Retaliation Cases

Gilles Dube vs. Middlesex Corporation & others. No. 01-P-761. Middlesex. April 3, 2003. October 24, 2003. Present: Mason, Kantrowttz, & Doerfer, JJ. Handicapped Persons. Employment, Discrimination, Termination, Retaliation. In an employment discrimination action, a Superior Court judge properly granted summary judgment to the defendant employer, where the plaintiff, who had performed truck driving and construction work for the defendant, had no chance of proving that he was laid off for a “handicap” as that term is used in G. L. c. 151B, § 1(17)(«), rather than a legitimate business reason, because the limitation in the range of motion of the plaintiff’s right arm, which interfered with his ability to operate a two-stick truck, did not constitute a substantial limitation of the plaintiff’s major life activity of working, either in his work for the defendant, or in his subsequent construetian and truck driving employment [737-738]; likewise, the plaintiff neither had a “record of such impairment” under G. L. c. 151B, § 1(17)(¿>), based on damage suffered to his arm [738], nor was he “regarded as having such impairment” under G. L. c. 151B, § l(17)(c), where the defendant did not misapprehend limitations based on a misconception of a disability the defendant perceived that the plaintiff suffered, but instead provided him with some accommodations he requested [738-739]. This court concluded that a plaintiff in an employment discrimination action had waived any claims of error based on a theory of retaliation which he had not properly raised below, and that, in any event, the record lacked support for a retaliation claim. [739-741] Civil action commenced in the Superior Court Department on June 9, 1998. The case was heard by Wendie I. Gershengom, J., on a motion for summary judgment. James R. Tewhey for the plaintiff. Kay H. Hodge for the defendants. Alfred S. Aponas and John Cavatorta. Doerfer, J. The plaintiff, Gilíes Dube, suffered some permanent impairment in the use of his right arm due to a motorcycle accident in 1985. He worked for the defendant, Middlesex Corporation (Middlesex), doing construction and driving a truck from 1989 to 1995. He claims that he suffered employment discrimination in violation of G. L. c. 151B, § 4(16), when he was not rehired in the spring of 1996 after what he claims was a seasonal layoff. Middlesex claimed that the plaintiff quit before the end of the work season in 1996, as a consequence of which he was not rehired in the spring. A Superior Court judge granted summary judgment to Middlesex on the ground that the plaintiff had no chance of proving that he was not laid off for a legitimate business reason. We affirm the judgment, but on the ground that plaintiff was not, on the summary judgment record, a “handicapped person” as that term is used in G. L. c. 151B, § 1(17). Facts. We take the facts from the summary judgment record in the light most favorable to the plaintiff. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The plaintiff suffered an injury to his right arm in 1985 when the dirt bike he was riding went over a bump, and he went over the handlebars. This crash dislocated his shoulder, broke three fingers, and produced a compound fracture of the right humerus, just below the ball where the arm connects into the shoulder socket. The shattered humerus protruded into the arm pit, cut the biceps and severed the musculotaneous nerve, tore the brachial plexus, and injured the ulna and radial nerves. Limited range of motion and significantly reduced strength resulted. He was treated surgically, including a nerve graft four months after the injury. The graft proved unsuccessful. He was in rehabilitative therapy for two years. He remains partially paralyzed in the upper right quadrant, with loss of muscle function and significant atrophy. As a result of the compound fracture healing imperfectly, the arm does not sit correctly in the shoulder socket. He had been employed at the time of the accident, following which he was out of work for two years. He did not return to his former employment because he could not manipulate large boxes due to limitations of movement in his arm, and because a more senior employee had taken over his former position. He took a job at Erickson Construction in 1987, where he drove a truck, operated a backhoe, and did regular construction work. At that job, he lifted bales, rocks, shovels, and rakes. He testified at his deposition that the more he used his arm, the stronger it got. He left Erickson Construction to take a job in sales, but resigned because he wasn’t getting enough exercise for his arm. Following the sales job, Dube worked for Middlesex from 1989 through 1995. Subsequent to Middlesex, he has continued to work in construction: laboring, driving trucks, and operating construction equipment. He was a backhoe operator for New England Remediation seasonally from June, 1996, to November, 1996, and a truck driver and backhoe operator for Leighton White, seasonally from March, 1997, until his deposition in 1999. At his deposition, he admitted that he had no