PEÑA v. INGHAM COUNTY ROAD COMMISSION
Case Details
- Citation
- 255 Mich. App. 299
- Judge(s)
- Before: Murray, P.J., and Sawyer and Fitzgerald, JJ.
- Procedural Posture — the stage the case had reached
- appeal
- State
- Michigan
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Plaintiff prevailed on hostile work environment discrimination claim based on race/national origin harassment, receiving $1.3 million in damages (past and future). However, the court reversed the retaliation claim, finding plaintiff failed to establish an adverse employment action required for retaliation under Michigan's Civil Rights Act.
Excerpt
PEÑA v INGHAM COUNTY ROAD COMMISSION Docket No. 231482. Submitted January 8, 2003, at Lansing. Decided February 11, 2003, at 9:00 A.M. Leave to appeal sought. Joseph G. Peña brought an action in the Ingham Circuit Court against the Ingham County Road Commission, his employer, alleging that workplace harassment based on his race or national, origin resulted in a hostile work environment and that he was subjected to adverse employment action as retaliation for filing a complaint under the Civil Rights Act, MCL 37.2101 et seq., about the harassment. The court, Carolyn Stell, J., denied the defendant’s motion for summary disposition and, following a jury trial, entered judgment on a jury verdict and award of present and future damages for the plaintiff. The defendant appealed. The Court of Appeals held: 1. The trial court did not abuse its discretion in precluding the defendant from introducing any evidence of abusive or vulgar language used by the plaintiff or any evidence of his confrontations with coworkers and with one member of the public. Evidence of use of vulgar and profane language in the workplace by a plaintiff claiming a hostile work environment can be relevant to determining the existence of a hostile work environment, depending on the type of language, its frequency, and the context in which it is stated. Here, however, the trial court correctly determined that it would be more prejudicial than probative to allow the defendant to present evidence of the plaintiff’s minimal use of profanities and two instances of heated interactions with coworkers and one member of the public because such evidence could have caused the jury to conclude that it was permissible to engage in illegal workplace harassment or discrimination. 2. The trial court erred in denying the defendant’s motion for summary disposition of the retaliation claim. A prima facie case of retaliation can be established with evidence that the plaintiff was engaged in protected activity, that this was known by the defendant, that the defendant took an employment action adverse to the plaintiff, and that there was a causal connection between the protected activity and the adverse employment action. An adverse employment action typically takes the form of an ultimate employment decision, such as termination of employment or demotion. Here, the plaintiffs allegations that he was investigated by the defendant for worker’s compensation fraud, that he was isolated at work, and that a supervisor ridiculed him for filing his lawsuit do not establish that the defendant took an adverse employment action in retaliation for the plaintiffs lawsuit. 3. The defendant, by not moving for remittitur or a new trial and by failing to object to the plaintiffs request for jury instructions on future damages, has failed to preserve for appellate review the claim that the award of future damages was excessive. There was sufficient evidence in the record to support the award of future damages. Affirmed in part, reversed in part, and remanded for entry of an order dismissing the retaliation claim. 1. Civil Rights — Civil Rights Act — Employment Discrimination — Harassment — Evidence. Evidence of harassing conduct by a plaintiff claiming a violation of his civil rights because of a hostile work environment, if such conduct is not similar to that complained of by the plaintiff, is irrelevant and not admissible in the plaintiffs action (MCL 37.2101 et seq.~). 2. Civil Rights — Civil Rights Act — Employment Discrimination — Retaliation. A prima facie case of employer retaliation against an employee’s filing of a complaint under the Civil Rights Act is established with proof that the employee was engaged in protected activity, that this was known by the employer, that the employer took an employment action adverse to the employee, and that there was a causal connection between the protected activity and the adverse employment action (MCL 37.2701[a]). 