Discrimination Cases

Patricia Butler vs. Verizon New England, Inc. No. 06-P-572. Essex. December 7, 2006. February 26, 2007. Present: Perretta, Laurence, & Grasso, JJ. Labor, Federal preemption, Collective bargaining. Federal Preemption. Anti-Discrimination Law, Handicap. Contract, Collective bargaining contract. Federal preemption principles arising under § 301 of the Federal Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a) (1994), did not require dismissal of a unionized employee’s complaint against her employer alleging handicap discrimination in violation of G. L. c. 151B, in circumstances where the claim asserted a nonnegotiable State law right independent of the collective bargaining agreement between the employer and the union. [319-324] Civil action commenced in the Superior Court Department on July 22, 2005. Motions to dismiss and for reconsideration were heard by Richard E. Welch, III, J. Nancy A. Newark for the plaintiff. Brian H. Lamkin for the defendant. Grasso, J. Patricia Butler appeals from a judgment dismissing her complaint against Verizon New England, Inc. (Verizon), alleging handicap discrimination in violation of G. L. c. 15IB. The narrow question presented is whether Federal preemption principles arising under § 301 of the Federal Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a) (1994), require dismissal of Butler’s complaint. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212-213 (1985) (Lueck). We conclude that Butler’s action is not preempted and reverse the judgment of dismissal. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 412-413 (1988) (Lingle). 1. Background. For purposes of Verizon’s motion, we consider the pertinent factual allegations of the complaint in the light most favorable to Butler. See Nader v. Citron, 372 Mass. 96, 97-98 (1977). Butler worked for Verizon for twenty years as a central office technician. During much of that time she worked at a Verizon location in Lowell, where she lived. Butler is also a member of the International Brotherhood of Electrical Workers (union), with whom Verizon has a collective bargaining agreement (CBA). In 1989, Butler was diagnosed with multiple sclerosis. Her illness affects her mobility and use of her lower extremities, permitting her to walk or drive only for short periods of time. Initially, she was able to perform the essential functions of her job with reasonable accommodation. For example, at her request, Verizon installed an electric door opener at her workplace to accommodate her illness. In October, 2002, as part of a company-wide work force adjustment, Verizon relocated Butler’s entire work group from Lowell to Manchester, New Hampshire. Butler sought an accommodation from Verizon, asserting that her illness prevented her from driving long distances and that the extra driving time would aggravate her illness. She requested that Verizon not transfer her to Manchester and allow her to remain in Lowell. Verizon denied this request. Butler then took leave under the Family and Medical Leave Act. When her leave expired in January, 2003, she returned to work. Verizon modified her work schedule to permit her to commute to Manchester with a coworker to reduce the stress of driving. According to Butler, this arrangement proved unsatisfactory because of frequent schedule conflicts with her coworker due to days off and appointments. Butler again requested that she be transferred back to Lowell, and Verizon again denied her request. In May, 2003, Butler retired, fearing that if she stayed she would miss too much work, get fired, and lose valuable retirement benefits. After lodging a complaint with the Massachusetts Commission Against Discrimination (MCAD), Butler commenced an action in Superior Court alleging that Verizon’s failure to accommodate her illness amounted to handicap discrimination in violation of G. L. c. 151B. Verizon moved to dismiss Butler’s complaint pursuant to Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), asserting lack of subject matter jurisdiction, and under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), asserting that her claim was preempted by § 301 of the LMRA because it “directly and unavoidably implicate^] numerous provisions of the [CBA] between Verizon and the Union.” On the materials before him, the judge concluded that § 301 of the LMRA preempted Butler’s action. See Lueck, 471 U.S. at 212. We disagree. 