ELEZOVIC v FORD MOTOR COMPANY
Docket No. 267747
Court of Appeals of Michigan
Submitted August 2, 2006. Decided January 25, 2007
274 Mich App 1
Leave to appeal sought.
The Court of Appeals held:
- The trial court erred in concluding that, because Ford had not given Bennett the authority to create a sexually hostile work environment, he was not functioning as an agent of Ford when he allegedly committеd the unlawful acts of discrimination. Under the CRA, the term “employer” includes an agent of the employing entity. Agents are persons to whom the employing agency delegates supervisory power and authority over subordinates. An
agent can be held directly and individually liable for engaging in discriminatory behavior in violation of the CRA while acting as the victim‘s employer. This conclusion is consistent with the Legislature‘s intent to eradicate the evil of sexual discrimination in the workplace, with prevailing law related to torts committed by agents, and with the rule that remedial statutes must be construed liberally to suppress the evil and advance the remedy. The narrower construction urged by the dissent would effectively insulate the tortfeasor agent from personal accountability for creating the very conditions that the CRA was enacted to prevent. Contrary to the dissent‘s contention, the common-law agency principles on which courts have relied to determine whether to hold employers liable for harassment that their employees committed are not applicable here, because this case involves direct, not vicarious, liability. Therefore, if Elezovic can establish a prima facie case of hostile work environment sexual harassment against Bennett, absent the respondeat superior requirement, she may be entitled to damages for which Bennett is individually liable. - The trial court did not err in denying Bennett‘s motion for summary disposition on the ground that Elezovic‘s allegations of hostile work environment sexual harassment were insufficient as a matter of law. Elezovic presented evidence that, while Bennett was hеr supervisor, he repeatedly engaged in sexual conduct in her presence that a reasonable person would conclude was hostile, intimidating, or offensive. Although Elezovic did not supply specific dates and times in connection with her allegations, she has nonetheless established a genuine issue of material fact regarding whether Bennett subjected her to a hostile work environment.
Reversed and remanded for further proceedings.
TALBOT, J., dissenting, stated that because the undisputed facts reflect that, under common-law agency principles, Bennett‘s acts of sexual harassment occurred outside the scope of his authority as a Ford superintendent and violated Ford‘s antidiscrimination policy, Bennett was not acting as Ford‘s agent when he committed the alleged acts of sexual harassment, and he therefore does not meet the definitiоn of an “employer” under the CRA. Accordingly, the trial court properly granted Bennett summary disposition with respect to Elezovic‘s CRA claim.
- CIVIL RIGHTS — CIVIL RIGHTS ACT — EMPLOYERS — AGENTS — INDIVIDUAL LIABILITY.
An agent of an employer may be held individually liable under the Civil Rights Act for sexually harassing an employee in the workplace (
CIVIL RIGHTS — CIVIL RIGHTS ACT — EMPLOYERS — AGENTS — DEFINITION.
An agent of an employer, for purposes of the Civil Rights Act, is a person to whom an employing entity has delegated supervisory power and authority to act on its behalf (
- CIVIL RIGHTS — CIVIL RIGHTS ACT — EMPLOYERS — AGENTS — SCOPE OF AUTHORITY.
An agent of an employer may be held individually liable for violating the Civil Rights Act in the workplace regardless of whether the underlying acts were outside the scope of the agent‘s authority because an action for individual liability does not seek to hold the principal liable for the agent‘s acts (
Edwards & Jennings, P.C. (by Alice B. Jennings), for Lula Elezovic.
Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Julia Turner Baumhart and Elizabeth Hardy), for Daniel Bennett.
Before: CAVANAGH, P.J., and SMOLENSKI and TALBOT, JJ.
