Hostile Work Environment Cases

Markdale E. Windross vs. Village Automotive Group, Inc. No. 07-P-494. Middlesex. March 18, 2008. June 3, 2008. Present: Cohen, Trainor, & Meade, JJ. Anti-Discrimination Law, Employment, Race. Employment, Discrimination. Administrative Law, Exhaustion of remedies. Superior Court, Jurisdiction. Discussion of G. L. c. 151B, § 4(1), which provides a cause of action for a hostile work environment based on the cumulative effect of a series of abusive acts, even though each in isolation might not be actionable in itself. [863] Discussion of the requirement, as a predicate to bringing a civil action in Superior Court in which the plaintiff alleges a violation of G. L. c. 15 IB, that the claimant timely file a complaint of unlawful discrimination with the Massachusetts Commission Against Discrimination, and of the limitation of the scope of the subsequent civil proceeding to matters alleged in the administrative complaint. [863-864] In a civil action in which the plaintiff alleged that he was subjected to a racially discriminatory hostile work environment in violation of G. L. c. 15 IB, § 4, the Superior Court complaint was not deficient for failure to exhaust administrative remedies, where the plaintiff’s complaint before the Massachusetts Commission Against Discrimination (MCAD), while not specifically pleading a hostile work environment claim as a separate and distinct cause of action, set forth the underlying facts regarding the plaintiff’s hostile work environment claim with sufficient specificity that the MCAD reasonably could have been expected to uncover the existence of additional facts giving rise to potential liability on that theory. [864-867] This court declined to consider an argument raised in a motion for judgment notwithstanding the verdict that had not been raised in a motion for a directed verdict. [867] There was no merit to a claim that the Superior Court lacked jurisdiction over a civil action in which the plaintiff alleged that he was subjected to a racially discriminatory hostile work environment in violation of G. L. c. 151B, § 4, where, although the plaintiff failed to enter in evidence his complaint before the Massachusetts Commission Against Discrimination, the judge had an ample basis to conclude that such a filing had been made. [867-868] At the trial of a civil complaint, sufficient evidence existed to establish a racially discriminatory hostile work environment in violation of G. L. c. 151B, § 4, where the jury reasonably could have concluded that the plaintiff had been subjected to severe and perverse harassment that, when viewed objectively, was sufficient to interfere unreasonably with his work performance. [868-870] This court permitted the plaintiff, as the prevailing party in an appeal from the judgment in a civil action in which he alleged a racially discriminatory hostile work environment in violation of G. L. c. 151B, § 4, to apply for appellate attorney’s fees, but the court declined to double any eventual award of costs, because the defendant’s appeal was not frivolous. [870] Civil action commenced in the Superior Court Department on March 27, 2000. The case was tried before Geraldine S. Hines, J., and a motion for judgment notwithstanding the verdict was heard by her. Mark S. Bodner for the defendant. Brailey E. Newton for the plaintiff. Doing business as Charles River Saab. Meade, J. Following a jury trial, the defendant, Village Automotive Group, doing business as Charles River Saab (CRS), appeals from a judgment that found it liable to its former employee, the plaintiff, Markdale E. Windross, for subjecting him to a racially discriminatory hostile work environment in violation of G. L. c. 151B, § 4. CRS claims that because Windross’s hostile work environment claim was not specifically pleaded in his complaint to the Massachusetts Commission Against Discrimination (MCAD), it should have been barred for his failure to exhaust administrative remedies; that Windross’s Superior Court complaint was similarly deficient; and that its motions for a directed verdict and for judgment notwithstanding the verdict (judgment n.o.v.) were improperly denied. We affirm. 1. Background. Windross, a black male of Jamaican descent, worked for CRS, an automobile dealership, as a salesperson between July 1, 1999, and September 1, 1999, when his employment was terminated for poor performance. Following his termination, Windross filed a complaint with the MCAD alleging that CRS, its sales manager, Peter Didick, and its general manager, William West, had subjected him to various acts of employment discrimination based on race, color, and national origin. Thereafter, pursuant to G. L. c. 151B, § 9, Windross timely removed the MCAD complaint to Superior Court, where the case was tried before a jury. CRS moved for a directed verdict at the close of Windross’s case, and again at the close of all the evidence; both motions were denied. The jury returned a verdict in favor of Windross with respect to his hostile work environment claim, but found for CRS on the wrongful termination claim. The jury also returned verdicts in favor of Didick and West on all counts of discrimination against those defendants individually. On April 5, 2005, judgment entered against CRS in the amount of $75,000, plus interest in the amount of $45,246.97. Following the denial of its motion for judgment n.o.v., CRS timely noticed an appeal. 2. Discussion, a. Exhaustion of administrative remedies. Pursuant to G. L. c. 151B, § 4(1), as appearing in St. 1989, c. 516, § 4, it is unlawful “[f]or an employer, . . . because of the race, color, . . . national origin, ... or ancestry of any individual ... to discriminate against such individual... in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” In addition to enabling a plaintiff to bring suit for unlawful acts of discrimination, G. L. c. 15IB, § 4(1), has been interpreted to provide a cause of action for a hostile work environment based on the cumulative effect of a series of abusive acts though each in isolation might not be actionable in itself. See Clifton v. Massachusetts Bay Transp. Authy., 445 Mass. 611, 616 n.5 (2005), quoting from Keeler v. Putnam Fiduciary Trust Co., 238 F.3d 5, 12 (1st Cir. 2001) (acts giving rise to hostile work environment claim may be described as “pinpricks [that] only slowly add up to a wound”). In this context, “[a] hostile work environment is one that is ‘pervaded by harassment or abuse, with the resulting intimidation, humiliation, and stigmatization, [and that] poses a formidable barrier to the full participation of an individual in the workplace.’ ” Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 532 (2001), quoting from College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 162 (1987). Because a hostile work environment claim is a distinct theory of recovery requiring additional elements of proof beyond a showing of discrimination, when it is claimed along with individualized claims of discrimination, the claims must be analyzed separately. As a predicate to bringing a civil action in the Superior Court alleging a violation of G. L. c. 151B, a claimant must timely file a complaint of unlawful discrimination with the MCAD. G. L. c. 151B, § 5. “The purpose of this requirement is two fold: (1) to provide the MCAD with an opportunity to investigate and conciliate the claim of discrimination; and (2) to provide notice to the defendant of potential liability.” Cuddyer v. Stop & Shop Supermarket Co., supra at 531. Because those purposes would be frustrated if the claimant were permitted to allege one thing in the MCAD complaint only to allege something entirely different in the ensuing civil action, the scope of the subsequent civil proceeding is limited to matters alleged in the administrative complaint. CRS maintains that a hostile work environment claim was not specifically pleaded in Windross’s MCAD complaint as a separate and distinct cause of action and thus should have been barred for failure to exhaust administrative remedies. In support of this contention, CRS relies on an unpublished decision of the United States District Court for the District of Massachusetts and some Superior Court decisions, which essentially hold that a hostile work environment claim must be brought as a separate cause of action because not all conduct that may be characterized as harassment rises to the level of a hostile work environment. While we are not bound by these decisions, see College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. at 163; Heritage Jeep-Eagle, Inc. v. Chrysler Corp., 39 Mass. App. Ct. 254, 258 n.7 (1995), and we do not necessarily quarrel with the idea posited above, they do not properly inform the exhaustion question before us. Rather, consistent with the general scope of the investigation rule, a claim that is not explicitly stated in the administrative complaint may be asserted in the subsequent Superior Court action so long as it is based on the acts of discrimination that the MCAD investigation could reasonably be expected to uncover. See Mole v. University of Mass., 58 Mass. App. Ct. 29, 47 (2003), S.C., 442 Mass. 582 (2004) (“[t]he scope of subsequent court proceedings is limited by the charge filed with the administrative agency and the investigation that can reasonably be expected as a result”); Lattimore v. Polaroid Corp., 99 F.3d 456, 464-465 (1st Cir. 1996) (same; referring to G. L. c. 151B claim); Conroy v. Boston Edison Co., 758 F. Supp. 54, 58 (D. Mass. 1991) (“where the factual statement in a plaintiff’s written charge should have alerted the agency to an alternative basis of discrimination, and should have been investigated, the plaintiff will be allowed to allege this claim in his or her complaint regardless of whether it was actually investigated”). In accordance with this rule, “[a]n administrative charge is not a blueprint for the litigation to follow . . . [and] the exact wording of the charge of discrimination need not presage with literary exactitude the judicial pleadings which may follow.” White v. New Hampshire Dept. of Corrections, 221 F.3d 254, 263 (1st Cir. 2000), quoting from Powers v. Grinnell Corp., 915 F.2d 34, 37 (1st Cir. 1990). Rather, as the United States Court of Appeals for the First Circuit held with respect to G. L. c. 151B, for the claim to fall within the scope of the investigation, the plaintiff must “describe the essential nature of the claim and . . . identify the core facts on which it rests.” Lattimore v. Polaroid Corp., supra at 464. We discern no reason to except hostile work environment claims from the general scope of the investigation rule. Even if conduct which may be characterized as harassment may not, by itself, rise to the level of a hostile work environment, this does not mean that a heightened pleading standard exists for claims based on that theory. In relevant part, the MCAD’s administrative regulations in effect when Windross filed his complaint required a complainant to include the following information in his administrative complaint: “(a) the date(s) on which such unlawful discriminatory acts occurred; . . . (b) a concise statement of the alleged discriminatory acts', . . . [and] (d) appropriate identification of the Complainant(s) and the person(s) alleged to have committed unlawful discriminatory acts . . .” (emphasis supplied). 804 Code Mass. Regs. § 1.10(5) (1999). Consistent with general notice pleading requirements under Mass.R.Civ.R 8(a), 365 Mass. 749 (1974), this language does not require the claimant to state the specific legal theory on which the claim for recovery is based. See Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979); Ciccone v. Smith, 3 Mass. App. Ct. 733, 734 (1975), quoting from Mass.R.Civ.P. 8(a) (complaint is sufficient if it gives fair notice of claims of parties and contains “a short and plain statement of claim showing that the pleader is entitled to relief”). Cf. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (finding it “impossible to square the ‘heightened pleading standard’ [applied to a claim brought under 42 U.S.C. § 1983] with the liberal system of ‘notice pleading’ set up by the Federal Rules . . . [which] requires that a complaint include only ‘a short and plain statement of the claim showing that the pleader is entitled to relief’ ”). Consistent with the scope of the investigation rule, the requisite degree of precision in the drafting of an MCAD complaint is satisfied if the core factual allegations underlying the claim are set forth such as to “fairly place[] [the issue] before the agency.” Mole v. University of Mass., 58 Mass. App. Ct. at 48. This is sufficient to accomplish the twin purposes of the administrative filing requirement without unfairly prejudicing a claimant for in-artful pleading. Here, the underlying facts regarding Windross’s hostile work environment claim were set forth with sufficient specificity such that the MCAD may reasonably have been expected to uncover the existence of additional facts giving rise to potential liability on that theory. Although the words “hostile work environment” do not appear in the complaint, Windross alleged specific underlying facts describing a work environment in which he was persistently subjected to racially abusive comments and other conduct throughout the course of his employment that implicitly were severe and pervasive enough to interfere with the performance of his work. No more was required. See Anjelino v. New York Times Co., 200 F.3d 73, 94-95 (3d Cir. 1999) (reference in administrative complaint alleging sexual harassment to “abusive atmosphere” rather than to “hostile work environment” was sufficient to bring hostile work environment claim within scope of complaint); White v. New Hampshire Dept. of Corrections, 221 F.3d at 263 (Title VII hostile work environment claim fell within scope of plaintiff’s administrative complaint where it listed examples of alleged harassing statements; “[tjhough the administrative complaint [did] not spell out all of the specific comments made by various employees, it was sufficient to describe the essential nature of the charge and to lead to a reasonable investigation thereof”). b. The Superior Court complaint. Regardless of the sufficiency of the MCAD complaint, CRS maintains that its motions for a directed verdict should have been allowed because Windross’s amended complaint failed