Defendant appeals of right from the final judgment entered in favor of plaintiff on his discrimination and retaliation claims brought under the Civil Rights Act (cra), MCL 37.2101 et seq. We affirm in part, reverse in part, and remand.
I. material facts and proceedings
Because of the limited nature of the issues properly presented on appeal, we provide the reader with only a brief summary of the material facts and proceedings that led to the jury verdict. Plaintiff commenced his employment with defendant in October 1987. Plaintiff continues to be employed by defendant and is currently a class-four highway worker.
The amended complaint filed by plaintiff asserts that he was subjected to a hostile work environment on the basis of his race or national origin, to disparate treatment, and to retaliation. Specifically, plaintiff claimed that from the inception of his employment he has been on the receiving end of numerous derogatory and discriminatory remarks directed at his national origin, and that when he opposed this alleged harassment (including by the filing of this lawsuit), defendant took adverse employment action against him. Defendant sought pretrial dismissal of plaintiffs claims on the basis that a hostile work environment did not exist, and plaintiff had not suffered an adverse employment action. Defendant’s motion for summary disposition was denied by the trial court.
At trial, plaintiff presented testimony regarding the repeated national-origin slurs that had been directed at him over the course' of his thirteen years of *302 employment. Specifically, plaintiff and other employees testified that plaintiff was called a “wetback,” “spic,” “beaner,” “f — ing Mexican” and “pickle plucker” by coworkers and supervisors alike on an almost daily basis throughout the course of his employment. Defendant did not deny that these words were at times utilized by its workers. However, defendant presented testimony that this was simply good natured “shop talk,” that plaintiff had good working relations with the supervisors and coworkers he now complains of, and that at some point the slurs ended.
The jury apparently accepted plaintiffs version of the facts, because it returned a verdict finding defendant liable for both a hostile work environment and for retaliating against plaintiff. 1 The jury awarded $650,000 in “damages to date” while awarding him an additional $650,000 for “future damages.” The verdict form did not differentiate between the amount awarded for the harassment claim and the amount awarded for the retaliation claim.
On appeal, defendant argues that the trial court committed three errors that require reversal, namely: (1) that it was denied a fair trial by the trial court’s decision to exclude from evidence plaintiff’s own workplace conduct; (2) that plaintiff’s retaliation claim should have been summarily dismissed because plaintiff had not suffered an adverse employment action; and (3) that the trial court should have set aside the future damages award because it was excessive in light of the evidence and was punitive in *303 nature. For the forthcoming reasons, we agree with defendant that plaintiffs retaliation claim should have been summarily dismissed. Defendant’s remaining arguments, however, do not gamer our support. 2
H. ANALYSIS
A. THE TRIAL COURT’S EVIDENTIARY DECISION
“A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion.”
Barrett v Kirtland Community College,
Before the originally scheduled trial date, plaintiff filed a motion in limine. By way of that motion, plaintiff sought to exclude evidence that he was short-tempered, and that he had conflicts with members of the public and with his coworkers. During oral argument on the motion, plaintiff indicated that through his motion in limine he was not seeking to preclude evidence that he utilized ethnic or racial slurs in the workplace. Instead, plaintiff argued that any evidence of coworker confrontations, or abusive and vulgar (but not discriminatory) language should be excluded. After hearing arguments, the trial court entered an order allowing defendant to introduce any evidence that plaintiff utilized racial or ethnic slurs, but precluding defendant from introducing any evidence of abusive or vulgar language utilized by plaintiff or any evidence of his coworker or citizen confrontations, unless plaintiff asserted at trial that he was unlawfully denied a promotion.
Citing both state and federal law, defendant argues that the trial court should not have prevented it from showing to the jury that plaintiff utilized foul language and made threats of harm to coworkers and to one member of the public. In particular, defendant claims support for this proposition in
Radtke v Everett,
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In
Radtke,
our Supreme Court held that in determining whether a work environment is illegally hostile, it must be gauged by a reasonable person’s standard viewing the “totality of circumstances.”