trouble walking, seeing, speaking, or breathing; that he could lift, stand, sit, think, and hear. He cannot throw a baseball or raise his arm fully. He claimed that he is unable to operate a truck with two stick shifts, but agreed that he could manage if he had to for a drive or two. His doctor told him to keep working hard to improve his arm. In his job application, he did not describe anything he could not physically do. He passed the test given by the Department of Transportation in 1996 and 1998 for driving a truck of the type supplied for him by Middlesex. His claim to be handicapped arises out of the limitation in the range of motion of his right arm, which interferes with his ability to operate a two-stick truck. If he is provided with a special arm rest for a single-stick truck, this impairment, he claims, is accommodated and enables him to operate a single-stick truck. At an August, 1994, meeting to discuss Dube’s work performanee, Middlesex suggested installing an armrest in Dube’s truck to make his driving more comfortable. The armrest was installed in 1994, but Dube had it removed, complaining that it was in his way and that he hurt himself. During his deposition, he testified that he repeatedly requested it be reinstalled, but that Middlesex did not reinstall it until the following season, 1995. Dube also repeatedly requested assignment only to single-stick trucks and to construction where he could perform more manual labor than when doing paving work. He was not assigned exclusively either to construction or to single-stick trucks. 1. Plaintiff had no “handicap” as that term is used in G. L. c. 151B. General Laws c. 151B, § 4(16), inserted by St. 1983, c. 533, § 6, states in material part that it is an unlawful practice for an employer “to . . . refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation . . . .” “Handicap” means “(a) a physical or mental impairment which substantially limits one or more major fife activities of a person; (b) record of having such impairment; or (c) being regarded as having such impairment.” G. L. c. 151B, § 1(17), as amended by St. 1989, c. 722, § 11. A “qualified handicapped person” is a “handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap.” G. L. c. 151B, § 1(16), as inserted by St. 1983, c. 533, § 2. The evidence, even viewed most favorably to the plaintiff, cannot support a reasonable inference that any of the plaintiff’s major fife activities are substantially limited. He does not allege a substantial limitation in any major life activity other than certain aspects of his working, and he admits that he is able to accomplish strenuous physical labor in spite of the motion, flexibility, and strength limitations of his right arm. While the parties have not cited, and we have not found, any Massachusetts case law discussing substantial limitations in the major life activity of working, considerable Federal authority has construed the analogous Federal disability discrimination statutes. “When the major fife activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999). This case is analogous to Mowat v. Transportation Unlimited, Inc., 984 F.2d 230, 230-232 (8th Cir. 1992), where a truck driver whose work-related shoulder injury prevented him from lifting objects over his head (an essential job function) was fired and subsequently was continuously employed driving trucks in positions that did not require such lifting was not entitled to protection by the Iowa disability statutes because he could not show a substantial limitation in obtaining satisfactory employment; his injury was not generally disabling and did not prevent him from working as a truck driver. Dube was not substantially limited in working for Middlesex, and the record does not show that he has been substantially limited in his subsequent construction and truck driving employment. See Bolton v. Scrivner, Inc., 36 F.3d 939, 944 (10th Cir. 1994), cert. denied, 513 U.S. 1152 (1995) (independent of the employee’s inability to perform the essential functions of the job, the employee’s failure to demonstrate any significant restriction in performing a class of jobs or a broad range of jobs in various classes was fatal to his Federal disability discrimination claim; summary judgment for employer affirmed). See generally Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir. 1995) (“[T]he inability to perform one aspect of a [single] job while retaining the ability to perform the work in general does not amount to substantial limitation of the activity of working”). Neither did he have a “record of such impairment” as used in § l(17)(h). The intent of the record of disability prong is to prevent discrimination based on a history of disability, and it requires a substantial limitation of a major life activity.. Where records of impairments show no greater record limitations than a plaintiff’s continuing impairments, if the continuing impairments are insufficiently limiting with regard to major life activities to qualify plaintiff as disabled, then the record of impairments will also fail. Colwell v. Suffolk County Police Dept., 