GROW v. W A THOMAS COMPANY
Case Details
- Citation
- 236 Mich. App. 696
- Judge(s)
- Before: Murphy, P.J., and Doctoroff and Neff, JJ.
- Procedural Posture — the stage the case had reached
- jury verdict
- State
- Michigan
- Circuit
- 6th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Plaintiff Shirley Grow prevailed in her hostile work environment claim against W.A. Thomas Company for sexual harassment by supervisor Dennis Arquette. The jury awarded $80,555 in emotional distress damages, and the court awarded attorney fees and costs. The appellate court affirmed the liability finding and remanded for determination of appellate attorney fees.
Excerpt
GROW v W A THOMAS COMPANY Docket No. 209865. Submitted July 1, 1999, at Lansing. Decided August 6, 1999, at 9:00 a.m. Leave to appeal sought. Shirley A. Grow brought an action in the Washtenaw Circuit Court against W. A. Thomas Company and W. A. Thomas Company supervisor Dennis Arquette, alleging liability under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and seeking damages for constructive discharge and emotional distress for sexual discrimination in the form of a hostile work environment. The court, Melinda Morris, J., granted summary disposition for the defendants with respect to the constructive discharge claim. A mediation panel rendered an evaluation in favor of the plaintiff. The mediation evaluation was accepted by the plaintiff, but rejected by the defendants. A jury returned a verdict for the plaintiff. The court entered a judgment consistent with the verdict, and awarded interest, costs, and attorney fees. The award of attorney fees was made pursuant to the Civil Rights Act and the mediation court rule, MCR 2.403. The defendants appealed. The Court of Appeals held: 1. The trial court did not abuse its discretion in rejecting the defendants’ proposed jury instruction regarding how an employer can avoid liability for a hostile work environment through adequate investigation and prompt and remedial action. The trial court fairly and accurately advised the jury of the applicable law by instructing the jurors to determine whether W. A. Thomas Company, once it knew or should have known of the alleged harassment by Arquette, adequately investigated and implemented prompt and appropriate corrective action. 2. The trial court did not abuse its discretion in rejecting portions of the defendants’ proposed jury instructions that dealt with unwelcome sexual conduct or communication and an employee’s participation in sexual conduct or communication. The proposed instruction concerning participation in sexual conduct or communication would have incorrectly advised the jury that such participation, standing alone, will defeat a claim of hostile work environment. The trial court’s instruction concerning unwelcome sexual conduct or communication fairly and adequately stated the applicable law. 3. The trial court properly refused to instruct the jury that the plaintiffs damages for emotional distress should be limited as of the date the defendants discovered certain false statements on the plaintiffs employment application. Evidence of employee wrongdoing acquired after the employer has illegally discriminated against the employee may limit the amount of economic damages available to the employee, but may not limit the amount of damages for emotional distress. The purpose of the after-acquired evidence rule is to ensure that an employee does not benefit from the employee’s own misconduct or misrepresentation in obtaining employment that otherwise would have been denied to the employee, a consideration not present where only damages for emotional distress are claimed. 4. The trial court did not abuse its discretion in excluding the testimony of a rebuttal witness for the defendants. Because the defendants did not file a counterclaim, they were not entitled to present rebuttal evidence after resting their defense. In any event, the proposed rebuttal testimony would have been cumulative to evidence already presented by other defense witnesses. 5. By not objecting at trial, the defendants failed to preserve their challenge to the plaintiffs testimony that she felt compelled to quit her job. The trial court properly refused to admit into evidence the order that dismissed the plaintiffs claim of constructive discharge. Such an admission could have caused juror confusion. 6. The trial court did not abuse its discretion in allowing the plaintiffs therapist to testify as an expert regarding posttraumatic stress disorder. The therapist, a certified social worker, was qualified to testify as an expert by virtue of his experience in counseling persons who suffered from the disorder. The fact that he was not a medical practitioner did not render him unqualified as an expert witness. Any limitations in his qualifications are relevant to the weight, not the admissibility, of his testimony. 