Radtke, supra
at 394. This does not mean, as defendant would have us hold, that
everything
affecting plaintiff’s employment is relevant and admissible in a harassment case. Rather, we have previously held that what is relevant is evidence that plaintiff himself engaged in the type of conduct similar to that at issue in the case. In
Grow v W A Thomas Co,
Defendants presented evidence in support of their claim that plaintiff often engaged in sexual conduct herself. Plaintiff’s own conduct was therefore relevant to the question whether Arguette’s alleged acts were “unwelcome." See, e.g., Balletti v Sun-Sentinel Co,909 F Supp 1539 , 1547 (SD Fla, 1995) (“Where a plaintiff’s action in the work place shows that she was a willing and frequent participant in the conduct at issue, courts are less likely to find that the conduct was ‘unwelcome’ or ‘hostile.’ ”) [.] However, plaintiffs participation in sexual behavior or comments, standing alone, does not necessarily defeat a claim of hostile work environment. To the contrary, it is merely a factor to consider when determining whether the conduct or comments at issue were “unwelcome.”
Accordingly, in a hostile work environment claim, a plaintiff’s engaging in conduct similar to that complained of is relevant to a proper determination whether the plaintiff was subjected to an unlawfully hostile work environment.
Grow, supra.
This same
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conclusion has been reached by the federal courts that have considered this issue under Title VII of the Civil Rights Act of 1964, 42 USC 2000e
et seq.
See, e.g.,
Gross v Burggraf Constr Co,
The trial court adhered to this rule in deciding plaintiff’s motion in limine. As noted, the trial court ruled that defendant could present evidence that plaintiff engaged in the type of behavior at issue in this case. Thus, defendant was free to inform the jury that plaintiff utilized such terms as “wetback” and “Mexican” when referring to others in the workplace.
Defendant asserts, however, that the trial court should have also allowed evidence of plaintiff calling *307 one of his supervisors a “fat f — ,” and that plaintiff, on several occasions, exhibited an aggressive attitude with his coworkers and the public. We conclude that the trial court did not abuse its discretion in excluding such evidence as being more prejudicial than probative. MRE 403. Although it is true that the events in the workplace are to be reviewed under the “totality of the circumstances,” Radtke, supra, defendant has offered no case that holds that a jury must be allowed to consider a plaintiff’s aggressive demeanor or use of foul language at work when that aggressiveness does not include conduct similar to that at issue in the case, i.e., it does not include any indication that plaintiff, while at work, engaged in discriminatory conduct himself.
In the cases dealing with vulgar and rude language utilized by a plaintiff bringing a hostile work environment action — most of which seem to fall in the category of sexual harassment — courts have concluded that the weight or admissibility of the statements depends on the circumstances of each particular case. Judge Posner, writing for the court in
Galloway v Gen Motors Source Parts Operations,
Turning to the case at hand, although evidence that plaintiff called his supervisor a “fat f — ” presents a close question because his supervisor responded by calling plaintiff a derogatory and discriminatory name, we believe that under the facts of this particular case, the trial court set reasonable guidelines with regard to what was more prejudicial than probative, MRE 403. The trial court’s ruling allowed the jury to know plaintiff had used national-origin slurs in the workplace so it could determine if similar language was “unwelcome” or created a “hostile” discriminatory atmosphere, yet kept defendant from bringing forward a few incidents that perhaps showed that plaintiff occasionally used profanities. Evidence of plaintiff’s minimal use of profanities, and that he had *309 a couple of heated interactions with coworkers and one with the public over thirteen years of employment, could have caused the jury to conclude that it was permissible to constantly utilize language prohibited by law in the workplace (discriminatory statements), as was shown to have occurred in this case, simply because plaintiff occasionally utilized profanities that, though inappropriate, are not necessarily illegal. The trial court decided such evidence was more prejudicial than probative, and although we may have ruled differently in the first instance, we cannot conclude that such a decision was an abuse of discretion. Hilgendorf, supra.
