MCCLEMENTS v FORD MOTOR COMPANY
Docket No. 126276
Supreme Court of Michigan
Decided July 26, 2005
Amended and rehearing denied 474 Mich 1201
473 Mich 373
MARKMAN, J.
Argued April 13, 2005 (Calendar No. 9)
In an opinion by Justice MARKMAN, joined by Chief Justice TAYLOR, and Justices CORRIGAN and YOUNG, the Supreme Court held:
A common-law claim for negligent retention cannot be premised on workplace sexual harassment. Further, the plaintiff has failed to establish a genuine issue of material fact that Ford affected or controlled the terms, conditions, or privileges of her employment and, therefore, she cannot bring a claim against Ford under the CRA. The part of the Court of Appeals judgment that holds that the plaintiff has failed to establish a claim under the CRA against Ford must be affirmed, the part of the Court of Appeals judgment that holds that the plaintiff has an actionable claim for negligent retention must be reversed, and the circuit court‘s order of judgment in favor of Ford must be reinstated.
1. The CRA provides the right to be free from workplace sexual harassment and accords аn aggrieved worker the remedy of a civil action for appropriate injunctive relief, damages, or both. The plaintiff‘s protections against workplace sexual harassment are
2. A worker can only bring an action under the CRA for discriminatory acts, including sexual harassment, against a nonemployer defendant if the worker can establish that the nonemployer affected or controlled the terms, conditions, or privileges of the worker‘s employment. In this case, however, the plaintiff failed to establish that Ford affected or controlled the terms, conditions, or privileges of her employment by the company that operated the cafeterias at Ford‘s plant.
Justice WEAVER, concurring in part and dissenting in part, agreed that a worker may bring a claim against a nonemployer defendant under the Civil Rights Act if the worker can establish that the nonemployer defendant affected or controlled a term, condition, or privilege of the worker‘s employment. Justice WEAVER dissented from the majority‘s conclusion that the plaintiff failed to present a genuine issue of material fact regarding that question, however, believing that statements made to the plaintiff raise a question whether the defendant had the ability to affect or control a term, condition, or privilege of the plaintiff‘s employment. The parties should be allowed to present evidence on the issue, and the question should go to the jury. Justice WEAVER also dissented from the majority‘s conclusion that the plaintiff may not pursue a common-law claim for negligent retention. The plaintiff‘s claim is not prеmised solely on the statutorily based tort of sexual harassment, but implicates other torts such as assault and battery. The plaintiff should have the opportunity to establish her negligent retention claim.
Affirmed in part and reversed in part; circuit court order of judgment for Ford reinstated.
Justice CAVANAGH, joined by Justice KELLY, dissenting, stated there is ample evidence for a jury to decide whether the defendant had adequate notice of Bennett‘s sexual harassment and assault of women, including information and reports provided by other women who were the defendant‘s employees. The jury should be allowed to determine whether the defendant adequately investigated these claims and took appropriate remedial action. With regard to the plaintiff‘s claim under the Civil Rights Act for sex discrimination in the form of sexual harassment, Bennett allegedly affected a condition of the plaintiff‘s employment by creаting a sexually hostile work environment at the plaintiff‘s workplace and the defendant was the only one that had the authority to control
- CIVIL RIGHTS — CIVIL RIGHTS ACT — SEXUAL HARASSMENT.
The Civil Rights Act provides the sole remedy for alleged acts of sexual harassment in the workplace; there is no common-law claim for an employer‘s negligent retention of an offending employee in the context of workplace harassment (
MCL 37.2101 et seq. ). - CIVIL RIGHTS — CIVIL RIGHTS ACT — ACTIONS — NONEMPLOYER DEFENDANTS.
An employer‘s liability for discrimination under the Civil Rights Act does not require an employment relationship with a plaintiff worker; a worker is entitled to bring an action against a nonemployer defendant if the worker can establish that the defendant affected or controlled a term, condition, or privilege of the worker‘s employment (
MCL 37.2202 ).
Scheff & Washington, P.C. (by George B. Washington and Miranda K.S. Massie), for the plaintiff.
Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Elizabeth Hardy and Julia Turner Baumhart) (Patricia J. Boyle, of counsel), for Ford Motor Company.