158 F.3d 635, 645 (2d Cir. 1998), cert. denied, 526 U.S. 1018 (1999). Dube has not offered evidence to prove that his damaged arm significantly limits any major fife activity. His claim that he was “regarded as having such impairment” is not borne out by the summary judgment record. His request for accommodation and the delivery of a doctor’s note describing his physical problem did not transform his limitations into ones that impaired a major fife function, because Middlesex did not interpret Dube’s limitations as significantly limiting his ability to work. Contrast Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 187-191 (3d Cir. 1999). The “regarded as” prong covers instances where one is discriminated against by an employer who considers the victim to have such an impairment, and requires a mistake — either mistaking whether the employee has an impairment, or mistaking a nonlimiting impairment for one which is substantially limiting. Sutton v. United Air Lines, Inc., 527 U.S. at 489. The purpose of this section is to address inaccurate stereotypes associated with disabilities, and limitations improperly and unfairly imposed on people who are considered to be disabled. In this case, Dube requested accommodations from Middlesex for a damaged arm that he considered a disability. The record shows that Middlesex provided him with some accommodatians, even if not all the ones he requested. He should not now be heard to argue that they inappropriately regarded and treated him as disabled by providing him with accommodations that he asked for when he claimed he was disabled. They did not misapprehend limitations based on a misconception about a disability they perceived he suffered; rather, they took him at his word and accepted his physician’s statements that he was injured, and they tried to work with him, at least to some extent, to accommodate his requests. He was not the victim “of stereotypic assumptions, myths, and fears regarding [his] limitations.” Dahill v. Police Dept. of Boston, 434 Mass. 233, 241 (2001). 2. Other claims. The plaintiff states in a conclusory manner in his appellate brief that “the Superior Court decision completely ignores the plaintiff’s claim of retaliation. The plaintiff’s complaint alleges that the termination was in retaliatian for his complaints and requests for accommodation. Dube became aware of the fact that he had been terminated only in the spring of 1996. He could not have filed a claim of retaliatian prior to his knowledge of the fact that he was being retaliated against. Therefore, that claim must stand.” In his complaint, the only reference to the concept of retaliatian is in paragraph 31 where he states, “Dube believes and therefore avers that he was retaliated against in the terms and conditions of his employment because he is a handicapped person in violation of G. L. c. 151B.” The issue of retaliation was not adequately raised before the Superior Court judge by the plaintiff, a fact pointed out by the defendants both in their brief in support of their motion for summary judgment and in their response to the plaintiff’s opposition to their motion, where they noted that the plaintiff had not alleged any facts in his complaint that would support such a claim. Merely stating in his brief before this court that the Superior Court judge did not deal with the retaliation claim does not constitute reasoned argument in support of that claim. Furthermore, the failure of the Superior Court judge to deal with retaliation is explained by plaintiff’s failure to raise the issue before that court. In these circumstances, the plaintiff has waived any claims of error based upon a theory of retaliation. See Liability Investigative Fund Effort, Inc. v. Massachusetts Med. Professional Ins. Assn., 418 Mass. 436, 441 n.4, cert. denied, 513 U.S. 1058 (1994). In any event, there is no record support for a claim of retaliation. The plaintiff’s requests for accommodation began in 1992 and continued through 1995. He visited the human resource department in 1994. His supervisor expressed displeasure with the plaintiff going over his head in 1994, when Dube sought assistance further up the management chain in his request for reassignment to construction from paving work. Nevertheless, he was rehired for the 1995 season, even after the expression of his supervisor’s displeasure. By then, the previously displeased supervisor had been promoted, and in 1995, Dube not only sought but also received his intercession with the then current general superintendent of construction in order to have Dube transferred back into construction, where he in fact worked for most of the 1995 season. These facts do not support an inference of ongoing animus from the events of 1994 upon which Dube’s claim for retaliation appears to be based. Furthermore, there is no evidence that Dube suffered any other form of adverse job action following close in time to his 1994 complaint to human resources. The failure to rehire him did not occur until the spring of 1996, and the latest request for accommodation to which he attributes the negative employment