Hostile Work Environment Cases

Modern Continental/Obayashi vs. Massachusetts Commission Against Discrimination & another. Suffolk. January 6, 2005. September 7, 2005. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, & Sosman, JJ. Anti-Discrimination Law, Sex. Employment, Discrimination, Sexual harassment. This court concluded that an employer may be held liable for failing to respond reasonably to acts of sexual harassment of which it is aware or reasonably should be aware, even though the harassing acts are perpetrated by someone who is not an agent or employee of the employer [104-108], and that the standard for imposing liability in such an instance is whether the employer took prompt, effective, and reasonable remedial action once it realized or should have realized that one of its employees was being victimized by a third party’s harassment [108-110], In a civil action seeking review of a decision of the Massachusetts Commission Against Discrimination (commission) finding an employer liable for sex discrimination when it failed to protect one of its employees from harassment by employees of one of the employer’s subcontractors, the judge erred in granting judgment on the pleadings in favor of the commission, where, as a matter of law, the remedial steps that the employer undertook satisfied its obligation to take prompt action that was reasonably calculated to end the harassment being perpetrated on its employee. [110-118] Civil action commenced in the Superior Court Department on March 26, 2002. The case was heard by Carol S. Ball, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard D. Wayne for the plaintiff. Beverly I. Ward for Massachusetts Commission Against Discrimination. James B. Cox for Whatleigh Edmands. John D. O’Reilly, III, Karl J. Gross, & James F. Grosso, for Associated General Contractors of Massachusetts, Inc., & others, amici curiae, submitted a brief. Whatleigh Edmands. Sosman, J. Modem Continental/Obayashi (Modem) sought judicial review of a decision by the Massachusetts Commission Against Discrimination (MCAD) finding Modem liable for sex discrimination when Modern failed to protect one of its employees from harassment by employees of one of Modem’s subcontractors. A judge in the Superior Court affirmed the MCAD’s decision, and Modem appealed. We transferred the case to this court on our own motion. Although we reject Modem’s contention that an employer can never be liable for sexual harassment perpetrated by outside third parties, we agree that, on this record, Modern satisfied its obligation to its employee by making reasonable efforts to remedy the harassing conduct. The MCAD’s decision to the contrary is not supported by substantial evidence, and instead reflects the imposition of an erroneous standard higher than reasonableness. We therefore reverse the judgment. 1. Facts and procedural background. On January 18, 1994, Whatleigh Edmands, a female employee of Modern, filed a complaint with the MCAD charging Modem with sex discrimination based on sexual harassment. She subsequently amended her complaint to add Mohawk Construction (Mohawk), one of Modem’s subcontractors, as a respondent, but ultimately settled her claim against Mohawk. She amended her complaint again to add a claim that she was constructively discharged from Modem as a result of a hostile work environment. The investigating commissioner found probable cause to support the claim of sexual harassment, but no probable cause to support the claim of constructive discharge. The matter went forward to a public hearing solely on the sexual harassment claim. The hearing commissioner’s findings on that claim are as follows, supplemented by uncontested details from the record. Modem was the successful bidder on a public works project to prepare the eastern approach to the Ted Williams Tunnel, a portion of the Central Artery/Tunnel project (the so-called “Big Dig”). Modem subcontracted the iron work on the project to Mohawk. As a condition of its contract, Modem and all of its subcontractors entered into a project labor agreement with the construction trades unions, which required, inter alla, that all craft employees (including foremen) be union members, that all such employees be hired through exclusive union hiring halls, and that workers not be disciplined or terminated except for “just cause.” Whatleigh Edmands, an apprentice carpenter, was hired by Modem through the carpenters’ union in October, 1993. She worked with four or five other caipenters on a crew supervised by foreman Charles Cofield. Numerous other tradespeople were on the site, including ironworkers employed by Mohawk. On November 3, 1993, Edmands was using one of the portable toilet facilities on the site when she heard scratching noises outside. Looking up, she saw someone peering through an air vent near the roof. The peeper was wearing a brown hard hat of a type worn exclusively by the ironworkers. When Edmands tried to exit, she found herself unable to open the door, as a tie wire had been fastened around the toilet enclosure. She screamed, and someone cut the tie wire to let her out. As she came outside, she saw approximately twelve men in the area. She yelled at them, demanding to know who had spied on her and tied her in the portable toilet facility. None of them responded. Later that day, Edmands informed Cofield of the incident, and Cofield assured her that he would “take care of this.” The following day, Richard Ell, the steward for the carpenters’ union, came to see Edmands about the incident, and, the next day, returned to see Edmands with Jay Kennedy, the steward for the ironworkers’ union. Ell informed Edmands that one of the ironworkers, Joe Roselli, had admitted responsibility for tie wiring Edmands into the toilet facility. Ell asked Edmands if she wanted to have Roselli apologize in person, suggesting that seeing him might enable her to identify him as the person who had peered in through the vent. Although Edmands said that she did not wish to speak to Roselli, Roselli was brought over and made his apologies to her. He admitted that he was the one who had fastened the tie wire, but claimed it was a prank that he intended to play on another ironworker, and that he had thought someone else was using the toilet facility at the time. Roselli denied that he had looked through the vent. After hearing from Roselli, Ell asked Edmands if she could identify Roselli as the person who had peered in through the vent. She could not. At the hearing, Edmands testified that Roselli was not the peeper. On November 8, five days after the incident, Edmands and Ell met with Modem’s project manager, John McNamara. McNamara indicated that he would speak with the ironworkers’ business agent to have Roselli removed from the site. McNamara also suggested that Edmands view the videotapes of the work site to see if those tapes would help her identify the person who had peered in through the vent. Thereafter, McNamara contacted Mohawk’s president, requesting that Mohawk investigate the matter. He also asked Mohawk to transfer Roselli off the job site, but Mohawk refused to remove him or to discipline him. On November 10, Edmands noticed that the portable toilet facility had been defaced with graffiti, consisting of the word “HERS” written above a drawing of an eye and, below the eye, a cmde caricature of female genitalia. Edmands understood that the graffiti was directed at her, and that it referred to the prior week’s incident. She encountered Cofield and Ell a short time later; Cofield again promised to “take care of this,” and the graffiti was removed. Following up on McNamara’s suggestion about the videotapes, Edmands reviewed the tapes on November 15. However, the camera angle was such that, despite reviewing the tapes twice, Edmands still could not make any identification. Two days later, George Coblyn, Modem’s equal employment opportunity officer, spoke with Edmands and asked her to give him a written statement concerning both the original peeping and tie wiring incident and the graffiti incident. She provided him with such a statement two weeks later. That statement contained no identification of either the perpetrators or of any potential witnesses. Coblyn also contacted employees and officials at Mohawk. They refused to provide him with any information concerning the identity of the perpetrator of either the peeping incident or the subsequent graffiti. On November 23, Coblyn gave a brief presentation on the subject of sexual harassment, including a warning that sexual harassment would not be tolerated at the site, at a regular gathering of workers, managers, and union representatives referred to as “tool box talks.” However, very few persons attended that particular tool box talk. Without Edmands’s knowledge, her union initiated a grievance with respect to these incidents, and on December 7, she was called to attend a step one grievance meeting. In addition to various officials from Modem, the meeting was attended by the ironworkers’ union business agent, Sonny Oliver; the ironworkers’ steward, Jay Kennedy; and Roselli. Oliver, on behalf of the