MARKMAN, J. We granted leave to appeal in this case to resolve two questions: (1) whether a common-law claim of negligent retention can be premised on sexual harassment in light of the remedies provided by the Civil Rights Act (CRA),
I. FACTS AND PROCEDURAL HISTORY
Defendant Ford Motor Company hired AVI Food Systems to operate three cafeterias at its Wixom assembly plant. Plaintiff Milissa McClements was hired by AVI as a cashier at the Wixom plant in March 1998.1 Plaintiff testified that Daniel Bennett, then a superintendent in the predelivery department of the plant, had in November 19982 invited her on “three or four” occasions to meet him at a local fast food restaurant. On each occasion, plaintiff rebuffed his invitation. Accord-
Plaintiff described two additional encounters with Bennett that occurred during this same time period. During the first of these encounters, Bennett allegedly entered the cafeteria while it was closed, and approached plaintiff from behind. Plaintiff testified that “I was facing the opposite way. He came up and just grabbed me and turned me around and stuck his tongue in my mouth.” After “a few days,” plaintiff allegedly had a second encounter with Bennett in the closed cafeteria. According to plaintiff, Bennett again grabbed her from behind, attempted to stick his tongue in her mouth, and stated, “Come on, I know you want it. Isn‘t there somewhere we can go and have sex?” Plaintiff refused this advance, and Bennett left the cafeteria. Plaintiff allegedly reported the incidents to her union steward, but claims that she was advised that if she reported the incident to defendant, it would “turn around and stab you in the back and you [would] end up losing your job.” Plaintiff did not report the incident to either defendant or AVI until the instant lawsuit was filed.
In 2000, plaintiff was approached by another Ford employee, Justine Maldonado,3 who claimed that she had also been sexually harassed by Bennett. Specifically, Maldonado claimed that in January or February 1998, Bennett exposed himself to her and demanded
Even after learning of the Maldonado incidents, plaintiff did not come forward with her allegations. However, plaintiff‘s attitude changed after Maldonado informed her in August 2001 that Bennett had exposed himself to three teenage girls. In 1995, Bennett was convicted of misdemeanor indecent exposure, for exposing himself to three teenage girls on I-275 while he was driving a company car. Defendant was aware of the incident, because the police determined Bennett‘s identity by tracing the car through Ford.5
The trial court granted defendant‘s motion for summary disposition. First, the trial court found that there wаs no evidence that defendant knew of Bennett‘s propensity to sexually harass women in the workplace. Maldonado‘s complaints to her uncle and friend were not sufficient to give defendant notice of Bennett‘s sexually harassing behavior and the 1995 conviction alone is insufficient to establish that propensity. Thus, defendant could not be held liable under the negligent retention theory. Second, the trial court found that plaintiff as a nonemployee could not hold defendant liable under the CRA. However, even if defendant were potentially liable under the CRA, it could not be held liable under these circumstances, because its higher management was never made aware of the allegedly sexually harassing behavior. In an unpublished opinion, the Court of Appeals affirmed in part and reversed in part the judgment of the trial court. Unpublished opinion per curiam of the Court of Appeals, issued April 22, 2004 (Docket No. 243764). The Court of Appeals held that defendant‘s knowledge of the indecent exposure arrest and Maldonado‘s allegations created a genuine issue of material fact whether defendant “knew or should have known of Bennett‘s sexually derogatory behavior toward female employees.” However, the Court of Appeals also applied the “economic reality test,” Ashker v Ford Motor Co, 245 Mich App 9, 14; 627 NW2d 1 (2001), and held that defendant was not plaintiff‘s employer. As a result, the Court of Appeals
II. STANDARD OF REVIEW
We review de novo the grant or denial of a motion for summary disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff‘s claim. Spiek v Dep‘t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Summary disposition is only permitted if the evidence, while viewed in a light most favorable to the plaintiff, fails to establish a claim as a matter of law. Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000). We review de novo the questions whether the CRA displaces a common-law claim for negligent retention based upon sexual harassment in the workplace and whether an employer can be held liable under the CRA for sexual harassment against a nonemployee because they are questions of law. Morales v Auto-Owners Ins Co (After Remand), 469 Mich 487, 490; 672 NW2d 849 (2003).