3. Civil Rights — Civil Rights Act — Employment Discrimination — Retaliation — Adverse Employment Action. An adverse employment action taken by an employer in retaliation for an employee’s filing of a complaint under the Civil Rights Act typically takes the form of termination of employment or demotion (MCL 37.2701 [a]). Fett & Linderman, P.C. (by James K. Fett and Marla A. Linderman), for the plaintiff. Michael R. Kluck & Associates (by Michael R. Kluck) for the defendant. Before: Murray, P.J., and Sawyer and Fitzgerald, JJ. Murray, P.J. Defendant appeals of right from the final judgment entered in favor of plaintiff on his discrimination and retaliation claims brought under the Civil Rights Act (cra), MCL 37.2101 et seq. We affirm in part, reverse in part, and remand. I. material facts and proceedings Because of the limited nature of the issues properly presented on appeal, we provide the reader with only a brief summary of the material facts and proceedings that led to the jury verdict. Plaintiff commenced his employment with defendant in October 1987. Plaintiff continues to be employed by defendant and is currently a class-four highway worker. The amended complaint filed by plaintiff asserts that he was subjected to a hostile work environment on the basis of his race or national origin, to disparate treatment, and to retaliation. Specifically, plaintiff claimed that from the inception of his employment he has been on the receiving end of numerous derogatory and discriminatory remarks directed at his national origin, and that when he opposed this alleged harassment (including by the filing of this lawsuit), defendant took adverse employment action against him. Defendant sought pretrial dismissal of plaintiffs claims on the basis that a hostile work environment did not exist, and plaintiff had not suffered an adverse employment action. Defendant’s motion for summary disposition was denied by the trial court. At trial, plaintiff presented testimony regarding the repeated national-origin slurs that had been directed at him over the course' of his thirteen years of employment. Specifically, plaintiff and other employees testified that plaintiff was called a “wetback,” “spic,” “beaner,” “f — ing Mexican” and “pickle plucker” by coworkers and supervisors alike on an almost daily basis throughout the course of his employment. Defendant did not deny that these words were at times utilized by its workers. However, defendant presented testimony that this was simply good natured “shop talk,” that plaintiff had good working relations with the supervisors and coworkers he now complains of, and that at some point the slurs ended. The jury apparently accepted plaintiffs version of the facts, because it returned a verdict finding defendant liable for both a hostile work environment and for retaliating against plaintiff. The jury awarded $650,000 in “damages to date” while awarding him an additional $650,000 for “future damages.” The verdict form did not differentiate between the amount awarded for the harassment claim and the amount awarded for the retaliation claim. On appeal, defendant argues that the trial court committed three errors that require reversal, namely: (1) that it was denied a fair trial by the trial court’s decision to exclude from evidence plaintiff’s own workplace conduct; (2) that plaintiff’s retaliation claim should have been summarily dismissed because plaintiff had not suffered an adverse employment action; and (3) that the trial court should have set aside the future damages award because it was excessive in light of the evidence and was punitive in nature. For the forthcoming reasons, we agree with defendant that plaintiffs retaliation claim should have been summarily dismissed. Defendant’s remaining arguments, however, do not gamer our support. H. ANALYSIS A. THE TRIAL COURT’S EVIDENTIARY DECISION “A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion.” Barrett v Kirtland Community College, 245 Mich App 306, 325; 628 NW2d 63 (2001). Establishing an abuse of discretion is, however, quite difficult, for an abuse will only be found “when the decision is ‘so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.’ ” Dacon v Transue, 441 Mich 315, 329; 490 NW2d 369 (1992), quoting Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). Because such an abuse will usually occur only in extreme cases, Barrett, supra at 325, it is only stating the obvious to say that an abuse of discretion will normally not be found when addressing a close evidentiary question. Hilgendorf v Saint John Hosp & Medical Ctr, 245 Mich App 670, 707 n 49; 630 NW2d 356 (2001), quoting People v Bahoda, 448 Mich 261, 289; 531 NW2d 659 (1995), quoting People v Golochowicz, 413 Mich 298, 322; 319 NW2d 518 (1982) (“ ‘ “The decision upon a close evidentiary question by definition ordinarily cannot be an abuse of discretion.” ’ ”). Before the originally scheduled trial date, plaintiff filed a motion in limine. By way of that motion, plaintiff sought to exclude evidence that he was short-tempered, and that he had conflicts with members of the public and with his coworkers. During oral argument on the motion, plaintiff indicated that through his motion in limine he was not seeking to preclude evidence that he utilized ethnic or racial slurs in the