Following a jury trial in Washtenaw Circuit Court, defendant Electrolux Corporation was found liable to plaintiff in the amount of $186,000 for sexual harassment resulting in employment discrimination in violation of the Civil Rights Act. Electrolux appeals as of right and plaintiff has cross-appealed on an issue related to the amount awarded. We affirm the jury verdict, but remand for further consideration of the damages awarded.
Richard Ellis was a supervisor formerly employed by defendant Electrolux, a subsidiary of defendant Consolidated Foods. Plaintiff McCalla had been hired by Ellis to sell vacuum cleaners door to door. Plaintiff McCalla brought her claim under the Civil Rights Act based on her allegation that Ellis had forced her to have sexual intercourse with him. The incident originating this suit
Both Ellis and Consolidated had been dismissed as defendants at the time of trial. The jury’s award included $32,000 for impaired earning capacity, $54,000 for medical expenses, and $100,000 for noneconomic damages. Thereafter, the trial court deducted $19,000 from the award, the amount plaintiff had received in redemption of a workers’ disability compensation claim.
Defendant’s first issue is that the trial court should have ordered entry of judgment notwithstanding the verdict or, in the alternative, a new trial. Defendant challenges both the legal basis for plaintiffs claim and the sufficiency of the evidence to support that claim. This issue revisits an issue set forth in our earlier opinion as to whether plaintiff had a legally recognized cause of action. McCalla, supra, p 459. The facts as developed at trial have clarified the legal nature of plaintiffs claim and its factual basis. Based on our review of the law and the record, we find both a legal and a factual basis for her claim of sexual harassment.
Initially, we note there is no merit to defendant’s argument that this claim was precluded by plaintiffs workers’ disability compensation claim.
Boscaglia v Michigan Bell Telephone Co,
The Civil Rights Act, like Title VII of the federal Civil Rights Act, prohibits employers from discriminating against a person on the basis of sex with respect to "a term, condition or privilege of em
(i) Submission to such conduct or communication is made a term or condition either explicitly or implicitly to obtain employment. . . .
(ii) Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’s employment. . . .
(iii) Such 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(h)(i),(ii) and (iii); MSA 3.548(103)(h)(i),(ii) and (iii).]
This language parallels that found in the eeoc guidelines regarding sexual harassment and Title VII. See
Coley v Consolidated Rail Corp,
In sum, if the sexual conduct is an unwelcome sexual advance or physical conduct of a sexual nature it may be the basis for a sexual harassment claim under the Civil Rights Act. There is nothing in the language of the act which indicates that it was not meant to include unwelcome sexual intercourse.
Defendant has provided us with no authority for its argument that the act does not apply because the sexual conduct was, as characterized by defendant, a crime of violence. The Civil Rights Act is
Assuming that a rape is unwelcome sexual conduct, the burden is then on plaintiff to show a nexus between the conduct and her employment situation. See Coley, supra, p 649. In this case plaintiff sought to do so by showing the existence of quid pro quo sexual harassment.
Both the Civil Rights Act and Title VII provide relief for two basic types of sexual harassment: (1) quid pro quo sexual harassment; and (2) sexual harassment which results from a hostile or offensive work environment. See
Langlois v McDonald’s Restaurants of Michigan, Inc,
The parties have not provided, and we are not aware of, any Michigan authority applying the quid pro quo theory as such. However, in
Langlois,
a hostile environment case, the Court recognized the elements of a quid pro quo claim as set forth by the federal court in
Henson v City of Dundee,
682 F2d 897 (CA 11, 1982). While this Court is not bound by federal precedent based on Title VII, those precedents analogous to questions presented
The five elements of a quid pro quo claim as set forth in Henson, supra, p 909 are:
(1) The employee belongs to a protected group.
(2) The employee was subject to unwelcome sexual harassment.
(3) The harassment complained of was based upon sex.
(4) The employee’s reaction to harassment complained of affected tangible aspects of the employee’s compensation, terms, conditions, or privileges of employment. . . .
(5) Respondeat superior. [Emphasis deleted.]
See also Langlois, supra, p 313: Highlander v KFC Nat'l Management Co, 805 F2d 644, 648 (CA 6, 1986). Defendant argues that elements 4 and 5 are not met in this case because the requisite nexus between the harassment and her employment is missing and because Ellis was not acting as defendant’s agent when the sexual conduct occurred.