III. ANALYSIS
The issue in this case is not whether Bennett has engaged in reprehensible conduct either inside or outside the workplace. Rather, the issues are: (1) whether defendant negligently retained Bennett as a supervisor as of the time Bennett allegedly sexually harassed plaintiff, despite the fact that it knew or should have known of his propensity to sexually harass women; and (2) whether defendant is responsible under the CRA for
A. NEGLIGENT RETENTION CLAIM
Plaintiff‘s first theory is that defendant negligently retained Bennett as a supervisor after learning of his propensity to sexually harass women. In general, an employer is not responsible for an intentional tort in the workplace committed by its employee acting outside the scope of employment. Martin v Jones, 302 Mich 355, 358; 4 NW2d 686 (1942). However, this Court has previously recognized an exception to this general rule of liability when the employer ” ‘knew or should have known of his employee‘s propensities and criminal record before commission of an intentional tort by [that] employee....’ ” Hersh v Kentfield Builders, Inc, 385 Mich 410, 412; 189 NW2d 286 (1971) (citation omitted). Plaintiff argues that defendant knew of Bennett‘s “propensity” to engage in sexually harassing behavior because of: (1) Bennett‘s 1995 indecent exposure conviction; and (2) Maldonаdo‘s complaints to defendant‘s supervisor (Howard) and labor relations representative (Rush) concerning Bennett‘s harassment. Plaintiff concludes that defendant breached its duty of reasonable care by retaining Bennett despite its knowledge of his previous actions. The Court of Appeals held that whether defendant “knew or should have known” of Bennett‘s propensities was a question of fact for the jury.6
However, in those cases in which we have held that an employer can be held liable on the basis of its knowledge of an employee‘s propensities, the underlying conduct comprised the common-law tort of assault. See Hersh, supra at 412; Bradley v Stevens, 329 Mich 556, 563; 46 NW2d 382 (1951). In the instant case, however, the entire premise for plaintiff‘s negligent retention claim is the statutorily based tort of sexual harassment. Before passage of the CRA, Michigan did not provide a common-law remedy for workplace discrimination. Pompey v Gen Motors Corp, 385 Mich 537, 552; 189 NW2d 243 (1971). Plaintiff‘s protections against being sexually harassed in the workplace are wholly creatures of statute. ” ‘Where a statute gives new rights and prescribes new remedies, such remedies must be strictly pursued; and a party seeking a remedy under the act is confined to the remedy conferred thereby and to that only.’ ” Monroe Beverage Co, Inc v Stroh Brewery Co, 454 Mich 41, 45; 559 NW2d 297 (1997), quoting Lafayette Transfer & Storage Co v Pub Utilities Comm, 287 Mich 488, 491; 283 NW 659 (1939). Here, the CRA provides the right to be free from sexual harassment,
Plaintiff invokes
Therefore, because the CRA provides the exclusive remedy for a claim based on sexual harassment, plaintiff has failed to establish a claim of negligent retention,9 and no inquiry into whether defendant possessed sufficient notice that Bennett was engaged in sexual harassment is necessary.
Plaintiff‘s second theory is that defendant failed to prevent sexual harassment in the workplaсe.
An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including, but not limited to, a benefit plan or system.
Discrimination based on 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, public accommodations or public services, education, or housing.
(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, public accommodations or public services, education, or housing.
(iii) The conduct or communication has the purpose or effect of substantially interfering with an individual‘s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public acсommodations, public services, educational, or housing environment. [
MCL 37.2103(i) .]
Plaintiff claims that CRA forbids any entity classified as an employer from discriminating against any individual, including nonemployees. Therefore, because the actions of defendant‘s employee allegedly created a sexually hostile work environment, defendant can be held liable under the CRA. Defendant, on the other hand, argues that an employer can only be held liable for discrimination against a nonemployee if some form of employment relationship exists between the parties. Both the trial court and the Court of Appeals held that plaintiff was required to prove at least a “quasi-employment relationship” before a claim under the CRA could be maintained. We conclude that, unless an individual can establish a genuine issue of material fact that an employer affected or controlled a term, condition, or privilegе of his or her employment, a nonemployee may not bring a claim under the CRA.
Fundamental canons of statutory interpretation require us to discern and give effect to the Legislature‘s intent as expressed by the language of its statutes. DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000). If the language is unambiguous, as is generally the case, Klapp v United Ins Group Agency, Inc, 468 Mich 459; 663 NW2d 447 (2003), “we presume that the Legislature intended the meaning clearly expressed — no further judicial construction is required or permitted, and the statute must be enforced as written.” DiBenedetto, supra at 402.
However, the language of the statute is also clear in requiring some form of nexus or connection between the employer and the status of the nonemployee.