7. The trial court did not abuse its discretion in awarding attorney fees to the plaintiff under the Civil Rights Act. The trial court clearly and carefully considered the results achieved and the existence of the contingent fee agreement in determining a reasonable attorney fee. 8. The trial court’s award of attorney fees under the mediation court rule, MCR 2.403, must be vacated. A prevailing party may not recover an award of attorney fees under MCR 2.403 where the party has already been compensated for reasonable attorney fees under a fee-shifting statute like the Civil Rights Act. 9. The trial court properly awarded prejudgment interest on the entire judgment, including the award of costs and attorney fees. MCL 600.6013; MSA 27A.6013, in providing that interest attributable to that part of the money judgment from which attorney fees are paid shall be retained by the plaintiff, does not render ambiguous its requirement that interest be calculated on the entire amount of the judgment, including attorney fees and costs. 10. The matter must be remanded for a determination of reasonable appellate attorney fees awardable to the plaintiff. Affirmed in part, vacated in part, and remanded. 1. Civil Rights — Sexual Harassment — Hostile Work Environment — Employees — Supervisors — Affirmative Defense. An employer is vicariously liable for a supervisor’s creation of a hostile work environment unless the employer can prove, by a preponderance of the evidence, that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise; this affirmative defense is not available where the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 2. Civil Rights — Sexual Harassment — Hostile Work Environment. A plaintiff employee who claims hostile work environment must establish that the employee belonged to a protected group, that the employee was subjected to communication or conduct on the basis of sex, that the employee was subjected to unwelcome sexual conduct or communication, and that the unwelcome sexual conduct or communication was intended to or in fact substantially interfered with tíie employee’s employment or created an intimidating, hostile, or offensive work environment, and must establish respondeat superior (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 3. Civil Rights — Sexual Harassment — Hostile Work Environment — Employee Participation in Sexual Conduct or Communication. A plaintiff employee’s participation in sexual behavior or comments, standing alone, does not necessarily defeat a claim of hostile work environment; such participation is merely a factor to consider when determining whether the conduct or comments were unwelcome (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 4. Civil Rights — Employment Discrimination — Employee Wrongdoing — Damages. Evidence of wrongdoing by an employee that is acquired by the employer after the employer has illegally discriminated against the employee may limit the amount of economic damages available to the employee for discrimination, but may not limit the amount of damages available for emotional distress (MCL 37.2101 et seq.; MSA 3.648[101] et seq.). 5. Civil Rights — Civil Rights Act — Attorney Fees. A court determining a reasonable attorney fee to be awarded in an action brought pursuant to the Civil Rights Act considers the skill, time, and labor involved, the likelihood, if apparent to the client, that the acceptance of the employment will preclude other employment by the lawyer, the fee customarily charged in that locality for similar services, the amount in question and the results achieved, the expense incurred, the time limitations imposed by the client or the circumstances, the nature and length of the professional relationship with the client, the professional standing and experience of the attorney, and whether the fee is fixed or contingent (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 6. Pretrial Procedure — Mediation — Attorney Fees. A prevailing party may not recover an award of attorney fees under the mediation court rule where the party has already been compensated for reasonable attorney fees under a fee-shifting statute (MCR 2.403). 