SHERIDAN v. FOREST HILLS PUBLIC SCHOOLS
Case Details
- Citation
- 247 Mich. App. 611
- Judge(s)
- Before: Zahra, P.J., and White and Hoekstra, JJ.; Hoekstra, J., concurred.
- Procedural Posture — the stage the case had reached
- summary judgment
- State
- Michigan
- Circuit
- 6th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Michigan Court of Appeals affirmed summary disposition for Forest Hills Public Schools in a hostile work environment sexual harassment case, holding the employer lacked actual or constructive notice of the harassment because the employee did not complain to higher management and the harassment was not pervasive enough to infer employer knowledge.
Excerpt
SHERIDAN v FOREST HILLS PUBLIC SCHOOLS Docket No. 215572. Submitted February 10, 2000, at Grand Rapids. Decided September 25, 2001, at 9:25 A.M. Leave to appeal sought. Vicki S. Sheridan brought an action in the Kent Circuit Court against Forest Hills Public Schools, alleging that the defendant, her employer, is liable to her under the Civil Rights Act, MCL 37.2101 et seq., for sexual harassment in the form of a hostile work environment created by a co-worker. The court, Robert A. Benson, J., granted summary disposition for the defendant, ruling that the defendant lacked actual or constructive notice on which the defendant could have taken prompt remedial action. The plaintiff appealed. The Court of Appeals held-. 1. An employee who seeks to hold the employer responsible under the Civil Rights Act for a hostile work environment created by a supervisor or co-worker must show that the employer knew or should have known of the harassment in question and failed to take remedial action. The employee can demonstrate that the employer knew of the harassment by showing that the employee complained to higher management of the harassment or by showing the pervasiveness of the harassment, which gives rise to the inference of knowledge or constructive knowledge. 2. “Higher management” means those in the employer’s chain of command who possess the ability to exercise significant influence in the decision-making process of hiring, firing, and administering discipline over the alleged harasser. 3. The defendant lacked actual notice of the alleged harassment inasmuch as the plaintiff did not complain of the harassment to anyone in higher management. 4. The defendant lacked constructive notice of the alleged harassment because the harassment was not substantially pervasive enough that constructive knowledge by the defendant can be inferred. Although the defendant knew that the alleged harasser had harassed two other women at work, constructive knowledge by the defendant of the plaintiff’s harassment cannot be inferred inasmuch as the plaintiff complained only that the alleged harasser “bothered” her and she did not disclose to the defendant the sexual nature of the harassment she allegedly endured. 5. The plaintiff’s claim that the defendant had a duty to inform her of the alleged harasser’s sexual harassment of other workers is rejected absent any citation of supporting authority. Affirmed. White, J., dissenting, stated that the grant of summary disposition for the defendant should be reversed because a genuine issue of material fact exists concerning whether the defendant had notice of the alleged hostile work environment. 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, hi this case, the trier of fact could properly conclude that a reasonable employer would have been aware from the complaints made by the plaintiff to her superiors and from the history of the alleged harasser that there was a substantial probability that the plaintiff was being sexually harassed. Civil Rights — Sexual Harassment — Hostile Work Environment — Employer Liability. An employee who seeks to hold the employer responsible under the Civil Rights Act for a hostile work environment created by a supervisor or co-worker must show that the employer knew or should have known of the harassment in question and failed to take remedial action; the employee can demonstrate that the employer knew of the harassment by showing that the employee complained to higher management of the harassment or by showing the pervasiveness of the harassment, which gives rise to the inference of knowledge or constructive knowledge; “higher management” refers to those who possess the ability to exercise significant influence in the decision-making process of hiring, firing, and administering discipline over the alleged harasser (MCL 37.2101 et seq.). Elizabeth S. Holmes, for the plaintiff. Miller, Johnson, Snell & Cummiskey, P.L.C. (by Jon G. March and Susan B. Hoekema), for the defendant. Before: Zahra, P.J., and White and Hoekstra, JJ. Zahra, P.J. Plaintiff Vicki S. Sheridan appeals as of right the circuit court’s order granting defendant Forest Hills Public Schools summary disposition under MCR 2.116(C)(10) in this hostile work environment sexual