In Chiles v Machine Shop, Inc, 238 Mich App 462; 606 NW2d 398 (1999), the Court of Appeals came to the same conclusion while interpreting similar lаnguage in the Persons with Disabilities Civil Rights Act (PWDCRA),
addresses the conduct of an “employer” who takes adverse employment action against an “individual” because of a handicap that is unrelated to the individual‘s ability to perform the duties of a particular job.
MCL 37.1202(1)(a) . The act does not limit the definition of “employer” to the plaintiff‘s employer but, instead, simply defines it as a “person who has 1 or more employees.”MCL 37.1201(b) . [Chiles, supra at 468 (emphasis supplied).]12
Thus, liability under the PWDCRA “does not require that an employment relationship exist,” but it does require that the employer defendant “have the authority to affect a plaintiff‘s employment or potential employment.” Id. at 468-469. However, the authority tо affect a worker‘s employment alone is not sufficient to impose liability upon an employer defendant.13 Rather, in order to be liable under the PWDCRA, the employer defendant must also “take[] adverse employment action” against the worker plaintiff. Accordingly, under Chiles, the employer defendant must (1) have “the ability to affect adversely the terms and conditions of an individual‘s employment or potential employment,” id. at 468; and (2) “take[] adverse employment action
We hold that a worker is entitled to bring an action against a nonemployer defendant if the worker can establish that the defendant affected or controlled a term, condition, or privilege of the worker‘s employment. In the instant case, plaintiff has failed to establish that defendant affected or controlled a term, condition, or privilege of her employment.14 Plaintiff was
We conclude that plaintiff failed to raise a genuine issue of material fact that defendant affected or controlled a term, condition, or privilege of her employment. Accordingly, plaintiff may not maintain a cause of action under the CRA against this defendant, and, again, no inquiry into whether defendant possessed sufficient notice that Bennett was engaged in sexual harassment is necessary.
IV. CONCLUSION
We conclude that plaintiff has failed to establish a genuine issue of material fact that defendant affected or controlled a term, condition, or privilege of her employment and, therefore, she cannot bring a claim against defendant under the CRA. Further, we conclude
TAYLOR, C.J., and CORRIGAN and YOUNG, JJ., concurred with MARKMAN, J.
WEAVER, J. (concurring in part and dissenting in part). I concur in the majority‘s holding that a worker may bring a claim against a nonemployer defendant under the Civil Rights Act1 if the worker can establish that the nonemployer defendant affected or controlled a term, condition, or privilege of the worker‘s employment. Ante at 389. But I dissent from the majority‘s conclusion that plaintiff failed to present a genuine issue of material fact that defendant affected or controlled a term, condition, or privilege of plaintiff‘s employment. Ante at 389. As noted by the majority, when plaintiff reported the incidents to her union steward, she stated that she was advised that if she reported the incidents to defendant, defendant would ” ‘turn around and stab you in the back and you [would] end up losing your job.’ ” Ante at 377. While this statement standing alone would probably not be sufficient to establish that defendant did, in fact, affect or control a term, condition, or privilege of plaintiff‘s employment, it does raise a question whether defendant had that ability. Therefore, I would allow the parties to present evidence on this issue and let the question go to the jury.
The majority asserts that plaintiff may not pursue a common-law negligent retention claim because the claim is premised entirely on “the statutorily based tort of sexual harassment.” Ante at 382 (emphasis deleted). I disagree. Plaintiff‘s negligent retention claim is not premised solely on “the statutorily based tort of sexual harassment,” but also implicates other torts such as assault and battery. Therefore, I would allow plaintiff the opportunity to establish her negligent retention claim and let the jury determine whether she has successfully done so.
CAVANAGH, J. (dissenting). I believe there is ample evidence for a jury to decide the issue of whether defendant had adequate notice that one of its supervisors, Daniel Bennett, had the propensity to sexually harass and assault women and was indeed doing so. Accordingly, because plaintiff presented sufficient evidence of notice, a jury should be allowed to determine plaintiff‘s claims against defendant for sexual harassment under the Civil Rights Act (CRA),
I. THERE IS SUFFICIENT EVIDENCE THAT DEFENDANT HAD NOTICE OF BENNETT‘S PROPENSITY FOR SEXUAL HARASSMENT AND ASSAULT AND ALLEGATIONS THAT HE WAS INDEED SEXUALLY HARASSING AND ASSAULTING WOMEN IN THE WORKPLACE
Plaintiff presented sufficient evidence that defendant had adequate notice of Bennett‘s propensity to sexually harass and assault women аnd the pervasiveness of the existing sexual harassment perpetrated by Bennett. Bennett was one of defendant‘s supervisors. In 1995, defendant learned that Bennett had exposed himself to three teenage girls while driving one of defendant‘s vehicles. Bennett was convicted of indecent exposure.1 While the facts related to this conviction alone may not be enough to put defendant on notice, defendant received other information that Bennett was sexually harassing women.
