Allen v. One Stop Staffing, LLC.

CHAMBERS v TRETTCO, INC (ON REMAND) Docket No. 202151. Submitted September 5, 2000, at Lansing. Decided February 16, 2001, at 9:05 A.M. Robyn Chambers brought an action in the Washtenaw Circuit Court against her employer, Trettco, Inc., claiming sex discrimination in employment, involving sexual harassment. The court, Donald E. Shelton, J., submitted the case to a jury on theories of quid pro quo sexual harassment and hostile work environment sexual harassment. The jury returned a verdict for the plaintiff. The Court of Appeals, Jansen, P.J., and Markey, J. (O’Connell, J., dissenting), affirmed on the basis of Faragher v Boca Raton, 524 US 775 (1998), and Burlington Industries, Inc v Etterth, 524 US 742 (1998), which had applied the federal Civil Rights Act. 232 Mich App 560 (1998). The defendant appealed, and the Supreme Court held that the reliance on federal case law by the Court of Appeals was misplaced, dismissed the plaintiff’s claim of quid pro quo sexual harassment, vacated the prior opinion of the Court of Appeals, and remanded the matter to the Court of Appeals for resolution of the claim of hostile work environment sexual harassment in accordance with Michigan precedents. On remand, the Court of Appeals held: Reversed and remanded. O’Connell, J., in the lead opinion, stated: 1. The Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., expressly recognizes sexual harassment as a prohibited form of discrimination’ and carefully distinguishes between what are commonly labeled quid pro quo sexual harassment and hostile work environment sexual harassment. The federal Civil Rights Act, 42 USC 2000e et seq., does neither, but merely prohibits discrimination based on sex. 2. The United States Supreme Court has concluded that, under the federal Civil Rights Act, once a plaintiff has established that a supervisor created a hostile working environment, the burden shifts to the employer to disprove vicarious liability for the supervisor’s actions. 3. Under the Michigan Civil Rights Act, a defendant employer does not bear the burden of disproving responsibility for a hostile work environment. Rather, the plaintiff employee must prove respondeat superior by a preponderance of the evidence. This ordinarily requires a showing that either a recurring problem existed or a repetition of an offending incident was likely and that the defendant failed to rectify the problem on adequate notice. Notice of sexual harassment sufficient to impute liability to the employer exists where, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of the substantial probability that sexual harassment was occurring. 4. The plaintiff failed to prove respondeat superior by a preponderance of the evidence. The trial court’s judgment must be reversed and the matter must be remanded for entry of a judgment in favor of the defendant. Markey, J., concurred in the result only. Jansen, P.J., dissenting, stated that there was sufficient evidence presented at trial for the jury to conclude that the defendant failed to take prompt remedial action after it knew or should have known that the plaintiff had been sexually harassed. The judgment of the trial court should be affirmed. Garris, Garris, Garris & Garris, P.C. (by Steven Z. Garris), for the plaintiff. MacDonald and Goren, P.C. (by Cindy Rhodes Victor and Lawrence C. Atorthy), for the defendant. on remand Before: Jansen, P.J., and Markey and O’Connell, JJ. O’Connell, J. This case returns to this Court on remand from our Supreme Court. Because the facts are set forth in detail in our earlier opinion, Chambers v Trettco, Inc, 232 Mich App 560, 562-564; 591 NW2d 413 (1998) (Chambers I), and in the Supreme Court’s decision that vacated our prior opinion and remanded the matter, Chambers v Trettco, Inc, 463 Mich 297, 303-306; 614 NW2d 910 (2000) (Chambers II), we will repeat them here only as necessary to bring the issues into focus. Plaintiff brought a claim of sexual harassment against defendant, her employer, under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., alleging both quid pro quo harassment and hostile workplace harassment. The jury accepted both theories and awarded damages. A divided panel of this Court, relying heavily on recent federal cases construing title VII of the federal Civil Rights Act, 42 USC 2000e et seq., affirmed. Our Supreme Court in turn held that this Court’s reliance on the federal case law was misplaced, Chambers II, supra at 313-316, dismissed plaintiff’s claim of quid pro quo harassment, and vacated our prior opinion and remanded the case to this Court for resolution of the hostile environment harassment claim in accordance with Michigan precedents. Id. at 326. We reverse and remand. Plaintiff alleged that a temporary supervisor, assigned to her work station for four days while her regular supervisor was on vacation, engaged in a pattern of seriously suggestive and offensive behavior, and did so over plaintiff’s clear objections. Plaintiff complained to co-workers about wishing to leave her job, but she did not initiate the proceedings for sexual harassment complaints set forth in defendant’s employee handbook. However, plaintiff happened to answer the telephone when defendant’s regional director of operations telephoned. The latter sensed that something was wrong, but plaintiff chose not to explain the problem, apparently because the offender was nearby. The director indicated that he would talk to plaintiff later, but no meeting between plaintiff and the director followed. Plaintiff did complain to her regular supervisor when the latter returned from vacation. The record does not indicate what action, if any, defendant took against the offender in response, but the offender never confronted plaintiff at work again. Section 202 of our Civil Rights Act provides that an employer may not “discharge, or otherwise discriminate against an individual with respect to employment, . . . because of . . . sex, ... or marital status.” MCL 37.2202; MSA 3.548(202). Subsection 103(i) clarifies that “[discrimination because of sex includes sexual harassment,” which the subsection defines as “unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct or communication of a sexual nature,” under certain circumstances. MCL 37.2103; MSA 3.548(103)(i). Qualifying circumstances include, under subsection 103(i)(w), where the employee’s submission to or rejection of sexual overtures “is used as a factor in decisions affecting the individual’s employment,” and, under subsection 103(i)(m), where “[t]he 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.” MCL 37.2103(i)(n) and (m); MSA 3.548(103)(i)(ü) and (m). Our statute thus expressly recognizes sexual harassment as a prohibited form of discrimination and carefully distinguishes between what are commonly labeled “quid pro quo” harassment and “hostile environment” harassment. The federal Civil Rights Act does neither, but merely prohibits discrimination based on sex. Chambers II, supra at 315, citing 42 USC 2000e-2(a)(l). Further, the United States Supreme Court has concluded that, under the federal Civil Rights Act, once a plaintiff has established that a supervisor created a