2. Discussion. Whether Butler’s action is preempted turns on whether her claim of discrimination under G. L. c. 151B asserts a nonnegotiable State law right independent of the CBA, see Lingle, 486 U.S. at 412, or whether the claim is “inextricably intertwined” with that agreement. See Lueck, 471 U.S. at 213. The parties do not dispute that in considering Verizon’s motion to dismiss, the judge had before him only a portion of the CBA and not the entire agreement. Butler makes much of this in framing her arguments. She contends that without discovery and the opportunity to evaluate her G. L. c. 15 IB claim in light of the entire CBA, it cannot be said that her claim is “inextricably interconnected” with the interpretation of the CBA. Relying on Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 80 (1998), Butler argues that before a CBA may supersede an employee’s statutory right to claim employment discrimination or her right to a judicial forum for such a claim, the language in the CBA must be clear and unmistakable. Even then, Butler would have it, the LMRA would not preempt her G. L. c. 15 IB claim unless a mandatory grievance and arbitration procedure in the CBA specifically addressed the handling of a handicap discrimination or reasonable accommodation claim. A mandatory, but general, provision to grieve and arbitrate disputes would not suffice to require preemption of her State law claim.* ** See Lingle, 486 U.S. at 412-413 (“mere fact that a broad contractual protection . . . may provide a remedy for conduct that coincidentally violates state law does not make the existence or the contours of the state-law violation dependent upon the terms of the private contract” so as to require preemption). For its part, Verizon contends that in the particular circumstances of this case, whether the CBA specifically addresses handicap discrimination or reasonable accommodation is irrelevant because the accommodation requested by Butler (transfer back to Lowell) implicates company-wide work force adjustment provisions that are specifically addressed in the CBA. Verizon maintains that because (1) the accommodation requested would arguably require it to violate the CBA, and (2) such an accommodation is not “reasonable” and would defeat Butler’s claim of handicap discrimination, her claim is inextricably intertwined with the reduction in force provisions of the CBA so as to require preemption. See US Airways, Inc. v. Barnett, 535 U.S. 391, 394 (2002) (Barnett) (under Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. [1994] [ADA], absent special circumstances, “to show that a requested accommodation conflicts with the mies of a seniority system is ordinarily to show that the accommodation is not ‘reasonable’ ”). See also Labonte v. Hutchins & Wheeler, 424 Mass. 813, 816 n.5 (1997) (Federal cases decided under ADA serve as guide to interpretation of G. L. c. 151B). We reject both parties’ attempts at formulating the relevant issue. Whether a claim of discrimination is so “inextricably intertwined” with the CBA as to require dismissal on preemption grounds obviously requires consideration of the pertinent CBA provisions. After considering Butler’s complaint and the portions of the CBA cited by Verizon as requiring preemption, we conclude that Butler’s claim of handicap discrimination is not “inextricably intertwined” with the CBA. See Lingle, supra. In Lingle, supra, the United States Supreme Court considered whether an employee covered by a CBA that provided a contractual remedy for discharge without just cause could also enforce a State law remedy for retaliatory discharge. Id. at 401. There, the employer discharged the employee for filing a false workers’ compensation claim. Ibid. The employee and the union grieved the discharge under a CBA that prohibited discharge except for “proper” or “just” cause and provided a procedure for arbitration of “grievances,” broadly defined as encompassing “any dispute between ... the Employer and any employee, concerning the effect, interpretation, application, claim of breach or violation of this Agreement.” Id. at 401-402. An arbitrator ruled in the employee’s favor and ordered reinstatement with back pay. Id. at 402. Meanwhile, the employee sued for retaliatory discharge, alleging that she had been discharged for exercising her rights under the State’s workers’ compensation law. Ibid. Rejecting the employer’s contention that the claim for retaliatory discharge was preempted by § 301 of the LMRA, the Court concluded that the State law remedy for retaliatory discharge was independent of the contractual remedy contained in the CBA. Id. at 407. “[Section] 301 pre-emption merely ensures that federal law will be the basis for interpreting collective-bargaining agreements, and says nothing about the substantive rights a State may provide to workers when adjudication of those rights does not depend upon the interpretation of such agreements.” Id. at 409. Here, Butler’s claim of handicap discrimination, like that in Lingle, supra, is not “inextricably intertwined” with the pertinent terms of the CBA. Butler’s claim