CAVANAGH, P.J. This appeal follows the remand of this matter to the circuit court by our Supreme Court1 for consideration of plaintiff Lula Elezovic‘s sexual harassment claim premised on a hostile work environment theory,
Because the facts related to this matter have been extensively detailed in previous opinions, we reiterate only the salient facts here. Sеe Elezovic v Ford Motor Co, 472 Mich 408, 411-418; 697 NW2d 851 (2005); Elezovic v Ford Motor Co, 259 Mich App 187, 190-191; 673 NW2d 776 (2003). Plaintiff was an hourly production worker at Ford‘s Wixom assembly plant when she was allegedly sexually harassed by defendant, her supervisor. She brought sexual harassment claims against both Ford and defendant. Following a three-week jury trial, the trial court granted defendants’ motion for a directed verdict, holding that plaintiff failed to establish a prima facie case of sexual harassment against either Ford or defendant.
On appeal, this Court affirmed the trial court‘s decisions. With regard to defendant, this Court relied on the then-recent case of Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464, 485; 652 NW2d 503 (2002), which held that a supervisor may not be held individually liable for violating the CRA. Elezovic, 259 Mich App at 197, 202. Our Supreme Court granted leave to appeal, and affirmed with regard to the issue of Ford‘s liability. Elezovic, 472 Mich at 430. However, the Court overruled the Jager holding, concluding that an agent who sexually harasses an employee in the workplace can be held individuаlly liable under the CRA. Id. at 411. The Court remanded the matter to the circuit court for further proceedings regarding defendant. Id. at 431. As noted above, on remand, the circuit court granted defendant‘s renewed motion for summary disposition on the ground that defendant was not function-
Plaintiff argues that the trial court erred in concluding that defendant was not functioning as an “agent” of Ford under the CRA when he committed the charged acts of sexual harassment and, thus, could not be held individually liable. We agree.
This Court reviews de novo the ruling on a motion for summary disposition. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). Although the trial court did not specify under which subrule of MCR 2.116(C) it found summary disposition appropriate, because the court looked beyond the pleadings, it appears that the decision was premised on MCR 2.116(C)(10). MCR 2.116(C)(10) tests the factual support of a claim and requires this Court to consider the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favor-able to the nonmoving party to determine whether a genuine issue of material fact warranting a trial exists. Walsh, supra.
This Court also reviews de novo issues of statutory interpretation. Bloomfield Twp v Oakland Co Clerk, 253 Mich App 1, 9; 654 NW2d 610 (2002). Our purpose in reviewing questions of statutory construction is to discern and give effect to the Legislature‘s intent. Echelon Homes, LLC v Carter Lumber Co, 472 Mich 192, 196; 694 NW2d 544 (2005). We begin our analysis by examining the plain language of the statute. If the language is unambiguous, no judicial construction is required or permitted and the statute must be enforced as written. Id., quoting People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). The undefined words of a statute must be given their plain and ordinary meaning, which may be ascertained by looking at dictionary
The CRA is remedial and thus must be “libеrally construed to suppress the evil and advance the remedy.” Eide v Kelsey-Hayes Co, 431 Mich 26, 34; 427 NW2d 488 (1988). One of the purposes of the CRA, specifically
There are two categories of sexual harassment: (1) quid pro quo and (2) hostile work environment. See Chambers v Trettco, Inc, 463 Mich 297, 310-311; 614 NW2d 910 (2000). At issue in this case is the latter type, hostile work environment sexual harassment, which is defined to include
unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:
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(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. [
MCL 37.2103(i) .]
However, “if an employer is accused of sexual harassment, then the respondeat superior inquiry is unnecessary because holding an employer liable for personal actions is not unfair.” Radtke, supra at 397 (emphasis in original). Thus, when the hostile work environment is created by the actions of the employer, the alleged victim seeking a remedy under the CRA may file such a claim against her employer premised on a direct theory оf liability. Similarly, this case involves not vicarious liability but the individual liability of the alleged sexual
In this case, defendant argued in the trial court on remand that plaintiff‘s case had to be summarily dismissed because defendant was never vested with authority to create a sexually hostile work environment; i.e., defendant “was not Ford‘s agent for purposes of creating a sexually hostile work environment.” The trial court agreed with defendant, granting defendant‘s motion for summary disposition on the ground that defendant was not functioning as an agent at the time he committed the alleged unlawful acts of discrimination. We conclude that both defendant and the trial court misconstrued the applicable legal principles of agency. This unjust and unreasonable result pеrmits an agent to pursue and accomplish his illegal objective by using his position and power, but immunizes him from liability because he was not supposed to do that. In other words, in this case, defendant could not be held personally liable for violating the purported victim‘s civil rights because Ford did not tell him to sexually harass her. We do not believe that the Legislature intended this incongruous result.
