*1
App 614
REMAND)
TRETTCO,
(ON
INC
CHAMBERS
September 5, 2000,
Lansing. Decided
No. 202151. Submitted
Docket
February 16,
at 9:05
A.M.
Robyn
brought
Circuit Court
an action in the Washtenaw
Trettco, Inc., claiming
employer,
against
sex discrimination
court,
employment, involving
E.
The
Donald
sexual harassment.
pro quo
quid
Shelton, J.,
a
on theories of
submitted the case to
environment sexual harass-
harassment and hostile work
sexual
plaintiff.
for the
The Court of
The
returned a verdict
ment.
J.,
P.J.,
dissenting),
Appeals,
J.
(O’Connell,
Markey,
Raton,
(1998),
v Boca
hibited commonly quid pro quo labeled sexual harassment and what are sexual harassment. The federal Civil hostile work environment merely seq., neither, prohibits Rights Act, does but 42 USC 2000e et discrimination based on sex. that, under 2. The United States Court has concluded Rights Act, once a has established that a the federal Civil environment, working a the burden created hostile disprove supervi- shifts to the actions. sor’s Rights Act, Michigan a defendant 3. Under the disproving responsibility for a hostile does not the burden of bear v Trettco Opinion by O’Connell, Rather, plaintiff employee prove work environment. must respondeat superior by preponderance a the evidence. This ordi- narily problem requires showing recurring that either a existed or likely repetition offending of an incident was and that the defen- problem dant failed to notice. Notice of *2 impute sexual harassment sufficient to objective totality where, standard, exists of the circum- stances were such that a reasonable would have been probability aware of the substantial that sexual harassment was occurring. prove respondeat superior by prepon- 4. The judgment derance of the evidence. The trial court’s must be entry judgment reversed and the matter must be remanded for of a in favor of the defendant. J., only. in concurred the result Markey, Jansen, P.J., dissenting, stated that there was sufficient evidence presented at trial for the to conclude that the defendant failed prompt to take remedial action after it knew or should have known sexually judgment that the had been harassed. The trial court should be affirmed. Garris, Garris, Garris, Garris & P.C. (by Steven Z. Garris), plaintiff. for the
MacDonald and Goren, Cindy P.C. (by Rhodes Victor and Lawrence C. for the Atorthy), defendant.
on remand Markey Before: P.J., and and O’Connell, JJ. J. This case returns to this Court on O’Connell, remand from our Court. Because the facts are set forth in detail opinion, our earlier Cham- v Trettco, Inc, bers 232 Mich App 560, 562-564; 591 NW2d 413 (1998) (Chambers I), Court’s decision that vacated prior opinion our remanded the matter, Trettco, Chambers v Inc, 463 297, 303-306; (2000) NW2d 910 (Chambers O’Connell, necessary repeat II), as we will them here bring focus. the issues into brought harassment a claim of sexual
Plaintiff employer, against under the Civil defendant, her seq.; 3.548(101) Rights et MCL 37.2101 et MSA Act, seq., quid pro quo alleging and hos- both jury accepted workplace both harassment. The tile panel damages. A theories and awarded divided heavily relying recent federal cases Court, this construing 42Act, VII of the federal Civil title seq., Supreme Court in USC 2000e et affirmed. Our this Court’sreliance on the federal case turn held that misplaced, II, 313-316, law was quo quid pro harass- dismissed claim of prior opinion ment, and vacated our and remanded the hostile the case to this Court for resolution of harassment claim in accordance with environment precedents. Michigan Id. at 326. We reverse and *3 remand. temporary supervisor, alleged
Plaintiff that a days assigned to her work station for four while her pat- regular supervisor engaged was on vacation, seriously suggestive behavior, and offensive tern objections. and did over clear Plaintiff so complained wishing to co-workers about to leave her job, proceedings not initiate for but she did sex- complaints ual harassment set forth defendant’s plaintiff happened employee However, handbook. to telephone regional answer the when defendant’s operations telephoned. The latter sensed director of plaintiff something wrong, chose but not to problem, apparently explain the offender because nearby. The director indicated that he would talk meeting later, but no between and Trettco (On Rem) Opinion by O’Connell, the director followed. Plaintiff did complain regular supervisor when the latter returned from vacation. The record does not indicate what if action, any, took against the offender in response, but never offender confronted work again.
