ELEZOVIC v. FORD MOTOR COMPANY
Case Details
- Citation
- 259 Mich. App. 187
- Judge(s)
- Before: Jansen, P.J., and Neff and Kelly, JJ.; Jansen, P.J., concurred.
- Procedural Posture — the stage the case had reached
- appeal
- State
- Michigan
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Appellate court affirmed directed verdicts for both Ford Motor Company and supervisor Bennett on plaintiff's sexual harassment and gender discrimination claims. While the court found error regarding Bennett's individual liability for hostile environment harassment, it was bound by prior precedent (Jager) limiting liability to employers only, not individual supervisors.
Excerpt
ELEZOVIC v FORD MOTOR COMPANY Docket No. 236749. Submitted August 7, 2003, at Detroit. Decided October 23, 2003, at 9:10 A.M. Leave to appeal sought. Lula Elezovic brought an action in the Wayne Circuit Court against her employer, Ford Motor Company, and her supervisor, Daniel P. Bennett, alleging liability under the Civil Rights Act, MCL 37.2101 et seq., for sexual harassment and gender discrimination. Following the presentation of proofs at a jury trial, the court, Kathleen I. MacDonald, J., directed verdicts in favor of the defendants. The plaintiff appealed, and the defendants cross-appealed to raise a statute of limitations issue about an allegation of sexual harassment. The Court of Appeals held: 1. The trial court did not err in directing a verdict in favor of Ford on the claim of “hostile work environment” sexual harassment. In order to be liable for not adequately investigating and taking prompt and remedial action against an employee’s being subjected to unwelcome sexual conduct or communication by another employee, the employer must have notice of the alleged harassment. In this case, the trial court correctly determined that Ford did not have actual or constructive notice of the alleged sexual harassment by Bennett. Although the plaintiff complained to other supervisors about sexual harassment by Bennett, she asked those supervisors not to tell anyone else and not to pursue the matter further with the Ford department responsible for investigating claims of sexual harassment. Communications made to Ford by others on the plaintiffs behalf conveyed matters not related to the alleged sexual harassment by Bennett and were therefore insufficient to provide Ford with actual notice of the alleged harassment. Other evidence presented by the plaintiff was not sufficient to show that Bennett’s alleged harassment was so pervasive that it gave rise to constructive notice on the part of Ford. 2. The trial court erred in concluding that the plaintiff failed to establish a hostile environment sexual harassment claim against Bennett. However, MCR 7.215(J) binds the Court of Appeals to follow the holding in Jager v Nationwide Track Brokers, Inc, 252 Mich App 464 (2002), that liability under the Civil Rights Act for sexual harassment by a workplace supervisor may not be imposed on the supervisor individually because liability is limited to the employer only. Jager requires a conclusion that Bennett has no individual liability for sexual harassment. Were it not for Jager, the Court of Appeals would reverse the trial court’s grant of a directed verdict for Bennett on the claim of hostile environment sexual harassment. The Jager panel’s reliance on federal law and precedent for its holding was misplaced. Unlike federal law, the Michigan Civil Rights Act expressly establishes a cause of action for sexual harassment, and employer liability under the Civil Rights Act is based on traditional agency principles. The Civil Rights Act defines “employer” to include an agent of the employer. Employer liability for sexual harassment under the Civil Rights Act extends to the harassing employee himself. 3. The trial court did not err in directing verdicts for the defendants on the claim of gender discrimination. The trial court correctly concluded that the plaintiff failed to prove that a similarly situated male employee had been treated more favorably. 4. The trial court did not eix in directing verdicts for the defendants on the claim of quid pro quo sexual harassment. The plaintiff presented no evidence that she suffered an adverse employment action as a result of the alleged harassment. 5. The trial court did not abuse its discretion in excluding evidence of Bennett’s conviction of indecent exposure. The plaintiff failed to establish a proper purpose for the admission of the evidence pursuant to MRE 404(b) inasmuch as indecent exposure outside the workplace was not sufficiently similar to workplace sexual harassment to establish a common plan, scheme, or system. The evidence was not admissible against Ford as proof that Ford had notice of the alleged sexual harassment by Bennett. The prejudicial nature of the evidence outweighed its probative value. 