Article 2 of the CRA defines an “employer” as “a person who has 1 or more employees, and includes an agent of that person.”4
[W]hen 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 [v Trettco, Inc, 463 Mich 297, 320; 614 NW2d 910 (2000)], 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. [Elezovic, 472 Mich at 420.]
The Court also specifically held:
Because we find that (1) inclusion of an “agent” within the definition of the word “employer” is not limited tо establishing vicarious liability for the agent‘s employer, but in fact means agents are considered employers, (2) federal decisions construing Title VII should not be followed because it would lead to a result contrary to the text of our CRA, and (3) the amendment history of the CRA does not preclude a finding of individual liability, we conclude that liability under our CRA applies to an agent who sexually harasses an employee in the workplace. [Id. at 426.]
Again, our Supreme Court reiterated in its conclusion that “[b]ecause employers can be held liable under the CRA, and because agents are considered employers, agents can be held liable, as individuals, under the CRA.” Id. at 431.
The clear result of the Supreme Court‘s conclusion is that if the purported harasser is an agent of the employing entity, the harasser is treated as if he is the employer for purposes of the CRA. In other words, the harasser may be held directly and individually liable if
Next, we must determine when one is considered an “agent” and, thus, an employer under the CRA. The CRA does not define the term “agent,” so we may turn to a dictionary for guidance on its plain and ordinary meaning. See Koontz, supra. An agent is “a person or business authorized to act on another‘s behalf” and “a person or thing that acts or has the power to act.” Random House Webster‘s College Dictionary (1997). And, if “agent” is considered a legal term, its meaning is the same: “[o]ne who is authorized to aсt for or in place of another.” Black‘s Law Dictionary (7th ed). These definitions are consistent with general agency principles, Stephenson v Golden (On Rehearing), 279 Mich 710, 734-735; 276 NW 849 (1937), and the fact that “most employers are corporate entities that cannot function without delegating supervisory power.” Champion, supra at 713. We conclude that it is through this delegation of general supervisory power and authority that one becomes an “agent” of the employing entity and, thus, an employer within the context of the CRA.
Specifically, persons to whom an employing entity delegates supervisory power and authority to act on its behalf are “agents,” as distinguished from coemployees, subordinates, or coworkers who do not have supervisory powers or authority, for purposes of the CRA. If this agent is also the alleged sexual harasser, the agent is considered an employer under the CRA and may be directly and individually liable for this tort against the
Contrary to defendant‘s argument, the trial court‘s holding, and the dissent in this case, it is not necessary for a plaintiff to establish that a defendant was “functioning as an agent” when he committed the charged specific acts of sexual harassment charged. Almost invariably, the harasser is never acting within the scope of his agency when he breaks the law by sexually harassing a subordinate. As our Supreme Court has noted, “an employer rarely authorizes an agent to break the law or otherwise behave improperly . . . .” Champion, supra at 712 n 7. The issue is not whether the harassing acts were within the scope of the agent‘s authority — the plaintiff is not attempting to hold the prinсipal liable for the agent‘s acts. The issue is whether the harasser was an agent, one vested with supervisory power and authority, at the time the harassing acts were being perpetrated against the victim; if so, the harasser is considered an employer for purposes of the CRA.
We disagree with the dissent‘s contention that the common-law agency principles on which the Court relied in Chambers, supra at 311, “in determining when an employer is liable for sexual harassment committed by its employees,” are relevant in this case that does not involve vicarious liability. The dissent‘s reliance on other cases involving claims of vicarious liability is not persuasive. The dissent‘s claim that we have altered “the elements necessary to establish a prima facie case of hostile work environment sexual harassment by eliminating the respondeat superior requirement” is accurate, but only with respect to claims of direct liability. First, sexual harassment is an intentional tort.