hostile working environment, the burden shifts to the employer to disprove vicarious liability for the supervisor’s actions. Chambers II, supra at 314-315, citing Burlington Industries, Inc v Ellerth, 524 US 742, 765; 118 S Ct 2257; 141 L Ed 2d 633 (1998), and Faragher v Boca Raton, 524 US 775, 807; 118 S Ct 2275; 141 L Ed 2d 662 (1998). Conversely, under state law, vicarious liability will be found only where the plaintiff has carried the burden of proving respondeat superior. This ordinarily requires a showing that either a recurring problem existed or a repetition of an offending incident was likely and that the employer failed to rectify the problem on adequate notice. Radtke v Everett, 442 Mich 368, 382, 395; 501 NW2d 155 (1993). Notice of sexual harassment sufficient to impute liability to the employer exists where, “by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of the substantial probability that sexual harassment was occurring.” Chambers II, supra at 319. In light of our Supreme Court’s opinion directing us to apply only Michigan precedents, we now conclude that the facts as plaintiff alleged them cannot render defendant in this case vicariously hable for its temporary supervisor’s conduct in establishing a hostile working environment. Plaintiff’s general indication to defendant’s regional director over the telephone that something was wrong did not sufficiently alert him to the problem to the extent that the director, and thus defendant, could reasonably be charged with actual or constructive notice that sexual harassment was taking place. Nor did the evidence otherwise indicate that anyone with supervisory responsibility knew of plaintiff’s four-day plight until she spoke with her normal supervisor after the offending temporary supervisor was no longer visiting plaintiff’s workplace. As the dissent accompanying our earlier decision in this case stated, “Imputing notice of sexual harassment to an employer on the basis of such nebulous implications would have the effect of making an employer an insurer of an employee’s personal anguish of which the employer had little or no understanding.” Chambers I, supra at 574. Again, we are reminded that under our Civil Rights Act, a defendant does not bear the burden of disproving responsibility for a hostile environment. Rather, the plaintiff must prove respondeat superior by a preponderance of the evidence. Chambers II, supra at 311-313, 316, citing Radtke, supra at 382-383, 396-397. For these reasons, we reverse and remand this case to the trial court with instructions to enter a judgment in favor of defendant. Reversed and remanded. We do not retain jurisdiction. Markey, J. I concur in the result only. Jansen, P.J. (dissenting). I respectfully dissent and would again affirm the jury’s verdict. This is a sexual harassment case in which plaintiff, a cook for defendant, was sexually harassed by Paul Wolshon, a floating supervisor, while he was supervising at defendant’s facility in Ann Arbor in July 1995. Following a jury trial, the jury specially found that Wolshon sexually assaulted or molested plaintiff through the use of his supervisory powers and that defendant failed to take prompt remedial action after it knew or should have known that plaintiff had been sexually harassed. The jury awarded damages totaling $150,000. This Court initially affirmed, with Judge O’Connell dissenting, and the Supreme Court, 463 Mich 297; 614 NW2d 910 (2000), vacated our decision, which had applied the United States Supreme Court’s rulings in 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 concerning an employer’s vicarious liability in a sexual harassment case brought under title VII of the federal Civil Rights Act. Our Supreme Court, in ordering the matter remanded to this Court decided that application of Ellerth and Faragher was erroneous and that an employer’s vicarious liability in cases brought under the Michigan Civil Rights Act, MCL 37.2101 et seq.) MSA 3.548(101) et seq., must instead be analyzed under Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993). According to our Supreme Court, the “central question to be addressed on remand is whether plaintiff presented sufficient evidence to demonstrate that defendant ‘failed to rectify a problem after adequate notice.’ ” Chambers, supra, 463 Mich 318-319, quoting Radtke, supra at 395. The Court further stated that “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.” Chambers, supra at 319. With regard to rectifying the problem, the Court stated that “the relevant inquiry concerning the adequacy of the employer’s remedial action is whether the action reasonably served to prevent future harassment of the plaintiff.” Id. The issue of vicarious liability was preserved by defendant when it moved for a directed verdict at the close of plaintiff’s proofs. A trial court’s ruling on a motion for a directed verdict is reviewed de novo. Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997). When reviewing a motion for a directed verdict, the evidence and all reasonable inferences from that evidence are reviewed in a light most favorable to the nonmoving party. Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 663; 575 NW2d 745 (1998). Directed verdicts are appropriate only when no factual question exists on which reasonable minds could differ. Brisboy v Fibreboard Corp, 429 Mich 540, 549; 418 NW2d 650 (1988). As found in our previous opinion, I believe that, taken in a light most favorable to plaintiff, there was sufficient evidence presented at trial for the jury to conclude that defendant failed to take prompt remedial action after it knew or should have known that plaintiff had been sexually harassed. The evidence adduced at trial shows that plaintiff began working for defendant in June 1995 for $7.50 an hour as a cook. Plaintiff was assigned to work at ADP, Inc., while the previous cook was on medical leave. Plaintiffs regular supervisor was Jennifer Hostutler, who went on vacation for the week of July 5 to 8, 1995. During that week, Hostutler was replaced by Paul Wolshon, an employee of defendant and a floating supervisor. Upon becoming the acting supervisor, Wolshon immediately began sexually harassing plaintiff. Wolshon’s conduct was described in detail by plaintiff and her co-worker, Russell Cade, a dishwasher and preparatory cook. Plaintiff testified that she spoke with Kevin McLaughlin, the regional director of operations, on the telephone, she believed on Wednesday, July 6. McLaughlin had called the facility, and plaintiff admitted at trial that, while on the telephone, she was being evasive with him. According to plaintiff, McLaughlin asked her, “There’s something wrong, isn’t there?” She stated that there was and he further inquired if she could tell him. She stated that she could not and McLaughlin said, “I’ll be in there to talk to you.” Plaintiff testified that she did not tell McLaughlin of Wolshon’s behavior because Wolshon was standing directly in front of her during this telephone conversation. In fact, plaintiff testified that Wolshon was constantly in the kitchen area during the week he supervised at the ADP facility, and this was confirmed by Cade. Although