Kalich v. AT & T MOBILITY, LLC, 2012 U.S. App. LEXIS 9471

Kalich was hired May 19, 2008, as a retail store manager; Rich was his area sales manager and supervisor.
Kalich alleges Rich repeatedly made crude, gendered and other offensive comments toward him.
Kalich's attorney sent a March 19, 2009 letter alleging harassment and demanding a harassment-free environment.
An EEO investigation began in April 2009; Rich was transferred away from Kalich's store and given a final warning.
Kalich resigned effective April 13–29, 2009, citing changed dynamics and health concerns after the investigation.
The district court granted AT&T's summary judgment; Kalich appealed, arguing ELCRA hostile-work-environment claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kalich showed a sex-based hostile environment	Kalich contends conduct was gender-based harassment.	Rich's conduct was not shown to be because of Kalich's sex; no sexual advances or gender-based animus shown.	Kalich failed to show sex-based harassment under ELCRA
Whether conduct was inherently sexual and unwelcome	Comments about gender and sexuality were inherently sexual in nature.	Most remarks were not inherently sexual; necrophilia remark was sexual but not directed due to gender.	Insufficient evidence that conduct was inherently sexual in nature
Whether Kalich was subjected to unwelcome sexual conduct	Several remarks were unwelcome and of a sexual nature.	Comments were not inherently sexual or sufficiently pervasive to be actionable.	Not established as unwelcome sexual conduct as required
Whether the conduct created a hostile work environment	The pattern of comments created a hostile environment for Kalich.	The remarks, while inappropriate, did not amount to a hostile environment under ELCRA.	No evidence of a sufficiently hostile environment
Whether AT&T is liable under respondeat superior	AT&T failed to remediate adequately after notice.	AT&T conducted a timely investigation, remedied the situation, and reassigned Rich.	AT&T acted adequately; no respondeat superior liability

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (U.S. Supreme Court, 1998) (establishes 'because of sex' element in hostile environment claims)
Radtke v. Everett, 442 Mich. 368 (Michigan Supreme Court, 1993) (requires gender-based harassing conduct to be shown)
Haynie v. State, 468 Mich. 302 (Michigan Supreme Court, 2003) (defines elements of hostile work environment under ELCRA)
Barbour v. Dep't of Soc. Servs., 497 N.W.2d 216 (Mich. App. 1993) (sex-based harassment not based on orientation; bar to orientation-based claims but allows some sex-based acts)
Chambers v. Trettco, Inc., 614 N.W.2d 910 (Mich. 2000) (limits employer liability to reasonably prompt remedial action on notice)
Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006) (three approaches to proving 'because of sex' in same-gender harassment)
Schemansky v. California Pizza Kitchen, Inc., 122 F. Supp. 2d 761 (E.D. Mich. 2000) (conduct not inherently sexual may be insufficient for ELCRA hostile environment)
Quinto v. Cross & Peters Co., 451 Mich. 358 (Mich. 1996) (context on hostile environment standards under Michigan law)
Corley v. Detroit Bd. of Educ., 681 N.W.2d 342 (Mich. 2004) (defines 'sexual nature' in harassment claims)
Betts v. Costco Wholesale Corp., 558 F.3d 461 (6th Cir. 2009) ( articulate standard for employer liability for hostile environment)
Sheridan v. Forest Hills Pub. Schs., 637 N.W.2d 542 (Mich. App. 2001) (notice and remedial action standards in ELCRA context)