decision occurred in June,' 1995, nine months earlier. The evidence is too tenuous to support an inference that the failure of the defendant to rehire Dube was based upon retaliation for making a complaint in 1994 to human resources for lack of accommodations, going over his then supervisor’s head in 1994, or requesting accommodations from 1992 through 1995. It is not necessary to address the plaintiff’s other claims on appeal. All such claims depend on being able to show that he is handicapped as that term is used in the statute, which he cannot do. Judgment affirmed. No stipulation of disability should be imputed to an employer who accommodales an employee; “[otherwise, costless accommodations to physical complaints . . . would entail large future costs, would discourage the employment of persons with minor limitations, and would promote litigation without assisting persons entitled to protection of the [disability statutes].” Colwell v. Suffolk County Police Dept., 158 F.3d at 646. Ordinarily, one event following another is not, by itself, sufficient evidence of causality to establish a prima facie case of unlawful retaliation, particularly where, as here, the two events are separated by months, not days. MacCormack v. Boston Edison Co., 423 Mass. 652, 662 n.11 (1996). See Prader v. Leading Edge Products, Inc., 39 Mass. App. Ct. 616, 617-618 (1996). See also Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001) (“Action taken ... 20 months later suggests, by itself, no causality at all”).

ELEZOVIC v FORD MOTOR COMPANY Docket No. 236749. Submitted August 7, 2003, at Detroit. Decided October 23, 2003, at 9:10 A.M. Leave to appeal sought. Lula Elezovic brought an action in the Wayne Circuit Court against her employer, Ford Motor Company, and her supervisor, Daniel P. Bennett, alleging liability under the Civil Rights Act, MCL 37.2101 et seq., for sexual harassment and gender discrimination. Following the presentation of proofs at a jury trial, the court, Kathleen I. MacDonald, J., directed verdicts in favor of the defendants. The plaintiff appealed, and the defendants cross-appealed to raise a statute of limitations issue about an allegation of sexual harassment. The Court of Appeals held: 1. The trial court did not err in directing a verdict in favor of Ford on the claim of “hostile work environment” sexual harassment. In order to be liable for not adequately investigating and taking prompt and remedial action against an employee’s being subjected to unwelcome sexual conduct or communication by another employee, the employer must have notice of the alleged harassment. In this case, the trial court correctly determined that Ford did not have actual or constructive notice of the alleged sexual harassment by Bennett. Although the plaintiff complained to other supervisors about sexual harassment by Bennett, she asked those supervisors not to tell anyone else and not to pursue the matter further with the Ford department responsible for investigating claims of sexual harassment. Communications made to Ford by others on the plaintiffs behalf conveyed matters not related to the alleged sexual harassment by Bennett and were therefore insufficient to provide Ford with actual notice of the alleged harassment. Other evidence presented by the plaintiff was not sufficient to show that Bennett’s alleged harassment was so pervasive that it gave rise to constructive notice on the part of Ford. 2. The trial court erred in concluding that the plaintiff failed to establish a hostile environment sexual harassment claim against Bennett. However, MCR 7.215(J) binds the Court of Appeals to follow the holding in Jager v Nationwide Track Brokers, Inc, 252 Mich App 464 (2002), that liability under the Civil Rights Act for sexual harassment by a workplace supervisor may not be imposed on the supervisor individually because liability is limited to the employer only. Jager requires a conclusion that Bennett has no individual liability for sexual harassment. Were it not for Jager, the Court of Appeals would reverse the trial court’s grant of a directed verdict for Bennett on the claim of hostile environment sexual harassment. The Jager panel’s reliance on federal law and precedent for its holding was misplaced. Unlike federal law, the Michigan Civil Rights Act expressly establishes a cause of action for sexual harassment, and employer liability under the Civil Rights Act is based on traditional agency principles. The Civil Rights Act defines “employer” to include an agent of the employer. Employer liability for sexual harassment under the Civil Rights Act extends to the harassing employee himself. 3. The trial court did not err in directing verdicts for the defendants on the claim of gender discrimination. The trial court correctly concluded that the plaintiff failed to prove that a similarly situated male employee had been treated more favorably. 4. The trial court did not eix in directing verdicts for the defendants on the claim of quid pro quo sexual harassment. The plaintiff presented no evidence that she suffered an adverse employment action as a result of the alleged harassment. 