7. Civil Rights — Civil Rights Act — Attorney Fees — Appellate Attorney Fees. The purpose of the Civil Rights Act provision for attorney fees is to encourage persons deprived of their civil rights to seek legal redress, to ensure victims of discrimination access to the courts, and to deter discrimination; appellate attorney fees may be awarded under the act (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Kurt Berggren, for Shirley A. Grow. Barlow & Derby (by Matthew S. Derby and Christine R. Essique), for W. A. Thomas Company and Dennis Arquette. Amicus Curiae: Clark Hill P.L.C. (by Duane L. Tamacki, J. Walker Henry, and Julie A. Lawson), for Michigan Manufacturers Association. Before: Murphy, P.J., and Doctoroff and Neff, JJ. Neff, J. Defendants W. A. Thomas Company (hereafter defendant) and Dennis Arquette appeal as of right from the trial court’s judgment for plaintiff in this sexual harassment case involving an alleged hostile work environment. We affirm in part, vacate the judgment in part, and remand for further proceedings consistent with this opinion. i Plaintiff began working for defendant in March 1994. Plaintiff testified that from the very beginning Arquette, her supervisor, subjected her to continuous sexual harassment. We do not deem it necessary to describe in detail the specific conduct described by plaintiff. It is sufficient to note that plaintiff testified that Arquette’s alleged conduct toward her included sexually explicit comments and unwanted kissing and groping; Plaintiff testified that she complained about Arquette’s conduct to another supervisor and to the plant manager, and that these men personally witnessed some of Arquette’s sexual conduct in the workplace, but that no action was taken to punish Arquette for the sexual harassment or to prevent further occurrences. Plaintiff testified that after Arquette began berating her for things such as her attitude, work output, and attendance record, she quit. Plaintiff testified that defendant sent her a copy of a newly formed sexual harassment policy and ordered her to return to work. Plaintiff complied, but found the harassment had turned from sexual to something more hostile. After four days back on the job, plaintiff quit again. She described for the jury the emotional distress she suffered, including a suicide attempt and various physical ailments. Defendants denied that plaintiff was subjected to a sexual and hostile work environment. Arquette stated that although he may have touched plaintiff, or given her a casual hug on occasion, he denied ever touching her in a sexual manner. In addition, defendant’s plant manager denied witnessing any inappropriate conduct by Arquette and denied that plaintiff ever complained of sexual harassment before quitting. Defendants presented evidence regarding their investigation of Arquette’s conduct, which failed to reveal any corroboration of plaintiff’s allegations. Defendants also presented evidence that plaintiff, rather than Arquette, was the one who made crude, sexual comments and engaged in offensive behavior in the workplace. In addition, defendants presented the testimony of some of plaintiff’s former employers, who testified that the reasons for plaintiff’s leaving previous employment were insubordination and poor attendance, contrary to plaintiff’s representations on her employment application with defendant. Plaintiff filed a complaint alleging a hostile work environment pursuant to the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) et seq. On defendants’ motion, plaintiff’s constructive discharge claim was summarily dismissed, thus leaving only her claim for emotional distress damages. A mediation evaluation for $125,000 was accepted by plaintiff and rejected by defendants. After a six-day jury trial, the jury found defendants liable and awarded plaintiff $80,555 in emotional distress damages. The court awarded plaintiff $43,376.66 in attorney fees and costs, and $37,827.50 in mediation sanctions, bringing the total judgment to $192,684. This appeal followed. n Defendants raise several challenges to the instructions given to the jury. A trial court’s decisions regarding jury instructions are reviewed for an abuse of discretion. Lagalo v Allied Corp (On Remand), 233 Mich App 514, 519; 592 NW2d 786 (1999). We review the instructions in their entirety and will not reverse a court’s decision regarding supplemental instructions unless failure to vacate the verdict would be inconsistent with substantial justice. Nabozny v Pioneer State Mut Ins Co, 233 Mich App 206, 217; 591 NW2d 685 (1998). A Defendants first argue that the trial court erred in its instructions regarding the effect of defendants’ investigation of plaintiff’s complaints and subsequent remedial action. We disagree. As defendants correctly note, an employer may avoid liability under the CRA “if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment.” Downer v Detroit Receiving Hosp, 191 Mich App 232, 234; 477 NW2d 146 (1991); see Radtke v Everett, 442 Mich 368, 396; 501 NW2d 155 (1993). However, the duty to investigate arises only if the employer has actual or constructive notice of the alleged offensive environment. Downer, supra at 234-235. In the recent cases of Burlington Industries, Inc v Ellerth, 524 US 742; 118 S Ct 2257; 141 L Ed 2d 633 (1998), and Faragher v Boca Raton, 524 US 775; 118 S Ct 2275; 141 L Ed 2d 662 (1998)—both decided after trial in the present case—the United States Supreme Court held that an employer is vicariously hable for a supervisor’s creation of a hostile