McLaughlin told plaintiff that he would be in later that week, plaintiff stated that he did not show up and talk to her that week. When Hostutler returned to her supervisory position after her vacation on the following Monday, plaintiff immediately reported Wolshon’s conduct to her. Hostutler asked plaintiff to put her complaint in writing, which plaintiff did. After McLaughlin received the written complaint from Hostutler, he had a meeting with plaintiff and Hostutler and told plaintiff that he would further investigate the matter. He also asked plaintiff not to speak to anyone else about the situation. According to plaintiff, after this meeting with McLaughlin and Hostutler, no one from defendant ever again spoke to her about any investigation or the incidents concerning Wolshon. With regard to Wolshon, there was some indication that he was supposed to go to the ADP facility on the day that plaintiff made her written complaint, but that Hostutler “turned him around” and told him to go see McLaughlin. Apparently, Wolshon was, in any event, scheduled to act as a supervisor in Chicago that week following his stay at ADP in Ann Arbor. Defendant should not be able to escape liability because of the fortuitous circumstance that Wolshon is a floating supervisor who was scheduled to be at the ADP facility for only one week and then act as a supervisor in another city. The jury could conclude that defendant had adequate notice on the basis of plaintiff’s testimony that she talked on the telephone with McLaughlin and McLaughlin did not thereafter talk to her the week that Wolshon acted as her supervisor, despite stating that he would and knowing that something was wrong, and on the basis of the fact that plaintiff told Hostutler of Wolshon’s conduct the immediate Monday after Wolshon left. Further, the jury could conclude on the basis of plaintiff’s testimony that she was never informed of any investigation that defendant did not take adequate remedial action to prevent Wolshon from sexually harassing plaintiff. With regard to defendant’s antiharassment policy, plaintiff testified that she did not remember receiving any employment handbook, that she did not remember signing a statement stating that she had read the handbook, and that she was not aware that defendant had an antiharassment policy. The policy required employees to contact George Cousins, a vice president, but when asked at trial if she ever attempted to contact Cousins, plaintiff stated, “I don’t even know who he is.” Further, McLaughlin testified at length regarding defendant’s harassment policy and that new hires are supposed to sign an acknowledgment form. However, defendant never produced any acknowledgment form at trial showing that plaintiff, in fact, received and read the employee handbook. Regarding vicarious liability, the jury was instructed pursuant to Radtke and Champion v Nation Wide Security, Inc, 450 Mich 702; 545 NW2d 596 (1996). The evidence and reasonable inferences from the evidence at trial, taken in a light most favorable to plaintiff, supports the jury’s verdict that defendant had adequate notice of the sexual harassment of plaintiff by her supervisor and that defendant failed to rectify the problem, that being Wolshon’s conduct of sexually harassing plaintiff. I emphasize that it was for the jury to make credibility determinations, to resolve conflicts in the evidence, to weigh the evidence, to accept or reject any of the evidence, and to draw any reasonable inferences from the evidence that it chose to draw. Brisboy, supra at 550; Johnson v Corbet, 423 Mich 304, 314; 377 NW2d 713 (1985); Thomas v McGinnis, 239 Mich App 636, 643-644; 609 NW2d 222 (2000). Moreover, neither the trial court nor an appellate court may substitute its judgment for that of the jury. Hunt v Freeman, 217 Mich App 92, 99; 550 NW2d 817 (1996). Accordingly, I would find that there was sufficient evidence from which the jury could conclude that defendant received notice of the supervisor’s harassment toward plaintiff and that defendant did not take adequate remedial action to stop the harassment. I would affirm the jury’s verdict. Chambers v Trettco, Inc, 232 Mich App 560; 591 NW2d 413 (1998). See 42 USC 2000e et seq. Interestingly, while our Supreme Court stated that we “erroneously failed to apply controlling Michigan legal principles regarding sexual harassment claims brought under Michigan law, and instead applied the federal principles announced in Faragher and Ellerth," Chambers, supra, 463 Mich 318, the Court in Radtlce, supra at 397, relied exclusively on federal cases, Katz v Dole, 709 F2d 251 (CA 4, 1983), and Henson v Dundee, 682 F2d 897 (CA 11, 1982), in determining that an employer must have notice of the alleged harassment before being held liable for not implementing action. The United States Supreme Court in Faragher and Ellerth did not follow the notice principles set forth in Katz and Henso

CHAMBERS v TRETTCO, INC Docket No. 114085. Argued April 4, 2000 (Calendar No. 5). Decided July 31, 2000. Robyn Chambers brought an action in the Washtenaw Circuit Court against her employer, Trettco, Inc., claiming sex discrimination in employment, involving sexual harassment. The court, Donald E. Shelton, J., submitted the case to a jury on theories of quid pro quo sexual harassment and hostile work environment sexual harassment. The jury returned a verdict for the plaintiff. The Court of Appeals, Jansen, P.J., and Markey, J. (O’Connell, J., dissenting), affirmed on the basis of Faragher v Boca Raton, 524 US 775 (1998), and Burlington Industries, Inc v Ellerth, 524 US 742 (1998), which had applied the federal Civil Rights Act. 232 Mich App 560 (1998) (Docket No. 202151). The defendant appeals. In an opinion by Justice Markman, joined by Chief Justice Weaver, and Justices Cavanagh, Taylor, Corrigan, and Young, the Supreme Court held-. The defendant was entitled to a directed verdict on the plaintiff’s claim of quid pro quo sexual harassment, requiring vacation of the Court of Appeals opinion and remand to that Court for reconsideration of the plaintiff’s claim of hostile environment sexual harassment. 1. The Michigan Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., recognizes that, in employment, freedom from discrimination because of sex is a civil right. Employers are prohibited from violating this right, and discrimination because of sex includes sexual harassment. “Sexual harassment” is specifically defined to include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature where submission to such conduct or communication is made a term or condition, either explicitly or implicitly, to obtain employment, where submission to or rejection of such conduct or communication by an individual is used as a factor in a decision affecting employment (quid pro quo harassment), or where such conduct or communication has the purpose or effect of substantially interfering with employment (hostile work environment harassment). 