5. The trial court did not abuse its discretion in excluding evidence of Bennett’s conviction of indecent exposure. The plaintiff failed to establish a proper purpose for the admission of the evidence pursuant to MRE 404(b) inasmuch as indecent exposure outside the workplace was not sufficiently similar to workplace sexual harassment to establish a common plan, scheme, or system. The evidence was not admissible against Ford as proof that Ford had notice of the alleged sexual harassment by Bennett. The prejudicial nature of the evidence outweighed its probative value. 6. The trial court did not abuse its discretion in excluding evidence of other sexual harassment complaints at the plant where the plaintiff worked. Contrary to the plaintiff’s contention, such evidence was not necessary for consideration of the totality of circumstances in the plaintiff’s particular work environment. 7. The trial court did not abuse its discretion in disallowing the plaintiff to add a witness who was not identified on her witness list within the time established by the trial court. 8. The defendants’ cross-appeal need not be considered in light of the disposition of the plaintiff’s appeal. Affirmed. Kelly, J., concurring, disagreed that Jager was wrongly decided. The inclusion of “agent” within the Civil Rights Act definition of “employer” does not signal an intent by the Legislature to make individuals as well as employers liable under the act. Granzotto & Nicita, P.C. (by Mark Granzotto), and Edwards & Jennings, P.C. (by Alice B. Jennings), for Lula Elezovic. Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Julia Tamer Baumhart), and Robert W. Powell for Ford Motor Company. Sommers, Schwartz, Silver & Schwartz, P.C. (by Sam G. Morgan and Patrick Burkett), for Daniel P. Bennett. Before: Jansen, P.J., and Neff and Kelly, JJ. Neff, J. Plaintiff Lula Elezovic appeals as of right the trial court’s grant of a directed verdict in favor of defendant Ford Motor Company and defendant Daniel Bennett, a former supervisor at Ford, on plaintiff’s claims of sexual harassment and gender discrimination. We affirm the grant of the directed verdict in favor of Ford. We also affirm the grant of a directed verdict in favor of Bennett, but only because we are bound to do so by the recent holding in Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464, 478; 652 NW2d 503 (2002), in which a panel of this Court decided that under the Michigan Civil Rights Act (cra), MCL 37.2101 et seq., an individual supervisor cannot be held liable, separate from his employer, for hostile environment sexual harassment. MCR 7.215(J). Were we not bound by the holding in Jager, we would reverse the grant of a directed verdict in favor of Bennett on plaintiff’s hostile environment claim, MCL 37.2103(i)(iii). I Plaintiff, an hourly production worker at Ford’s Wixom Assembly Plant, filed this action in November 1999 against Ford and Bennett, alleging claims of sexual harassment, gender discrimination, and retaliation. At the core of plaintiff’s claims was alleged conduct by Bennett from 1995 through 1999 that included Bennett exposing his penis and masturbating when alone with plaintiff in the Wixom plant rail yard, obscene gestures and lewd facial expressions simulating oral sex, a physical attack at a plant bathroom, and repeated sexual remarks such as asking plaintiff if her “boobs [were] real,” saying that he “would like to stick [his] dick in between [her] boobs,” and licking his lips and asking for a “blow job.” According to plaintiff, she did not complain to Ford of Bennett’s sexual harassment because of her Albanian cultural background and fear of reprisals or further intimidation by Bennett. However, plaintiff complained about nonsexual matters involving Bennett and her work conditions at Ford. She also sought psychological counseling and medical care, which she said were made necessary by the harassment at work. Following a three-week jury trial in August 2001, the trial court directed a verdict in favor of defendants, finding that plaintiff had failed to establish a prima facie case of discrimination or retaliation by Ford or Bennett. Plaintiff appeals the grant of directed verdict on her claims of sexual harassment and gender discrimination. She also alleges error requiring reversal in the court’s evidentiary rulings. n The sexual conduct alleged by plaintiff formed the basis of separate claims of sex discrimination under the CRA. We find error only with regard to the claim of hostile environment sexual harassment, and only with regard to defendant Bennett. We therefore first address plaintiff’s claim that the court erred in directing a verdict for defendants on her hostile environment sexual harassment claim. A This Court reviews de novo a trial court’s decision on a motion for a directed verdict. Derbabian v S & C Snowplowing, Inc, 249 Mich App 695, 701; 644 NW2d 779 (2002). A directed verdict is appropriate only when no factual question exists upon which reasonable minds could differ. Cacevic v Simplematic Engineering Co (On Remand), 248 Mich App 670, 679-680; 645 NW2d 287 (2001). We view all the evidence admitted up to the time of the motion, in the light most favorable to the nonmoving party, granting that party every reasonable inference, to determine whether a question of fact existed. Id. at 679; Tobin v Providence Hosp, 244 Mich App 626, 651-652; 624 NW2d 548 (2001). When the evidence could lead reasonable jurors to disagree, the court may not substitute its judgment for that of the jury. Id. at 652. B The CRA prohibits an employer from discriminating because of sex, which includes sexual harassment. MCL 37.2202(1); MCL 37.2103(i); Chambers v Trettco, Inc, 463 Mich 297, 309; 614 NW2d 910 (2000); Chambers v Trettco, Inc (On Remand), 244 Mich App 614, 617; 624 NW2d 543 (2001). MCL 37.2103(i) provides: 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: (i) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment.... (ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment.... (iii) 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. When sexual harassment falls under one of the first two subsections, it is commonly referred to as quid pro quo harassment; when it falls under the third subsection, it is commonly labeled hostile environment harassment. Chambers, supra, 463 Mich 310. To establish a claim of hostile environment harassment, an employee must prove the following elements by a preponderance of the evidence: “(1) the employee belonged to a protected group; “(2) the employee was subjected to communication or conduct on the basis of sex; “(3) the employee was subjected to unwelcome sexual conduct or communication; “(4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and “(5) respondeat superior.” [Id. at 311, quoting Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993).] With regard to the respondeat superior element of a claim of hostile environment harassment, the Chambers Court explained: “Under the Michigan Civil Rights Act, an employer may avoid liability [in a hostile environment case] ‘if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment.’ . . . Such prompt and appropriate remedial action will permit an employer to avoid liability if the plaintiff accuses either a co-worker ... or a supervisor of sexual harassment. An employer, of course must have notice of alleged harassment before being held liable for not implementing action.” [Id. at 312, quoting Radtke, supra at 396-397.] Thus, an employer may avoid liability for a claim of sexual harassment if it does not have actual or constructive notice of the alleged harassment. Radtke, supra at 396 n 44. In this case, the trial court granted a directed verdict on the basis that plaintiff had failed to establish that Ford had notice of the alleged sexual harassment. Even viewing the evidence in the light most favorable to plaintiff, we find no error in the court’s conclusion. In McCarthy v State Farm Ins Co, 170 Mich App 451, 457; 428 NW2d 692 (1988), this Court explained what is meant by actual or constructive notice: “Where . . . the plaintiff seeks to hold the employer responsible for the hostile environment created by the plaintiff’s supervisor or co-worker, she must show that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. . . . The employee can demonstrate that the employer knew of the harassment by showing that she complained to higher management of the harassment... or by showing the pervasiveness of the harassment, which gives rise to the inference of knowledge or constructive knowledge.” [Id. at 457, quoting Henson v Dundee, 682 F2d 897, 905 (CA 11, 1982).] In Sheridan v Forest Hills Pub Schools, 247 Mich App 611, 622; 637 NW2d 536 (2001), this Court defined the term “higher management” to mean someone in the employer’s chain of command who possesses the ability to exercise significant influence in the decision-making process of hiring, firing, and disciplining the offensive employee. With regard to actual notice, plaintiff asserts that she told two of her supervisors of the 1995 incident in which Bennett masturbated in front of her. However, plaintiff asked them as friends to keep this confidential and to not tell anyone. She admitted that she did not want them to report Bennett’s conduct to labor relations, the department responsible for investigating complaints of sexual harassment. Under these circumstances, plaintiff’s report of Bennett’s conduct to her supervisors does not constitute actual notice to Ford, such that it could investigate the matter and take remedial action. Our conclusion regarding actual notice is not altered by the fact that Ford’s antiharassment policy sets forth procedures requiring supervisors to report complaints of sexual harassment. “[N]otice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that séxual harassment was occurring.” Chambers, supra, 463 Mich 319. Given that plaintiff asked her supervisors to keep the information in confidence and not tell anyone about Bennett’s unwanted advances, there was not a “substantial probability” that Ford would have been aware of the hostile work environment claim so as to trigger “prompt and adequate remedial action” on its part. We also reject