In late October 1998, Justine Maldonado, another of defendant‘s employees, reported to a production manager that Bennett was sexually harassing her.2 Maldonado also told another of defendant‘s employees, David Ferris, about the sexual harassment. Ferris told Jerome Rush, defendant‘s director of labor relations at defendant‘s Wixom plant.
Maldonado‘s complaint was not the first complaint of this nature against Bennett. As detailed in Elezovic v Ford Motor Co, 472 Mich 408, 433, 442-444; 697 NW2d 851 (2005) (CAVANAGH, J., concurring in part and dissenting in part; WEAVER, J., concurring in part and
An employer can only avoid liability if it adequately investigates a claim of sexual harassment and takes prompt and appropriate remedial action. Radtke v Everett, 442 Mich 368, 396; 501 NW2d 155 (1993). Managers and the director of labor relations knew of claims that Bennett was sexually harassing women. These claims, along with knowledge that Bennett had exposed himself to three teenage girls, are sufficient evidence to allow a jury to determine whether, under the totality of the circumstances, defendant adequately investigаted these claims and took appropriate remedial action. See Chambers v Trettco, Inc, 463 Mich 297, 312, 318-319; 614 NW2d 910 (2000).
II. PLAINTIFF CAN BRING A CLAIM AGAINST DEFENDANT UNDER THE CRA
The CRA, in
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including, but not limited to, a benefit plan or system. [
MCL 37.2202(1) .]
“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:
* * *
(iii) The conduct or communication has the purpose or effect of substantially interfering with an individual‘s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment. [
MCL 37.2103(i)(iii) .]
The majority acknowledges that the CRA allows for claims by nonemployees, but the majority states that “unless an individual can establish a genuine issue of material fact that an employer affected or controlled the terms, conditions, or privileges of his or her employment, a nonemployee may not bring a claim under the
Defendant‘s supervisor, Bennett, did not merely have the ability or authority to affect a condition of plaintiff‘s employment, he allegedly did so because plaintiff alleged Bennett‘s conduct created a sexually hostile work environment at plaintiff‘s workplace. Notably, defendant was the only one who had the authority to control Bennett and, therefore, affect a condition of plaintiff‘s employment. The CRA prohibits sexual harassment by an employer or an employer‘s agent. Bennett was defendant‘s agent when he allegedly sexually harassed plaintiff. Therefore, plaintiff can bring a claim against defendant for sexual harassment under the CRA.4
As stated by plaintiff‘s counsel during oral argument, Bennett‘s conduct, while indeed sexual harassment, was also “classic assault and battery, [a] common law tort.” Plaintiff‘s complaint also alleged that Bennett posed a “known danger to women” and “sexually assaulted” plaintiff. Plaintiff‘s claim that Bennett grabbed her and tried to put his tongue in her mouth, as well as Maldonado‘s claims that Bennett assaulted her and exposed himself to her and Elezovic‘s claims that Bennett assaulted her, certainly qualify as assaultive behavior. See, e.g., Radtke, supra at 395 (sexual assault can be sexual harassment that creates a hostile work environment).
Plaintiff has presented sufficient evidence that defendant was aware of Bennett‘s propensity to sexually harass and assault women and that defendant negligently retained Bennett in light of this information. See Hersh v Kentfield Builders, Inc, 385 Mich 410, 412, 415; 189 NW2d 286 (1971). Accordingly, I believe that plaintiff can present a claim for common-law negligent retention to a jury, and the jury should decide whether defendant acted reasonably.
IV. CONCLUSION
I believe that plaintiff presented sufficient evidence
KELLY, J., concurred with CAVANAGH, J.
Notes
Except as otherwise required by federal law, an employer shall not:(a) Fail or refuse to hire, recruit, or promote an individual because of a disability or genetic information that is unrelated to the individual‘s ability to perform the duties of a particular job or position.
(b) Discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a disability or genetic information that is unrelated to the individual‘s ability to perform the duties of a particular job or position.
(c) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive an individual of employment opportunities or othеrwise adversely affects the status of an employee because of a disability or genetic information that is unrelated to the individual‘s ability to perform the duties of a particular job or position.