that Verizon unlawfully discriminated against her by failing to accommodate her handicap does not arise from any contractual right established under the CBA and is distinct from any other claim that she may have thereunder. Nor does her claim depend upon interpretation of the CBA. In subsequent exposition of the meaning and scope of § 301 preemption set forth in Lueck, supra, and Lingle, supra, the United States Supreme Court has underscored “that § 301 cannot be read broadly to pre-empt nonnegotiable rights conferred on individual employees as a matter of state law, and ... it is the legal character of a claim, as ‘independent’ of rights under the collective-bargaining agreement . . . (and not whether a grievance arising from ‘precisely the same set of facts’ could be pursued . . . ) that decides whether a state cause of action may go forward.” Livadas v. Bradshaw, 512 U.S. 107, 123-124 (1994) (footnote omitted). “[W]hen the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.” Id. at 124. This case is markedly different from Lueck, 471 U.S. at 216, where resolution of the employee’s State law claim depended on the meaning of a CBA because the duties imposed and rights established under State law derived from the rights and obligations established by the CBA. In Lueck, the CBA provided the basis not only for the benefits claimed by the employee, but also for the right to payments in a timely manner, the alleged violation of which formed the basis of the State tort of bad faith handling of an insurance claim. Id. at 214-218. In considering whether the State tort remedy could be applied to the employer’s handling of a claim for disability benefits authorized by the collective bargaining agreement, the Court observed that the State tort remedy “exists for breach of a ‘duty devolv[ed] upon the insurer by reasonable implication from the express terms of the contract,’ the scope of which, crucially, is ‘ascertained from a consideration of the contract itself.’ ” Id. at 216, quoting from Hilker v. Western Auto. Ins. Co., 204 Wis. 1, 16 (1931). Because the parties’ agreement as to how a benefit claim would be handled was necessarily relevant to the State tort alleging that the claim was handled in a dilatory manner, § 301 preempted application of the State tort remedy. Id. at 218-219. Here, as in Lingle, supra, and unlike in Lueck, supra, Butler’s State law remedy for handicap discrimination is independent of the CBA between Verizon and the union in the sense of “independent” that matters for § 301 preemption purposes: resolution of Butler’s State law claim of handicap discrimination does not require construing the CBA. See Lingle, supra at 406-407. While analysis of Butler’s claim of handicap discrimination might well involve attention to the same factual considerations as the contractual determination whether the accommodation (transfer to Lowell) implicates the work force adjustment provisions of the CBA, such parallelism does not render her handicap discrimination claim dependent on analysis of the CBA. Id. at 408. “[Ejven if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for § 301 pre-emption purposes.” Id. at 409-410. We are not persuaded that the CBA terms relating to work force adjustment identified by Verizon transform Butler’s claim of handicap discrimination by failure to accommodate into one that is “inextricably intertwined” with the CBA. We recognize that, at summary judgment or at trial, seniority or other provisions of the CBA such as those addressing work force adjustment may enable Verizon to prevent Butler from satisfying her burden of establishing that it failed to provide her with a reasonable accommodation. See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 453 (2002). See also Barnett, 535 U.S. at 393-394. Nevertheless, such evidence does not render Butler’s claim “inextricably intertwined” with the CBA so as to require § 301 preemption. Even under Barnett, supra, an employee is “free to present evidence of special circumstances that make ‘reasonable’ a seniority rule exception in the particular case.” Id. at 394. Moreover, “the employee’s initial request for an accommodation . . . triggers the employer’s obligation to participate in the interactive process of determining one.” Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 457, quoting from Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert. denied, 519 U.S. 1029 (1996). See Andover Hous. Authy. v. Shkolnik, 443 Mass. 300, 308 (2005). The factual variables that may make summary judgment inappropriate speak even more forcefully to the impropriety of dismissal on preemption grounds of an independent State law claim such as Butler’s before discovery and before opportunity to demonstrate, if necessary, that special circumstances warrant a finding that the requested accommodation is “reasonable” notwithstanding any reduction in force provisions to the contrary. See Barnett, supra at 405. We also reject Verizon’s contention that Butler’s references to the CBA in her complaint transform her statutory claim into one under the CBA itself or so implicate the CBA as to render her claim inextricably intertwined with it. This attempt to recharacterize Butler’s complaint ignores the gravamen of her claim, which is that Verizon violated her rights under G. L. c. 15IB, not those contained in a CBA, by failing to make reasonable accommodation for her handicap. The fact that further factual allegations of Butler’s complaint may seek to counter Verizon’s anticipated defense that the requested accommodation would violate CBA provisions does not transform that complaint into a claim under the CBA or one that requires interpretation of the CBA for resolution. “The cause of action [Butler] asserts arises not out of contract, but out of [State law, G. L. c. 151B], and is distinct from any right conferred by the collective-bargaining agreement.” Wright v. Universal Maritime Serv. Corp., 525 U.S. at 79. As Verizon did not cross-appeal from the judge’s denial of its Mass.R.Civ.P. 12(b)(1) motion asserting that the Superior Court lacked subject matter jurisdiction due to Butler’s failure to exhaust administrative remedies, we need not resolve that issue. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any event, that contention would fail for the reason just discussed. The essence of Butler’s complaint is that Verizon’s failure to accommodate her by retransferring her to Lowell violated the statutory prohibition against discrimination in G. L. c. 151B, not a contractual right under the CBA. Moreover, from all that appears, and as conceded by Verizon, nothing in the available portions of the CBA makes Butler’s claim of handicap discrimination a subject of mandatory grievance and arbitration under the CBA so as to require that Butler grieve Verizon’s failure to transfer her before commencing a statutory action. The judgment of dismissal is reversed and the matter is remanded to the Superior Court for further proceedings. So ordered. Butler did not file a grievance under the CBA regarding Verizon’s failure to accommodate her request for transfer to Lowell or its failure to request a waiver of force adjustment provisions on her behalf. Although not material to our decision, Butler’s complaint alleges that the union challenged the transfer of the entire work group from Lowell to Manchester and, subsequent to Butler’s retirement, was successful in that challenge, with all individuals in the work group moved back to Lowell. Verizon also contended that the Superior Court lacked subject matter jurisdiction because Butler had failed to exhaust her administrative remedies under the CBA. Verizon maintained that Butler was required to resort to the grievance procedure of the CBA before seeking judicial relief. The judge rejected this argument. Verizon attached to its motion portions of the CBA, particularly art. G25, which governs work force adjustments and relocations and the procedures to be followed in implementing a work force adjustment. The parties do not contend that by considering this attachment the judge converted the motion to dismiss into a motion for summary judgment. At oral argument, Verizon conceded that the CBA does not specifically address handicap discrimination or reasonable accommodation. However, Verizon argues that the lack of such specific provision is not relevant because the accommodation requested by Butler, a transfer to Lowell, implicates company-wide work force adjustment provisions that are specifically addressed in the CBA. At oral argument, Butler conceded that if the CBA were to address how Verizon must handle reasonable accommodation claims, then a State law claim alleging such handicap discrimination would be inextricably intertwined with, and preempted by, the CBA. Nor is this case like Blanchette v. School Comm. of Westwood, 427 Mass. 176 (1998), which involved not preemption principles, but those of issue preclusion, waiver, and estoppel. In its brief, Verizon abandoned so much of this contention as asserted that the Superior Court lacked jurisdiction because of Butler’s failure to exhaust administrative remedies at the MCAD prior to filing suit.