to set forth a claim for hostile work environment. The immediate problem with this position is that CRS neither raised this argument in its written motions for directed verdict nor argued it before the judge. Pursuant to Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974), a motion for a directed verdict must “state the specific grounds therefor.” See Matley v. Minkoff, 68 Mass. App. Ct. 48, 52 (2007). Although CRS later raised the issue in its motion for judgment n.o.v., that was improper. See Shafir v. Steele, 431 Mass. 365, 371 (2000) (“a party may not raise an issue in a motion for judgment n.o.v. that was not raised in a motion for directed verdict”). Because CRS failed to raise the issue properly, it is waived. c. The Superior Court’s jurisdiction. CRS claims that Windross failed to enter the MCAD complaint in evidence and thus did not establish that he had filed such a complaint as is required before bringing suit in the Superior Court. This claim is also without merit. Although Windross did not introduce the MCAD complaint itself in evidence, the judge had an ample basis to conclude that such filing had been made. Indeed, the exhibits entered in evidence contained numerous references to Windross’s MCAD complaint, including the “Respondents’ Position Statement,” MCAD Docket No. 99-13-2813, received and marked as exhibit 10, which expressly acknowledges Windross’s filing of an MCAD complaint. d. Sufficiency of the evidence. CRS also claims the trial judge erred in denying its motions for a directed verdict and for judgment n.o.v. on the grounds that Windross did not establish that he was subjected to conditions sufficiently severe and pervasive as to constitute a hostile work environment. We disagree. In reviewing a ruling on a motion for a directed verdict or judgment n.o.v., the question before us is the same: “whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.’ ” Remuela v. Hertz Corp., 361 Mass. 341, 343 (1972), quoting from Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301, 302 (1943). The concept of a hostile work environment claim was developed in the context of sexual harassment case law, and is dependent upon a finding that the abusive conduct was “sufficiently severe and pervasive to interfere with a reasonable person’s work performance.” Muzzy v. Cahillane Motors, Inc., 434 Mass. 409, 411 (2001). See Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. at 532; Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 603 (2006). To prevail on this claim, Windross was required to establish a work environment pervaded by harassment or abuse that unreasonably interfered with his work performance, and that such conduct was sufficiently severe and pervasive to interfere with a reasonable person’s work performance. Muzzy v. Cahillane Motors, Inc., supra at 411. “This ‘objective’ reasonable person standard has been interpreted to mean that the evidence of . . . harassment is to be considered from the ‘view of a reasonable person in the plaintiff’s position.’ ” Id. at 411-412, quoting from Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. 673, 677 n.3 (1993). Here, there is ample evidence in the record from which the jury could reasonably conclude that Windross had been subjected to severe and pervasive harassment that, when viewed objectively, was sufficient to interfere unreasonably with his work performance. At trial, Windross established that he was told by the general manager before coming to work for CRS that this was “not like Toyota where you have the United Nations,” and that his new coworkers were a “bunch of elder whites” who are “set in their ways”; on more than one occasion, a particular coworker whom he had seen interacting pleasantly with other coworkers gave him a “look of disdain, . . . and just walked away” when he attempted to speak to her; he was prohibited from wearing the company’s black Saab shirt because he was black and management “didn’t want [him] looking that way in front of customers”; he was told by a coworker that it was his fault when customers were not coming into the showroom; he was reprimanded by a coworker about what customers would think of his haircut; at a staff meeting, a sales manager asserted while looking straight at Windross (who regularly wore a gold chain necklace) “only sleazy salesperson^] wear gold chains”; his coworkers repeatedly taunted and ridiculed him for his pronunciation of the word “vegetable”; a fellow salesperson laughed at him and told him that something was wrong with his hands since they were light on one side and dark on the other; he was unfairly blamed for errors made by others; and that all of this was known and tolerated by management. Windross testified that he felt “preoccupied” by the persistent ridiculing, which interfered with his ability to sell cars and caused him to “dread[] coming into work.” Although CRS contested much of this evidence at trial, it is outside our appellate function to reconcile conflicting evidence or consider issues of credibility. Fox v. F & J Gattozzi Corp., 41 Mass. App. Ct. 581, 584 (1996). Indeed, in reviewing the denial of CRS’s motions for a directed verdict and judgment n.o.v., we are required “to construe the evidence in

Lisa Trinh vs. Gentle Communications, LLC, & another. No. 07-P-441. Middlesex. December 11, 2007. March 10, 2008. Present: Cowin, Brown, & Kafker, JJ. Practice, Civil, Judgment notwithstanding verdict. Employment, Sexual harassment, Discrimination, Constructive discharge. Anti-Discrimination Law, Sex, Employment, Damages. Damages, Under anti-discrimination law, Punitive. In an action brought by a plaintiff against her former employer and her former supervisor, alleging sexual harassment in employment, the trial court judge did not err in denying the defendants’ motion for judgment notwithstanding the verdict on the issue of the award of compensatory damages against both defendants arising from the supervisor’s conduct, where the evidence at trial demonstrated that the supervisor’s remarks and actions were sufficiently severe and pervasive to support the jury’s findings of harassment and of vicarious liability on the part of the employer [373-374]; further, the award of punitive damages against the supervisor was both warranted and not excessive [375-376]. In a civil action brought by a plaintiff alleging sexual harassment in employment, the trial court judge did not err in granting the defendants’ motion for judgment notwithstanding the verdict on the issue of the award of damages for lost income, where the plaintiff failed to present sufficient evidence to establish a constructive discharge. [374-375] In an action brought by a plaintiff against her former employer, alleging that the employer was liable for failing to take adequate remedial action after the plaintiff complained of sexual harassment by her supervisor, the trial court judge properly granted the employer’s motion for judgment notwithstanding the verdict, and correctly ruled that the jury lacked a factual predicate for assessing punitive damages against the employer directly, where the evidence presented at trial was insufficient to warrant a finding that the employer inadequately or inappropriately