2. In order to establish a claim of quid pro quo harassment, an employee must demonstrate, by a preponderance of the evidence, subjection to any of the types of unwelcome sexual conduct or communication described in the statute, and that the employer or the employer’s agent used submission to or rejection of the proscribed conduct as a factor in a decision affecting employment. In order to establish a claim of hostile work environment harassment, an employee must prove, by a preponderance of the evidence, membership in a protected group, subjection to unwelcome sexual conduct or communication, that the unwelcome sexual conduct or communication was either intended to, or in fact did, substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment, and respondeat superior. Whichever category of sexual harassment is at issue, it is always necessary to determine the extent of the employer’s vicarious liability when harassment is committed by an agent. Because the Civil Rights Act expressly defines “employer” to include agents, common-law agency principles are to be relied on in determining when an employer is liable for sexual harassment committed by its employees. Vicarious liability exists in the case of quid pro quo harassment because the quid pro quo harasser, by definition, uses the power of the employer to alter the terms and conditions of employment. 3. An employer is strictly liable only for quid pro quo sexual harassment. In terms of the statute, this means that an agent of the employer must have used submission or rejection of unwelcome sexual conduct or communication as a factor in decisions affecting the plaintiffs employment. By comparison, when the submission to or rejection of unwelcome sexual conduct or communication has not been factored into an employment decision, but a hostile work environment has nevertheless been created because unwelcome sexual communication or conduct substantially interferes with an individual’s employment, the violation can only be attributed to the employer if the employer failed to take prompt remedial action after having been reasonably put on notice of the harassment. 4. Although, at times, the Michigan Supreme Court may seek guidance in interpreting the Michigan Civil Rights Act from federal court interpretations of the federal Civil Rights Act, it is not compelled to follow federal interpretations. Adoption of the principles announced by the United States Supreme Court in Faragher and Ellerth, on which the Court of Appeals relied, would represent a significant change in the approach to determining an employer’s vicarious liability for sexual harassment under Michigan law. Specifically, those holdings conflate the concepts of quid pro quo harassment and hostile work environment harassment, and shift the burden of proof from the employee to the employer regarding whether the employer should be held vicariously liable for an actionable hostile environment created by a supervisor. The terms “quid pro quo,” “hostile work environment,” and “sexual harassment” are nowhere found in the federal statute. The Michigan Civil Rights Act expressly includes sexual harassment as a prohibited form of sex discrimination, and further provides detailed definitions for sexual harassment that can be easily identified by the labels “quid pro quo” and “hostile work environment.” 5. The trial court erred in not granting the defendant a directed verdict with regard to the plaintiff’s quid pro quo claim of sexual harassment. The sine qua non of a quid pro quo harassment claim is a decision affecting the plaintiff’s employment. In this case, there was no tangible employment action, adverse or otherwise, that was shown to be causally related to the plaintiffs submission to or rejection of the supervisor’s harassment. Because there was no decision affecting the plaintiff’s employment, the plaintiffs proofs were insufficient, as a matter of law, to put such a theory of liability at issue. 6. Because the Court of Appeals erroneously failed to apply controlling Michigan legal principles regarding sexual harassment claims brought under Michigan law, and instead applied the federal principles announced in Faragher and Ellerth, remand is required to the Court of Appeals for reconsideration of the defendant’s challenge to the plaintiff’s hostile work environment claim under the proper legal framework. The plaintiff’s testimony clearly established the existence of a hostile work environment. The central question to be addressed on remand is whether the plaintiff presented sufficient evidence to demonstrate that defendant failed to take prompt and appropriate remedial action after receiving adequate notice that the supervisor was sexually harassing the plaintiff. Notice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances would cause a reasonable employer to be aware of a substantial probability that sexual harassment was occurring. The relevant inquiry concerning the adequacy of the employer’s remedial action is whether the action reasonably served to prevent future harassment of the plaintiff. Vacated and remanded. Justice Kelly, dissenting, stated that the plaintiff established a prima facie case of quid pro quo sexual harassment, pursuant to the Michigan Civil Rights Act and Champion v Nationwide Security, 450 Mich 702 (1996). But the majority has misinterpreted Champion, and added an element not found in the mcra. The mcra specifically includes sexual harassment as a form of discrimination because of sex, and presents two separate theories under which a party may make out a claim for quid pro quo sexual harassment. Champion held that under the act a plaintiff must establish that she was subject to any of the types of unwelcome sexual conduct or communication or communication described in the statute, and that her employer or the employer’s agent used her submission to or rejection of the proscribed conduct as a factor in a decision affecting her employment. It also imposed close to strict liability for such harassment committed by supervisory personnel. According to the majority, in order to establish such a claim, a plaintiff must show the existence of a tangible employment action. However, neither MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii) nor Champion requires a plaintiff to prove a tangible employment action in order to proceed with a claim of quid pro quo sexual harassment. Each requires only a showing that the plaintiff’s submission or rejection was a factor in a decision affecting her employment. Pursuant to Champion, the proper point of focus is the supervisor’s conduct, not the plaintiff’s or the defendant’s actions after the incident. Because the majority determines that there was no constructive discharge, it concludes that the plaintiff did not suffer a tangible employment action. But, a claim of quid pro quo sexual harassment under the facts of this case is not precluded. A correct application of Champion requires the conclusion that the supervisor’s decision to make sexual contact with Mrs. Chambers without her consent, in and of itself, was a decision affecting her employment. By focusing on Mrs. Chambers’ actions after her employment had been adversely affected, the majority misapplies Champion. By giving the supervisor the authority he used to assault Mrs. Chambers, the defendant committed the violation through its agent. The flaw in the majority’s overall