ELEZOVIC v FORD MOTOR COMPANY Docket No. 267747. Submitted August 2, 2006, at Lansing. Decided January 25, 2007, at 9:00 a.m. Leave to appeal sought. Lula and Joseph Elezovic brought an action in the Wayne Circuit Court against the Ford Motor Company and Daniel E Bennett under the Civil Rights Act (CRA), MCL 37.2101 et seq., seeking damages for alleged sexual harassment resulting from a hostile work environment. The plaintiffs alleged that Bennett, a supervisor at the Ford plant where Lula Elezovic worked, exposed himself to her, requested oral sex, and repeatedly engaged in other sexually offensive conduct. The trial court, Kathleen I. Macdonald, J., granted directed verdicts in favor of the defendants. The Court of Appeals, JANSEN, EJ, and Neff, J. (Kelly, J., concurring), affirmed, holding that it was bound to follow the rule in Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464 (2002), that a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiffs civil rights. 259 Mich App 187 (2003). The Court stated that, were it not bound by MCR 7.215(J) to follow Jager, it would have reached the opposite result. On appeal, the Supreme Court overruled Jager to hold that an agent of an employer may be held individually liable under the CRA, and remanded this case to the trial court for further proceedings regarding Bennett. 472 Mich 408 (2005). On remand, the trial court granted Bennett’s motion for summary disposition on the ground that he was not functioning as an agent of Ford under the CRA when he committed the claimed acts of sexual harassment. Lula Elezovic appealed, and Bennett cross-appealed by delayed leave granted, challenging the trial court’s denial of his renewed pretrial motion for summary disposition of the hostile work environment claim on its merits. The Court of Appeals held-. 1. The trial court erred in concluding that, because Ford had not given Bennett the authority to create a sexually hostile work environment, he was not functioning as an agent of Ford when he allegedly committed the unlawful acts of discrimination. Under the CRA, the term “employer” includes an agent of the employing entity. Agents are persons to whom the employing agency delegates supervisory power and authority over subordinates. An agent can be held directly and individually hable for engaging in discriminatory behavior in violation of the CEA while acting as the victim’s employer. This conclusion is consistent with the Legislature’s intent to eradicate the evil of sexual discrimination in the workplace, with prevailing law related to torts committed by agents, and with the rule that remedial statutes must be construed liberally to suppress the evil and advance the remedy. The narrower construction urged by the dissent would effectively insulate the tortfeasor agent from personal accountabihty for creating the very conditions that the CRA was enacted to prevent. Contrary to the dissent’s contention, the common-law agency principles on which courts have relied to determine whether to hold employers hable for harassment that their employees committed are not applicable here, because this case involves direct, not vicarious, liability. Therefore, if Elezovic can establish a prima facie case of hostile work environment sexual harassment against Bennett, absent the respondeat superior requirement, she may be entitled to damages for which Bennett is individually hable. 2. The trial court did not err in denying Bennett’s motion for summary disposition on the ground that Elezovic’s allegations of hostile work environment sexual harassment were insufficient as a matter of law. Elezovic presented evidence that, while Bennett was her supervisor, he repeatedly engaged in sexual conduct in her presence that a reasonable person would conclude was hostile, intimidating, or offensive. Although Elezovic did not supply specific dates and times in connection with her allegations, she has nonetheless established a genuine issue of material fact regarding whether Bennett subjected her to a hostile work environment. Reversed and remanded for further proceedings. Talbot, J., dissenting, stated that because the undisputed facts reflect that, under common-law agency principles, Bennett’s acts of sexual harassment occurred outside the scope of his authority as a Ford superintendent and violated Ford’s antidiscrimination policy, Bennett was not acting as Ford’s agent when he committed the alleged acts of sexual harassment, and he therefore does not meet the definition of an “employer” under the CRA. Accordingly, the trial court properly granted Bennett summary disposition with respect to Elezovic’s CRA claim. 1. Civil Rights — Civil Rights Act - Employees — Agents — Individual Liability. An agent of an employer may be held individually hable under the Civil Rights Act for sexually harassing an employee in the workplace (MCL 37.2101 et seq.). 2. Civil Rights — Civil Rights Act — Employees — Agents — Definition. An agent of an employer, for purposes of the Civil Rights Act, is a person to whom an employing entity has delegated supervisory power and authority to act on its behalf (MCL 37.2101 et seq). 