harassment case brought under the Civil Rights Act (CRA), MCL 37.2101 et seq. We affirm. FACTS This case arises out of the alleged sexual harassment of plaintiff by Vem Knapp. Both plaintiff and Knapp were custodians employed by defendant when the alleged sexual harassment occurred. The genuine and material facts viewed in a light most favorable to plaintiff establish the following. On August 26, 1993, plaintiff informed defendant’s assistant superintendent of personnel that she was sexually harassed on the job. In a follow-up meeting on August 31, 1993, plaintiff complained that, in the course of her employment on August 23, 1993, Knapp propositioned her and physically exposed himself to her. Defendant immediately began an investigation that culminated in the termination of Knapp’s employment on October 4, 1993. After reporting the incident, plaintiff took a leave of absence and was subsequently placed on a medical leave. Plaintiff never returned to work. On February 28, 1996, plaintiff brought this suit, specifically alleging that Knapp raped her in defendant’s Community and Aquatic Center (the “pool building”) in the spring of 1991. Plaintiff also alleged that Knapp repeatedly harassed and abused her with “sexual demands, unconsented touchings and propositions to engage in sexual activities.” Plaintiff maintained that defendant was liable pursuant to the cra for Knapp’s actions under a theory of respondeat superior. Defendant brought a motion for summary disposition, arguing, in relevant part, that plaintiff never reported any acts of assault or sexual harassment to defendant before August 1993. Defendant maintained that there was no evidence that it failed to take prompt remedial action against Knapp. In the absence of such evidence, defendant argued, it could not be held liable for the actions of Knapp. The trial court granted defendant’s motion for summary disposition. This appeal followed. A. THE MANAGEMENT STRUCTURE OF FOREST HILLS PUBLIC SCHOOLS Defendant is a suburban Grand Rapids school district that is operated under the supervision of a superintendent. Employee matters are administered through the assistant superintendent for personnel. Both plaintiff and Knapp were custodians for defendant. Custodians are supervised by the director of buildings and grounds who reports to the director of operations. The director of operations reports directly to the assistant superintendent for personnel. Custodial crews are divided by facility. At each facility, one custodian is designated the “head custodian.” The head custodian is responsible for noting attendance and insuring that custodial work is properly completed. When a custodial crew consists of more than one custodian per shift, one member of the shift is designated a “lead custodian,” who assumes the duties of the head custodian for that shift. All custodians are members of a collective bargaining unit. The director of buildings and grounds and all persons above him are not members of the collective bargaining unit. The lead and head custodians do not have authority to hire, fire, or discipline employees or to render recommendations regarding pay, hours, or job transfers. Such decisions are made by the superintendent on the basis of recommendations from the director of buildings and grounds, the director of operations, and the assistant superintendent for personnel. B. CLAIMS OF HARASSMENT BEFORE AUGUST 1993 1. KNAPP’S HARASSMENT OF PLAINTIFF Plaintiff testified that in April 1990 Knapp entered the pool building and raped her. Plaintiff admitted that she did not report the rape to anyone. Plaintiff also testified that after the rape, Knapp harassed her by calling her pager repeatedly and by loitering outside the pool building while plaintiff worked. Plaintiff informed Donald Finch, the director of buildings and grounds, and Kathy Knapp, the head custodian at the pool building, that she did not feel safe working nights. Plaintiff asked that security be provided during her shift. However, plaintiff did not complain to anyone that Knapp was harassing her. Plaintiff also testified that in 1991 Knapp entered the pool building and assaulted her in the boiler room by kissing her on the lips and touching her inappropriately. Again, plaintiff admitted that she did not report this incident to anyone. Later in 1991, plaintiff met with Finch and Terri Handlin, director of the community education program and pool building administrator, to discuss job-related problems, including plaintiffs security concerns and plaintiffs conduct of bringing her children to work. Handlin’s handwritten notes from the meeting indicate that plaintiff believed Knapp was calling her pager and loitering outside the pool building while plaintiff worked. The notes also indicate, however, that plaintiff did not want Finch or Handlin to assist plaintiff in dealing with Knapp. Plaintiff’s recollection of the meeting is consistent with Handlin’s