treatment of this case is that, in analyzing whether the supervisor’s conduct was quid pro quo sexual harassment, it focuses on the plaintiff’s reaction. As was pointed out in Champion, this is incorrect because it blames the victim. Instead, the analysis should concentrate on what defendant and its agent did, comporting with the legislative intent that employers, not the victims of sexual harassment, should bear the costs of remedying and eradicating discrimination. There is a critical difference between quid pro quo and hostile work environment sexual harassment claims. In quid pro quo claims, the victim’s employment must be adversely affected in some manner. In hostile work environment claims, it need not be affected. The majority’s assertion that the effect on employment must be tangible is incorrect. It can be tacit. The supervisor made submitting to his sexual misconduct a term of Mrs. Chambers’ employment. He could do this only because defendant gave him supervisory authority over her. Thus, quid pro quo sexual harassment occurs when the employer’s agent misuses his supervisory authority in a way that affects a subordinate’s employment. In hostile work environment claims, the harasser does not affect the victim’s employment. Either, he does not have the authority to do so, or he does not accomplish the harassment through the use of supervisory authority over the victim. To require plaintiffs to prove that they suffered a tangible employment action is to introduce an element that cannot be derived from the statutory language of MCL 37.2103(i)(ii); MSA 3.548(103)(i)(n). The majority creates a loophole in the sexual harassment provisions of the mcra. It will allow an employer to sexually harass an employee without adverse legal consequences if the employee submits, rather than risk potential job injury. It also places the burden on employees to complain about their supervisor’s sexually harassing conduct, rather than encouraging employers to take the initiative to prevent such occurrences. In taking the position that it matters little to the issue of vicarious liability if, for reasons not attributable to the defendant, the plaintiff was not actually aware of the policy, the majority usurps the role of the jury by deciding that the defendant did communicate the policy to the plaintiff. The evidence presented permitted the jury to infer that the defendant never communicated the policy to the plaintiff. If the jury did so infer, the fact that the defendant had a sexual harassment policy becomes irrelevant. The majority seems to suggest that employees have a duty to discover employers’ policies when they begin working. Champion indicates there is a line which, if crossed, results in an automatic imputation to the employer of a supervisor’s sexual misconduct, if performed in his capacity as a supervisor. In this case, the supervisor’s behavior crossed that line. By finding that it did not, the majority draws an arbitrary distinction between rape and a week of unwelcome sexual contact. This case cannot be distinguished from Champion, either, merely because Mrs. Chambers did not quit after her supervisor sexually harassed her. The majority treats employees who continue to work after being sexually harassed by a supervisor differently from those who quit. In so doing, it misinterprets Champion. Champion makes it clear that it is not the victim’s conduct, but the supervisor’s conduct, that is scrutinized. The majority’s holding shifts responsibility for a decision made by its agent from the employer to the victim. If the vie-tim does not respond as the majority deems appropriate, she loses her claim of quid pro quo sexual harassment. This position clearly subjects victims of sexual harassment to burdens not contemplated by either Champion or the mcra. It is inappropriate to remand this case to the Court of Appeals to assess the sufficiency of the evidence presented regarding whether defendant had adequate notice of hostile work environment sexual harassment. The jury and the Court of Appeals determined that the evidence was sufficient. Garris, Garris, Garris & Garris, P.C. (by Steven Z. Garris'), for the plaintiff-appellant. C. R. Victor & Associates, P.L.L.C. (by Cindy Rhodes Victor), for the defendant-appellant. Amici Curiae: Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Angelito Espino, Assistant Attorney General, for Michigan Department of Civil Rights. Pitt, Dowty, McGehee & Mirer, P.C. (by Michael L. Pitt and Shannon L. Dunn), for Women’s Justice Center. Honigman, Miller, Schwartz & Cohn (by Cameron J. Evans) for Michigan Health and Hospital Association. The Fishman Group (by Steven J. Fishman and Thomas A. Pinch) for Michigan Chamber of Commerce and Michigan Restaurant Association. Amberg, McNenly, Firestone & Lee, P.C. (by Joseph H. Firestone), for Michigan Education Association. Clark Hill, P.L.C. (by Duane L. Tamacki, Rochelle G. Silberberg, and Lira A. Johnson), for Michigan Manufacturers Association. Diane M. Soubly, Deputy General Counsel, Litigation, Comerica Incoiporated, for American Society of Employers. Sachs, Waldman, O’Hare, Helveston, Bogas & McIntosh, P.C. (by Mary Katherine Norton and Elizabeth A. Cabot), for Michigan State AFL-CIO and International Union UAW. Markman, J. We granted leave to consider whether the Court of Appeals properly held an employer vicariously liable under the Civil Rights Act (cra), MCL 37.2101 et seq.-, MSA 3.548(101) et seq., for sexual harassment by a supervisory employee against a subordinate employee. A divided Court of Appeals panel affirmed the judgment on a jury verdict returned in plaintiffs favor. The majority utilized vicarious liability principles articulated in two recent United States Supreme Court decisions applying the federal Civil Rights Act. We hold that the principles stated in the federal cases relied on by the Court of Appeals do not apply to claims brought under Michigan’s Civil Rights Act. Instead, we adhere to prior Michigan precedent and the specific language of the Michigan statute. We also hold that defendant was entitled to a directed verdict on plaintiff’s claim of quid pro quo sexual harassment. Accordingly, we vacate the Court of Appeals opinion and remand to the Court of Appeals for reconsideration of plaintiffs claim of hostile environment sexual harassment in light of this opinion. I Defendant Trettco, Inc., a corporation that manages food service operations for a number of businesses, hired plaintiff as a cook in June 1995, planning to use her in various locations, pending possible placement in a permanent position. Plaintiff was initially assigned to replace a cook who was on medical leave. During her second week in this position, a temporary supervisor, Paul Wolshon, was assigned to cover the duties of the regular on-site supervisor, Jennifer Hos-tutler, who was on vacation. Wolshon was a “float manager” for defendant, meaning that he moved from location to location working as an interim manager as needed. Wolshon lacked the authority to hire, fire, or discipline other employees. Plaintiff, however, believed that Wolshon had the authority to fire her. According to the trial testimony, during the four-day