investigated the plaintiff’s claims of sexual harassment. [376-378] Civil action commenced in the Superior Court Department on October 30, 2000. The case was tried before Mitchell J. Sikora, Jr., J., and motions for judgment notwithstanding the verdict were heard by him. Joseph H. Reinhardt (James F. Champa with him) for the plaintiff. Heidi Goldstein Shepherd for the defendants. Samuel Tencer. Kafker, J. Lisa Trinh, a junior employee of Gentle Communications, LLC, doing business as Gentle Dental (Gentle), complained that the dentist in charge of its Brookline office, Samuel Tencer, sexually harassed her. The matter went to a jury, which found, on special questions, that (1) Tencer sexually harassed Trinh; (2) such harassment proximately caused damages of $20,000 for emotional injury and $20,000 in lost income or back pay; (3) Tencer was individually liable for a punitive award of $65,000; (4) Gentle was separately liable for Tencer’s sexual harassment because it knew of Tencer’s harassment and failed to take adequate remedial measures; (5) Trinh’s damages proximately related to Gentle’s separate tort were $20,000 in lost income and $20,000 in emotional injury; (6) Gentle was separately liable for a $1 million punitive award. The jury also determined that (1) neither Tencer nor Gentle retaliated against Trinh for presenting her complaint; (2) Tencer did not intentionally inflict emotional distress on Trinh; and (3) Tencer did not interfere with an advantageous business or employee relationship between Trinh and Gentle. Tencer and Gentle filed motions pursuant to Mass.R.Civ.P. 50(b), as amended, 428 Mass. 402 (1998), for judgment notwithstanding the verdict (judgment n.o.v.) or, in the alternative, for a new trial or a remittitur. The trial judge allowed the motions for judgment n.o.v. in part, concluding that (1) there was no evidence that Trinh suffered lost income proximately caused by either Tencer or Gentle; (2) no evidence supported a finding of separate liability against Gentle; and (3) no evidence supported a punitive award against Gentle, which award was in any case grossly excessive. The judge denied the motion for judgment n.o.v. on the sexual harassment award and on the separate punitive damage award against Tencer. In accord with those rulings, the judge entered a judgment that awarded Trinh (1) $20,000 in compensatory damages jointly and severally against both Tencer and Gentle; (2) $65,000 in punitive damages against Tencer only; and (3) $30,592 as Trinh’s reasonable attorney’s fees against both Tencer and Gentle. The defendants appeal, and Trinh cross-appeals. We affirm. Factual background. We summarize the facts the jury could have found as follows. Gentle owns a number of dentists’ offices in the greater Boston area. In October of 1997, Trinh was hired by Gentle and was assigned to work in its Brookline office as a “care coordinator,” as part of what Gentle designated as a “pilot program.” The care coordinator’s role was to explain treatments recommended by the dentists to the patients, to determine how patients would pay, and to schedule the treatments. When Trinh began her employment, Gentle presented Trinh with a copy of Gentle’s written sexual harassment policy and had her sign it. The policy indicated that complaints about sexual harassment should be directed to Barry Bomfriend, Gentle’s chief operating officer, or Donna Simonds, its director of human resources. Trinh testified that she was not given time to adequately review the policy prior to signing it, nor was she given a copy. After her training, Trinh began work in the Brookline office at the beginning of December. Tencer had previously expressed skepticism with the idea of care coordinators, but agreed to participate in the pilot program. During the few months in which Trinh worked at the Brookline office, Tencer engaged in behavior that made her feel uncomfortable. Trinh testified that Tencer, on several occasions, made inappropriate sexual remarks to her. Tencer had, at one point, walked in on a conversation at the front desk where Trinh revealed to other coworkers that she was considering breast augmentation surgery. Tencer later brought up the surgery with her individually and asked her if he could see what her breasts looked like before the surgery. He commented on her clothes and body at work, and at one point walked into the lunchroom, looked at the plaintiff, and said, “I like to eat that too,” referring to Trinh. He also whistled at Trinh in the workplace, looked at her in a way that made her feel uncomfortable, and when he passed her in the hallways during work, he would brush against her. Finally, at one point Tencer leaned over Trinh while she worked at the front counter, and she testified that she could feel his penis against her back. Over the course of her employment in the Brookline office, Trinh mentioned her discomfort to three people: a care coordinator in Gentle’s Natick office, who had gone through training with the plaintiff; the Gentle employee who trained and supervised the care coordinator program; and a dentist at another Gentle location (a part owner who did not act as an officer of the company) whom she dated over the span of approximately two months while she worked in the Brookline office. Near the end of February, 1998, Trinh was notified that she was to be transferred to Gentle’s Cambridge office. On her second-to-last day in the Brookline office, Thursday, February 26, Trinh notified Kathy Circeo, the Brookline office administrator, of her complaints. The next day, Circeo called Simonds about the complaint. Simonds then conferred with Bomfriend and decided to investigate the allegations, although Trinh had not contacted either of them directly to relate the substance of her complaints. The following Monday, March 2, Simonds contacted Trinh, who was at her first day of work in the Cambridge office, and made an appointment to speak to her on Wednesday, March 4. On March 3, Simonds and Bomfriend went to the Brookline office and interviewed five employees there, including Tencer and Circeo. When interviewed, Tencer denied the harassing behavior and said that Trinh had dressed inappropriately for the office, although she had never been told during her employment at Gentle that her dress was inappropriate. When conducting the interviews, Simonds took handwritten notes and typed them afterwards. There were differences between the handwritten notes and the typed copies made afterwards; the typed versions lacked some details and contained other additional details not included in the handwritten notes. Each set of typed interview notes contained a signature line for the interviewee to attest that the notes were a truthful representation of the interview, but most of them were unsigned. On March 3, Trinh sent a letter to Bomfriend, saying that she was too “stressed out” to meet with Bomfriend and Simonds the next day. Bomfriend and Simonds then made an appointment to speak with Trinh at some point in the next week. In the meantime, Bomfriend and Simonds interviewed several employees at different Gentle offices, including, on March 5, the care coordinator in Natick to whom Trinh had detailed her