SHERIDAN v FOREST HILLS PUBLIC SCHOOLS
Docket No. 215572
Court of Appeals of Michigan
September 25, 2001
247 Mich App 611
SHERIDAN v FOREST HILLS PUBLIC SCHOOLS
Docket No. 215572. Submitted February 10, 2000, at Grand Rapids. Decided September 25, 2001, at 9:25 A.M. Leave to appeal sought.
Vicki S. Sheridan brought an action in the Kent Circuit Court against Forest Hills Public Schools, alleging that the defendant, her employer, is liable to her under the Civil Rights Act,
The Court of Appeals held:
- An employee who seeks to hold the employer responsible under the Civil Rights Act for a hostile work environment created by a supervisor or co-worker must show that the employer knew or should have known of the harassment in question and failed to take remedial action. The employee can demonstrate that the employer knew of the harassment by showing that the employee complained to higher management of the harassment or by showing the pervasiveness of the harassment, which gives rise to the inference of knowledge or constructive knowledge.
- “Higher management” means those in the employer‘s chain of command who possess the ability to exercise significant influence in the decision-making process of hiring, firing, and administering discipline over the alleged harasser.
- The defendant lacked actual notice of the alleged harassment inasmuch as the plaintiff did not complain of the harassment to anyone in higher management.
- The defendant lacked constructive notice of the alleged harassment because the harassment was not substantially pervasive enough that constructive knowledge by the defendant can be inferred. Although the defendant knew that the alleged harasser had harassed two other women at work, constructive knowledge by the defendant of the plaintiff‘s harassment cannot be inferred inasmuch as the plaintiff complained only that the alleged harasser “bothered” her and she did not disclose to the defendant the sexual nature of the harassment she allegedly endured.
- The plaintiff‘s claim that the defendant had a duty to inform her of the alleged harasser‘s sexual harassment of other workers is rejected absent any citation of supporting authority.
Affirmed.
WHITE, J., dissenting, stated that the grant of summary disposition for the defendant should be reversed because a genuine issue of material fact exists concerning whether the defendant had notice of the alleged hostile work environment. Notice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that sexual harassment was occurring. In this case, the trier of fact could properly conclude that a reasonable employer would have been aware from the complaints made by the plaintiff to her superiors and from the history of the alleged harasser that there was a substantial probability that the plaintiff was being sexually harassed.
CIVIL RIGHTS — SEXUAL HARASSMENT — HOSTILE WORK ENVIRONMENT — EMPLOYER LIABILITY.
An employee who seeks to hold the employer responsible under the Civil Rights Act for a hostile work environment created by a supervisor or co-worker must show that the employer knew or should have known of the harassment in question and failed to take remedial action; the employee can demonstrate that the employer knew of the harassment by showing that the employee complained to higher management of the harassment or by showing the pervasiveness of the harassment, which gives rise to the inference of knowledge or constructive knowledge; “higher management” refers to those who possess the ability to exercise significant influence in the decision-making process of hiring, firing, and administering discipline over the alleged harasser (
Elizabeth S. Holmes, for the plaintiff.
Miller, Johnson, Snell & Cummiskey, P.L.C. (by Jon G. March and Susan B. Hoekema), for the defendant.
Before: ZAHRA, P.J., and WHITE and HOEKSTRA, JJ.