B. PLAINTIFF’S RETALIATION CLAIM
Defendant also asserts that the trial court should have dismissed plaintiffs retaliation claim because plaintiff failed to create a genuine issue of material fact with regard to whether he was subjected to an adverse employment action by the time the motion was heard by the trial court. On this point, we agree with defendant.
In
Kelly-Stehney & Assoc, Inc v MacDonald's Industrial Products, Inc,
A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Veenstra v Washtenaw Country Club,466 Mich 155 , 163;645 NW2d 643 (2002). A motion for summary disposition should be granted when, except in regard to the amount of damages, there is no genuine issue in regard to any material *310 fact and the moving party is entitled to judgment or partial judgment as a matter of law. MCR 2.116 (C)(10), (G)(4); Veenstra, supra at 164. hi deciding a motion brought under this subsection, the trial court must consider affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in a light most favorable to the nonmoving party. Veenstra, supra at 164. The moving party has the initial burden of supporting its position with documentary evidence, but once the moving party meets its burden, the burden shifts to the nonmoving party to establish that a genuine issue of disputed fact exists. Quinto v Cross & Peters Co,451 Mich 358 , 362;547 NW2d 314 (1996). “Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material facts exists.” Id. The moving party is entitled to a judgment as a matter of law when the proffered evidence fails to establish a genuine issue regarding any material fact. Veenstra, supra at 164. The decision whether to grant a motion for summary disposition is a question of law that is reviewed de novo. Id. at 159.
Additionally, we only consider what was properly presented to the trial court before its decision on the motion.
Sprague v Farmers Ins Exch,
The CRA prohibits retaliation against a person “because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding or hearing under this act.” MCL 37.2701(a). A prima facie case of retaliation can be established if a plaintiff proves: (1) that he was engaged in a protected activity; (2) that this was
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known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action.
Barrett, supra
at 315, citing
Meyer v Center Line,
Defendant challenges the trial court’s determination that plaintiff had created a genuine issue of material fact with regard to whether he had suffered an adverse employment action for opposing a violation of the CRA. What constitutes an adverse employment action has received considerable attention by both state and federal courts applying either the CRA or its federal counterpart, Title VII of the Civil Rights Act. 3
In
Wilcoxon v Minnesota Mining & Mfg Co,
Although there is no exhaustive list of adverse employment actions, typically it takes the form of an ultimate employment decision, such as “a termination in employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.”
White v Burlington N & SF R Co,
In opposition to defendant’s motion for summary disposition, plaintiff argued that he had suffered the following incidents of adverse employment actions: (1) he was investigated by defendant for worker’s compensation fraud based on events occurring more than four years earlier; (2) he was isolated at work; and (3) one of his supervisors, Tom Smith, “ridiculed” him for filing the lawsuit. Without any analysis or discussion, the trial court held that plaintiff had created a genuine issue of material fact regarding the existence of an adverse employment action on the basis that after the complaint was filed defendant had insti *313 tuted an investigation into whether plaintiff had committed worker’s compensation fraud for a filing that occurred more than four years earlier. The trial court specifically rejected plaintiff’s assertion that his claimed isolation constituted an adverse employment action, and did not address the other argument.
We conclude that the trial court erred in determining that the record before it at the time the summary disposition motion was decided created a genuine issue of material fact. 4 Instead, we hold that plaintiff failed to establish that he was subjected to an adverse employment action for purposes of his retaliation claims.