workplace. Instead, plaintiff argued that any evidence of coworker confrontations, or abusive and vulgar (but not discriminatory) language should be excluded. After hearing arguments, the trial court entered an order allowing defendant to introduce any evidence that plaintiff utilized racial or ethnic slurs, but precluding defendant from introducing any evidence of abusive or vulgar language utilized by plaintiff or any evidence of his coworker or citizen confrontations, unless plaintiff asserted at trial that he was unlawfully denied a promotion. Citing both state and federal law, defendant argues that the trial court should not have prevented it from showing to the jury that plaintiff utilized foul language and made threats of harm to coworkers and to one member of the public. In particular, defendant claims support for this proposition in Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993), Henson v Dundee, 682 F2d 897 (CA 11, 1982), Scusa v Nestle USA Co Inc, 181 F3d 958 (CA 8, 1999), and Morgan v Hertz Corp, 542 F Supp 123 (WD Term, 1981). None of these cases, however, supports the specific argument made by defendant. Rather, they support the trial court’s decision. In Radtke, our Supreme Court held that in determining whether a work environment is illegally hostile, it must be gauged by a reasonable person’s standard viewing the “totality of circumstances.” Radtke, supra at 394. This does not mean, as defendant would have us hold, that everything affecting plaintiff’s employment is relevant and admissible in a harassment case. Rather, we have previously held that what is relevant is evidence that plaintiff himself engaged in the type of conduct similar to that at issue in the case. In Grow v W A Thomas Co, 236 Mich App 696, 706; 601 NW2d 426 (1999), we held in a sexual harassment case that evidence of the plaintiff’s own sexual conduct at work was relevant in determining whether the conduct complained of (also sexual in nature) was “unwelcome” or “hostile”: Defendants presented evidence in support of their claim that plaintiff often engaged in sexual conduct herself. Plaintiff’s own conduct was therefore relevant to the question whether Arguette’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, plaintiffs 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.” Accordingly, in a hostile work environment claim, a plaintiff’s engaging in conduct similar to that complained of is relevant to a proper determination whether the plaintiff was subjected to an unlawfully hostile work environment. Grow, supra. This same conclusion has been reached by the federal courts that have considered this issue under Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. See, e.g., Gross v Burggraf Constr Co, 53 F3d 1531, 1537-1538 (CA 10, 1995); Hocevar v Purdue Frederick Co, 223 F3d 721, 729-730 (CA 8, 2000); Burns v McGregor Electronic Industries, Inc, 989 F2d 959, 962-963 (CA 8, 1993); Barta v Honolulu, 169 FRD 132 (D Hawaii, 1996); Herchenroeder v Johns Hopkins Univ Applied Physics Laboratory, 171 FRD 179, 182 (D Md, 1997). The rationale of these cases is a logical one: if the plaintiff himself sees fit to utilize discriminatory language or commit discriminating acts in the workplace, the jury should be apprised of that fact to determine how that plaintiff would reasonably perceive his work environment when he is the recipient of the same or similar conduct. See Meritor Savings Bank, FSB v Vinson, 477 US 57, 69; 106 S Ct 2399; 91 L Ed 2d 49 (1986) (“While ‘voluntariness’ in the sense of consent is not a defense to such a claim, it does not follow that a complainant’s sexually provocative speech or dress is irrelevant as a matter of law in determining whether he or she found particular sexual advances unwelcome. To the contrary, such evidence is obviously relevant.”). The trial court adhered to this rule in deciding plaintiff’s motion in limine. As noted, the trial court ruled that defendant could present evidence that plaintiff engaged in the type of behavior at issue in this case. Thus, defendant was free to inform the jury that plaintiff utilized such terms as “wetback” and “Mexican” when referring to others in the workplace. Defendant asserts, however, that the trial court should have also allowed evidence of plaintiff calling one of his supervisors a “fat f — ,” and that plaintiff, on several occasions, exhibited an aggressive attitude with his coworkers and the public. We conclude that the trial court did not abuse its discretion in excluding such evidence as being more prejudicial than probative. MRE 403. Although it is true that the events in the workplace are to be reviewed under the “totality of the circumstances,” Radtke, supra, defendant has offered no case that holds that a jury must be allowed to consider a plaintiff’s aggressive demeanor or use of foul language at work when that aggressiveness does not include conduct similar to that at issue in the case, i.e., it does