6. The trial court did not abuse its discretion in excluding evidence of other sexual harassment complaints at the plant where the plaintiff worked. Contrary to the plaintiff’s contention, such evidence was not necessary for consideration of the totality of circumstances in the plaintiff’s particular work environment. 7. The trial court did not abuse its discretion in disallowing the plaintiff to add a witness who was not identified on her witness list within the time established by the trial court. 8. The defendants’ cross-appeal need not be considered in light of the disposition of the plaintiff’s appeal. Affirmed. Kelly, J., concurring, disagreed that Jager was wrongly decided. The inclusion of “agent” within the Civil Rights Act definition of “employer” does not signal an intent by the Legislature to make individuals as well as employers liable under the act. Granzotto & Nicita, P.C. (by Mark Granzotto), and Edwards & Jennings, P.C. (by Alice B. Jennings), for Lula Elezovic. Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Julia Tamer Baumhart), and Robert W. Powell for Ford Motor Company. Sommers, Schwartz, Silver & Schwartz, P.C. (by Sam G. Morgan and Patrick Burkett), for Daniel P. Bennett. Before: Jansen, P.J., and Neff and Kelly, JJ. Neff, J. Plaintiff Lula Elezovic appeals as of right the trial court’s grant of a directed verdict in favor of defendant Ford Motor Company and defendant Daniel Bennett, a former supervisor at Ford, on plaintiff’s claims of sexual harassment and gender discrimination. We affirm the grant of the directed verdict in favor of Ford. We also affirm the grant of a directed verdict in favor of Bennett, but only because we are bound to do so by the recent holding in Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464, 478; 652 NW2d 503 (2002), in which a panel of this Court decided that under the Michigan Civil Rights Act (cra), MCL 37.2101 et seq., an individual supervisor cannot be held liable, separate from his employer, for hostile environment sexual harassment. MCR 7.215(J). Were we not bound by the holding in Jager, we would reverse the grant of a directed verdict in favor of Bennett on plaintiff’s hostile environment claim, MCL 37.2103(i)(iii). I Plaintiff, an hourly production worker at Ford’s Wixom Assembly Plant, filed this action in November 1999 against Ford and Bennett, alleging claims of sexual harassment, gender discrimination, and retaliation. At the core of plaintiff’s claims was alleged conduct by Bennett from 1995 through 1999 that included Bennett exposing his penis and masturbating when alone with plaintiff in the Wixom plant rail yard, obscene gestures and lewd facial expressions simulating oral sex, a physical attack at a plant bathroom, and repeated sexual remarks such as asking plaintiff if her “boobs [were] real,” saying that he “would like to stick [his] dick in between [her] boobs,” and licking his lips and asking for a “blow job.” According to plaintiff, she did not complain to Ford of Bennett’s sexual harassment because of her Albanian cultural background and fear of reprisals or further intimidation by Bennett. However, plaintiff complained about nonsexual matters involving Bennett and her work conditions at Ford. She also sought psychological counseling and medical care, which she said were made necessary by the harassment at work. Following a three-week jury trial in August 2001, the trial court directed a verdict in favor of defendants, finding that plaintiff had failed to establish a prima facie case of discrimination or retaliation by Ford or Bennett. Plaintiff appeals the grant of directed verdict on her claims of sexual harassment and gender discrimination. She also alleges error requiring reversal in the court’s evidentiary rulings. n The sexual conduct alleged by plaintiff formed the basis of separate claims of sex discrimination under the CRA. We find error only with regard to the claim of hostile environment sexual harassment, and only with regard to defendant Bennett. We therefore first address plaintiff’s claim that the court erred in directing a verdict for defendants on her hostile environment sexual harassment claim. A This Court reviews de novo a trial court’s decision on a motion for a directed verdict. Derbabian v S & C Snowplowing, Inc, 249 Mich App 695, 701; 644 NW2d 779 (2002). A directed