The harassing agent, then, is held to the same standard as an employer; employers shall not discriminate against employees. We note Justice WEAVER‘s concern in her partiаl dissent with regard to the issue of holding agents, like supervisors, who sexually harass liable for their conduct, while not holding coemployees liable for similar harassing actions. Elezovic, 472 Mich at 437. But we conclude that agents who harass should not be treated in the same manner as coemployees who harass because agents are not similarly situated to coemployees. For example, agents have influence and power over their victim that coemployees do not enjoy, such as control over their victim‘s employment circumstances and opportunities like promotions, bonuses, overtime options, raises, shift and job assignments, and terminations. In other words, in significant part, these agents are the employers. It is for these reasons, as well as many others, that the victim is placed in the no-win situation of eithеr risking her livelihood by reacting to or reporting the unlawful behavior or accepting the harassment when that harassment is perpetrated by a
As our Supreme Court previously noted,
[s]exual harassment was targeted by the Civil Rights Act because it is both “pervasive” and “destructive, entailing unacceptable personal, organizational, and societal costs.”
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“Sexual harassment should be explicitly defined and prohibited because it is a demeaning, degrading, and coercive activity directed at persons on thе basis of their sex, the continuation of which is often contingent on the harasser‘s economic control over the person being harassed. It should be outlawed because it violates basic human rights of privacy, freedom, sexual integrity and personal security.” [Radtke, supra at 380-381, quoting House Legislative Analysis, HB 4407, August 15, 1980.]
Agents have been granted supervisory powers that do not, and should not, come without the concomitant responsibility attendant to such powers. They are, for all intents and purposes, the employing entity‘s front-line defense against this type of unlawful behavior occurring in the workplace. When an agent instead becomes the sexual harasser, immunity from the reach and teeth of the CRA should not be the reward. The Legislature‘s intent is clear — the eradication of sexual harassment as a destructive and hazardous conditiоn in the workplace. Employers, including agents, share the burdens and the benefits of meeting the requirements of the CRA. The effect of the narrow construction posited by defendant in this case, as well as the trial
This conclusion is consistent with prevailing law related to torts committed by agents. “It is a familiar principle that the agents and officers of a corporation are liable for torts which they personally commit, even though in doing so they act for the corporation, and even though the corporation is also liable for the tort.” Warren Tool Co v Stephenson, 11 Mich App 274, 300; 161 NW2d 133 (1968); see, also, Hartman & Eichhorn Bldg Co, Inc v Dailey, 266 Mich App 545, 549; 701 NW2d 749 (2005). And ““a corporate employee or official is personally liable for all tortious or criminal acts in which he participates, regardless of whether he was acting on his own behalf or on behalf of the corporation.“” People v Brown, 239 Mich App 735, 739-740; 610 NW2d 234 (2000), quoting Attorney General v Ankersen, 148 Mich App 524, 557; 385 NW2d 658 (1986). See, also, 3 Am Jur 2d, Agency, § 298, p 668. Thus, it is clear that such agents are personally liable for unlawful conduct committed in their capacity as agents.
Our holding is also consistent with the rule that remedial statutes like the CRA are to be construed liberally “to suppress the evil and advance the remedy.” Eide, supra at 34. The evil here is discrimination, particularly sexual harassment, in the workplace. See Champion, supra at 713. With regard to the imposition of vicarious liability in the case of sexual harassment, our Supreme Court rationalized that “when аn em-
In summary, under the CRA, an “employer” includes an agent of the employing entity. “Agents” are persons to whom the employing agency delegates supervisory power and authority over subordinates. An agent can be held directly and individually liable if he engaged in discriminatory behavior in violation of the CRA while acting in his capacity as the victim‘s employer. Therefore, if plaintiff can establish a prima facie case of hostile work environment sexual harassment against defendant, her supervisor, absent the respondeat superior requirement, she may be found entitled to damages for which defendant is individually liable. Therefore, the trial court‘s grant of defendant‘s motion for summary disposition on the ground that defendant was not functioning as an agent of Ford when he committed the charged acts of sexual harassment is reversed.