3. Civil Rights — Civil Rights Act — Employees — Agents — Scope of Authority. An agent of an employer may be held individually hable for violating the Civil Rights Act in the workplace regardless of whether the underlying acts were outside the scope of the agent’s authority because an action for individual liability does not seek to hold the principal hable for the agent’s acts (MCL 37.2101 et seq). Edwards & Jennings, EC. (by Alice B. Jennings), for Lula Elezovic. Kienbaum Opperwall Hardy & Felton, F.L.C. (by Julia Turner Baumhart and Elizabeth Hardy), for Daniel Bennett. Before: CAVANAGH, EJ., and SMOLENSK! and TALBOT, JJ. CAVANAGH, EJ. This appeal follows the remand of this matter to the circuit court by our Supreme Court for consideration of plaintiff Lula Elezovic’s sexual harassment claim premised on a hostile work environment theory, MCL 37.2103(i)(iii), against her former supervisor, defendant Daniel Bennett, only. On remand, the circuit court granted defendant’s motion for summary disposition on the ground that, under the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq., defendant was not functioning as an “agent” of the Ford Motor Company when he committed the charged acts of sexual harassment. Elaintiff appeals this decision. Defendant cross-appeals by delayed leave granted, challenging the trial court’s denial of his renewed pretrial motion for summary disposition of plaintiffs hostile work environment claim on its merits. Because the facts related to this matter have been extensively detailed in previous opinions, we reiterate only the salient facts here. See Elezovic v Ford Motor Co, 472 Mich 408, 411-418; 697 NW2d 851 (2005); Elezovic v Ford Motor Co, 259 Mich App 187, 190-191; 673 NW2d 776 (2003). Plaintiff was an hourly production worker at Ford’s Wixom assembly plant when she was allegedly sexually harassed by defendant, her supervisor. She brought sexual harassment claims against both Ford and defendant. Following a three-week jury trial, the trial court granted defendants’ motion for a directed verdict, holding that plaintiff failed to establish a prima facie case of sexual harassment against either Ford or defendant. On appeal, this Court affirmed the trial court’s decisions. With regard to defendant, this Court relied on the then-recent case of Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464, 485; 652 NW2d 503 (2002), which held that a supervisor may not be held individually liable for violating the CRA. Elezovic, 259 Mich App at 197, 202. Our Supreme Court granted leave to appeal, and affirmed with regard to the issue of Ford’s liability. Elezovic, 472 Mich at 430. However, the Court overruled the Jager holding, concluding that an agent who sexually harasses an employee in the workplace can be held individually liable under the CRA. Id. at 411. The Court remanded the matter to the circuit court for further proceedings regarding defendant. Id. at 431. As noted above, on remand, the circuit court granted defendant’s renewed motion for summary disposition on the ground that defendant was not functioning as an “agent” of Ford when he committed the charged acts of sexual harassment. This appeal followed. Plaintiff argues that the trial court erred in concluding that defendant was not functioning as an “agent” of Ford under the CRA when he committed the charged acts of sexual harassment and, thus, could not be held individually liable. We agree. This Court reviews de novo the ruling on a motion for summary disposition. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). Although the trial court did not specify under which subrule of MCR 2.116(C) it found summary disposition appropriate, because the court looked beyond the pleadings, it appears that the decision was premised on MCR 2.116(0(10). MCR 2.116(0(10) tests the factual support of a claim and requires this Court to consider the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether a genuine issue of material fact warranting a trial exists. Walsh, supra. This Court also reviews de novo issues of statutory interpretation. Bloomfield Twp v Oakland Co Clerk, 253 Mich App 1, 9; 654 NW2d 610 (2002). Our purpose in reviewing questions of statutory construction is to discern and give effect to the Legislature’s intent. Echelon Homes, LLC v Carter Lumber Co, 472 Mich 192, 196; 694 NW2d 544 (2005). We begin our analysis by examining the plain language of the statute. If the language is unambiguous, no judicial construction is required or permitted and the statute must be enforced as written. Id., quoting People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). The undefined words of a statute must be given their plain and ordinary meaning, which may be ascertained by looking at dictionary definitions. Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). The CRA is remedial and thus must be “liberally construed to suppress the evil and advance the remedy.” Eide v Kelsey-Hayes Co, 431 Mich 26, 34; 427 NW2d 488 (1988). One of the purposes of the CRA, specifically MCL 37.2202, is to eradicate particular forms of discrimination in the workplace. See Champion v Nation Wide Security, Inc, 450 Mich 702, 713; 545 NW2d 596 (1996). “MCL 37.2202 forbids any employer from engaging in acts of discrimination that are prohibited by the CRA.” McClements v Ford Motor Co, 473 Mich 373, 386; 702 NW2d 166, amended 474 Mich 1201 (2005) (emphasis in original). One form of discrimination the CRA prohibits is discrimination based on sex. MCL 37.2202(1). Thus, an employer shall not discriminate on the basis of sex, which includes sexual harassment. MCL 37.2202(l)(a); MCL 37.2103®. The CRA is the exclusive remedy for a claim based on sexual harassment. McClements, supra at 383. There are two categories of sexual harassment: (1) quid pro quo and (2) hostile work environment. See Chambers v Trettco, Inc, 463 Mich 297, 310-311; 614 NW2d 910 (2000). At issue in this case is the latter type, hostile work environment sexual harassment, which is defined to include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions: (Hi) 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. [MCL 37.2103(i).] When the hostile work environment is created by the actions of coworkers and other coemployees, the alleged victim seeking a remedy under the CRA must file a claim of hostile work environment sexual harassment against her employer on a vicarious liability theory. See, e.g., Gilbert v DaimlerChrysler Corp, 470 Mich 749, 791-792; 685 NW2d 391 (2004). Thus, to establish a prima facie case of hostile work environment sexual harassment, the plaintiff employee must prove (1) that she belonged to a protected group; (2) that she was subjected to communication or conduct on the basis of sex; (3) that she was subjected to unwelcome sexual conduct or communication; (4) that the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with her employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior. See Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993). Respondeat superior liability exists when an employer has adequate notice of the harassment and fails to take appropriate corrective action. See Chambers, supra at 318-319. However, “if an employer is accused of sexual harassment, then the respondeat superior inquiry is unnecessary because holding an employer liable for personal actions is not unfair.” Radtke, supra at 397 (emphasis in original). Thus, when the hostile work environment is created by the actions of the employer, the alleged victim seeking a remedy under the CRA may file such a claim against her employer premised on a direct theory of liability. Similarly, this case involves not vicarious liability but the individual liability of the alleged sexual harasser, who is a purported “agent” of the employing entity, not a coworker. In this case, defendant argued in the trial court on remand that plaintiffs case had to be summarily dismissed because defendant was never vested with authority to create a sexually hostile work environment; i.e., defendant “was not Ford’s agent for purposes of creating a sexually hostile work environment.” The trial court agreed with defendant, granting defendant’s motion for summary disposition on the ground that defendant was not functioning as an agent at the time he committed the alleged unlawful acts of discrimination. We conclude that both defendant and the trial court misconstrued the applicable legal principles of agency. This unjust and unreasonable result permits an agent to pursue and accomplish his illegal objective by using his position and power, but immunizes him from liability because he was not supposed to do that. In other words, in this case, defendant could not be held personally liable for violating the purported victim’s civil rights because Ford did not tell him to sexually harass her. We do not believe that the Legislature intended this incongruous result. Article 2 of the CRA defines an “employer” as “a person who has 1 or more employees, and includes an agent of that person.” MCL 37.2201(a). Our Supreme Court, in this case, declared that an agent of an employer is considered an “employer” for purposes of the CRA, holding: [W]hen a statute says “employer” means “a person who has 1 or more employees, and includes an agent of that person,” it must, if the words are going to be read sensibly, mean that the Legislature intended to make the agent tantamount to the employer so that the agent unmistakably is also subject to suit along with the employer. (Emphasis