period that Wolshon was at the facility, he engaged in a course of offensive conduct toward plaintiff, including rubbing plaintiffs buttocks, grabbing her breasts, and repeatedly propositioning plaintiff for sexual favors. Plaintiff testified that she felt intimidated and threatened by Wolshon’s behavior. Defendant had a written sexual harassment policy in its company handbook, which all employees were required to read and sign. The policy defined sexual harassment, explained that persons engaging in sexual harassment were subject to discipline, including immediate termination, and instructed all employees experiencing or witnessing an incident that they considered sexual harassment or discrimination were to report the incident to defendant’s vice president. All defendant’s managers were also required to attend a yearly management-development seminar that included a segment on sexual-harassment education. On Wednesday, July 6, 1995, defendant’s regional director, Kevin McLaughlin, called the facility and plaintiff answered the telephone. After sensing something “wrong” in plaintiff’s voice, McLaughlin inquired whether there was a problem. Without specifying the nature of the problem, plaintiff indicated that something was wrong and that she needed to talk to him. When McLaughlin sought to get more information over the telephone, plaintiff refused to elaborate. Plaintiff later testified that this was because Wolshon was standing next to her. There was conflicting testimony regarding whether McLaughlin did anything further to determine the nature of the undescribed problem. According to McLaughlin, he called the following day and plaintiff again refused to say what was wrong. Plaintiff testified that he only called on Wednesday. They both agree that McLaughlin said that he would come to the facility on Friday. McLaughlin testified that he did so, but did not speak to plaintiff. Plaintiff and others testified that they did not see him on that day. It is undisputed, however, that at no time during the week did plaintiff ever specifically tell McLaughlin about the sexual harassment perpetrated by Wolshon. Nor did she follow the process outlined in the policy manual for reporting sexual harassment. McLaughlin testified that it never occurred to him that plaintiff might be having problems with her male supervisor. On the following Monday, when Hostutler returned from vacation, and plaintiff informed her of Wolshon’s conduct. Hostutler immediately telephoned McLaughlin and relayed the news. McLaughlin instructed Hos-tutler to prevent Wolshon from entering the facility, where he was scheduled to work that morning, and to send him directly to the home office. McLaughlin then commenced an investigation of the incident. He instructed Hostutler to have plaintiff prepare a written statement, which was then submitted to McLaughlin. Shortly thereafter, McLaughlin met with plaintiff and Hostutler, and assured plaintiff that she would never have to work with Wolshon again. Thus, as soon as plaintiff reported the sexual harassment, Wol-shon w

CHAMBERS v TRETTCO, INC Docket No. 202151. Submitted June 10, 1998, at Lansing. Decided November 20, 1998, at 9:10 A.M. Leave to appeal sought. Robyn Chambers brought an action in the Washtenaw Circuit Court against Trettco, Inc., and ADP, Inc., alleging that Trettco, her former employer, is vicariously liable under the Civil Rights Act, MCL 37.2101 et seq,] MSA 3.548(101) et seq., for workplace sexual harassment of the plaintiff by her Trettco supervisor. The court, Donald E. Shelton, X, denied a motion by Trettco for a directed verdict and thereafter entered judgment on a jury verdict for the plaintiff. Trettco appealed. The Court of Appeals held: 1. The evidence presented at trial supported a finding of hostile work environment based on several severe or pervasive acts of harassment by the supervisor. 2. An employer is subject to vicarious liability to a victimized employee for a hostile work environment created by a supervisor. When no tangible employment action is taken against the employee, the employer may raise an affirmative defense to liability or damages by showing that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. In this case, the jury, on the basis of ample evidence, found that Trettco failed to take prompt remedial action after it knew or should have known of the hostile work environment created by the supervisor. 3. Any error made by the trial court in instructing the jury that an employer is strictly liable if a supervisor sexually assaults or molests an employee through the exercise of supervisory power was harmless in view of the ample evidence of hostile work environment supportive of a finding of vicarious liability on the part of Trettco, and in view of the fact that the jury did not specifically find strict liability. Affirmed. O’Connell, X, dissenting, stated that vicarious liability of an employer for sexual harassment in the form of hostile work environment requires a showing by the plaintiff that a recurring problem existed or a repetition of an offending incident was likely and the employer failed to rectify the problem upon adequate notice. In this case, a telephone conversation between the plaintiff and a Trettco regional director did not constitute actual or constructive notice of the claimed sexual harassment. The conversation did not alert the regional director that the plaintiff was being sexually harassed, but only that she had an unspecified problem at work. The plaintiff also failed to establish quid pro quo sexual harassment. Accordingly, Trettco should not be held liable for sexual harassment. Civil Rights — Sexual Harassment — Hostile Work Environment — Supervisors — Employer Liability. An employer is subject to vicarious liability to a victimized employee for a hostile work environment created by a supervisor; when no tangible employment action is taken against the employee, the employer may raise an affirmative defense to liability or damages by showing that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise; no affirmative defense is available when 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.). Garris, Garris, Garris & Garris, P.C. (by Steven Z. Garris'), for Robyn Chambers. MacDonald and Goren, P.C. (by Cindy Rhodes Victor and Lawrence C. Atorthy), for Trettco, Inc. Before: Jansen, P.J., and Markey and O’Connell, JJ. Jansen, RJ. Defendant appeals as of right from a jury’s verdict in favor of plaintiff in this sexual harassment case. We affirm. Defendant, a corporation engaged in managing food service operations for various businesses, hired plaintiff as a temporary cook in June 1995, intending to use plaintiff in various locations pending possible placement in a permanent position. Defendant initially assigned plaintiff to take the place of a cook at ADP, Inc., in Ann Arbor. During this assignment, while the regular on-site supervisor was on vacation, defendant assigned a temporary supervisor, Paul Wolshon. According to the evidence at trial, Wolshon immediately commenced a pattern of sexually harassing plaintiff. Plaintiff filed suit against defendant, alleging assault, sexual assault, sexual harassment, and