ironworkers, dominated the meeting. Oliver denied that anyone had peered into the toilet facility while Edmands was using it. He also insisted that the facility had been shut with a tie wire in order to prepare for its removal by a crane (a version contrary to Roselli’s prior admission that he had tie wired the facility as a prank). McNamara repeated his request that Roselli be transferred off the project. At that, the ironworkers threatened to strike if Roselli were removed. Oliver also raised issues concerning the cleanliness of the toilet facilities. There ensued some discussion concerning the security and cleaning of the facilities, resulting in a “general agreement” that certain of the toilets would be designated for exclusive use by female workers (instead of being entirely unisex, as they had been until that point), and that they would be separated from the men’s toilets, set off by fencing, and secured with padlocks. However, from the date of the original November 3 incident onward, Edmands had opted to use the bathroom facilities at a building one-quarter mile away, and she continued to do so even after these additional security measures were later instituted. Although unable to convince Mohawk to remove Roselli, and unable to uncover the identity of any other perpetrator, McNamara revised the work schedule at the site so that iron work would be done at a different location (some 500 to 700 yards from where Edmands worked) and on a different shift. Although Edmands still would encounter Roselli (and other ironworkers) at shift changes, she would not be working with ironworkers in the immediate vicinity. McNamara had been skeptical of the efficacy of padlocking the newly-designated female toilet facilities, but he carried through with the ordering of separate facilities, the placement of signage, the installation of padlocks, and the issuance of padlock keys to female employees. Within a few weeks, the padlocks on the women’s toilets disappeared. Some fencing was erected, but quickly fell down or was removed. And, instead of placing the facilities in separate locations, the women’s toilets were frequently placed side by side next to the men’s toilets. In February, 1994, a step two grievance meeting was held, attended by Edmands, officials from the carpenters’ union, and officials from Modem. Although she was not using the facilities in any event, Edmands complained that Modem had failed to carry through on its agreement to separate, fence, and lock the women’s portable toilets. Modem took the position that fencing had been a suggestion at the prior meeting, but not an agreed item. At the step two meeting, it was agreed that the female facilities would be kept separate, surrounded by fencing, and locked. In addition, a security monitor would be hired, assigned to report on any further problems, including any incidents of sexual harassment or graffiti. Finally, Modem confirmed that Roselli had been moved to a different location and different shift. Based on the results of the step two grievance meeting, the carpenters’ union, with Edmands’s agreement, decided not to take the matter to arbitration. On March 21, 1994, as Edmands was entering her work trailer, she encountered her foreman, Cofield, erasing graffiti. Edmands did not see the graffiti, but Cofield informed her that it had consisted of depictions of male and female genitals. By late March or early April, 1994, the task that ironworkers had been assigned at a different location and shift was completed. As a result, Roselli and the ironworkers returned to the day shift, working in a location near Edmands. Shortly thereafter, the monitor hired to patrol the toilet facilities discovered some graffiti in the men’s toilet facilities that referred to Edmands in vulgar terms, and brought it to Coblyn’s attention. (Edmands did not see it.) Coblyn in turn reported this new outbreak of graffiti to McNamara, who instructed him to draft a memorandum, to be distributed to all workers at the site over McNamara’s signature, responding to the incident. Thereafter, Coblyn supplied McNamara with the requested draft memorandum. Instead of distributing the notice drafted by Coblyn, McNamara drafted his own notice, which focused on the specific problem of vulgar graffiti. That notice was distributed to all workers with their paychecks. Later that month, Edmands told Coblyn that she was tired of working in an environment that made her “nervous and scared,” where people were “so angry at [her] for just wanting to work.” She also contacted her union and asked to be transferred to a different job site. Coblyn suggested that she could be transferred to work in a facility referred to as “the mill,” which was part of the same project but at a removed location. Although some workers considered the mill a better assignment (as it was a more comfortable indoor site with more amenities), Edmands considered the work at the mill to be less challenging and a less valuable experience than work in the field. She nevertheless agreed to the transfer. At the mill, Edmands’s foreman, Steve Pema, remarked that, in his view, women working outside the home were adversely affecting the economy. He then clarified that he was referring to women of his own age (i.e., of an age significantly older than Edmands). When Edmands reported these remarks to an equal employment opportunity officer, the officer told her that Pema’s inappropriate comments used to be worse. Edmands quit her job at Modem in May, 1994, and went to work for a technology company as a software engineer. The hearing commissioner found that the incidents were sexual in nature or, even if not explicitly sexual in nature, that they had been directed at Edmands because of her sex; that their cumulative effect was sufficiently severe that it impacted Edmands’s working environment and triggered a duty on the part of Modem to take action; and that Modem’s response to these incidents of harassment was inadequate. He therefore found Modem liable for sex discrimination, awarded Edmands $50,000 in damages for emotional distress, and ordered Modem to submit and implement a plan acceptable to the MCAD to train all of Modem’s Massachusetts employees concerning “the legal requirements of nondiscrimination in the workplace.” Modem appealed to the full commission, which affirmed the hearing commissioner’s decision in all respects and awarded Edmands attorney’s fees and costs. 2. Discussion, a. Employer’s liability for harassing acts committed by third parties. Modem contends that, as a matter of law, it cannot be held liable for the conduct of independent third parties over whom it did not have control. The only known perpetrators of the harassing acts at the project site were ironworkers employed by Mohawk; there was no evidence of any such acts committed by employees or agents of Modem. Modem’s argument relies on the literal wording of the statutory prohibition against sexual harassment: it is an unlawful practice “[f]or an employer, personally or through its agents, to sexually harass any employee” (emphasis added). G. L. c. 151B, § 4 (16A). Mohawk was an independent subcontractor, and Mohawk’s offending employees were not the “agents” of Modem. However, in addition to the prohibition set forth in § 4 (16A), Modem is also prohibited from discriminating against its own employees on the basis of sex (including discrimination with respect to the “conditions” of employment), G. L. c. 15IB, § 4 (1); and discrimination on the basis of sex includes sexual harassment, G. L. c. 151B, § 1 (18). An employer who passively tolerates the creation of a hostile working environment implicitly ratifies the perpetrator’s misconduct and thereby encourages the perpetrator to persist in such misconduct, whatever the employer’s precise legal relationship to the perpetrator. Moreover, acquiescence on the part of the employer effectively communicates to the victim of harassment that her employer does not care about the hostile environment in which she must work, a message that can only operate to exacerbate the adverse effects of that hostile environment. In this context, an employer who is not part of the solution inevitably becomes part of the problem. Bearing in mind that the statute “shall be construed liberally for the accomplishment of [its] purposes,” G. L. c. 151B, § 9, we decline to read it in a manner that would absolve an employer of all responsibility for a hostile work environment merely because that hostile work environment is attributable to persons who are not the employer’s own employees or agents. The MCAD guidelines on the subject of sexual harassment provide that an employer may, in some circumstances, be held liable for sexual harassment perpetrated by persons who are not employees of the employer. Massachusetts Commission Against Discrimination Guidelines: Sexual Harassment in the Workplace § IDLC (2002) (MCAD Guidelines). Specifically, liability may be imposed where the employer knew or should have known of the harassing conduct but “failed to take prompt, effective and reasonable remedial action.” Id. The MCAD Guidelines recognize that