Section of our Civil Rights provides Act that an may “discharge, not or otherwise discrimi- nate with against respect employ- individual ment, . . . of . . sex, because . ... or marital status.” 37.2202; MCL MSA Subsection 3.548(202). 103(i) clari- fies that because of sex includes “[discrimination sexual harassment,” which the subsection defines as sexual advances, “unwelcome requests sexual favors, physical or other verbal or or conduct commu- nature,” nication of a sexual under certain circum- stances. 37.2103; MCL MSA 3.548(103)(i). Qualifying include, circumstances under subsection 103(i)(w), employee’s rejection where the submission to or “is as overtures used a factor in decisions affecting the employment,” and, individual’s under subsection 103(i)(m), where or conduct com- “[t]he the purpose munication has or effect substantially with an interfering employment, individual’s ... or creating intimidating, hostile, employ- or offensive ment . . . environment.” MCL 37.2103(i)(n) (m); MSA 3.548(103)(i)(ü) (m). expressly
Our statute thus recognizes sexual har- prohibited assment as a form of discrimination and carefully distinguishes commonly between what are pro “quid quo” labeled harassment and “hostile envi- ronment” harassment. The federal Civil Act *4 neither, merely prohibits does but discrimination II, supra sex. 315, based on 42 citing O’Connell, States the United Further, USC 2000e-2(a)(l). under the federal that, Court has concluded that a Act, once a has established working environment, the a hostile created disprove employer vicarious burden shifts to the liability supervisor’s II, the actions. Chambers supra Burlington citing Industries, Inc v 314-315, 141 L Ed 2d Ellerth, 524 US 118 S Ct 742, 765; 2257; Raton, v Boca 524 US (1998), 2275; 141 L Ed 2d Con- 118 S Ct 807; (1998). liability versely, will law, under state be found has carried the burden where ordinarily respondeat superior. proving This problem requires showing recurring a either repetition offending incident was existed or a likely employer prob- and that Everett, lem on notice. Radtke v 442 368, 382, 395; 501 NW2d Notice of sexual impute sufficient “by objective where, standard, exists totality of the circumstances were such that a reason- able the substan- have been aware of probability tial that sexual harassment was occur- ring.” II, at 319. opinion directing
In our Court’s us apply only Michigan precedents, we now conclude plaintiff alleged that the facts as them cannot render vicariously tempo- defendant in case this hable for its rary supervisor’s establishing conduct hostile working general environment. Plaintiff’s indication to telephone regional defendant’s director over the something wrong sufficiently did not alert him to problem director, to the extent that the and thus reasonably charged defendant, could with actual *5 619 v Trettco by P.J. Jansen, harassment notice constructive or place. indicate taking otherwise did the Nor responsibility supervisory anyone of knew with spoke four-day plight nor- with her she until supervi- temporary offending supervisor after the mal workplace. visiting plaintiff’s longer As no sor was accompanying in this our earlier decision dissent “Imputing harassment of sexual notice stated, case implica- employer nebulous basis of such on the an making an have the effect tions would personal anguish employee’s insurer of understanding.” Cham- or no had little Again, supra we are reminded at 574. I, bers bear does not Act, a defendant under our responsibility disproving hostile for a the burden respon- prove plaintiff must Rather, the environment. preponderance superior evidence. a deat citing supra Radtke, 311-313, 316, II, at 382-383,396-397. case remand this we reverse and reasons, For these judg- a instructions to enter with to the trial court in favor of defendant. ment ju- not retain We do and remanded. Reversed risdiction. only. result I in the
Markey, J. concur respectfully (dissenting). dissent and I jury’s again a sexual verdict. This is affirm plaintiff, for defen cook case in which sexually Wolshon, a float Paul harassed dant, supervising supervisor, defen ing he was while Following July facility 1995. Arbor in in Ann dant’s specially jury sexu that Wolshon found trial, the plaintiff through ally use of or molested assaulted 244 614 620 Mich Opinion by Jansen, P.J. supervisory powers
his and that prompt take action after it remedial knew or should sexually have known that had been harassed. totaling awarded damages $150,000. initially affirmed,1 This Court with Judge O’Connell dissenting, Supreme Court, and the 463 297; 910 (2000), NW2d vacated our which had decision, applied United States rulings Court’s Burlington Industries, Ellerth, Inc v 742; US 2257; S Ct 141 L Ed 2d (1998), Raton, Boca 775; Ct 2275; US 118 S 141 L Ed 2d *6 662 (1998), employer’s both concerning vicarious liability in a sexual case harassment under brought title VII Supreme federal Act.2 Our in Court, ordering matter remanded to this Court that application of Ellerth and decided Faragher was employer’s erroneous and that an liability brought cases under the Michigan Act, Civil Rights seq.) 37.2101 et MCL seq., et MSA 3.548(101) must v analyzed instead be Everett, Radtke under 442 Mich 368; 501 NW2d (1993).3 155
According
Supreme
to our
Court, the
ques-
“central
tion
addressed on
is
remand
whether
presented
sufficient
evidence
demonstrate
F2d 897
Mich
follow the notice
assment claims
cases,
action. The United States
of the
eral
3 Interestingly,
[2]
[1]
See 42 USC 2000e et
principles
318,
Katz
alleged
(CA 11, 1982),
apply controlling Michigan legal principles regarding
v
Dole,
Court in
v
harassment before
announced in
brought
Trettco,
principles
while our
709 F2d
Radtlce, supra
under
Inc,
seq.