retaliatory discharge. Plaintiff agreed to dismiss her claims of assault and sexual assault at the close of her proofs at trial, and she withdrew her claim of retaliatory discharge before closing argument. The jury found in plaintiffs favor with respect to her claim of sexual harassment. This appeal essentially concerns an employer’s vicarious liability (respondeat superior) in a sexual harassment case brought under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The arguments made by the employer in this case have been squarely rejected by the United States Supreme Court in 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_; 118 S Ct 2275; 141 L Ed 2d 662 (1998). The Supreme Court held that the labels “quid pro quo” and “hostile work environment” are not controlling for purposes of establishing employer liability. Ellerth, supra, 141 L Ed 2d 648, 655. However, for any sexual harassment preceding the employment decision to be actionable, the conduct must be severe or pervasive. Id., p 648. Further, an employer can be liable for a supervisor’s sexual harassment where the employer’s own negligence is a cause of the harassment. Id., p 651. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Id. First, defendant’s claim that plaintiff failed to establish a claim of sexual harassment in the form of hostile work environment is meritless. During a one-week period in July 1995, Paul Wolshon, a “float manager” (but not plaintiff’s full-time manager) engaged in numerous incidents of sexually harassing plaintiff. There was evidence that Wolshon rubbed plaintiff’s buttocks, grabbed her breasts, asked plaintiff to go to a hotel and have oral sex with him, and rubbed whipped cream on plaintiff’s hands and stated, “Now tell everybody you were creamed by Paul.” One of plaintiff’s co-workers also testified that Wolshon stated that he would like to put whipped cream on his tongue and put it between plaintiff’s legs and lick plaintiff’s breasts. The same co-worker also saw Wolshon grab plaintiff’s breasts. Plaintiff also testified that these types of harassing incidents occurred every day of the week that Wolshon was her supervisor. Defendant’s claim that plaintiff’s allegations are “a discrete, singular set of occurrences” that were not sufficiently outrageous to form a single incident of hostile work environment is incorrect and meritless. The evidence preferred by plaintiff was clearly sufficient to establish a hostile work environment claim of sexual harassment because it was severe or pervasive. Therefore, the jury’s finding that Wolshon sexually assaulted or molested plaintiff through the use of his supervisory powers over her is entirely supportable by the evidence presented. Accordingly, the trial court did not err in denying defendant’s motion for a directed verdict on this basis. Further, defendant’s claims that the terms of plaintiff’s employment were not affected by her rejection of Wolshon’s overtures and that plaintiff did not believe that any terms of her employment would be affected by accepting or rejecting the sexual overtures are likewise without merit. Plaintiff was discharged from her position on September 11, 1995. Defendant claimed that she was discharged because of her failure to arrive for work or call regarding her absence. Plaintiff claimed that she was never told why she was discharged. Even if the discharge was not related to the sexual harassment incidents, the terms of plaintiff’s employment were clearly affected; that is, Wolshon’s harassment toward her was severe or pervasive and created an intimidating, hostile, or offensive work environment. Id., p 648; Faragher, supra, 141 L Ed 2d 675; Harris v Forklift Systems, Inc, 510 US 17, 21; 114 S Ct 367; 126 L Ed 2d 295 (1993); Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993). It is not necessary that a plaintiff suffer economic harm or tangible discrimination. Harris, supra, p 21. All that was necessary was that plaintiff show that the supervisor created a hostile work environment, which the evidence at trial showed that she did. Thus, we turn to the question of the employer’s vicarious liability. With respect to the question of vicarious liability, the Supreme Court held: An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence .... The defense comprises two necessary elements: (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. ... No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. [Ellerth, supra, 141 L Ed 2d 655; Faragher, supra, 141 L Ed 2d 689.] In the present case, the jury found that defendant failed to take prompt remedial action after it knew or should have known that plaintiff had been sexually harassed. This finding is supportable by the evidence presented at trial. Plaintiff testified that she spoke to Kevin McLaughlin, the regional director of operations for HDS, on the telephone on July 6, 1995. McLaughlin asked plaintiff if something was wrong, and McLaughlin testified that he could sense that something was bothering plaintiff. Plaintiff indicated that she could not express her complaints of Wolshon at that time because Wolshon was standing next to her. McLaughlin told plaintiff that he would be at ADP, Inc., on July 8, 1995, and would speak to her at that time. It is disputed whether McLaughlin went there on July 8. He testified that he went there, but plaintiff made no attempt to talk to him. However, plaintiff testified that McLaughlin never went to ADP that week. When plaintiffs regular supervisor, Jennifer Hostutler, returned to work on July 11, 1995, plaintiff reported her specific complaints regarding Wolshon. Hostutler asked plaintiff to write down her allegations, which plaintiff did. Plaintiff also testified that she spoke to McLaughlin, who told her that he would investigate the matter. Plaintiff testified that McLaughlin never asked her what happened regarding Wolshon and that no one from HDS ever contacted her or informed her of any results of the investigation. In reviewing the evidence and all legitimate inferences drawn from the evidence in a light most favorable to plaintiff, Mason v Royal Dequindre, Inc, 455 Mich 391, 397; 566 NW2d 199 (1997), plaintiff has satisfied the requirements of Ellerth and Faragher. That is, defendant is subject to vicarious liability for an actionable hostile environment created by Wolshon, plaintiffs immediate supervisor. Assuming that plaintiff was not discharged for reporting Wolshon’s actions, although there is no tangible employment action, defendant may raise the affirmative defense that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that plaintiff failed to take advantage of any preventive or corrective opportunities provided by defendant or to otherwise avoid harm. Here, the jury could have, and apparently did, reject McLaughlin’s testimony and accept plaintiff’s testimony regarding defendant’s attempts to prevent or correct Wolshon’s sexually harassing behavior. Accordingly, the jury could reasonably infer that defendant was vicariously liable for Wolshon’s sexually harassing behavior because defendant failed to exercise reasonable care to prevent and correct promptly Wolshon’s behavior. The facts of the present case are