an employer may have less control over perpetrators who are not its own employees, and the factor of control is to be taken into consideration in determining whether the employer should be held liable: “The primary difference between employer liability for harassment perpetrated by co-workers and harassment committed by non-employees lies in the ability of the employer to control the conduct of the non-employees. The greater the employer’s ability to control the non-employee’s conduct, the more likely it will be found liable for that person’s unlawful harassment.” Id. Where the Legislature has expressly delegated to the MCAD the task of “formulat[ing] policies to effectuate the purposes” of G. L. c. 151B and given it authority to “adopt, promulgate, amend, and rescind rules and regulations” to implement the statute, G. L. c. 151B, §§ 2, 3 (5), we accord substantial deference to the MCAD’s interpretive guidelines. See Dahill v. Police Dep’t of Boston, 434 Mass. 233, 239 (2001), and cases cited. Here, the MCAD’s interpretation is a reasonable one, whereas the interpretation proposed by Modem would seriously undermine the objective of eliminating sexual harassment in the workplace. The MCAD’s interpretation is also consistent with a considerable body of Federal precedent interpreting comparable provisions of Title VII of the Civil Rights Act of 1964. Regulations of the Equal Employment Opportunity Commission (EEOC) interpreting Title VII recognize that an employer may be liable for sexual harassment perpetrated by third parties: “An employer may also b

SYLVIA YOUSE, Plaintiff-Appellant v. DUKE ENERGY CORPORATION, Defendant-Appellee No. COA04-797 (Filed 5 July 2005) 1. Appeal and Error— violations of appellate rules — issues clear — no dismissal Violations of the Rules of Appellate Procedure did not result in dismissal of the appeal where the Court of Appeals was able to determine the issues on appeal and defendant was put on sufficient notice of the issues. 2. Collateral Estoppel and Res Judicata— federal and state claims — identical underlying factual issues Collateral estoppel barred plaintiff’s state claims for discrimination in the termination of her employment based on age and disability where her companion federal case had determined identical underlying factual issues. 3. Collateral Estoppel and Res Judicata— negligent infliction of emotional distress — prior federal determination Collateral estoppel barred plaintiffs state claim for negligent infliction of emotional distress based on breach of public policy on age and disability discrimination. A federal court had already determined that no age or disability discrimination occurred in her termination. 4. Collateral Estoppel and Res Judicata— claim splitting— collateral estoppel not waived A defendant does not waive collateral estoppel by consenting to claim splitting. 5. Collateral Estoppel and Res Judicata— federal action — not simultaneous A federal action filed on the same day as a state action was not a subsequent or simultaneous action for collateral estoppel where the federal action was complete by the time the state action was heard. Judge Tyson dissenting. Appeal by plaintiff from order and judgment entered 11 February 2004 by Judge Anderson Cromer in Superior Court, Guilford County. Heard in the Court of Appeals 2 February 2005. Hicks McDonald Noecker LLP, by David W. McDonald, for plaintiff-appellant. Constangy, Brooks & Smith, LLC, by John J. Doyle, Jr. and Jill Stricklin Cox, for defendant-appellee. McGEE, Judge. Sylvia Youse (plaintiff) was employed by Duke Energy Corporation (defendant) from 8 October 1984 to 21 March 2002. Plaintiff became a Quality Assurance Analyst (QAT Analyst) for defendant on 1 June 1999. The QAT Analyst job description contained the following provision: I. POSITION PURPOSE Monitors and evaluates the quality of inbound telephone calls. Document[s] quality issues and performance measures for management review .... Provide [s] information to assist in the feedback and formal education process of individuals on the phone. Provides subject matter expertise regarding call segment processes and call criteria. Informal feedback and auditing of non-call work is also summarized and audited to assure quality issues are addressed. II. MAJOR ACCOUNTABILITIES/ESSENTIAL DUTIES 2. . . . B. Maintains appropriate relationships and credibility-needed to assure that quality scores are used effectively to improve performance of Customer Service Specialists. Plaintiff and her husband owned a house in Mebane, North Carolina (the Mebane house), which they leased to their son and daughter-in-law. Defendant provided electrical service to the Mebane house. Plaintiffs son and daughter-in-law arranged to move out of the Mebane house in February 2002. Electrical service was scheduled to be changed from plaintiffs daughter-in-law’s name to plaintiffs name on 18 February 2002. However, the electrical service was disconnected on 11 February 2002. Plaintiff telephoned defendant on 11 February 2002 and inquired as to why the electrical service was not working. Plaintiff spoke with customer service representative Demishie Grier (Grier), who informed plaintiff that the electrical service had been disconnected for non-payment. Plaintiff and Grier began to disagree as to whether the electrical service should be turned back on. When plaintiff asked to speak with a supervisor, Grier stated that Grier could not transfer the call but would have a supervisor call plaintiff. Plaintiff stated that she could not be called back since she was on a cell phone and had an unreliable connection. Plaintiff and Grier thereafter ended their telephone conversation. Plaintiff then telephoned call service response and spoke with Billy Kingry (Kingry), a service response specialist. Plaintiff had originally hired Kingry to work for defendant and was Kingry’s former supervisor. Plaintiff asked Kingry to look at the Mebane house account and told him that she needed electrical service at the Mebane house. Kingry then arranged to have the electrical service turned back on at the Mebane house. This reconnection of the electrical service was in violation of defendant’s “non-pay reconnect” guidelines, which provide that a reconnect of an account is only available once payment has been made on the account. Kingry told Yolanda Peterson (Peterson), a HR Consultant for defendant, that he did “ma[k]e an exception for [plaintiff] because of [Kingry and plaintiff’s] previous relationship and [plaintiff’s] knowledge of how things work.” The following day, on 12 February 2002, defendant determined that the electrical service at the Mebane house had been erroneously reconnected. The account was scheduled for another non-pay disconnect, and a disconnect notice was delivered to the Mebane house. Peterson received an email on 18 February 2002 from Dawn Morrison (Morrison), plaintiffs supervisor. The email stated that plaintiff may have engaged in “very inappropriate conduct.” The email also recommended that an investigation take place. Peterson began an investigation into plaintiff’s conduct, during which Peterson interviewed numerous individuals and reviewed the history of the Mebane house account. Plaintiff was removed from defendant’s employment on 8 March 2002 pending the completion of Peterson’s investigation. During the course of the investigation, Peterson learned that in January 2002, plaintiff had accessed her daughter-in-law’s account at the Mebane house. This activity was in violation of defendant’s procedures which prohibit employees from working on their own, their co-workers,’ or their family members’ electrical service accounts. Peterson also determined that plaintiff’s conduct, when plaintiff spoke with Grier, included “hostile and intimidating statements” and an “attempt to persuade . . . Grier to circumvent established call procedures.” Finally, Peterson found that plaintiff “circumvent[ed] . . . customer service processes” when she called Kingry directly in an effort to restore the electrical service, and that she made false statements to Kingry about the Mebane house account. Due to this conduct, Peterson determined that plaintiff was unable to satisfy the requirements of her position as a QAT Analyst. Peterson found that plaintiff compromised her credibility and her relationship with [defendant’s] employees when she completely disregarded the very same customer service procedures that she was charged with administering, made intimidating statements to a customer service specialist and service response employee, and abused her position [with defendant] to achieve her own personal objectives. Peterson recommended to Lynetta Chisolm (Chisolm), General Manager of Customer Contact Services, that plaintiff be discharged. Chisolm agreed, and plaintiffs employment with defendant was terminated on 21 March 2002. Plaintiff filed a complaint against defendant on 20 September 2002, alleging wrongful termination in violation of public policy based on age and handicap discrimination, negligent infliction of emotional distress, a violation under the Wage and Hour Act, N.C. Gen. Stat. § 