plaintiff’s argument that actual notice was provided by other communications to Ford made on behalf of plaintiff. Contrary to plaintiff’s contention, there is no evidence that the letters from her psychologist, Dr. Parker, provided Ford with adequate notice that plaintiff was being subjected to sexual harassment by Bennett or to a work environment made hostile by sexual harassment. These letters make no reference to sexual conduct, and, as plaintiff herself admitted, she filed various grievances and labor relations complaints over the years against Bennett, but never once complained about sexual harassment by him. Plaintiff claims that she presented additional evidence that she complained to Ford officials that Bennett was harassing her, that she was frightened of him, and, further, that her son-in-law, Paul Lulgjuraj, wrote a letter to Ford’s supervisor of labor relations, Jerome Rush, asserting that Lulgjuraj might take legal action “to insure that our client is not subjected to working in a hostile environment.” The letter did not mention that plaintiff was being subjected to sexual harassment. Although the letter from Lulgjuraj referenced a “hostile environment,” plaintiff admitted that its purpose was to notify Ford that she was accusing her co-worker, Tami Holcomb, of threatening her life and she also admitted that the letter was not communicating anything to Ford about there being sexual harassment at Ford. This additional evidence does not, under the objective standard of Chambers, establish that Ford would have been aware that sexual harassment was occurring. Chambers, supra, 463 Mich 319. Plaintiff failed to show that Ford had actual notice of the alleged sexual harassment. We also find no error in the court’s conclusion that plaintiff failed to establish constructive notice of the alleged sexual harassment. The trial court held that plaintiff had not adduced sufficient evidence showing that Bennett’s conduct was so pervasive that it gives rise to the inference of knowledge or constructive knowledge. Sheridan, supra at 627; McCarthy, supra at 457. In addition to the incidents involving Bennett’s sexual harassment, plaintiff provided testimony that other supervisors sexually harassed her and that other female employees were sexually harassed. Nonetheless, this evidence did not establish that the sexual harassment was such that Ford had constructive notice. Plaintiff indicated that there were no witnesses to the alleged incidents of sexual harassment against her. Further, the complaint of alleged sexual harassment of plaintiff’s coworker cannot be said to establish notice with respect to plaintiff’s claim of harassment. Sheridan, supra at 627-628. Because plaintiff failed to show that she provided actual or constructive notice to Ford concerning the existence of a sexually hostile working environment, Ford cannot be vicariously liable for her hostile environment claim. Chambers, supra, 463 Mich 312; Radtke, supra at 395 n 41. Thus, the trial court did not err in directing a verdict for Ford on plaintiffs hostile environment claim. c We find error in the trial court’s conclusion that plaintiff failed to establish a hostile environment sexual harassment claim against Bennett; however, we are nonetheless obligated to affirm the court’s decision in light of Jager, supra. As Bennett notes, and plaintiff concedes on appeal, this Court recently held that the CRA imposes liability only on employers, and not on individual employees of employers, with regard to sexual harassment claims. Id. at 478, 485. Thus, the Jager Court concluded that “a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiff’s civil rights.” Id. at 485. Accordingly, Jager requires a conclusion that Bennett has no individual liability for sexual harassment. Nonetheless, we conclude that Jager was wrongly decided. The Court in Jager relied on federal precedent and analyses under title VII in deciding that the CRA does not allow for individual liability for sexual harassment, stating: “We believe that, like title VII, the language in the definition of ‘employer’ concerning an ‘agent’ of the employer was meant merely to denote respondeat superior, rather than individual liability.” Jager, supra at 484. We find Jager’s reliance on federal law misplaced. The Michigan Supreme Court has recognized that unlike the federal law, the cra expressly establishes a cause of action for sexual harassment and that employer liability under the CRA for sexual harassment is based on traditional agency principles. Chambers, supra at 311, 315-316, 326. Thus, this Court has observed that the theories of liability underlying federal sexual harassment cases must be distinguished from those underlying the CRA: To the extent that the dissent relies on federal cases involving sexual harassment claims under title VII, that reliance is misplaced. In Chambers, our Supreme Court held that federal principles of vicarious liability related to sexual harassment claims brought under the federal title VII do not apply to claims brought under Michigan’s cra. The Court reasoned that federal principles are contrar