complaints. Trinh testified that her conversation with her colleague in Natick convinced her that the investigation was biased against her. From that conversation, she got the impression that the investigation was focusing on her behavior at the office, rather than Tencer’s, and therefore that the investigation was aimed at trying to discredit her rather than to resolve her complaints fairly. On March 9, she wrote another letter to Bomfriend, stating that it was “impossible” for her to continue working at Gentle because “everyone in the company knows about your investigation and you have accused me of lying about the sexual harassment and of being immoral and illegal. The entire environment has become hostile towards me.” She then went on to state that she was terminating her employment with Gentle as of March 14, 1998. Simonds and Bomfriend went to the Cambridge office to speak with Trinh in person, but she ended the interview after a short period of time because, as she testified, she had to see a patient. At the end of the week, Trinh left her job at Gentle. Thus, Simonds and Bomfriend’s investigation concluded with none of their interview subjects having corroborated Trinh’s complaints and with Trinh herself having refused to participate in the internal investigation because of her belief that the investigation was biased against her. As they had found no information confirming Trinh’s complaints against Tencer during their interviews, and Trinh had declined the opportunities given to her to participate in the investigation, Simonds and Bomfriend concluded their investigation, and Tencer was not disciplined. Discussion. 1. Standard of review. In reviewing a trial judge’s decision on a motion for judgment n.o.v., “[w]e do not defer to the judge’s view of the evidence but examine the case anew, following the same standard the judge is obliged to apply.” MacCormack v. Boston Edison Co., 423 Mass. 652, 659 (1996). That standard has been often articulated and provides that “the question before us is the same: that is, ‘whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.” ’ Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972), quoting from Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301, 302 (1943).” Doe v. Senechal, 66 Mass. App. Ct. 68, 76 (2006). Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 603 (2006). See Smith v. Bell Atl., 63 Mass. App. Ct. 702, 711 (2005). We consider the claims against each of the defendants in turn. 2. Claims against Tencer. a. Compensatory damages. On appeal Tencer argues that the trial judge should have granted his motion for judgment n.o.v. or a new trial on the award for compensatory damages because Trinh failed to introduce sufficient evidence to sustain a sexual harassment claim against Tencer individually and, in addition, failed to meet the heightened burden for assessing punitive damages. Trinh’s case was based on the theory that Tencer’s harassment created a hostile work environment. The relevant portion of the statute defines sexual harassment as “verbal or physical conduct of a sexual nature when . . . such . . . conduct ha[s] the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” G. L. c. 151B, § 1(18), as amended by St. 1987, c. 473, § 2. In order to prevail on this theory, Trinh had to show that the ‘.‘conduct alleged was sufficiently severe and pervasive to interfere with a reasonable person’s work performance.” Muzzy v. Cahillane Motors, Inc., 434 Mass. 409, 411 (2001). Conduct of a sexual nature may be considered sexual harassment under the statute, even absent sexual advances or requests for sexual favors. See Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290 (1997). There was sufficient evidence at trial to support the jury’s verdict that Tencer sexually harassed Trinh. She testified that Tencer asked to see her breasts after the conversation concerning her breast augmentation surgery. Trinh testified that Tencer made other sexually suggestive comments, and that he rubbed against her in a way in which she could feel his penis against her. Tencer’s statements and actions were objectively offensive, and Trinh testified to her discomfort about the comments and physical contact. Tencer’s remarks and actions were sufficiently severe and pervasive to support the finding of harassment and the emotional distress damages that ensued therefrom. We find nothing in the record that compels us to disturb the trial judge’s decision to allow the jury’s verdict to stand in this regard. It was also appropriate to hold the employer vicariously liable for its manager’s sexual harassment and for the compensatory damages owed because of this harassment. See College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 166-167 (1987). b. Damages for lost income. The plaintiff complains that the judge should not have granted the defendants’ motion for judgment n.o.v. on the award of damages to her for lost income. The judge did not err in his ruling. Trinh was not fired from Gentle, but rather resigned. In these circumstances, she was required to show that she was constructively discharged from Gentle in order to recover lost income. A plaintiff establishes a constructive discharge by showing that “based on an objective assessment of the conditions under which the employee has asserted [s]he was expected to work, it could be found they were so difficult as to be intolerable.” GTE Prod. Corp. v. Stewart, 421 Mass. 22, 34 (1995). See Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. at 606-607. In this case, Trinh was transferred out of the Brookline office, where the complained of harassment took place, and away from the one manager who had harassed her. She had worked in the Cambridge office for less than two weeks when she submitted her letter of resignation. Her pay had not been reduced, and her responsibilities at Cambridge were substantially the same as they had been in Brookline. There was no evidence that her managers in Cambridge took any adverse action toward her. Trinh’s testimony and her resignation letter do not establish a work environment in Cambridge so hostile that it would support a finding of constructive discharge. While participation in the company’s investigation of her sexual harassment complaint could be expected to be difficult, it would not constitute intolerable working conditions. Moreover, Trinh did not participate in the process after making the complaint. The trial judge properly ruled that Trinh had not presented sufficient evidence to establish a constructive discharge, and therefore she was not entitled to damages for lost income. c. Punitive damages. To assess punitive damages under G. L. c. 15IB, § 9, the plaintiff must show that the complained-of behavior is “not merely intentional and offensive.” Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 498 (2000). Rather, the conduct must be “outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Dartt v. Browning-Ferris Indus., Inc. (Mass.), All Mass. 1, 17a (1998), quoting from Restatement (Second) of Torts § 908(2) (1979). The conduct must warrant “condemnation and deterrence.” Bain v. Springfield, 424 Mass. 758, 767 (1997). We conclude that Tencer’s conduct could have been found outrageous given his sexual harassment of a junior employee, including asking to see her breasts and rubbing up against her so that she could feel his penis, and his position of responsibility as the dentist in charge of the local office. The punitive damages assessed against Tencer also were not excessive. We use a three-part test to analyze the reasonableness of a punitive damages award, scrutinizing “ ‘the degree of reprehensibility of the defendant’s conduct,’ the ratio of the punitive damage award to the ‘actual harm inflicted on the plaintiff,’ [and] a comparison of the ‘punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct.’ ” Labonte v. Hutchins & Wheeler, 424 Mass. 813, 826-827 (1997), quoting from BMW of N. Am. v. Gore, 517 U.S. 559, 575, 580, 583 (1996). Tencer’s conduct described above could have been found reprehensible. The ratio of less than four-to-one was within standards deemed appropriate. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003) (“Single digit multipliers are more likely to comport with due process”); Ciccarelli v. School Dept. of Lowell, 70 Mass. App. Ct. 787, 798 (2007) (five-to-one ratio affirmed). And the amount, under $100,000, has been found acceptable in similar contexts. See, e.g., Bain v. Springfield, 424 Mass. at 768; Beaupre v. Cliff Smith & Assocs., supra at 497-498. 3. Claims against Gentle, a. Compensatory damages. An employer may be found directly liable for discrimination under G. L. c. 15IB, § 4, if it is notified of sexual harassment in its workplace and fails to take adequate remedial action. College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. at 167. On appeal, Trinh argues that the jury verdict assessing direct liability, both compensatory and punitive, against Gentle was adequately supported, and therefore the judge’s grant of Gentle’s motion for judgment n.o.v. and, in the alternative, a new trial should be reversed. The trial judge, in his ruling on Gentle’s motion for judgment n.o.v., accurately delineated the factual basis for his decision to vacate the jury’s finding of direct liability against Gentle. Even drawing all reasonable inferences in Trinh’s favor, the evidence presented at trial was insufficient to warrant a finding that Gentle inadequately or inappropriately investigated the claims. Trinh did not complain to the officials identified in the sexual harassment policy. Once Donna Simonds, the director of human resources and one of the officials responsible for investigating sexual harassment, became aware of the complaints, she followed up immediately along with Barry Bomfriend, the chief operating officer of the company, and the other official responsible for sexual harassment investigations. Simonds and Bomfriend also responded appropriately, including questioning Trinh’s behavior. At least some inquiry into the plaintiff’s workplace behavior was relevant to the investigation, as determining whether the conduct at issue was unwelcome is a key component of a claim under the sexual harassment statute. See Ramsdell v. Western Mass. Bu

ROBINSON v FORD MOTOR COMPANY Docket No. 271395. Submitted January 18, 2007, at Detroit. Decided October 30, 2007, at 9:05 a.m. Robert Robinson brought an action in the Wayne Circuit Court against his employer, the Ford Motor Company, and a fellow employee, Darren Smith, alleging, in part, sexual harassment in violation of the Civil Rights Act (CRA), MCL 37.2101 et seq. Ford moved for summary disposition, alleging, in part, that sexual horseplay by Smith, a heterosexual male, directed against the plaintiff, a male, fell outside the definition of sexual harassment. The court, Wendy M. Baxter, J., denied the motion with regard to the alleged violation of the CRA. The Court of Appeals granted Ford’s application for leave to appeal from that part of the order. The Court of Appeals held: The court properly rejected Ford’s claims that the plaintiffs same-gender, hostile-work-environment claim is not cognizable under the CRA and that Smith’s conduct toward the plaintiff was not of a sexual nature. However, the court failed to address the threshold issue whether the plaintiff was harassed because of sex. The order appealed from must be affirmed, but the matter must be remanded to the trial court to address whether the plaintiff has presented a genuine and material issue regarding whether he was harassed because of sex. 1. The language of MCL 37.2202(l)(a), which prohibits discrimination because of sex in the terms and conditions of employment, does not exclude same-gender, sexual-harassment claims. 2. The CRA prohibits physical conduct or communication of a sexual nature that has the effect of interfering with an individual’s employment. MCL 37.2103(i)(¿¿¿). Actionable sexual harassment requires conduct or communication that inherently pertains to sex, but there is no requirement that such conduct or communication include proof of the harasser’s sexual desire. The plaintiff presented evidence to allow a reasonable trier of fact to find that some of Smith’s offensive conduct or communications inherently pertained to sex. 3. A plaintiff, in order to establish a claim of hostile-work-environment harassment, must demonstrate that the plaintiff belonged to a protected group, that the plaintiff was subjected to conduct or communication on the basis of sex, that the conduct or communication was unwelcomed, that the unwelcomed conduct or communication was intended to or did substantially interfere with the plaintiffs employment or created an intimidating, hostile, or offensive work environment, and respondent superior. The trial court assumed that there was sufficient evidence that Smith’s actions were motivated by sex merely because Smith’s conduct inherently pertained to sex. The matter must be remanded for a determination whether Smith’s conduct or communications constituted discrimination because of sex. The trial court, on remand, should address the following evidentiary routes that allow male plaintiffs to establish a hostile-work-environment claim based on same-gender harassment: the harasser making sexual advances is acting out of sexual desire; the harasser is motivated by general hostility to the presence of men in the workplace; or the plaintiff offers direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Affirmed but remanded for further proceedings. 1. Civil Rights — Sexual Harassment — Same-Gender Claims. The Civil Rights Act does not preclude same-gender, hostile-work-environment claims (MCL 37.2202[l][a]). 2. Civil Rights - Sexual Harassment - Words and Phrases — Sexual Nature. The Civil Rights Act prohibits physical conduct or communication of a sexual nature that has the effect of interfering with an individual’s employment; actionable sexual harassment requires conduct or communication that inherently pertains to sex, but proof of the harasser’s sexual desire is not required regarding conduct or communication of a sexual nature (MCL 37.2103[i]). 