On cross-appeal, defendant argues that the trial court erred in denying his motion for summary disposition of plaintiff‘s hostile work environment sexual harassment claim because her sexual allegations were insufficient as a matter of law. Again, we disagree.
“[W]hether a hostile work environment existed shall be determined by whether a reаsonable person, in the totality of circumstances, would have perceived the conduct at issue as substantially interfering with the plaintiff‘s employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment.” Id. at 394. Plaintiff presented evidence that, from November 1996 when defendant became her supervisor through approximately the summer of 1999, (1) defendant would frequently look at plaintiff and lick his lips in a sexually suggestive manner, (2) defendant would frequently grab his crotch and ask plaintiff to perform oral sex on him, (3) defendant asked plaintiff if her “boobs” were real and told her that he would like to stick his “dick” between them (but this may have occurred outside the period of limitations), (4) there were three or four instances where defendant was “playing with himself” and, at least oncе, said, “[L]ick it Lula, lick it,” (5) defendant called plaintiff a “bitch” at least once, (6) defendant grabbed plaintiff‘s arm as she was leaving a restroom and said, “[C]an we go inside and I‘ll wipe,” (7) defendant placed his hand on his groin and asked, “You want some, you want some, you want some?” and (8) defendant went to an unoccu-
Objectively examining the totality of the circumstances, a reasonable person could conclude that defendant‘s conduct was unreasonable, i.e., it was hostile, intimidating, or offensive. See Radtke, supra at 386-387. Although we recognize that plaintiff was unable to give specific dates and times with regard to many of the instances of claimed sexual harassment, she has established, at least, a genuine issuе of material fact regarding whether she was subjected to a hostile work environment as a consequence of defendant‘s conduct. See Quinto v Cross & Peters Co, 451 Mich 358, 369-370; 547 NW2d 314 (1996); Radtke, supra.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
SMOLENSKI, J., concurred.
TALBOT, J. (dissenting). I respectfully dissent. Specifically, I believe the majority‘s conclusion, holding defendant Daniel P. Bennett individually liable under the Michigan Civil Rights Act (CRA),
This case is once again before this Court, having already generated two published decisiоns in Elezovic v Ford Motor Co, 259 Mich App 187; 673 NW2d 776 (2003), aff‘d in part and rev‘d in part 472 Mich 408
This appeal is a necessary extension of the Supreme Court‘s analysis of plaintiff‘s claim of hostile work environment sexual harassment, Elezovic v Ford Motor Co, 472 Mich 408; 697 NW2d 851 (2005), in which the Court addressed the issue of individual liability under the CRA. The Supreme Court began its analysis by examining the language of the relevant statutory definitions. The Supreme Court noted that “the statute expressly defines an ‘employer’ as a ‘person,’ which is defined under
“Through the Civil Rights Act, Michigan law recognizes that, in employment, freedom from discrimination because of sex is a civil right.
The majority appears to elevate this holding to the imposition of strict liability while ignoring the accepted definition of the term “agent,” which is necessary to
An agent can be held directly and individually liable if he engaged in discriminatory behavior in violation of the CRA while acting in his capacity as the victim‘s employer. Therefore, if plaintiff can establish a prima facie case of hostile work environment sexual harassment against defendant, her supervisor, absent the respondeat superior requirement, she may be found entitled to damages for which defendant is individually liable. [Ante at 15.]
This effectively ignores both the prior caselaw determining the requirements for establishing liability under an agency relationship and, impliedly, alters the elements necessary to establish a prima facie case of hostile work environment sexual harassment by eliminating the respondeat superior requirement.