determining
set forth in
[251]
Faragher
Michigan law,
(CA 4,
being
Court in
Court
that an
App 560;
Katz
1983),
held liable for not
Ellerth,"
stated
relied
and instead
and Henson v
close of reviewed de novo. verdict is for a directed motion Meagher Wayne 700, 708; Univ, Mich State reviewing (1997). a motion for a When 565 NW2d and all reasonable verdict, the directed are reviewed from that evidence inferences party. nonmoving Kubczak v most favorable 653, 663; Co, & Trust Bank Chemical appropriate verdicts are Directed NW2d 745 question rea- exists on which factual when no *7 Brisboy Fibreboard minds could differ. sonable Corp, NW2d 650 540, 549; 418 previous opinion, that, I believe found in our As plaintiff, there favorable to most taken presented at trial for the evidence sufficient prompt reme- failed to take defendant that conclude known that should have it knew or action after dial sexually plaintiff harassed. The had been working plaintiff began that at trial shows adduced Opinion by $7.50 for June 1995 hour as a assigned at ADP, cook. Plaintiff was to work Inc., previous while on cook was medical leave. Plain- regular tiffs Hostutler, was Jennifer who July went on vacation for the week of 5 to 8, 1995. During replaced by week, that Hostutler was Paul employee floating Wolshon, of defendant and a supervisor. Upon becoming acting supervisor, immediately sexually began harassing plain- Wolshon tiff. Wolshon’s conduct was described in detail plaintiff her co-worker, Cade, Russell a dish- preparatory washer and cook. spoke
Plaintiff testified she with Kevin McLaughlin, regional operations, director of on telephone, Wednesday, July the McLaughlin she on believed 6. facility, plaintiff
had called the admit- telephone, that, ted at trial while she was being According plaintiff, evasive with him. McLaughlin something wrong, asked her, “There’s isn’t She there?” stated that there was and he further inquired if she could him. tell She stated that she McLaughlin could not and said, “I’ll inbe there to talk you.” Plaintiff testified she did not tell McLaughlin of Wolshon’s behavior because Wolshon directly standing during front this tele- phone fact, conversation. In testified that constantly during Wolshon was in the kitchen area supervised facility, the week he at the ADP and this Although McLaughlin was confirmed Cade. told he that would in later week, up stated that he did not show and talk to her that week. supervisory posi-
When Hostutler
to her
returned
following Monday,
tion after her
vacation on
*8
(On Rem)
Trettco
P.J.
Jansen,
reported
immediately
to
plaintiff
conduct
Wolshon’s
complaint
put
plaintiff
her
to
asked
her. Hostutler
McLaughlin
plaintiff
writing,
received
After
did.
complaint
he had a meet-
Hostutler,
from
the written
plaintiff
that
ing
and told
Hostutler
and
with
investigate
asked
matter. He also
further
he would
anyone
speak
the situa-
else about
to
not to
meeting
plaintiff,
According
with
after this
to
tion.
McLaughlin
no one from defendant
Hostutler,
and
any investigation
spoke
again
or the
her about
ever
regard
concerning
Wol-
With
Wolshon.
incidents
sup-
that he
indication
there was some
shon,
day
plain-
facility
posed
go
that
on the
ADP
complaint,
Hostutler
but that
written
made her
tiff
McLaugh-
go
him to
see
and told
him around”
“turned
any
Apparently,
scheduled
event,
inwas,
Wolshon
lin.
following
Chicago
supervisor
that week
as a
to act
stay
not
Arbor. Defendant should
ADP in Ann
his
escape
because of the fortuitous
able to
floating
is a
Wolshon
that
circumstance
facility
the ADP
to be at
who was scheduled
city.
supervisor in another
as a
then act
one week and
adequate
had
that defendant
could conclude
testimony
plaintiff’s
she
the basis of
notice on
McLaughlin
telephone
with
on the
talked
McLaughlin
her the week
talk to
not thereafter
did
despite stating
supervisor,
acted as
that Wolshon
something
knowing
he would
wrong,
told
the fact that
basis of
and on the
immediate Mon-
conduct
of Wolshon’s
Hostutler
day
could con-
Further, the
left.
after Wolshon
testimony
that she
the basis of
clude on
any investigation that defen-
informed
was never
Opinion by
prevent
did
dant
not take
remedial action to
sexually harassing plaintiff.
from
Wolshon
regard
policy,
With
to defendant’s antiharassment
*9
receiving
that
testified
she did not remember
employment
any
handbook, that she did not remem-
signing
stating
ber
a statement
that she had read the
handbook, and that she was not aware that defendant
policy.
policy required
an
had
antiharassment
employees
George
presi-
Cousins,
to contact
a vice
attempted
dent, but when asked at
if she
trial
ever
to
Cousins,
stated,
contact
“I don’t even know
McLaughlin
length
who he is.” Further,
testified at
regarding
policy
defendant’s harassment
and that new
supposed
sign
acknowledgment
are
hires
to
form.
produced any acknowledg-
However, defendant never
showing
plaintiff,
ment form trial
that
in fact,
employee
received and read the
handbook.
Regarding
liability,
the
was in-
pursuant
Champion
structed
to Radtke and
v Nation
Security, Inc,
Wide
450 Mich 702;
Accordingly, jury could conclude from harass- supervisor’s notice received defendant take did not ment toward I the harassment. stop action remedial jury’s verdict. affirm