Relying on
Berry v Stevinson Chevrolet,
We also reject plaintiff’s argument that Mr. Cooper’s testimony established that plaintiff was “isolated.” Initially we note that the deposition testimony cited and attached to plaintiff’s response to defendant’s motion for summary disposition contained no evidence that plaintiff was being isolated by defendant in such a manner that it would constitute an adverse employment action. MCE 2.116(G)(4). Furthermore, consideration of the testimony cited and quoted by plaintiff and defendant in their appellate briefs does not alter our conclusion. That testimony reveals that after
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plaintiff filed this lawsuit, certain employees opined that plaintiff was “just [out] to get a ton of money from the county,” while a supervisor told others that he could not understand how plaintiff could sue the county. Finally, one employee testified that since the lawsuit was filed, some employees were not willing to socialize with plaintiff. As numerous courts have held, however, this type of ostracism or isolation is not the sort of conduct that rises to the level of an adverse employment action.
Jones v Fitzgerald,
C. THE JURY’S VERDICT
Defendant’s final argument is that the jury award of $650,000 in future damages should be vacated because it was excessive, was not based on the evidence, was not based on appropriate considerations, and was punitive in nature. Although defendant forcefully argues the excessiveness of the verdict, it never moved in the trial court for a remittitur or a new trial on this ground. MCR 2.611(A)(1)(d). Defendant likewise failed to object to plaintiff’s requests for jury instructions on future damages.
5
Consequently, defendant has failed to preserve this argument for appel
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late review.
McCue v Detroit United Railway,
We also reject defendant’s argument that there was no evidence to support the jury’s award of future damages.
6
The evidence presented to the jury revealed that plaintiff had been routinely subjected to derogatory and degrading remarks about his national origin over the course of his employment. Plaintiff also presented evidence that defendant failed to promptly react to the harassment, and that defendant’s supervisory personnel were engaged in some of the behavior themselves. Additionally, plaintiff’s witnesses testified about the continuing effects plaintiff has suffered because of the harassment. As such, we conclude that there was sufficient evidence in the record to support the jury’s award of future damages.
7
Hence, we reject all of defendant’s arguments and affirm the future damages awarded to plaintiff.
Harrigan v Ford Motor Co,
*317 m. CONCLUSION
For these reasons, we affirm the trial court’s evidentiary ruling, reverse the denial of defendant’s motion for summary disposition as it pertained to plaintiff’s retaliation claim, and affirm the future damages awarded to plaintiff. We remand this matter to the trial court for entry of an order dismissing plaintiff’s retaliation claim. We do not retain jurisdiction.
Notes
Plaintiff previously withdrew his claim of disparate treatment discrimination.
Defendant has not appealed the trial court’s denial of its motion for summary disposition on the hostile work environment claim, nor has it argued that there was insufficient evidence presented to the jury on that issue.
It is well-settled that when the language of the cra and Title VII are substantially similar, our courts consider federal case law interpreting Title VII to be persuasive, albeit not binding, authority on issues brought under the cra.
Krohn v Sedgwick James of Michigan, Inc,
We reject plaintiffs invitation to consider events that occurred after the summary disposition motion was decided. When determining the propriety of the denial of defendant’s motion, we must limit our review to the evidence presented to the trial court at the time defendant’s motion was decided.
Sprague, supra; Long, supra.
Although plaintiff’s complaint alleges that the retaliation was continual in nature, plaintiff cannot defeat a properly supported motion by promises to produce evidence in the future to support the claim at trial.
Maiden v Rozwood,
From our review of the record it appears defendant only objected posttrial to adding interest to the future damage award, but defendant has not raised that issue on appeal.
Unlike the excessiveness argument, there is no preservation requirement for defendant’s challenge to the sufficiency of evidence supporting the award. MCR 2.517(A)(7).
We reject plaintiff’s suggestion that we consider the damage award in this case by comparing it to a purported award in another employment discrimination case that was reported in
Michigan Lawyers Weekly.
Not only is the document inadmissible, but more importantly, what we are concerned with is whether the award is sustainable under the facts of this case, rather than how this award compares to a newspaper summary of cases with different facts.
Knight v Gulf & Western Properties, Inc,
Although defendant argues in passing that plaintiff cannot recover damages for future events that have yet to occur (and therefore may never occur), it cited no case law or other authority to support its argu
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merit. We are disinclined to search for authority to support a party’s position,
Staff v Johnson,