added.) Indeed, when we said in Chambers [v Trettco, Inc, 463 Mich 297, 320; 614 NW2d 910 (2000)], that categorizing a given pattern of misconduct allows the Court “to determine whether the sexual harasser’s employer, in addition to the sexual harasser himself, is to be held responsible for the misconduct,” we believe we said as much. (Emphasis in original.) Accordingly, we reject the argument that including “agent” within the definition of “employer” serves only to provide vicarious liability for the agent’s employer and we conclude that it also serves to create individual liability for an employer’s agent. [Elezovic, 472 Mich at 420.] The Court also specifically held: Because we find that (1) inclusion of an “agent” within the definition of the word “employer” is not limited to establishing vicarious liability for the agent’s employer, but in fact means agents are considered employers, (2) federal decisions construing Title VII should not be followed because it would lead to a result contrary to the text of our CRA, and (3) the amendment history of the CRA does not preclude a finding of individual liability, we conclude that liability under our CRA applies to an agent who sexually harasses an employee in the workplace. [Id. at 426.] Again, our Supreme Court reiterated in its conclusion that “[b]ecause employers can be held liable under the CRA, and because agents are considered employers, agents can be held liable, as individuals, under the CRA.” Id. at 431. The clear result of the Supreme Court’s conclusion is that if the purported harasser is an agent of the employing entity, the harasser is treated as if he is the employer for purposes of the CRA. In other words, the harasser may be held directly and individually liable if he engaged in discriminatory behavior in violation of the CRA while acting in his capacity as the victim’s employer. Therefore, a respondeat superior analysis is not necessary with respect to the agent’s direct and individual liability because this is not a claim of vicarious liability. See Chambers, supra at 311; Radtke, supra. Next, we must determine when one is considered an “agent” and, thus, an employer under the CRA. The CRA does not define the term “agent,” so we may turn to a dictionary for guidance on its plain and ordinary meaning. See Koontz, supra. An agent is “a person or business authorized to act on another’s behalf” and “a person or thing that acts or has the power to act.” Random House Webster’s College Dictionary (1997). And, if “agent” is considered a legal term, its meaning is the same: “[o]ne who is authorized to act for or in place of another.” Black’s Law Dictionary (7th ed). These definitions are consistent with general agency principles, Stephenson v Golden (On Rehearing), 279 Mich 710, 734-735; 276 NW 849 (1937), and the fact that “most employers are corporate entities that cannot function without delegating supervisory power.” Champion, supra at 713. We conclude that it is through this delegation of general supervisory power and authority that one becomes an “agent” of the employing entity and, thus, an employer within the context of the CRA. Specifically, persons to whom an employing entity delegates supervisory power and authority to act on its behalf are “agents,” as distinguished from coemployees, subordinates, or coworkers who do not have supervisory powers or authority, for purposes of the CRA. If this agent is also the alleged sexual harasser, the agent is considered an employer under the CRA and may be directly and individually liable for this tort against the victim, whether or not the employing entity is liable. Again, MCL 37.2202 prohibits any employer from engaging in acts of discrimination that are prohibited by the CRA. McClements, supra at 386. Contrary to defendant’s argument, the trial court’s holding, and the dissent in this case, it is not necessary for a plaintiff to establish that a defendant was “functioning as an agent” when he committed the charged specific acts of sexual harassment charged. Almost invariably, the harasser is never acting within the scope of his agency when he breaks the law by sexually harassing a subordinate. As our Supreme Court has noted, “an employer rarely authorizes an agent to break the law or otherwise behave improperly. . . .” Champion, supra at 712 n 7. The issue is not whether the harassing acts were within the scope of the agent’s authority — the plaintiff is not attempting to hold the principal liable for the agent’s acts. The issue is whether the harasser was an agent, one vested with supervisory power and authority, at the time the harassing acts were being perpetrated against the victim; if so, the harasser is considered an employer for purposes of the CRA. We disagree with the dissent’