environment unless the employer can prove, by a preponderance of the evidence, both elements of the following affirmative defense: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. [Ellerth, supra, 118 S Ct 2270; Faragher, supra, 118 S Ct 2293.] This affirmative defense is not available where the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. Id. On appeal, defendants complain that the trial court erred in refusing to give their proposed instruction regarding this subject in its entirety. We find no abuse of discretion in the trial court’s decision. Although the court’s instructions perhaps were not as detailed as defendants may have liked, they fairly and accurately advised the jury of the applicable law. The jury was instructed that it must determine whether defendant, once it knew or should have known of the alleged harassment committed by Arquette, adequately investigated and implemented prompt and appropriate corrective action. On its verdict form, the jury specifically found that defendant did not. The result of this determination by the jury, whether viewed as an element of plaintiff’s claim or as a part of an affirmative defense, is vicarious liability for defendant. Consequently, substantial justice does not require reversal of the jury’s verdict on the basis of the trial court’s failure to read instruction 36 in its entirety. B Defendants also argue about the trial court’s rulings regarding defendant’s proposed instructions 33 and 34, which focus on evidence of plaintiff’s own sexual activities in the workplace. The trial court gave the first paragraph, but not the second, of each of these instructions: 33. DEFINITION OF UNWELCOME SEXUAL CONDUCT OR COMMUNICATION The threshold for determining that sexual conduct or communication is unwelcome is that the employee did not solicit or incite it, and the employee regarded the sexual conduct or communication as undesirable or offensive. Evidence of an employee’s participation and/or initiation in the sexual conduct or communication is relevant to determining whether the employee found the sexual conduct or communication of others unwelcome. An employee’s participation and/or initiation in the sexual conduct or communication will defeat an employee’s allegation of unwelcomeness unless the employee establishes a point at which her participation and/or initiation stopped and at which she made known to her coworkers or supervisors that the sexual conduct or communication would henceforth be considered unwelcome. 34. DEFINITION OF INTIMIDATING, HOSTILE, OR OFFENSIVE WORK ENVIRONMENT Not all sexual conduct or communication constitutes hostile environment sexual harassment. To sustain a claim of hostile environment sexual harassment, the harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Evidence of an employee’s active contribution in the sexual conduct or communication is relevant to determining whether a hostile working environment existed. An employee’s active contribution in the sexual conduct or communication- will defeat an employee’s allegation of hostile work environment. In the present case, plaintiff bore the burden of establishing the following elements of a hostile work environment: (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 seocual 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 (emphasis added).] Defendants presented evidence in support of their claim that plaintiff often engaged in sexual conduct herself. Plaintiffs own conduct was therefore relevant to the question whether Arquette’s alleged acts were “unwelcome.” See, e.g., Balletti v Sun-Sentinel Co, 909 F Supp 1539, 1547 (SD Fla, 1995) (“Where a plaintiff’s action in the work place shows that she was a willing and frequent participant in the conduct at issue, courts are less likely to find that the conduct was ‘unwelcome’ or ‘hostile.’ ”) However, plaintiff’s participation in sexual behavior or comments, standing alone, does not necessarily defeat a claim of hostile work environment. To the contrary, it is merely a factor to consider when determining whether the conduct or comments at issue were “unwelcome.” For this reason, the second paragraph of defendants’ proposed instruction 34 is an incorrect statement of the law and was properly rejected by the trial court. Regarding the second paragraph of instruction 33, we note that the last sentence is a reasonable paraphrase of a footnote in Loftin-Boggs v City of Meridian, 633 F Supp 1323, 1327, n 8 (SD Miss, 1986). Accordingly, had the trial court chosen to give this portion of the instruction, it would have been a proper exercise of discretion. See Radtke, supra at 381-382 (Michigan courts often turn to federal precedent interpreting title VII for guidance when interpreting the cra). However, the trial court’s refusal to give the second paragraph of ins
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