95-25.1-95-25.25, and punitive and special damages. That same day, plaintiff filed a complaint in the United States District Court for the Middle District of North Carolina (Middle District) alleging identical facts to those in the state court complaint. The complaint filed in the Middle District alleged violations of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621-634, the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101-12213, and the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001-1461. Defendant filed a motion for summary judgment in the Middle District case on 24 October 2003. In an order and recommendation dated 15 December 2003, a magistrate judge recommended that defendant’s motion for summary judgment be granted. Youse v. Duke Energy Corporation, 1:02CV00808 (M.D.N.C. 2003). Plaintiff objected to the recommendation, and a district court judge made a de novo determination of the magistrate judge’s recommendation. See 28 U.S.C. § 636 (b)(1) (2004). The district court judge adopted the magistrate judge’s recommendation and ordered that defendant’s motion for summary judgment be granted as to all claims on 23 January 2004. Defendant filed a motion for summary judgment in state court on 21 January 2004. The trial court granted defendant’s motion in an order entered 11 February 2004. Plaintiff appeals. I. We first address defendant’s argument that plaintiff’s appeal should be dismissed due to plaintiffs violations of the North Carolina Rules of Appellate Procedure. Defendant specifies that plaintiff has violated the Rules by: (1) failing to reference the record page numbers on which her assignments of error appear, see N.C. R. App. P. 28(b)(6); (2) referencing the incorrect assignment of error in support of Argument D in her brief, see id.; (3) using argumentative language when summarizing the facts of the case, see N.C. R. App. P. 28(b)(5); (4) failing to reference pages of the transcript or record on appeal in connection with her factual assertions, see id.; (5) failing to include relevant portions of statutes in the Appendix to her brief, see N.C. R. App. P. 28(d)(1)(c); (6) using the incorrect font size for the footnotes in her brief, see N.C. R. App. P. 26(g); (7) providing the improper citations for several of the authorities on which plaintiff’s brief relies, see N.C. R. App. P. 28(b)(6); and (8) filing her Appeal Information Statement two weeks after the date her brief was due to be filed, see N.C. R. App. P. 41(b)(2). Although we recognize that plaintiff failed to comply with several of our Rules of Appellate Procedure, we do not find that dismissal of the appeal is proper in this case. Despite the Rules violations, we are able to determine the issues in this case on appeal. Furthermore, we note that defendant, in filing a brief that thoroughly responds to plaintiffs arguments on appeal, was put on sufficient notice of the issues on appeal. See Viar v. N.C. Dep’t of Transportation, 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). Since plaintiffs Rules violations are not “so egregious as to invoke dismissal^]” Symons Corp. v. Insurance Co. of North America, 94 N.C. App. 541, 543, 380 S.E.2d 550, 552 (1989), we elect to review the significant issues of this appeal pursuant to N.C. R. App. P. 2. See Symons, 94 N.C. App. at 543, 380 S.E.2d at 552. II. Plaintiff’s first assignment of error, contends that the trial court erred in granting summary judgment in favor of defendant on plaintiffs claim of wrongful discharge against public policy. The trial court’s order stated the following: 1. Defendant is entitled to summary judgment on plaintiff’s claim of wrongful discharge against public policy. . . . The same issues that are dispositive of plaintiff’s claim of wrongful discharge against public policy already have been litigated to final judgment by the [Middle District] in plaintiff’s companion lawsuit against defendant.... Therefore, plaintiff’s claims in this state court proceeding are barred by the doctrine of collateral estoppel. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). The moving party to a summary judgment motion can prevail by showing that “the other party cannot overcome an affirmative defense which would bar the claim.” Caswell Realty Assoc. v. Andrews Co., 128 N.C. App. 716, 720, 496 S.E.2d 607, 610 (1998). Collateral estoppel is an affirmative defense. See N.C. Gen. Stat. § 1A-1, Rule 8 (2003); Johnson v. Smith, 97 N.C. App. 450, 453, 388 S.E.2d 582, 584, disc. review denied, 326 N.C. 596, 393 S.E.2d 878 (1990). Collateral estoppel prevents “the subsequent adjudication of a previously determined issue, even if the subsequent action is based on an entirely different claim.” Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004). An action is barred under the doctrine of collateral estoppel “even if the first adjudication is' conducted in federal court and the second in state court.” McCallum v. N.C. Coop. Extension Serv., 142 N.C. App. 48, 52, 542 S.E.2d 227, 231, disc. review denied, 353 N.C. 452, 548 S.E.2d 527 (2001). Collateral estoppel will apply when: “(1) a prior suit resulted] in a final judgment on the merits; (2) identical issues [were] involved; (3) the issue was actually litigated in the prior suit and necessary to the judgment; and (4) the issue was actually determined.” McDonald v. Skeen, 152 N.C. App. 228, 230, 567 S.E.2d 209, 211, disc. review denied, 356 N.C. 437, 571 S.E.2d 222 (2002) (citing Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 429-30, 349 S.E.2d 552, 557-58 (1986)). In determining what issues were actually litigated or decided by the earlier judgment, the court in the second proceeding is “ ‘free to go beyond the judgment roll, and may examine the pleadings and the evidence [if any] in the prior action.’ ” Miller Building Corp. v. NBBJ North Carolina, Inc., 129 N.C. App. 97, 100, 497 S.E.2d 433, 435 (1998) (alteration in original) (quoting 18 James W. Moore et al., Moore’s Federal Practice § 132.03 [4] [i] (3rd ed. 1997)). Although plaintiffs companion Middle District case was based on different legal claims than the case before us, the state court and Middle District cases involved identical underlying factual issues. “To the extent the U.S.-District Court ruled on these issues, plaintiff is barred from relitigating the issues in state court.” Williams v. City of Jacksonville Police Dep’t, 165 N.C. App. 587, 594, 599 S.E.2d 422, 429 (2004). We conclude that plaintiffs state law claim that she was discriminated against on the basis of her age and disability in violation of North Carolina’s public policy is barred by collateral estoppel. N.C. Gen. Stat. § 143-422.2 (2003) states: “It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination ... on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.” Our Supreme Court has directed that “we look to federal decisions for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases.” Dept. of Correction v. Gibson, 308 N.C. 131, 136, 301 S.E.2d 78, 82 (1983); see also Brewer v. Cabarrus Plastics, Inc., 130 N.C. App. 681, 685-86, 504 S.E.2d 580, 584 (1998), disc. review denied, 350 N.C. 91, 527 S.E.2d 662 (1999). In this case, the Middle District considered plaintiff’s claims for both age discrimination under the ADEA, and disability discrimination under the ADA. While plaintiff argues that the Middle District never addressed the issue of whether North Carolina public policy was violated, plaintiff also “contends that her discharge was motivated by defendant’s discrimination based upon her age and disability,” the same factual issues decided by the Middle District. The Middle District granted summary judgment to defendant on plaintiff’s ADEA claim since, although plaintiff was able to establish a prima facie case of discrimination, defendant “ha[d] proffered substantial evidence of a legitimate, nondiscriminatory reason for [p]laintiff’s discharge, and [p]laintiff ha[d] failed to produce sufficient evidence that [defendant's proffered reason [wa]s a pretext for discrimination.” Specifically, the Middle District found that “[d]e-fendant’s evidence demonstrates that [p]laintiff violated [defendant’s] policy against working orders to a relative’s account, engaged in inappropriate behavior with a customer service specialist over the telephone, and abused her status as a QAT analyst and former supervisor to circumvent established company procedures.” -Since the Middle District determined that plaintiff had failed to prove that defendant’s preferred reason for plaintiff’s termination was a pretext for discrimination, plaintiff’s state law claim based on the same factual allegation of age discrimination is collaterally estopped. Similarly, the Middle District granted summary judgment to defendant on plaintiff’s ADA claim. The Middle District found that plaintiff had failed to even establish a prima facie case of disability discrimination: Plaintiff has not offered any further evidence of actions by [defendant] which would tend to show resentment of or animus towards [p]laintiff because of her “disability.” Rather, the record evidence demonstrates a long history of accommodations by [defendant] for [plaintiff’s personal and health needs. Furthermore, [p]laintiff admits that no one at [defendant] ever made any derogatory remarks about her health. Again, since the Middle District determined that plaintiff had failed to prove, under the ADA, that she was discriminated against based on her disability, we find that plaintiff’s state law claim based on the same factual allegation of disability discrimination is collaterally estopped. We also find that collateral estoppel bars plaintiffs claim for negligent infliction of emotional distress. To establish a claim for negligent infliction of emotional distress, a plaintiff must prove that: “(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress . . . , and (3) the conduct did in fact cause the plaintiff severe emotional distress.” Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). To prove that a defendant “negligently engaged in conduct,” a plaintiff must show: (1) a legal duty; (2) a breach of that duty; and (3) that damages were proximately caused by such breach. Tise v. Yates Construction Co., 345 N.C. 456, 460, 480 S.E.2d 677, 680 (1997). In this case, plaintiff claims that defendant breached its duty to plaintiff to not violate the public policy of North Carolina by discriminating against her on the basis of her age and disability. However, as stated above, the Middle District determined that defendant did not discriminate against plaintiff on either the basis of her age or disability. Assuming arguendo that defendant had a duty to plaintiff to not violate the public policy of North Carolina, the Middle District has already determined that a breach of such duty did not occur. Therefore, plaintiffs claim for negligent infliction of emotional distress is collaterally estopped. Plaintiff argues that defendant has waived its right to a collateral estoppel defense because defendant failed to oppose plaintiffs strategy of filing two different lawsuits. Plaintiff contends that defendant, by not objecting to the Middle District action on the grounds of prior pending action, waived a collateral estoppel defense. In support of her argument, plaintiff cites Bockweg v. Anderson, 333 N.C. 486, 428 S.E.2d 157 (1993) and Howerton v. Grace Hospital, 130 N.C. App. 327, 502 S.E.2d 659 (1998). We find Bockweg and Howerton inapplicable to this case. First, neither Bockweg nor Howerton involved the doctrine of collateral estoppel, or issue preclusion, but rather involved the doctrine of res judicata, or claim preclusion. Bockweg, 3

ELEZOVIC v FORD MOTOR COMPANY Docket No. 125166. Argued December 8, 2004 (Calendar No. 4). Decided June 1, 2005. Lula and Joseph Elezovic brought an action in the Wayne Circuit Court against Ford Motor Company and Daniel R Bennett, seeking, under the Civil Rights Act (CRA), MCL 37.210 et seq., 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 (plaintiff) worked, exposed himself to the plaintiff, requested oral sex, and repeatedly engaged in other sexually offensive conduct. The court, Kathleen Macdonald, J., granted the defendants’ joint motion in limine to exclude evidence of Bennett’s prior criminal misdemeanor conviction of indecent exposure, which involved conduct that did not occur on Ford property and did not involve Ford employees. The court later granted directed verdicts in favor of the defendants. The Court of Appeals, Jansen, EJ., and Neff, J. (Kelly, J., concurring), affirmed. 259 Mich App 187 (2003). The Court of Appeals held that it was bound to follow the decision 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. The Court stated that, were it not bound by MCR 7.215(J)(1) to follow Jager, it would reach the opposite result. The Court also found that Ford did not have sufficient notice of the alleged harassment. The plaintiff appealed. 470 Mich 892 (2004). In an opinion by Chief Justice Taylor, joined by Justices Corrigan, Young, and Markman, the Supreme Court held: An agent of an employer may be held individually liable under the CRA. Ford did not have sufficient reasonable notice of the alleged harassment. The judgment of the Court of Appeals must be reversed in part and affirmed in part, and the case must be remanded to the circuit court for further proceedings regarding Bennett. 1. The CRA defines an “employer” as a “person,” which is defined to include a corporation. The CRA also states that an “employer” includes an “agent of that person.” The Legislature, by including “agent” within the definition of “employer” did not intend to only provide vicarious liability for the agent’s employer, but also created individual liability for an employer’s agent. Bennett may be sued individually under the CRA. 2. Federal decisions construing Title VII of the federal civil rights act and holding that there is no individual liability under the federal act should not be followed because it would lead to a result contrary to the text of the CRA. The history of amendments of the CRA does not preclude a finding of individual liability on the part of an agent of an employer. 3. The fact that the plaintiff told two low-level supervisors, in confidence, that Bennett had exposed himself did not constitute reasonable notice to Ford. Letters sent to Ford by the plaintiffs psychologist and attorney mentioning “harassment” or “hostile environment” were insufficient to give Ford reasonable notice of sexual harassment, given the plaintiffs prior complaints against Bennett that were not sexual in nature. A reasonable employer would not, under the totality of the circumstances in this case, have been on notice of a substantial probability that sexual harassment was occurring. 4. The trial court did not abuse its discretion in precluding evidence of Bennett’s prior indecent exposure conviction. The conviction had been expunged before the trial in this matter and under MCL 780.623(5) the evidence was not admissible. The trial court did not err in holding that the prejudice to Ford that would result from the evidence would substantially outweigh any probative value it might have. 5. The opinion in Jager must be overruled. The part of the judgment of the Court of Appeals that affirmed the directed verdict in favor of Ford must be affirmed and the part of the judgment that affirmed the directed verdict in favor of Bennett must be reversed. The matter must be remanded to the trial court for further proceedings regarding Bennett and consistent with the Supreme Court’s opinion. Justice Cavanagh, joined by Justice Kelly, concurring in part and dissenting in part, dissented from the opinion of the majority with regard to the issues whether the CRA provides for individual liability against an agent of an employer and whether sufficient evidence was presented to allow the jury to decide whether Ford had notice of the alleged sexual harassment. The CRA does not provide for individual liability against an agent of an employer, and the plaintiff provided sufficient evidence to allow the jury to decide the notice issue. The majority reached the correct result in this case when it determined that the trial court did not abuse its discretion by excluding evidence of the alleged sexual harasser’s expunged indecent exposure conviction. Justice Weaver, concurring in part and dissenting in part, concurred in the majority’s conclusions that the trial court’s ruling on the defendants’ motion in limine was not an abuse of discretion and that the trial court’s decision to exclude the evidence of Bennett’s expunged conviction should be affirmed. She dissents, however, from the majority’s conclusion that the CBA provides for individual liability against an agent of an employer and from its conclusion that Ford was entitled to a directed verdict because the plaintiff failed to establish that Ford had notice of the sexual harassment. The Legislature included the word “agent” in the definition of “employer” to denote respondeat superior liability, not individual liability. The conclusion of the Cotut of Appeals that there is no individual liability under the act should be affirmed. The opinion in Jager v Nationwide Truck Brokers, Inc, should not be overruled. Considering all the evidence and the reasonable inferences that may be drawn from it, there are factual questions about which reasonable jurors could differ regarding whether Ford had notice of the sexual harassment. Therefore, the directed verdict in favor of Ford with regard to the question of notice should be reversed. Affirmed in part, reversed in part, and remanded. Civil Rights — Workplace Sexual Harassment — Supervisors. 