW2d 382 (1951). In the instant case, however, the entire premise for plaintiffs negligent retention claim is the statutorily based tort of sexual harassment. Before passage of the CRA, Michigan did not provide a common-law remedy for workplace discrimination. Pompey v Gen Motors Corp, 385 Mich 537, 552; 189 NW2d 243 (1971). Plaintiffs protections against being sexually harassed in the workplace are wholly creatures of statute. “ ‘Where a statute gives new rights and prescribes new remedies, such remedies must be strictly pursued; and a party seeking a remedy under the act is confined to the remedy conferred thereby and to that only.’ ” Monroe Beverage Co, Inc v Stroh Brewery Co, 454 Mich 41, 45; 559 NW2d 297 (1997), quoting Lafayette Transfer & Storage Co v Pub Utilities Comm, 287 Mich 488, 491; 283 NW 659 (1939). Here, the CRA provides the right to be free from sexual harassment, MCL 37.2103(i), and accords an aggrieved worker the remedy of “a civil action for appropriate injunctive relief or damages, or both.” MCL 37.2801(1). Plaintiffs remedy, then, for any act of sexual harassment is limited to those provided by the CRA. Accordingly, there is no common-law claim for negligent retention in the context of workplace sexual harassment. Plaintiff invokes MCL 37.2803, which states that the CRA “shall not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state.” However, contrary to the dissent’s theory, post at 397, this statutory language does not allow a worker to bring a CRA claim under the guise of a negligent retention claim. Rather, this provision simply allows a worker to bring suit under any legal theory that existed before the passage of the CRA. Thus, a worker would not be barred by the CRA from bringing a common-law negligent retention claim, as long as the premise for that claim is a tort that existed before passage of civil rights legislation. Therefore, because the CRA provides the exclusive remedy for a claim based on sexual harassment, plaintiff has failed to establish a claim of negligent retention, and no inquiry into whether defendant possessed sufficient notice that Bennett was engaged in sexual harassment is necessary. B. CIVIL RIGHTS ACT CLAIM Plaintiffs second theory is that defendant failed to prevent sexual harassment in the workplace. MCL 37.2202(1) states in pertinent part: An employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. (b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status. (c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including, but not limited to, a benefit plan or system. Discrimination based on sex includes sexual harassment. MCL 37.2103(i). The statute defines sexual harassment as follows: Sexual harassment m
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