FACTS
This case arises out of the alleged sexual harassment of plaintiff by Vern Knapp. Both plaintiff and Knapp were custodians employed by defendant when the alleged sexual harassment occurred. The genuine and material facts viewed in a light most favorable to plaintiff establish the following.2 On August 26, 1993, plaintiff informed defendant‘s assistant superintendent of personnel that she was sexually harassed on the job. In a follow-up meeting on August 31, 1993, plaintiff complained that, in the course of her
After reporting the incident, plaintiff took a leave of absence and was subsequently placed on a medical leave. Plaintiff never returned to work. On February 28, 1996, plaintiff brought this suit, specifically alleging that Knapp raped her in defendant‘s Community and Aquatic Center (the “pool building“) in the spring of 1991.3 Plaintiff also alleged that Knapp repeatedly harassed and abused her with “sexual demands, unconsented touchings and propositions to engage in sexual activities.” Plaintiff maintained that defendant was liable pursuant to the CRA for Knapp‘s actions under a theory of respondeat superior.4
Defendant brought a motion for summary disposition, arguing, in relevant part,
A. THE MANAGEMENT STRUCTURE OF FOREST HILLS PUBLIC SCHOOLS
Defendant is a suburban Grand Rapids school district that is operated under the supervision of a superintendent. Employee matters are administered through the assistant superintendent for personnel. Both plaintiff and Knapp were custodians for defendant. Custodians are supervised by the director of buildings and grounds who reports to the director of operations. The director of operations reports directly to the assistant superintendent for personnel. Custodial crews are divided by facility. At each facility, one custodian is designated the “head custodian.” The head custodian is responsible for noting attendance and insuring that custodial work is properly completed. When a custodial crew consists of more than one custodian per shift, one member of the shift is designated a “lead custodian,” who assumes the duties of the head custodian for that shift. All custodians are members of a collective bargaining unit. The director of buildings and grounds and all persons above him are not members of the collective bargaining unit. The lead and head custodians do not have authority to hire, fire, or discipline employees or to render recommendations regarding pay, hours, or job transfers. Such decisions are made by the superintendent on the basis of recommendations from the director of buildings and grounds, the director of operations, and the assistant superintendent for personnel.
B. CLAIMS OF HARASSMENT BEFORE AUGUST 1993
1. KNAPP‘S HARASSMENT OF PLAINTIFF
Plaintiff testified that in April 1990 Knapp entered the pool building and raped her. Plaintiff admitted that she did not report the rape to anyone. Plaintiff also testified that after the rape, Knapp harassed her by calling her pager repeatedly and by loitering outside the pool building while plaintiff worked. Plaintiff informed Donald Finch, the director of buildings and grounds, and Kathy Knapp, the head custodian at the pool building, that she did not feel safe working nights.5 Plaintiff asked that security be provided during her shift. However, plaintiff did not complain to anyone that Knapp was harassing her. Plaintiff also testified that in 1991 Knapp entered the pool building and assaulted her in the boiler room by kissing her on the lips and touching her inappropriately. Again, plaintiff admitted that she did not report this incident to anyone.
Later in 1991, plaintiff met with Finch and Terri Handlin, director of the community education program and pool building
Plaintiff also met with VanderJagt, Paul Northuis, the director of operations, and a union representative sometime in the summer of 1991 to discuss her work situation. VanderJagt testified that she asked plaintiff to attend the meeting to discuss plaintiff‘s claims that Knapp was making noises outside the pool building and calling plaintiff‘s pager.7 VanderJagt asked plaintiff if Knapp was bothering her. Plaintiff responded that it was none of their business. Plaintiff claimed that she and Knapp were friends. Plaintiff indicated that she did not want the school involved in her personal life. VanderJagt focused on Knapp because it was brought to her attention that plaintiff had mentioned his name as being the person calling her pager and loitering outside the pool building while she worked. Additionally, VanderJagt was aware that Knapp was previously disciplined because of a 1988 complaint of sexual harassment by another employee.
After VanderJagt met with plaintiff, she met with Knapp. Because plaintiff did not make any complaint against Knapp, VanderJagt merely informed Knapp that there had been rumors that Knapp had made “inappropriate statements or gestures.” VanderJagt reminded Knapp that, pursuant to the 1988 discipline, any further acts of harassment would result in the termination of his employment. VanderJagt did not discipline Knapp at that time.
In September 1991, plaintiff was assigned to work at Northern High School (Northern). Shortly thereafter, Knapp applied for and received a custodial position at Northern. Plaintiff testified that after Knapp received the position she told Mark Scoby, the head custodian at Northern, that “[Knapp] better not come on my side of the building.” Scoby specifically inquired about what had happened at the pool building. Plaintiff informed Scoby that the pool incident “was bad.” However, plaintiff admitted that she did not provide Scoby with specifics and did not tell Scoby that she had been raped or sexually assaulted.8 Plaintiff testified that Scoby
Plaintiff claimed that in the summer of 1993 Knapp tried to communicate with her and “rubbed up” against her when she and Knapp were assigned to work together at Northern. Plaintiff complained to Scoby about Knapp making physical contact with her. Scoby confronted Knapp and told plaintiff that she could work in a different area. Neither Scoby nor plaintiff informed their immediate supervisor, Finch, or anyone else about the incident of physical contact.