not include any indication that plaintiff, while at work, engaged in discriminatory conduct himself. In the cases dealing with vulgar and rude language utilized by a plaintiff bringing a hostile work environment action — most of which seem to fall in the category of sexual harassment — courts have concluded that the weight or admissibility of the statements depends on the circumstances of each particular case. Judge Posner, writing for the court in Galloway v Gen Motors Source Parts Operations, 78 F3d 1164, 1167 (CA 7, 1996), abrogated on other grounds, Nat'l Railroad Passenger Corp v Morgan, 536 US 101; 122 S Ct 2061; 153 L Ed 2d 106 (2002), held that the use of foul language by a plaintiff and its effect on the work environment at issue in the case depends in large measure on how and when the language is used. As a result, and depending on the circumstances of each case, sometimes the plaintiff’s use of foul language, when coupled with rather nonoffensive language used by the defendant, causes there to be no dispute about the lack of a hostile work environment, see Gleason v Messirow Financial Inc, 118 F3d 1134, 1146 (CA 7, 1997) (affirming summary judgment), and Hocevar v Purdue Fredrick Co, 223 F3d 721, 736-737 (CA 8, 2000) (also upholding summary judgment), while in other cases the evidence is of such a character that it should be submitted to the jury for resolution. Horney v Westfield Gage Co, 211 F Supp 2d 291, 308-310 (D Mass, 2002). What must be focused on, however, is a plaintiffs conduct at work, not conduct outside work. Burns v McGregor Electronic Industries, Inc, 989 F2d 959, 963 (CA 8, 1993). We agree with the foregoing decisions and conclude that evidence of a plaintiff’s use of vulgar and profane language (as opposed to discriminatory language dealt with earlier) in the workplace can be relevant to determining the existence of a hostile work environment if the circumstances so warrant, i.e., it would depend on the type of language, its frequency, and the context in which it is stated. Turning to the case at hand, although evidence that plaintiff called his supervisor a “fat f — ” presents a close question because his supervisor responded by calling plaintiff a derogatory and discriminatory name, we believe that under the facts of this particular case, the trial court set reasonable guidelines with regard to what was more prejudicial than probative, MRE 403. The trial court’s ruling allowed the jury to know plaintiff had used national-origin slurs in the workplace so it could determine if similar language was “unwelcome” or created a “hostile” discriminatory atmosphere, yet kept defendant from bringing forward a few incidents that perhaps showed that plaintiff occasionally used profanities. Evidence of plaintiff’s minimal use of profanities, and that he had a couple of heated interactions with coworkers and one with the public over thirteen years of employment, could have caused the jury to conclude that it was permissible to constantly utilize language prohibited by law in the workplace (discriminatory statements), as was shown to have occurred in this case, simply because plaintiff occasionally utilized profanities that, though inappropriate, are not necessarily illegal. The trial court decided such evidence was more prejudicial than probative, and although we may have ruled differently in the first instance, we cannot conclude that such a decision was an abuse of discretion. Hilgendorf, supra. B. PLAINTIFF’S RETALIATION CLAIM Defendant also asserts that the trial court should have dismissed plaintiffs retaliation claim because plaintiff failed to create a genuine issue of material fact with regard to whether he was subjected to an adverse employment action by the time the motion was heard by the trial court. On this point, we agree with defendant. In Kelly-Stehney & Assoc, Inc v MacDonald's Industrial Products, Inc, 254 Mich App 608, 611-612; 658 NW2d 494 (2003), we set forth the standard of review for our Court to apply when considering the propriety of the grant or denial of a motion for summary disposition under MCR 2.116(C)(10): A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Veenstra v Washtenaw Country Club, 466 Mich 155, 163; 645 NW2d 643 (2002). A motion for summary disposition should be granted when, except in regard to the amount of damages, there is no genuine issue in regard to any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. MCR 2.116 (C)(10), (G)(4); Veenstra, supra at 164. hi deciding a motion brought under this subsection, the trial court must consider affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in a light most favorable to the nonmoving party. Veenstra, supra at 164. The moving party has the initial burden of supporting its position with documentary evidence, but once the moving party meets its burden, the burden shifts to the nonmoving party to establ
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