The fourth element is established where the employee in a supervisory position encourages or demands sexual favors in return for some employment benefit. Langlois, supra, p 313. As noted in Henson, supra, the harassment may be express or implied. It may be evidenced by a single incident. Rabidue, supra, p 621. The classical example of quid pro quo harassment is the situation in which the plaintiff is fired because of a refusal to succumb to sexual demands. Coley, supra, p 649. Where an employee involuntarily resigns in order to escape an employment situation made intolerable because of sexual harassment, the termination of employment is considered a constructive discharge or firing. Henson, supra, p 907; Coley, supra, p 651.
The Civil Rights Act defines "employer” to include "an agent.” MCL 37.2201(a); MSA 3.548(201)(a). Defendant does not contest that Ellis was an agent at least to the extent that he was in its employ as a supervisor with authority to make employment decisions.
Under the Restatement (Second) of Agency, § 219(2)(d), p 481, an employer may be liable for its employee’s actions where the employee "was aided in accomplishing the tort by the existence of the agency relationship].” Even if the act is not within the scope of his employment and the employee is acting entirely for his own benefit, the employer may be liable where the employee exercises the authority actually delegated to him by his employer in acting so as to affect the employment status of subordinates. Where it is the employer’s delegation of authority that empowered the supervisor to act, the employer can be found liable. Sparks v Pilot Freight Carriers, Inc, 830 F2d 1554, 1559 (CA 11, 1987). As noted in Horn v Duke Homes, 755 F2d 599, 605 (CA 7, 1985):
It could be argued that because [the plant superintendent] Haas was not authorized to discriminate on the basis of sex and because his sexual proclivities were wholly unconnected to the well-being of the employer, he was acting outside the scope of his employment. On the other hand, by delegating power to Haas the "employer” and Haas essentially merged; as long as the tort complained of was caused by the exercise of this supervisory power, Haas should be deemed as acting within the scope of his employment, and the employer should be held liable for the tort.
In such a case, the supervisor relies upon his apparent or actual authority to extort sexual consideration from an employee. Therein lies the quid pro quo. In that case the supervisor uses the means furnished to him by the employer to accomplish the prohibited purpose. He acts within the scope of his actual or apparent authority to "hire, fire, discipline or promote.” . . . Because the supervisor is acting within at least the apparent scope of the authority entrusted to him by the employer when he makes employment decisions, his conduct can fairly be imputed to the source of his authority. [Citations and footnote omitted.]
Therefore, in this case, plaintiff must show that she left her employment because the sexual conduct of her supervisor, acting within at least the apparent scope of his authority, either expressly or impliedly affected her employment status or benefits to the extent that unwelcome sexual harassment can be shown to exist.
At trial, plaintiff testified that in the early evening of September 1, 1979, a Saturday, she was called at home by Ellis, her supervisor, and asked
A company representative testified that sales commissions were given to new people when they are learning the job in order to provide them with a paycheck during this learning period. Ellis testified that he usually told new hires that they would be getting some money to see them through the first week and that he might have told plaintiff this. On cross-examination, he agreed that when he called plaintiff and offered her the chance to sign the contracts and make some money that he knew she would probably come to the office. He estimated that the contracts involved commissions of $250-$300.
According to plaintiff’s testimony, when she arrived at the office, Ellis was alone. As she signed the papers, she felt Ellis breathing down the back of her neck. As she turned to leave, Ellis ordered her to remove her clothes. Plaintiff testified that she was terrified and that after she removed her clothes, Ellis ordered her to have at least four separate acts of oral and vaginal intercourse. Following the episode, Ellis told plaintiff that if she "stuck with him, I’d have no worries.”
Ellis testified that he did not force plaintiff to have sex and that he believed that plaintiff had signalled during the prior week that she was sexually available. He denied breathing down her neck and testified that there was only one act of intercourse. He testified that he would have given
Plaintiff testified that she did not return to Electrolux after the assault as a result of the incident.
To a large extent, the finding of sexual harassment depended on credibility determinations that are committed to the jury as the trier of fact. See
Meritor, supra,
p 68. In general, we defer to the trial court’s unique opportunity to judge the credibility of the witnesses and will not substitute our judgment for that of the jury unless the record reveals a miscarriage of justice.