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.). Mark Granzotto, EC. (by Mark Granzotto), and Edwards & Jennings, EC. (by Alice B. Jennings), for the plaintiff. Kienbaum Opperwall Hardy & Eelton, P.L.C. (by Elizabeth Hardy and Julia Turner Baumhart) {Patricia J. Boyle, of counsel), for the defendants. Amici Curiae: . Scheff & Washington, EC. (by George B. Washington and Miranda K.S. Massie), for Justine Maldonado, Milissa McClements, and Pamela Perez. Carol Hogan for Michigan Conference of the National Organization for Women. TAYLOR, C.J. At issue in this case is (1) whether the Michigan Civil Rights Act (CRA) provides a cause of action against an individual agent of an employer and (2) whether plaintiffs employer, Ford Motor Company, was entitled to a directed verdict in plaintiffs sexual harassment lawsuit against it. We hold that an agent may be individually sued under § 37.2202(1) (a) of the CRA. Thus, we overrule Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464, 485; 652 NW2d 503 (2002), because it held to the contrary, and reverse the Court of Appeals judgment in favor of Daniel Bennett that followed Jager. We also hold, consistently with the lower courts, that Ford was entitled to a directed verdict. Thus, we affirm the trial court and Court of Appeals judgments in favor of Ford. I. FACTS AND PROCEEDINGS BELOW Plaintiff filed a lawsuit in November 1999 pursuant to the CRA against Ford Motor Company and Daniel Bennett, a supervisor at Ford’s Wixom assembly plant where she worked. As relevant here, her claim was that she had been sexually harassed as a result of a hostile work environment. The CRA allows such a lawsuit against an employer. Plaintiffs lawsuit named Bennett as an individual defendant consistently with the then-controlling case of Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785; 369 NW2d 223 (1985), which held that individual supervisors could be liable under the CRA. Regarding the specifics in her complaint, plaintiff alleged that, while she was on the job in the summer of 1995, Bennett exposed himself to her while masturbating and requested she perform oral sex. Further, she claimed that after that he repeatedly continued to harass her by grabbing, rubbing, and touching his groin and licking his lips and making sexually related comments. Before trial, defendants filed a joint motion in limine to exclude from evidence an unrelated, prior criminal misdemeanor conviction of Bennett for indecent exposure. Defendants pointed out that the incident did not occur on Ford property and involved non-Ford employees. Plaintiff, however, argued that the indecent exposure conviction was evidence of a scheme or plan Bennett had of exposing himself to women and that it provided notice to Ford that Bennett engaged in inappropriate sexual acts. The trial court ruled that the indecent exposure conviction was inadmissible with regard to Bennett under MRE 404(b)(1) because it was not offered for any purpose other than to show that he had a propensity to expose himself. The court also held it was inadmissible with regard to Ford pursuant to MRE 403 because any probative value would be substantially outweighed by the danger of unfair prejudice. The case was tried before a jury for three weeks. Plaintiff testified consistently with the allegations in her complaint against Bennett. While it was uncontested that she had not filed a formal written complaint of sexual harassment pursuant to Ford’s anti-harassment policy, plaintiff attempted to establish that Ford was otherwise aware, or on notice, of the sexual harassment for several reasons. She claimed that she told two first-line supervisors (friends of hers who were under Bennett in the chain of command) that Bennett had exposed himself to her, but admitted that she had pledged them to secrecy. She also introduced two letters her psychologist had written to the Wixom plant physician, one indicating that in his view plaintiff was descending into mental illness “[d]ue to the harassment she perceived from Mr. Bennett” and a second stating that plaintiff continued “to feel uncomfortable with Dan Bennett.” These letters were offered with a third letter from the same psychologist to the Wixom plant manager regarding complaints against a different coworker in which it was said “there has been harassment going on for the past year and a half at her Wixom plant job.” Also introduced was testimony from an employee to a Ford Labor Relations Department representative to the effect that the employee would remain on medical leave until someone did something about the situation between plaintiff and Bennett. Finally, reference was made to a letter from plaintiffs attorney (her son-in-law) to the Ford Labor Relations Department in which he asserted he might take legal action “to insure that our client [plaintiff] is not subjected to working in a hostile environment.” At the close of plaintiffs proofs, defendants filed a joint motion for a directed verdict, arguing that plaintiff had not presented a prima facie case against them. Ford emphasized that plaintiff had not established that it had notice of the alleged sexual harassment by Bennett and, thus, it could not be held liable for any improper acts by him. The trial court took the joint motion under advisement, with defendants continuing to present their cases to the jury. Bennett testified that he had not sexually harassed the plaintiff and that her claims were false. Ford presented evidence showing that the only time plaintiff had ever filed a sexual harassment complaint was in 1991, involving a UAW committeeman, and that none of the several grievances and complaints plaintiff filed against Bennett had mentioned sexual harassment. Rather, with regard to Bennett, her complaints concerned having her shift changed from days to afternoons and disputes regarding overtime. She also filed a complaint alleging that a female coworker had physically threatened her. Upon the close of defendants’ proofs, the trial court granted directed verdicts to the defendants. The trial court held that plaintiff had failed to establish a prima facie case of sexual harassment with regard to either defendant and, in particular, found that Ford could not be liable because it had no notice of Bennett’s alleged harassment. Plaintiff, asserting that she had established a prima facie case against Bennett and Ford, appealed to the Court of Appeals. That Court, however, affirmed the orders of the trial court in a published opinion. In ruling for Bennett, the majority in Elezovic relied on the then-recent holding in Jager, supra at 485, that “a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiffs civil rights.” The Jager Court had reached its conclusion by relying largely on federal court holdings that under Title VII of the federal civil rights act, the federal analogue to our CRA, there is no individual liability. While it was obligatory that the majority, in Elezovic follow Jager pursuant to MCR 7.215(J)(1), the majority indicated at the same time that, but for that court rule, it would have reached the opposite result. It was the majority’s view that Jager was wrongly decided simply because it was not consistent with the actual language of our CRA, which it concluded made agents individually liable. Moreover, it believed Jager was inconsistent with Chambers v Trettco, Inc, 463 Mich 297; 614 NW2d 910 (2000), which it read as recognizing that an individual may be held liable for sexual harassment under the CRA. With regard to the directed verdict for Ford, the Court -of Appeals rejected plaintiffs claim that her evidence regarding notice had been sufficient to enable her to reach the jury. The Court held that plaintiffs report of Bennett’s conduct to her supervisors did not constitute actual notice to Ford because of her request at the same time that this information not be conveyed to their supervisor or other appropriate persons. Elezovic v Ford Motor Co, 259 Mich App 187, 194; 673 NW2d 776 (2003). As for the letters that had been sent to Ford, the Court of Appeals concluded that these also did not provide notice because, importantly, none of them referred to sexual conduct. The Court held that this fact, when viewed in the context that plaintiffs previous harassment complaints had not been sexual in nature, but were explicitly nonsexual concerning Bennett and others (with the exception of the 1991 complaint against a UAW committeeman that plaintiff did not rely on as part of her case), meant Ford would not reasonably have been put on notice. Id. at 195. Finally, the Court also affirmed the trial court’s decision to exclude evidence regarding Bennett’s indecent exposure conviction. It was the Court’s conclusion that plaintiff failed to establish that the evidence was offered for a proper purpose because Bennett’s act of indecent exposure outside the workplace was not sufficiently similar to sexually harassing an employee in the workplace to establish a common plan, scheme, or system. Id. at 206. The Court further concluded that the trial court had not abused its discretion, concerning defendant Ford, in holding that the probative value of this evidence would have been substantially outweighed by the danger of unfair prejudice. Id. at 207-208. Plaintiff applied for leave to appeal in this Court, and we granted leave to appeal and directed the parties to include among the issues briefed whether a supervisor engaging in activity prohibited by the Michigan Civil Rights Act, MCL 37.2101 et seq., may be held individually liable for violating a plaintiffs civil rights. 