verdict is appropriate only when no factual question exists upon which reasonable minds could differ. Cacevic v Simplematic Engineering Co (On Remand), 248 Mich App 670, 679-680; 645 NW2d 287 (2001). We view all the evidence admitted up to the time of the motion, in the light most favorable to the nonmoving party, granting that party every reasonable inference, to determine whether a question of fact existed. Id. at 679; Tobin v Providence Hosp, 244 Mich App 626, 651-652; 624 NW2d 548 (2001). When the evidence could lead reasonable jurors to disagree, the court may not substitute its judgment for that of the jury. Id. at 652. B The CRA prohibits an employer from discriminating because of sex, which includes sexual harassment. MCL 37.2202(1); MCL 37.2103(i); Chambers v Trettco, Inc, 463 Mich 297, 309; 614 NW2d 910 (2000); Chambers v Trettco, Inc (On Remand), 244 Mich App 614, 617; 624 NW2d 543 (2001). MCL 37.2103(i) provides: Discrimination because of sex includes 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 referred to as quid pro quo harassment; when it falls under the third subsection, it is commonly labeled hostile environment harassment. Chambers, supra, 463 Mich 310. 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.” [Id. at 311, quoting Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993).] With regard to the respondeat superior element of a claim of hostile environment harassment, the Chambers Court explained: “Under the Michigan Civil Rights Act, an employer may avoid liability [in a hostile environment case] ‘if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment.’ . . . Such prompt and appropriate remedial action will permit an employer to avoid liability if the plaintiff accuses either a co-worker ... or a supervisor of sexual harassment. An employer, of course must have notice of alleged harassment before being held liable for not implementing action.” [Id. at 312, quoting Radtke, supra at 396-397.] Thus, an employer may avoid liability for a claim of sexual harassment if it does not have actual or constructive notice of the alleged harassment. Radtke, supra at 396 n 44. In this case, the trial court granted a directed verdict on the basis that plaintiff had failed to establish that Ford had notice of the alleged sexual harassment. Even viewing the evidence in the light most favorable to plaintiff, we find no error in the court’s conclusion. In McCarthy v State Farm Ins Co, 170 Mich App 451, 457; 428 NW2d 692 (1988), this Court explained what is meant by actual or constructive notice: “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).] In Sheridan v Forest Hills Pub Schools, 247 Mich App 611, 622; 637 NW2d 536 (2001), this Court defined the term “higher management” 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. With regard to actual notice, plaintiff asserts that she told two of her supervisors of the 1995 incident in which Bennett masturbated in front of her. However, plaintiff asked them as friends to keep this confidential and to not tell anyone. She admitted that she did not want them to report Bennett’s conduct to labor relations, the department responsible for investigating complaints of sexual harassment. Under these circumstances, plaintiff’s report of Bennett’s conduct to her supervisors does not constitute actual notice to Ford, such that it could investigate the matter and take remedial action. Our conclusion regarding actual notice is not altered by the fact that Ford’s antiharassment policy sets forth procedures requiring supervisors to report complaints of sexual harassment. “[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 séxual harassment was occurring.” Chambers, supra, 463 Mich 319. Given that plaintiff asked her supervisors to keep the information in confidence and not tell anyone about Bennett’s unwanted advances, there was not a “substantial probability” that Ford would have been aware of the hostile work environment claim so as to trigger “prompt and adequate remedial action” on its part. We also reject plaintiff’s argument that actual notice was provided by other communications to Ford made on behalf of plaintiff. Contrary to plaintiff’s contention, there is no evidence that the letters from her psychologist, Dr. Parker, provided Ford with adequate notice that plaintiff was being subjected to sexual harassment by Bennett or to a work environment made hostile by sexual harassment. These letters make no reference to sexual conduct, and, as plaintiff herself admitted, she filed various grievances and labor relations complaints over the years against Bennett, but