3. Civil Rights — Sexual Harassment — Hostile Work Environment. A plaintiff, in order to establish a claim of hostile-work-environment harassment, must demonstrate that the plaintiff belonged to a protected group, that he or she was subjected to unwelcomed conduct or communication because of sex, that the conduct or communication was intended to or did substantially interfere with the plaintiffs employment or created an intimidating, hostile, or offensive work environment, and respondeat superior (MCL 37.2103[i][¿¿¿]). Pitt, McGehee, Mirer, Palmer & Rivers, EC. (by Michael L. Pitt, Robert W. Palmer, and Beth M. Rivers), for Robert Robinson. Kienbaum Opperwall Hardy & Pelton, PL.C. (by Elizabeth Hardy, Patricia J. Boyle, and Julia Turner Baumhart), and Jennifer A. Zinn, for the Ford Motor Company. Before: DONOFRIO, RJ., and BANDSTRA and ZAHRA, JJ. Per CURIAM. Defendant Ford Motor Company (defendant) appeals by leave granted the trial court’s order denying its motion for summary disposition of plaintiffs claim alleging sexual harassment under the Civil Rights Act (CRA), MCL 37.2101 et seq. This case involves a claim of same-gender harassment. Plaintiff claims he was subjected to a sexually hostile work environment in violation of MCL 37.2103(i)(iii). We conclude that the trial court properly rejected defendant’s claims that (1) plaintiffs same-gender, hostile-work-environment claim is not cognizable under the CRA and that (2) the harasser’s conduct toward plaintiff was not of a sexual nature. However, we conclude that the trial court failed to address the threshold issue whether plaintiff was harassed because of sex. Accordingly, we affirm the order of the trial court, but we remand for the trial court to address whether plaintiff has presented a genuine and material issue regarding whether he was harassed because of sex. I. BASIC FACTS AND PROCEDURE Plaintiff alleges that a male coworker, defendant Darren Smith, sexually harassed him while they both worked in defendant’s manufacturing plant. Plaintiff knew that Smith was regularly involved in on-the-job antics with two coworkers, Eric Ward and Bruce Tofil. Smith, Ward, and Tofil made a game of catching each other off guard and hitting each other on the buttocks with paddles. They also threw gloves and snow at each other and squirted fire extinguishers at each other. In April 2001, Tofil left defendant’s employ, and Smith was reassigned to work with plaintiff installing truck hoods. Smith began to direct his antics toward plaintiff. Plaintiff alleges that between'2001 and 2003, Smith engaged in a variety of conduct unwelcomed by him and other employees that constituted sexual harassment. With regard to plaintiff, the alleged conduct included Smith’s slapping him on the buttocks, pinching his nipples, pulling down plaintiffs pants to expose his underwear, Smith’s exposing his testicles to another coworker while grasping plaintiffs hand and attempting to or actually making plaintiff touch them, and Smith’s placing his hands in plaintiffs pants and placing his finger between plaintiffs buttocks. Smith also allegedly offered to show plaintiff his penis and asked plaintiff about the size of plaintiffs penis. Additionally, Smith allegedly made comments about wanting to see plaintiffs “naked butt” in a vat of K-Y Jelly and wanting to “crack [plaintiffs] ass.” On several occasions, Smith told plaintiff, “You’re my bitch, I own your ass.” Plaintiff alleges that he suffered a breakdown in March 2003, after two consecutive days in which Smith digitally penetrated plaintiffs mouth. Specifically, plaintiff alleges that Smith jumped on his back and forced his fingers in plaintiffs mouth and down his throat while he was wearing a dirty glove. Plaintiff testified in his deposition that he could feel Smith’s erect penis on his back during one of these incidents. Plaintiff reported these and other incidents to his supervisor. Plaintiff brought this action alleging, in part, sexual harassment in violation of the CRA. Defendant moved for summary disposition, arguing that sexual horseplay by a heterosexual male directed against another male fell outside the statutory definition of sexual harassment. The trial court disagreed and denied defendant’s motion with regard to the alleged violation of the CRA. This Court granted defendant’s application for leave to appeal, limited to the issues raised in the application. In the application, defendant specifically claimed that “the Supreme Court would not recognize a same-sex hostile environment sexual harassment claim.” Defendant’s second claim on appeal is that “ [i]f a sexual harassment claim exists, plaintiff failed to present evidence of homosexual or otherwise inherently sexual conduct.” Defendant’s last claim is that “courts that have reviewed same-sex claims have required affirmative evidence that the alleged harasser is homosexual.” II. ANALYSIS A. STANDARD OF REVIEW This Court reviews de novo a trial court’s decision on a motion for summary disposition. Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). Defendant moved for summary disposition under MCR 2.116(C)(10). A motion under this subrule tests the factual sufficiency of the plaintiff’s complaint. Kraft v Detroit Entertainment, LLC, 261 Mich App 534, 539; 683 NW2d 200 (2004). The trial court must consider the affidavits, pleadings, depositions, admissions, and any other evidence submitted by the parties in a light most favorable to the nonmoving party. Id. at 539-540. Summary disposition should be granted if there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Id. at 540; MCR 2.116(0(10) and (G)(4). B. SEXUAL HARASSMENT UNDER THE CRA Under the CRA, “[a]n employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.” MCL 37.2202(1)(a). MCL 37.2103(i) further provides, in pertinent part, that [discrimination because of sex includes sexual harassment. Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions: ■ft (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)(iii) (emphasis added).] Radtke v Everett, 442 Mich 368, 381; 501 NW2d 155 (1993) (sexual harassment that falls under MCL 37.2103[i][iii] is commonly labeled hostile-work-environment harassment). Defendant first claims that the trial court erred in recognizing a same-gender, hostile-work-environment claim under the CRA. This argument raises a question of statutory interpretation. When faced with questions of statutory interpretation, courts must discern and give effect to the Legislature’s intent as expressed in the words in the statute. Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002). Where the language is unambiguous, it must be presumed that the Legislature intended the meaning clearly expressed, and no further judicial interpretation is permitted. Id. Terms that are not defined in a statute must be given their plain and ordinary meanings, and it is appropriate to consult a dictionary for definitions. Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004). Defendant correctly points out that the Michigan Supreme Court has not addressed the question whether same-gender, hostile-work-environment claims are recognized under the CRA. The United States Supreme Court addressed such claims under federal law in Oncale v Sundowner Offshore Services, Inc, 523 US 75, 80; 118 S Ct 998; 140 L Ed 2d 201 (1998). The Supreme Court summarized the facts of Oncale: In late October 1991, Oncale was working for respondent Sundowner Offshore Services on a Chevron U.S.A., Inc., oil platform in the Gulf of Mexico. He was employed as a roustabout on an eight-man crew which included respondents John Lyons, Danny Pippen, and Brandon Johnson. Lyons, the crane operator, and Pippen, the driller, had supervisory authority. On several occasions, Oncale was forcibly subjected to sex-related, humiliating actions against him by Lyons, Pippen and Johnson in the presence of the rest of the crew. Pippen and Lyons also physically assaulted Oncale in a sexual manner, and Lyons threatened him with rape. [Oncale, supra at 77 (citation omitted).] Oncale “presented] the question whether workplace harassment.. . violate[d] Title VTFs prohibition against ‘discrimination . . . because of. .. sex,’ 42 U.S.C. § 2000e-2(a)(1), when the harasser and the harassed employee are of the same sex.” Id. at 76. The United States Supreme Court held: We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discrimination . . . because of... sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements. [Id. at 79-80.] The CRA contains a phrase identical to that which was interpreted by Oncale under title VII. Specifically, MCL 37.2202(1)(a) prohibits, “discrimination]... because of... sex” in a “term” or “condition” of employment. The language of the CRA does not exclude same-gender harassment claims. Accordingly, we reject defendant’s claim that the CRA excludes same-gender, hostile-work-environment claims. Defendant next claims that the phrase “of a sexual nature” in MCL 37.2103(i) necessarily means behavior that inherently pertains to sexual relations; therefore, there can be no behavior “of a sexual nature” between members of the same sex where the perpetrator is heterosexual and the conduct does not involve homosexual advances or desire. This argument also raises a question of statutory interpretation. We begin our analysis by noting that the term “sexual harassment” is defined under the CRA to include any one of three different actions that have the “purpose or effect of substantially interfering” with one’s employment or create an “intimidating, hostile, or offensive” workplace. MCL 37.2103(i)(iii). These three actions are: (1) unwelcome sexual advances; (2) requests for sexual favors; and (3) other verbal or physical conduct of a sexual nature. MCL 37.2103(i). Clearly, unwelcome sexual advances and requests for sexual favors relate to the harasser’s sexual desire or gratification. Thus, a plaintiff alleging a sexually hostile work environment on the basis of sexual advances or solicitations must present some credible evidence that the harasser is motivated by sexual desire. However, the same cannot be said about the third type of action barred under the CRA — verbal or physical conduct “of a sexual nature.” Id. The CRA prohibits “physical conduct or communication of a sexual nature” that has the effect of interfering with an individual’s employment. MCL 37.2103(i)(iii) (emphasis added). In Corley v Detroit Bd of Ed, 470 Mich 274, 279; 681 NW2d 342 (2004), our Supreme Court construed the phrase “sexual nature” as used in MCL 37.2103(f). It held: “Sexual nature” is not defined in the statute. Where a term is not defined in the statute, we will review its ordinary dictionary meaning for guidance. “Sexual” is defined, in part, as “of or pertaining to sex” or “occurring between or involving the sexes: sexual relations. ” “Nature” is defined as a “native or inherent characteristic.” Utilizing these two commonly understood definitions, we conclude that actionable sexual harassment requires conduct or communication that inherently pertains to sex. [Emphasis in original; citations omitted.] The Supreme Court did not indicate that conduct or communication that inherently pertains to sex must also include proof of the harasser’s sexual desire. Accordingly, we will not read into MCL 37.2103(i) a requirement that is not expressly stated, i.e., a harasser’s sexual desire. Here, plaintiff presented sufficient evidence to allow a reasonable trier of fact to find that some of Smith’s offensive conduct or communications inherently pertained to sex. Plaintiff offered proof that Smith allegedly exposed his testicles and forced plaintiff to touch them, hit plaintiffs buttocks, exposed plaintiffs underwear, digitally penetrated plaintiffs buttocks, moved his hand between plaintiffs legs toward his testicles, squeezed plaintiffs nipples, threw pubic hair at plaintiff, rubbed plaintiffs personal property against his genitals, and pressed his erect penis on plaintiffs back while forcing his fingers into plaintiffs mouth. This conduct involves direct contact with sexual organs or sexual parts of the body accompanied by either express or implied references to sexual activity. Thus, we conclude plaintiff has presented sufficient evidence to allow a reasonable trier of fact to conclude that Smith’s conduct and communication inherently pertained to sex. C. BECAUSE OF SEX (ON REMAND) We ultimately address an argument that was not addressed by the trial court, but presented in the parties’ briefs and raised at oral arguments before this Court. In resolving defendant’s motion, the trial court failed to address the second element of a sexual harassment claim. It appears that the trial court assumed there was sufficient evidence that Smith’s actions were motivated by sex merely because Smith’s conduct inherently pertained to sex. “The error is in concluding that all harassment of a sexual nature amounts, ipso facto, to gender discrimination.” Equal Employment Opportunity Comm v Harbert-Yeargin, Inc, 266 F3d 498, 521 (CA 6, 2001). “This second element is derived from the language of MCL 37.2202(1), which prohibits an employer from discriminating against an employee ‘because of sex. Obviously, an employer cannot be said to have discriminated against an employee ‘because of sex unless, but for the fact of the employee’s sex, the employer would not have discriminated against the employee.” Haynie v Dep’t of State Police, 468 Mich 302, 308; 664 NW2d 129 (2003). The phrase “of a sexual nature,” which refers to the third element, is found within the statutory description of “[discrimination because of sex.” MCL 37.2103(f). As our Supreme Court observed, “[sjexual harassment is merely a subset of sexual discrimination.” Koester v City of Novi, 458 Mich 1, 11; 580 NW2d 835 (1998), citing MCL 37.2103(f), overruled in part on other grounds by Haynie, supra. See also Diamond v Witherspoon, 265 Mich App 673, 683; 696 NW2d 770 (2005). As a subset of sexual discrimination, plaintiff must nonetheless show that he was subjected to a sexually hostile workplace “because of sex.” MCL 37.2103(f). As this Court stated in Barbour v Dep’t of Social Services, 198 Mich App 183, 186; 497 NW2d 216 (1993), the CRA and the analogous provisions of title VII of the federal Civil Rights Act of 1964, 42 USC 2000e et seq., require that sexual harassment be “gender-based.” This is consistent with the common understanding of the word “sex,” particularly in a legal context. The term, “sex,” is most commonly defined as, “either the female or made division of the species, esp. as differentiated with reference to the reproductive functions” and “the sum of t