470 Mich 892 (2004). II. STANDARDS OF REVIEW We review de novo the question whether our CRA authorizes a cause of action against an individual agent for workplace sexual harassment because it is a question of law. Morales v Auto-Owners Ins Co (After Remand), 469 Mich 487, 490; 672 NW2d 849 (2003). In reviewing the statute, if its language is clear, we conclude that the Legislature must have intended the meaning expressed, and the statute is enforced as written. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). We also review de novo a trial court’s ruling regarding a motion for a directed verdict, viewing the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003); Meagher v Wayne State Univ, 222 Mich App 700, 707-708; 565 NW2d 401 (1997). Finally, the decision whether to admit or exclude evidence is reviewed for an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). III. INDIVIDUAL AGENT LIABILITY UNDER THE CRA The CRA prohibits an employer from discriminating on account of sex, which includes sexual harassment. MCL 37.2202(l)(a); MCL 37.2103(i) (“Discrimination because of sex includes sexual harassment.”). As previously set forth, the statute expressly defines an “employer” as a “person,” which is defined under MCL 37.2103(g) to include a corporation, and also states that an “employer” includes an “agent of that person.” MCL 37.2201(a). This statutory language uncontroversially means that Ford Motor Company is an “employer” under the CRA. What is contested is whether an agent of the corporation is also subject to individual liability. Bennett and Ford have argued that the statutory definition of “employer,” which includes an “agent of that person,” should not be read as providing individual liability because (1) inclusion of the term “agent” in the statutory definition of “employer” operates solely to confer vicarious liability on the employer, (2) federal courts of appeals have all held that Title VII — the analogous federal sexual discrimination statute with its similar definition of “employer” — does not allow individual liability, and (3) the amendment history of our CRA suggests a different intention on the part of the Legislature. Regarding the first of these arguments, that this statute should not be read to expand the class of potential defendants to include agents, defendants assert that Chambers, supra at 310, supports this narrowing conclusion because it held that the inclusion of an “agent” within the definition of an “employer” in MCL 37.2201(a) served to confer vicarious liability on the agent’s employer. We disagree with this analysis. While Chambers held that this language establishes vicarious liability, our discussion did not limit it to that function. The reason is that, when 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, supra at 320, 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. With respect to defendants’ second argum

MAGEE v DAIMLERCHRYSLER CORPORATION Docket No. 126219. Decided March 8, 2005. On application by the defendant for leave to appeal, the Supreme Court, after hearing oral argument on whether the application should he granted and in lieu of granting leave, reversed part of the judgment of the Court of Appeals and remanded the case to the circuit court for reinstatement of the order of summary disposition for the defendant. Jacquelyn V Magee brought an action in the Macomb Circuit Court against DaimlerChrysler Corporation, alleging sexual harassment, sex and age discrimination, retaliation, and constructive discharge from employment. The defendant moved for summary disposition, arguing that the action was barred by the statute of limitations because it was not brought within three years of any of the alleged acts of discrimination or retaliation. The trial court, James M. Biernat, Sr., J., granted the defendant’s motion. The Court of Appeals, Schdette, EJ, and Meter and Owens, JJ., affirmed the grant of summary disposition with regard to the constructive discharge claim and reversed the grant of summary disposition with regard to the other claims. Unpublished memorandum opinion, issued March 2,2004 (Docket No. 243847). The Court’s decision was based on the fact that the action was brought within three years of the date that the plaintiff resigned her employment. The defendant sought leave to appeal. In an opinion per curiam, signed by Chief Justice Taylor, and Justices Corrigan, Young, and Markman, the Supreme Court held,-. The Court of Appeals erred in concluding that the plaintiffs claims accrued on the date she terminated her employment as opposed to her last day of work. No discriminatory conduct is alleged to have occurred after the plaintiffs last day of work. The claims were not timely filed within three years of that date. The part of the Court of Appeals judgment that reversed part of the judgment of the trial court must be reversed and the case must be remanded to the trial court for reinstatement of the order granting summary disposition in favor of the defendant with regard to all the claims brought by the plaintiff. Justice Weaver, concurring, stated that she concurs in the result of the opinion per curiam because the applicable three-year period of limitations began to run when the plaintiff went on medical leave on September 12, 1998, and the plaintiffs claims were not filed within three years of that date. The trial court correctly granted summary disposition in favor of the defendant. Affirmed in part, reversed in part, and remanded to the circuit court. Justice Cavanagh, joined by Justice Kelly, dissenting, stated that the defendant’s failure to stop the harassment after the plaintiff made repeated complaints was discriminatory conduct. The conduct occurred during the three years that preceded the filing of the complaint; therefore, the complaint was timely filed. Tucker & Hughes, PC. (by Juanita Gavin Hughes), for the plaintiff. Cattel, Tuyn & Rudzewicz, PLLC (by Tomas A. Cattel and Debra A. Colby), for the defendant. PER CURIAM. In this case involving the Civil Rights Act, the Court of Appeals held that plaintiffs claims of sexual harassment, sex and age discrimination, and retaliation were timely filed, because the lawsuit was brought within three years of the date she resigned her employment with defendant. We conclude that plaintiffs claims were not filed within the limitations period because none of the alleged discriminatory or retaliatory conduct occurred within the three years that preceded the fifing of the complaint. We therefore reverse that part of the judgment of the Court of Appeals and remand the matter to the trial court for reinstatement of the trial court’s grant of summary disposition to defendant. i Plaintiff Jacquelyn Magee was an hourly production employee who began work for defendant Daimler-Chrysler in 1976. She went on medical leave for emotional distress on September 12, 1998, and, without first returning to work, resigned her job on February 2, 1999. On February 1, 2002, Magee filed a lawsuit under the Civil Rights Act, MCL 37.2101 et seq., claiming that she had been unlawfully discriminated against and harassed during most of her twenty-two years at Daimler-Chrysler. Magee’s complaint lists separate counts for sex harassment based on hostile work environment, sex harassment based on quid pro quo harassment, retaliation, sex discrimination, and age discrimination. In her complaint, Magee alleges that she suffered harassment from the 1980s until her last day of work on September 12, 1998, and that her supervisors periodically retaliated against her during this period as a result of her resistance to the harassment. Magee alleges that this constant harassment caused her to leave her job at DaimlerChrysler on September 12, 1998, and that she decided to resign on February 2, 1999, because she anticipated that the harassment would continue if she returned. DaimlerChrysler moved for summary disposition, asserting that Magee’s February 1, 2002, complaint failed to allege any discriminatory acts after September 12,1998, and that the complaint was therefore not filed within the three-year period of limitations applicable to Civil Rights Act claims, MCL 600.5805(10). The trial court initially denied DaimlerChrysler’s motion without prejudice, allowing Magee to amend her complaint to allege harassment or retaliation occurring up to her February 2, 1999, resignation. However, because Magee’s amended complaint continued to allege only harassment and retaliation through September 12, 1998, her last day of work, the trial court granted DaimlerChrysler’s motion and dismissed Magee’s complaint. Magee appealed the trial court’s ruling to the Court of Appeals, which relied on this Court’s recent decision in Collins v Comerica Bank, 468 Mich 628; 664 NW2d 713 (2003), to reverse the lower court’s dismissal of the harassment, retaliation, and discrimination claims. The Court of Appeals concluded that these claims were timely, because they were filed within three years of the date of Magee’s resignation. DaimlerChrysler then sought leave to appeal to this Court. After hearing oral argument from both parties on the application, this Court has now determined that the Court of Appeals misapplied Collins and erroneously reinstated Magee’s Civil Rights Act claims. ii In the absence of disputed facts, whether a cause of action is barred by the applicable statute of limitations is a question of law, which this Court reviews de novo. Boyle v Gen Motors Corp, 468 Mich 226, 229-230; 661 NW2d 557 (2003). Likewise, this Court reviews de novo rulings on summary disposition motions. Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004). hi In Collins, supra at 633, this Court held that a cause of action for discriminatory termination does not accrue until the date of termination. The plaintiff employee, Gwendolyn Collins, was suspended pending an investígation; when the investigation was completed several weeks later, her employment was terminated. Within three years of her termination, Collins filed a complaint alleging that her termination was the result of race and gender discrimination. The Court of Appeals ruled that Collins’s suit was not timely under the three-year period of limitations because her causes of action accrued on the last day that she actually performed employment duties (as opposed to her later termination date). This Court disagreed with the Court of Appeals last-day-worked analysis and reversed, holding that a claim for discriminatory discharge cannot arise until a claimant has actually been discharged. Id. Relying on Collins, the Court of Appeals in this case reasoned that Magee’s claim also accrued on her termination date as opposed to her last day of work. The Court acknowledged that Magee resigned, and was not terminated. But it found significant that “her last day of work was followed by a period in which she was on a medical leave of absence” and that she was employed by DaimlerChrysler while on leave. Accordingly, it concluded that her causes of action, if any, arose on February 2, 1999. The Court of Appeals reliance on Collins to reinstate Magee’s claims of sexual harassment, sex and age discrimination, and retaliation is misplaced. Magee was never terminated from her employment and does not allege discriminatory termination. She bases her Civil Rights Act claims on alleged discriminatory conduct that occurred before her leave of absence. Indeed, when given a chance to amend her complaint to plead claims falling within the period of limitations, Magee was unable to do so. Collins, a discriminatory termination case, simply does not apply in this situation. To determine whether Magee’s claims were timely filed, we look to MCL 600.5805(10), which establishes that the applicable period of limitations is three years from the date of injury. Because Magee alleged no discriminatory conduct occurring after September 12, 1998, the period of limitations on Magee’s claims expired, at the latest, three years from that date, or by September 12, 2001. Accordingly, as the trial court held, Magee’s February 1, 2002, complaint was not timely filed. The dissent argues that the defendant violated the Civil Rights Act within the three years preceding the filing of plaintiffs claim by failing to “prevent future harassment.. ..” Post at 115. This interpretation of the Civil Rights Act amounts to a continuing violations doctrine in which an employer is continuously liable from the time it or its agent violates the act until the time that violation is remedied by the employer. Thus, in Justice CAVANAGH’s view, a plaintiff subjected to a hostile work environment on December 31, 2005, may file a timely complaint in December 2030 if the employer has failed to remedy the sexual harassment in the ensuing twenty-five years. This theory renders nugatory the period of limitations established by the Legislature in MCL 600.5805(10). It is therefore a theory we must reject. For these reasons, we reverse the relevant part of the judgment of the Court of Appeals and remand this case to the Macomb Circuit Court for reinstatement of the order granting DaimlerChrysler’s motion for summary disposition. Taylor, C. J., and Corrigan, Young, and Markman, JJ., concurred. Unpublished memorandum opinion, issued March 2, 2004 (Docket No. 243847). Magee’s complaint also includes a separate count alleging constructive discharge. The trial court dismissed this count, and the Court of Appeals affirmed the trial court’s ruling. Magee did not appeal, and the dismissal of that claim is not before this Court. Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001). WEAVEE, J. (concurring). I concur in the result of the opinion per curiam that reverses the Court of Appeals judgment in part and remands the matter to the trial court for reinstatement of the trial court’s grant of summary disposition to defendant. Under the facts pleaded by plaintiff, the three-year period of limitations began to run when plaintiff went on medical leave on September 12, 1998, for emotional distress. Plaintiffs claims were required to be filed within three years of September 12, 1998. Because they were not, the trial court was correct to grant summary disposition to defendant. Therefore, I concur in the result of the opinion per curiam. MCL 600.5805(10). CAVANAGH, J. (dissenting). I disagree with the majority’s contention that defendant engaged in no discriminatory conduct during the three years that preceded the filing of plaintiffs complaint. Therefore, I must respectfully dissent. Plaintiff began working for defendant in 1976. Over the years, plaintiff complained of various incidents of harassment. Plaintiff complained that her foreman was making sexual advances toward her. When plaintiff was assigned to a different supervisor, her former foreman still worked in the same complex and continued to harass her. Because of the harassment, plaintiff was ordered by her psychiatrist to take an approximately four-month medical leave. When plaintiff returned from her medical leave, her former foreman was still working in the same complex as plaintiff. A subsequent foreman of plaintiffs also made sexual advances toward her, including intentionally touching plaintiffs breast. For an entire year, plaintiff also complained to defendant about a sign in the men’s restroom that referred to plaintiff in a derogatory and sexually suggestive manner. Because of the stress of the harassment she continued to suffer, plaintiff was ordered to take another medical leave of absence. While she was employed by defendant, plaintiffs union steward also made sexually suggestive comments about plaintiffs “ass” and touched her in an inappropriate manner. Plaintiffs coworkers made sexually suggestive comments about her body and began hitting her with cardboard sticks. When plaintiff asked her union steward to intercede, he just laughed and said, “Yea, hit that ass.” Plaintiff repeatedly complained to defendant, yet nothing was done. When plaintiff requested a transfer, her union steward told her that she could transfer if she had sex with him. Once plaintiff was transferred, the union steward told her that she “owed” him and he wanted her to have sex with him. He later stopped plaintiff from training for another position because she was not having sex with him. Plaintiff again complained to a foreman, but he said there was nothing he could do. Because of the stress plaintiff was suffering as a result of the harassment, plaintiff was then ordered to take a third medical leave. Because defendant took no steps to stop the harassment while plaintiff was on her third medical leave, she was forced to decide not to return to the harassing environment. Defendant’s discriminatory conduct in failing to take steps to prevent future harassment continued throughout plaintiffs medical leave. Requiring plaintiff to return to the harassing setting to work in the unchanged environment would be unreasonable and possibly dangerous to plaintiffs health, considering that her doctor had ordered three medical leaves because of the stress of the harassment. As plaintiff explained, in order to have even been considered for a possible transfer to another plant after having been out on her third harassment-related medical leave, she would have had to return to the plant she left and hope for a transfer, despite that her multiple complaints had garnered no response before or during her medical leave. Thus, for plaintiff to be able to try and leave the harassing environment, she would have had to return to work with the same men who harassed her and whose conduct necessitated that plaintiff take medical leaves in the first place, without any assurance that defendant would protect her. This case presents a unique set of circumstances because plaintiffs doctor-ordered medical leave was directly related to the harassment. Plaintiffs final medical leave was actually her third leave related to the stress of the harassment she suffered. Defendant maintained a hostile work environment despite plaintiffs repeated complaints. Defendant’s failure to stop the harassment after these complaints is, under the facts of this case, discriminatory conduct. Because this conduct occurred during the three years that preceded the filing of plaintiffs lawsuit, I find that her complaint was timely filed. Accordingly, I respectfully dissent. Kelly, J., concurred with Cavanagh, J.