never once complained about sexual harassment by him. Plaintiff claims that she presented additional evidence that she complained to Ford officials that Bennett was harassing her, that she was frightened of him, and, further, that her son-in-law, Paul Lulgjuraj, wrote a letter to Ford’s supervisor of labor relations, Jerome Rush, asserting that Lulgjuraj might take legal action “to insure that our client is not subjected to working in a hostile environment.” The letter did not mention that plaintiff was being subjected to sexual harassment. Although the letter from Lulgjuraj referenced a “hostile environment,” plaintiff admitted that its purpose was to notify Ford that she was accusing her co-worker, Tami Holcomb, of threatening her life and she also admitted that the letter was not communicating anything to Ford about there being sexual harassment at Ford. This additional evidence does not, under the objective standard of Chambers, establish that Ford would have been aware that sexual harassment was occurring. Chambers, supra, 463 Mich 319. Plaintiff failed to show that Ford had actual notice of the alleged sexual harassment. We also find no error in the court’s conclusion that plaintiff failed to establish constructive notice of the alleged sexual harassment. The trial court held that plaintiff had not adduced sufficient evidence showing that Bennett’s conduct was so pervasive that it gives rise to the inference of knowledge or constructive knowledge. Sheridan, supra at 627; McCarthy, supra at 457. In addition to the incidents involving Bennett’s sexual harassment, plaintiff provided testimony that other supervisors sexually harassed her and that other female employees were sexually harassed. Nonetheless, this evidence did not establish that the sexual harassment was such that Ford had constructive notice. Plaintiff indicated that there were no witnesses to the alleged incidents of sexual harassment against her. Further, the complaint of alleged sexual harassment of plaintiff’s coworker cannot be said to establish notice with respect to plaintiff’s claim of harassment. Sheridan, supra at 627-628. Because plaintiff failed to show that she provided actual or constructive notice to Ford concerning the existence of a sexually hostile working environment, Ford cannot be vicariously liable for her hostile environment claim. Chambers, supra, 463 Mich 312; Radtke, supra at 395 n 41. Thus, the trial court did not err in directing a verdict for Ford on plaintiffs hostile environment claim. c We find error in the trial court’s conclusion that plaintiff failed to establish a hostile environment sexual harassment claim against Bennett; however, we are nonetheless obligated to affirm the court’s decision in light of Jager, supra. As Bennett notes, and plaintiff concedes on appeal, this Court recently held that the CRA imposes liability only on employers, and not on individual employees of employers, with regard to sexual harassment claims. Id. at 478, 485. Thus, the Jager Court concluded that “a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiff’s civil rights.” Id. at 485. Accordingly, Jager requires a conclusion that Bennett has no individual liability for sexual harassment. Nonetheless, we conclude that Jager was wrongly decided. The Court in Jager relied on federal precedent and analyses under title VII in deciding that the CRA does not allow for individual liability for sexual harassment, stating: “We believe that, like title VII, the language in the definition of ‘employer’ concerning an ‘agent’ of the employer was meant merely to denote respondeat superior, rather than individual liability.” Jager, supra at 484. We find Jager’s reliance on federal law misplaced. The Michigan Supreme Court has recognized that unlike the federal law, the cra expressly establishes a cause of action for sexual harassment and that employer liability under the CRA for sexual harassment is based on traditional agency principles. Chambers, supra at 311, 315-316, 326. Thus, this Court has observed that the theories of liability underlying federal sexual harassment cases must be distinguished from those underlying the CRA: To the extent that the dissent relies on federal cases involving sexual harassment claims under title VII, that reliance is misplaced. In Chambers, our Supreme Court held that federal principles of vicarious liability related to sexual harassment claims brought under the federal title VII do not apply to claims brought under Michigan’s cra. The Court reasoned that federal principles are contrar
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