2. PRIOR COMPLAINTS AGAINST KNAPP
In 1988, a female employee claimed that she was sexually harassed by Knapp in the course of her employment. Defendant immediately investigated the complaint and found it to be meritorious. Knapp was disciplined. The discipline included a five-day suspension without pay. Additionally, Knapp was ordered to stay away from the employee who was the victim of his harassment, reassigned, and placed on probation. Shortly after Knapp was suspended in 1988, another female employee informed Finch that she had “problems” with Knapp three years earlier.9 No specifics were provided to Finch and no formal complaint was made.10
ANALYSIS
We review de novo a motion for summary disposition based on MCR 2.116(C)(10). Motions brought under this court rule test the factual support of a claim. Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996). The moving party has the initial burden of supporting its position with documentary evidence such as affidavits, depositions, admissions, or interrogatory responses. Smith v Globe Life Ins Co, 460 Mich 446, 454-455; 597 NW2d 28 (1999). The burden then shifts to the opposing party to establish the existence of a factual dispute. Id. at 455. If the party opposing the motion fails to present documentary evidence establishing the existence of a genuine and material fact, the
Under the CRA, a prima facie case of hostile work environment sexual harassment includes the following five elements:
(1) the employee belonged to a protected group;
(2) the employee was subjected to communication or conduct on the basis of sex;
(3) the employee was subjected to unwelcome sexual conduct or communication;
(4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee‘s employment or created an intimidating, hostile, or offensive work environment; and
(5) respondeat superior.
[Chambers v Trettco, Inc, 463 Mich 297, 311; 614 NW2d 910 (2000), quoting Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993).]
The last element is at issue here. As a general rule, “an employer may avoid liability ‘if it adequately investigated and took prompt and appropriate action upon notice of the alleged hostile work environment.‘” Radtke, 442 Mich at 396, quoting Downer v Detroit Receiving Hosp, 191 Mich App 232, 234; 477 NW2d 146 (1991). Thus, an employer must have actual or constructive notice of the alleged harassment before liability will attach to the employer. Radtke, supra at 397, n 44, citing Downer, supra at 235; Grow v W A Thomas Co, 236 Mich App 696, 702-703; 601 NW2d 426 (1999), citing Downer, supra; Kauffman v Allied Signal, Inc, 970 F2d 178, 183 (CA 6, 1992). In McCarthy v State Farm Ins Co, 170 Mich App 451; 428 NW2d 692 (1988), this Court explained what was meant by actual or constructive knowledge.
“Where... the plaintiff seeks to hold the employer responsible for the hostile environment created by the plaintiff‘s supervisor or co-worker, she must show that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. ... The employee can demonstrate that the employer knew of the harassment by showing that she complained to higher management of the harassment... or by showing the pervasiveness of the harassment, which gives rise to the inference of knowledge or constructive knowledge.” [Id. at 457, quoting Henson v Dundee, 682 F2d 897, 905 (CA 11, 1982).]
See Hartleip v McNeilab, Inc, 83 F3d 767, 776-777 (CA 6, 1996). Courts must apply an objective standard of review when considering whether the employer was provided adequate notice. Chambers, supra at 319. “[N]otice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that sexual harassment was occurring.” Id. (emphasis added).
A. DEFENDANT DID NOT HAVE ACTUAL NOTICE OF A HOSTILE WORKPLACE
Applying these legal principles to this case, we conclude that defendant did not have actual knowledge of the sexual harassment before August 1993 because plaintiff did not complain about the harassment to higher management. The term “higher management” is not defined in McCarthy11 or any subsequent case involving
By defining “higher management” as we have, we are identifying management employees who have actual authority to effectuate change in the workplace. These are the type of employees implicitly referred to as “higher management” in McCarthy. Moreover, the purpose of defining the term “higher management” is to identify the employees whose knowledge may fairly be imputed to the employer. In Chambers, our Supreme Court observed that the term “employer” is statutorily defined under the CRA to include the employer and its agents. Id. at 311. Because these “higher management” employees are vested by the employer with actual authority to effectuate change in the workplace, principles of agency law support the conclusion that the knowledge they possess regarding conditions in the workplace would properly be imputed to the employer.