as compelling as those in Ellerth or Faragher to support a finding in favor of the plaintiff. In Ellerth, the plaintiff did not allege that she suffered a tangible employment action at the hands of her supervisor, but the Supreme Court held that this was not dispositive. Rather, the employer is still subject to vicarious liability for the supervisor’s activity, but the employer has the opportunity to assert and prove the affirmative defense to liability. Ellerth, supra, p 655. In Ellerth, the plaintiff clearly alleged that she was subjected to a hostile work environment created by the supervisor, but she did not inform anyone in authority about the supervisor’s conduct, despite knowing that the employer had a policy against sexual harassment. Id., p 645. Summary judgment against the plaintiff was reversed, and the district court was given the opportunity to decide whether to allow the plaintiff to amend her pleadings or supplement discovery. Similarly, in Faragher, the plaintiff was subjected to a hostile work environment created by two supervisors, and the plaintiff reported the behavior to another supervisor, who took no action against the other two supervisors. Further, the employer failed to disseminate its policy against sexual harassment among its employees and its officials made no attempt to keep track of the conduct of supervisors, such as the two involved in this case. The employer also failed to include any assurance that the harassing supervisors could be bypassed in registering complaints. Faragher, supra, p 689. The Supreme Court held, as a matter of law, that, under those circumstances, the defendant could not be found to have exercised reasonable care to prevent the supervisors’ conduct Id., p 690. Therefore, the district court’s judgment in favor of the plaintiff was reinstated by the Supreme Court. Accordingly, the trial court did not err in denying defendant’s motion for a directed verdict on the basis of respondeat superior. The jury could properly find that defendant was vicariously liable for the acts of its supervisor. Finally, defendant argues that the trial court’s instruction to the jury that an employer is strictly liable if a supervisor sexually assaults or molests an employee through the exercise of his supervisory powers was erroneous. We find that any error in the trial court’s instruction regarding strict liability was harmless, MCR 2.613(A), because there is ample evidence of a hostile work environment sufficient to establish defendant’s vicarious liability, and the jury specifically found that defendant failed to take prompt remedial action after it knew or should have known that plaintiff had been sexually harassed, a finding that is supported by the evidence presented at trial. Moreover, there was no specific finding by the jury that defendant was strictly liable. Affirmed. Markey, J., concurred. Because defendant Trettco, Inc, doing business as HDS, is the only defendant involved in this appeal, the use of the term “defendant” will refer solely to Trettco. Our Supreme Court has noted that “[o]ur courts have consistently relied on the federal judiciary for guidance when addressing the Michigan Civil Rights Act.” Koester v Novi, 458 Mich 1, 11-12; 580 NW2d 835 (1998). Moreover, to the extent that defendant argues that plaintiff failed to establish a prima facie case of quid pro quo sexual harassment, we need not address that claim because the Supreme Court has made clear that the labels “quid pro quo” and “hostile work environment” are not controlling for purposes of establishing employer liability- Thus, we only address whether Wolshon’s conduct was severe or pervasive enough to be actionable. O’Connell, J. {dissenting). I respectfully dissent. A prima facie case of hostile-workplace sexual harassment under the Civil Rights Act, MCL 37.2101 el seq.; MSA 3.548(101) et seq., includes among its requirements that the plaintiff show that the employer bears responsibility for the alleged harassment under the doctrine of respondeat superior, which ordinarily requires a showing that either a recurring problem existed or a repetition of an offending incident was likely and that the employer failed to rectify the problem upon adequate notice. Radtke v Everett, 442 Mich 368, 382, 395; 501 NW2d 155 (1993). Plaintiff in the instant case has failed to satisfy this requirement. An employer has a duty to investigate and take remedial action in response to a claim of sexual harassment only upon actual or constructive notice of the offensive environment. Downer v Detroit Receiving Hosp, 191 Mich App 232, 235; 477 NW2d 146 (1991). In denying the motion for a directed verdict, the trial court stated that the jury could reasonably conclude that plaintiff communicated to the regional director of operations that there was a problem and that the latter failed to respond as promised, and that those conclusions could support a finding that the employer sanctioned a continuing hostile environment. However, I conclude that plaintiff’s general indication to the regional director over the telephone that something was wrong did not sufficiently alert him to the problem as to constitute actual or constructive notice on defendant’s part that sexual harassment was taking place. It is not reasonable to infer from the regional director’s vague understanding that something was amiss that he had notice of sexual harassment. Because plaintiff presented no evidence that she complained about the problem to anyone with supervisory responsibility before she spoke to her normal supervisor upon the latter’s return and the offender’s departure, or that anyone with authority to act otherwise had notice that sexual harassment was taking place, the facts as plaintiff alleges them simply did not trigger defendant’s duty to take action to alleviate the problem. Further, because the offender was no longer situated at plaintiff’s work location when defendant did learn of a sexual harassment complaint, defendant breached no duty to take remedial action as regarded plaintiff once defendant had notice of a complaint. Plaintiff likewise failed to establish a prima facie case of quid pro quo sexual harassment. The Civil Rights Act provides that discrimination on the basis of sex includes where the employee’s submission to or rejection of sexual overtures “is used as a factor in decisions affecting such individual’s employment . . . .” MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii). A party pressing a claim under this provision must establish that the party was the subject of unwanted sexual conduct or communication and that the employer used the party’s submission to or rejection of the improper conduct as a factor in a decision affecting the party’s employment. Champion v Nation Wide Security, Inc, 450 Mich 702, 708-709; 545 NW2d 596 (1996). In the instant case, plaintiff has failed to show that any terms or conditions of her employment were affected by her rejection of the temporary supervisor’s advances. Plaintiff does not allege that the temporaiy supervisor ever suggested that plaintiff’s job would be affected, for better or worse, by her response to his overtures. Instead, plaintiff argues that