Troyanowski v Village of Kent City,
The parties do not dispute that plaintiff came to the office in response to Ellis’ call in order to complete the paperwork necessary for her to receive a paycheck. Contemporaneously with the sexual assault, Ellis told plaintiff that if she stuck with him she would have no problems. Based on the situation, plaintiff could reasonably assume this meant more sexual contact, which would be a factor in decisions affecting or interfering with her employment. Viewing the record in light of the relevant law, we find there was a sufficient factual basis for the jury’s verdict.
Our review does not indicate that the court erred in denying defendant’s motions for a new trial or for judgment notwithstanding the verdict. Id.
Defendant next challenges the trial court’s failure to give jury instructions concerning agency, pattern of harassment, the criminal sanction for rape, and the legal basis for plaintiff’s claim. It also objects to the giving of an instruction that Electrolux’s lack of notice was not a defense. Our
Defendant’s third issue is that the trial court erred in admitting the testimony of plaintiffs two experts regarding plaintiffs credibility and whether the sexual encounter was welcome. Defendant does not contest that either witness was an expert; it challenges only the nature of their testimony.
In general, the trial court’s decision to admit certain information, testimony, or objects is within its discretion and will not be disturbed on appeal absent a showing of an abuse of discretion.
Estate of Green v St Clair Co Road Comm,
Defendant specifically objects to an instance when Dr. Theresa Foley testified that in her opinion the sexual activity was not welcomed or solicited by plaintiff. There was no objection to the question or the testimony. It also objects to Foley’s response that in her "professional and expert opinion” plaintiff "has not lied or embellished her account of the assault at the Electrolux Company.” Defense counsel objected after the response on the basis that it was improper to ask Foley if plaintiff was telling the truth and the trial court agreed.
The second witness whose testimony is challenged is Deborah Weiner, a social worker at an assault crisis center who interviewed plaintiff on the Tuesday following the incident. Over defense counsel’s objection that Weiner’s testimony was
The credibility of a witness is a matter within the province of the jury.
Johnson v Corbet,
Both witnesses had certain expertise or experi
Our review of the entire circumstances of this case, however, does not indicate prejudicial error requiring reversal.
Ilins v Burns,
The jury was aware from counsel’s arguments and the court’s decisions that the witnesses were not experts in credibility. Foley’s credentials and her reliability were thoroughly explained on cross-examination. Even when the court agreed with defense counsel that Foley’s credibility testimony was not proper, defense counsel did not ask for a curative instruction, thereby at least implying that
Given the nature of the claim and our review of the entire circumstances of the trial, reversal is not required. Ilins, supra.
Defendant also challenges the admission of rebuttal testimony by a former employee regarding Ellis as irrelevant and prejudicial. Plaintiff claims the evidence was relevant to attack Ellis’ credibility and his statement that he had never made a pass at a female employee.
The witness had been called earlier in the trial. Defense counsel objected to her testimony because there was no foundation as to when she had encountered Ellis. The court then heard the testimony outside the presence of the jury and agreed that it was not admissible at that point in the trial. Although counsel was therefore aware of the substance of the testimony, no objection was made prior to its introduction on rebuttal. The testimony was basically that the witness had been uneasy in Ellis’ presence, suspecting a possible sexual advance. It was of little value or relevance to this case. However, given defendant’s failure to make a timely objection and the absence of any showing that the testimony affected a substantial right of defendant, we find no error requiring reversal. MCR 2.613(A);
Davis v Detroit,
Both parties raise valid issues regarding damages and the fact that plaintiff had already received an award of $19,000 under a redemption agreement for her workers’ disability compensation claim. When this issue was raised before trial, the trial court’s solution was to indicate it would deduct the $19,000 from any jury award for economic damages.
It is clear under
Boscaglia
that plaintiff could
The final issue involves the court’s award of costs and attorney fees. Plaintiff’s counsel was awarded $43,100 in attorney fees and $9,520.09 in costs. The attorney fees were awarded in part under the Civil Rights Act, MCL 37.2802; MSA 3.548(802), and in part under MCR 2.403(0) for fees incurred after defendant’s rejection of a mediation award. The heart of defendant’s argument appears to be that the bills were not sufficiently detailed. There were two hearings on this issue. Defendant had the opportunity to raise specific problems. The trial court is not required to detail its findings underlying the award. Our review does not indicate that the award was an abuse of discretion.
Wood v DAIIE,
With the exception of the damages issue which is remanded for further proceedings, the jury’s verdict is affirmed. This Court does not retain jurisdiction.