In responding to this dissent, the majority relies on an isolated statement from Radtke v Everett, 442 Mich 368, 397; 501 NW2d 155 (1993), that “if an employer is accused of sexual harassment, then the respondeat superior inquiry is unnecessary . . . .” This reliance is misplaced. Notably, the Radtke decision was issued 12 years before the Supreme Court‘s ruling in Elezovic, and did not address the impositiоn of individual liability in the context of agency. Radtke is further distinguishable because, in that case, the harasser was coextensive with his business, being both owner and employer, and was effectively imputed to be the alter ego of the business rather than an agent. Hence, use of the term “employer” in Radtke carries a vastly different meaning and connotation and, consequently, was not used by the Supreme Court in Elezovic in the same context as currently advocated for purposes of imposing individual liability on an agent. In addition, the majority fails to note that Radtke is inapposite to its reasoning, because
The question central to the resolution of this case is whether Bennett acted as Ford‘s agent when he committed the claimed acts of sexual harassment. The CRA does not specifically define the term “agent” of the employer, see
Michigan has long recognized the following general common-law principles governing principal-agent relationships:
“An agent is a person having express or implied authority to represent or act on behalf of another person, who is called his principal.” Bowstead on Agency (4th Ed.), p. 1.
“An agent is one who acts for or in the place of another by authority from him; one who undertakes to transact some business or manage some affairs for another by authority and on account of the latter, and to render an account of it. He is a substitute, a deputy, appointed by the principal, with power to do the things which the principal may or can do.” 2 C. J. S. p. 1025. [Stephenson v Golden (On Rehearing), 279 Mich 710, 734-735; 276 NW 849 (1937).]
“Among those attributes is the power to do all that is usual and necessary to accomplish the object for which the agency was created.” Leo Austrian & Co v Springer, 94 Mich 343, 350; 54 NW 50 (1892); see also Field v Jack & Jill Ranch, 343 Mich 273, 278-279; 72 NW2d 26 (1955) (explaining that an agent‘s powers are prima facie coextensive with the business entrusted to his care, and that the agent‘s authority includes “not only those things he is expressly told to do, but those things the principal knowingly acquiesces in his doing“).
The parties do not dispute that Bennett was a Ford Motor Company superintendent, and that in this position he was an agent with actual authority, express or implied, to bind Ford regarding certain employment decisions affecting subordinate employees. Alar v Mercy Mem Hosp, 208 Mich App 518, 528; 529 NW2d 318 (1995). The majority contends that becausе Bennett unquestionably occupied some agency position with respect to the Ford Motor Company, he meets the definition of an “agent” subject to individual liability for sexual harassment under
The term “agent” in
Although plaintiff testified that Bennett committed several offensive acts tending to constitute sexual harassment in the workplace, these acts of discrimination do not have any “usual or necessary connection to accomplishing the purpose[s] of” Bennett‘s responsibilities as Ford‘s superintendent. Smith, Hinchman & Grylls Assoc, supra at 706. As the Michigan Supreme Court has observed with respect to the potential vicarious liability, under common-law agency principles, of an employer for an employee‘s acts allegedly creating a hostile work environment, “[W]e have noted that... strict imposition of vicarious liability on an employer is illogical in a pure hostile environment setting because, generally, in such a case, the supervisor acts outside the scope of actual or apparent authority to hire, fire, discipline, or promote.” Chambers, supra at 311 (emphasis added; internal quotations and citation omitted). Notably, Bennett‘s acts of sexual harassment also contravened Ford‘s antidiscrimination policy, which the parties agree governed their relationship with Ford. Although Bennett‘s acts of sexual discrimination violate the CRA, “[w]hen a purported agent is shown to have been acting outside the scope of the law, it is presumed that he was not acting within the scope of his
If interpretation of the term “agent” within
where the elements of hostile work environment sexual harassment are fully and successfully established, the individual tortfeasor could also be subject to individual liability, thus fulfilling both the definitional requirements and language of the statute without the necessity of expanding the actual language of the statute to include the imposition of strict liability for conduct determined to be in violation of the act.
Because the undisputed facts reflect that Bennett‘s acts of sexual harassment occurred outside the scope of his authority as a Ford superintendent and violated Ford‘s antidiscrimination policy, the trial court properly grаnted Bennett summary disposition pursuant to MCR 2.116(C)(10) with respect to plaintiff‘s CRA-based claim that his acts of sexual discrimination created a hostile work environment.