We reject plaintiff‘s contention that defendant possessed actual knowledge of a hostile workplace because plaintiff informed the head custodian at Northern of some of her concerns regarding Knapp.13
Our conclusion that plaintiff did not report any alleged sexual harassment so as to impute knowledge to defendant is not altered when considered in light of defendant‘s express sexual harassment policy. Defendant‘s sexual harassment policy states, in pertinent part:
Any employee who has been subject to or witnessed sexual harassment in the workplace is requested and encouraged to report the sexual harassment to an appropriate supervisor or to the Assistant Superintendent for Personnel and to cooperate in any subsequent investigation.
Under Michigan law, an employer may enhance its employment relationship with its employees through express policies and practices. See In re Certified Question, 432 Mich 438, 453-454; 443 NW2d 112 (1989), quoting Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 613; 292 NW2d 880 (1980); see also Heurtebise v Reliable Business Computers, Inc, 452 Mich 405, 412-414; 550 NW2d 243 (1996). However, not every written employment policy has the force of a binding contract. See Heurtebise and In re Certified Question, supra at 455-456 (observing that a policy implemented by an employer by nature is a flexible framework for operational guidance, not a perpetually binding contractual obligation). Here, we are not asked to determine whether defendant‘s sexual harassment policy bound defendant to provide greater protection than is provided under the CRA, and we do not specifically decide the matter. Furthermore, even viewing the sexual harassment policy language in a light most favorable to plaintiff, the policy term “appropriate supervisor” is consistent with “higher management” as that term is used in connection with the CRA.
Significantly, there is no evidence that plaintiff reported any alleged harassment to an “appropriate supervisor” as encouraged in the policy. As previously stated, plaintiff did not notify any “higher management” employee of sexual harassment. In addition, plaintiff‘s deposition testimony indicates that she did not view Scoby or Cleven as her supervisors.14 More-
visors.” Implicit in that statement is Scoby‘s recognition that he was not an appropriate supervisor to whom to report sexual harassment under the policy. It is undisputed that Cleven was an even lower level employee than Scoby. Under these circumstances, it cannot be said that plaintiff reported any alleged sexual harassment so as to impute knowledge of the harassment to defendant. For these reasons, we conclude that defendant did not have actual knowledge of sexual harassment in the workplace.
B. DEFENDANT DID NOT HAVE CONSTRUCTIVE KNOWLEDGE OF A HOSTILE WORKPLACE
We must next address whether defendant had constructive knowledge of sexual harassment in the workplace. “‘The employee can demonstrate that the employer knew of the harassment... by showing the pervasiveness of the harassment, which gives rise to the inference of knowledge or constructive knowledge.‘” McCarthy, supra at 457, quoting Henson, supra at 905.
We conclude that the alleged sexual harassment in the present case was not substantially pervasive enough to infer that defendant had notice of it. Accepting as true all of plaintiff‘s allegations, we note that plaintiff was sexually harassed on four separate occasions over a three-year period. The rape occurred in 1990 or 1991, the sexual assault occurred in 1991, the incident in which Knapp “rubbed up” against plaintiff occurred around 1993, and the final incident occurred in August 1993.
We find no merit in plaintiff‘s contention that defendant should have known of the sexual harassment on the basis of defendant‘s knowledge of the prior instances of sexual harassment by Knapp that were alleged to have occurred in 1985 and 1988, together with plaintiff‘s generalized complaints. On the basis of information it had gathered, defendant was concerned about plaintiff‘s situation. As a result, defendant specifically inquired of plaintiff regarding her employment situation. When defendant inquired about plaintiff‘s “problems,” plaintiff did not disclose any information about the assaults or sexual harassment. In fact, plaintiff stated that, with the exception of Cleven a couple of years later, she told no one, including co-workers, about the assaults. Moreover, even though defendant had no information substantiating any assaultive or harassing behavior, defendant specifically inquired whether management could intercede with
In sum, because the rape and sexual assault occurred over a period of two to three years, plaintiff failed to notify her supervisors of the incidents, and plaintiff specifically stated that she was not in need of assistance when defendant inquired whether she needed defendant to intercede with Knapp, the sexual harassment was not, as a matter of law, substantially pervasive enough to put defendant on notice of the sexual harassment.