notes. Plaintiff testified that Handlin and Finch offered to assist her if Knapp was causing her problems. However, plaintiff declined their help, indicating that she “will take care of it [and] handle it” herself. Plaintiff admitted that she did not tell Finch or Handlin about the rape, and she did not provide them with any specifics about the assault in the boiler room. Handlin discussed the matter with a number of people, including Linda VanderJagt, the assistant superintendent for personnel. Plaintiff also met with VanderJagt, Paul Northuis, the director of operations, and a union representative sometime in the summer of 1991 to discuss her work situation. VanderJagt testified that she asked plaintiff to attend the meeting to discuss plaintiff’s claims that Knapp was making noises outside the pool building and calling plaintiff’s pager. VanderJagt asked plaintiff if Knapp was bothering her. Plaintiff responded that it was none of their business. Plaintiff claimed that she and Knapp were friends. Plaintiff indicated that she did not want the school involved in her personal life. VanderJagt focused on Knapp because it was brought to her attention that plaintiff had mentioned his name as being the person calling her pager and loitering outside the pool building while she worked. Additionally, VanderJagt was aware that Knapp was previously disciplined because of a 1988 complaint of sexual harassment by another employee. After VanderJagt met with plaintiff, she met with Knapp. Because plaintiff did not make any complaint against Knapp, VanderJagt merely informed Knapp that there had been rumors that Knapp had made “inappropriate statements or gestures.” VanderJagt reminded Knapp that, pursuant to the 1988 discipline, any farther acts of harassment would result in the termination of his employment. VanderJagt did not discipline Knapp at that time. In September 1991, plaintiff was assigned to work at Northern High School (Northern). Shortly thereafter, Knapp applied for and received a custodial position at Northern. Plaintiff testified that after Knapp received the position she told Mark Scoby, the head custodian at Northern, that “[Knapp] better not come on my side of the building.” Scoby specifically inquired about what had happened at the pool building. Plaintiff informed Scoby that the pool incident “was bad.” However, plaintiff admitted that she did not provide Scoby with specifics and did not tell Scoby that she had been raped or sexually assaulted. Plaintiff testified that Scoby told her not to worry and that if anything happened at Northern, “we’ll take care of it.” Plaintiff claimed that in the summer of 1993 Knapp tried to communicate with her and “rubbed up” against her when she and Knapp were assigned to work together at Northern. Plaintiff complained to Scoby about Knapp making physical contact with her. Scoby confronted Knapp and told plaintiff that she could work in a different area. Neither Scoby nor plaintiff informed their immediate supervisor, Finch, or anyone else about the incident of physical contact. 2. PRIOR COMPLAINTS AGAINST KNAPP In 1988, a female employee claimed that she was sexually harassed by Knapp in the course of her employment. Defendant immediately investigated the complaint and found it to be meritorious. Knapp was disciplined. The discipline included a five-day suspension without pay. Additionally, Knapp was ordered to stay away from the employee who was the victim of his harassment, reassigned, and placed on probation. Shortly after Knapp was suspended in 1988, another female employee informed Finch that she had “problems” with Knapp three years earlier. No specifics were provided to Finch and no formal complaint was made. ANALYSIS We review de novo a motion for summary disposition based on MCR 2.116(C)(10). Motions brought under this court rule test the factual support of a claim. Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996). The moving party has the initial burden of supporting its position with documentary evidence such as affidavits, depositions, admissions, or interrogatory responses. Smith v Globe Life Ins Co, 460 Mich 446, 454-455; 597 NW2d 28 (1999). The burden then shifts to the opposing party to establish the existence of a factual dispute. Id. at 455. If the party opposing the motion fails to present documentary evidence establishing the existence of a genuine and material fact, the motion should be granted. Id.; Aetna Casualty & Surety Co v Ralph Wilson Plastics Co, 202 Mich App 540, 548; 509 NW2d 520 (1993). Under the CRA, a prima facie case of hostile work environment sexual harassment includes the following five elements: “(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.” [Chambers v Trettco, Inc, 463 Mich 297, 311; 614 NW2d 910 (2000), quoting Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993).] The last element is at issue here. As a general rule, “an employer may avoid liability ‘if it adequately investigated and took prompt and appropriate action upon notice of the alleged hostile work environment.’ ” Radtke, id. at 396, quoting Downer v Detroit Receiving Hosp, 191 Mich App 232, 234; 477 NW2d 146 (1991). Thus, an employer must have actual or constructive notice of the alleged harassment before liability will attach to the employer. Radtke, supra at 397, n 44, citing Downer, supra at 235; Grow v W A Thomas Co, 236 Mich App 696, 702-703; 601 NW2d 426 (1999), citing Downer, supra; Kauffman v Allied Signal, Inc, 970 F2d 178, 183 (CA 6, 1992). In McCarthy v State Farm Ins Co, 170 Mich App 451; 428 NW2d 692 (1988), this Court explained what was meant by actual or constructive knowledge. “Where . . . the plaintiff seeks to hold the employer responsible for the hostile environment created by the plaintiff’s supervisor or co-worker, she must show that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. . . . The employee can demonstrate that the employer knew of the harassment by showing that she complained to higher management of the harassment... or by showing the pervasiveness of the harassment, which gives rise to the inference of knowledge or constructive knowledge.” [Id. at 457, quoting Henson v Dundee, 682 F2d 897, 905 (CA 11, 1982).] See Hartleip v McNeilab, Inc, 83 F3d 767, 776-777 (CA 6, 1996). Courts must apply an objective standard of review when considering whether the employer was provided adequate notice. Chambers, supra at 319. “[N]otice 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.” Id. (emphasis added). A. DEFENDANT DID NOT HAVE ACTUAL NOTICE OF A HOSTILE WORKPLACE Applying these legal principles to this case, we conclude that defendant did not have actual knowledge of the sexual harassment before August 1993 because plaintiff did not complain about the harassment to higher management. The term “higher management” is not defined in McCarthy or any subsequent case involving a claim under the CRA. We define this term to mean 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 offensive employee. This definition is consistent with our Supreme Court’s analysis of harassment alleged by “supervisors.” See Chambers, supra at 318-319; Champion v Nation Wide Security, Inc, 450 Mich 702, 705; 545 NW2d 596 (1996); Radtke, supra at 396-397. By defining “higher management” as we have, we are identifying management employees who have actual authority to effectuate change in the workplace. These are the type of employees implicitly referred to as “higher management” in McCarthy. Moreover, the purpose of defining the term “higher management” is to identify the employees whose knowledge may fairly be imputed to the employer. In Chambers, our Supreme Court observed that the term “employer” is statutorily defined under the cra to include the employer and its agents. Chambers, supra at 311. Because these “higher management” employees are vested by the employer with actual authority to effectuate change in the workplace, principles of agency law support the conclusion that the knowledge they possess regarding conditions in the workplace would properly be imputed to the employer. We reject plaintiff’s contention that defendant possessed actual knowledge of a hostile workplace because plaintiff informed the head custodian at Northern of some of her concerns regarding Knapp. AH recommendations regarding hiring, firing, pay, job assignments, hours, and discipline of custodians were made by Northuis, Finch, and VanderJagt. Therefore, Northuis, Finch, and VanderJagt are the only individuals involved that could reasonably have their knowledge imputed to defendant. Significantly, plaintiff did not teU any of these individuals about the assaults or sexual harassment until August 1993. Plaintiff testified that before August 1993, she simply complained that Knapp “bothered” her. She concedes that she did not directly state to her “recognized” supervisors that she felt the harassment was of a sexual nature. Our conclusion that plaintiff did not report any aHeged sexual harassment so as to impute knowledge to defendant is not altered when considered in Hght of defendant’s express sexual harassment pohcy. Defendant’s sexual harassment pohcy states, in pertinent part: Any employee who has been subject to or witnessed sexual harassment in the workplace is requested and encouraged to report the sexual harassment to an appropriate supervisor or to the Assistant Superintendent for Personnel and to cooperate in any subsequent investigation. Under Michigan law, an employer may enhance its employment relationship with its employees through express policies and practices. See In re Certified Question, 432 Mich 438, 453-454; 443 NW2d 112 (1989), quoting Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 613; 292 NW2d 880 (1980); see also Heurtebise v Reliable Business Computers, Inc, 452 Mich 405, 412-
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