C. DEFENDANT HAD NO LEGAL DUTY TO INFORM PLAINTIFF OF KNAPP‘S PRIOR ACTS OF SEXUAL HARASSMENT
Finally, plaintiff argues that, had defendant informed her that Knapp had previously been disciplined for sexual harassment, she would have informed defendant of Knapp‘s wrongful conduct sooner. Plaintiff cites no authority to support the proposition that defendant was under a duty to inform her of prior acts of sexual harassment involving co-workers. We are aware of no statute or case law to support such a position and we decline to impose such a duty on employers.
CONCLUSION
Plaintiff failed to present evidence to sustain a claim of respondeat superior liability against her defendant employer for sexual harassment undertaken by a co-worker. There exists no evidence that defendant knew or should have known of the existence of sexual harassment in the workplace. There-fore, the trial court properly granted summary disposition in favor of defendant. Affirmed.
HOEKSTRA, J., concurred.
WHITE, J. (dissenting). I respectfully dissent from the majority‘s determination that there is no genuine issue of material fact whether defendant had actual or constructive notice of a hostile workplace.1
deposition that she complained a lot, including to Kathy Knapp, about wanting security at the pool. Plaintiff was not sure of the source of the noises at the outset, but eventually told Handlin that she had seen Knapp outside the pool building at night,
I
Plaintiff concedes that the incidents that led up to the summer 1993 “rubbing up” incident at Northern High School do not impose liability on defendant. She asserts, however, that these incidents should have raised awareness and put defendant on notice of the hostile environment, such that the subsequent August 1993 incident of Knapp exposing himself to plaintiff never should have occurred. I agree.
The pivotal issue is whether Mark Scoby, the head custodian at defendant‘s Northern High School, and Pete Cleven, the lead night custodian at Northern, were appropriate persons to whom plaintiff could complain. Under the factual circumstances presented here, see n 1, supra, including the wording of defendant‘s own sexual harassment policy, quoted in part in the majority opinion, I conclude that there is a genuine issue of material fact.
Plaintiff testified that Scoby and Cleven were aware of Knapp‘s prior harassment,2 and that, nonetheless, Knapp was allowed to transfer to Northern High School and she was assigned to work with him. Plaintiff contends that Scoby and Cleven had control over her day-to-day duties and that she complied with defendant‘s sexual harassment policy by speaking to them about Knapp. Plaintiff testified that around the time of Knapp‘s transfer to Northern, Scoby came and talked to her about the transfer, that she told him that she was “pissed off, but that he [Scoby]
Plaintiff testified that once Knapp started working at Northern, she complained about Knapp several times to Scoby, including telling Scoby that Knapp was constantly bothering her. Plaintiff testified that Scoby told her he would talk to Knapp and take care of it.
Plaintiff testified that she complained to Scoby immediately after Knapp rubbed up against her in the classroom, and within minutes Scoby put her on another assignment. That Scoby was an appropriate person for plaintiff to complain to is also supported by a letter Handlin wrote plaintiff when plaintiff was transferred to Northern High School in 1991.3 That letter states in pertinent part:
I would like to wish you the best of luck at Northern High School. I believe that you will be happier on a more consistent schedule. It will be helpful to have someone available to be interacting with you on a supervisory level and above all you will not have to be afraid while you are working. [Emphasis added.]
Scoby testified at deposition that plaintiff told him that she did not want to work with Knapp once he transferred to Northern. He testified that he had notice of Knapp‘s transfer to Northern before it occurred, but that he did not recall asking plaintiff what she thought about Knapp transferring. Scoby testified that Knapp‘s responsibilities at Northern included gathering the trash in the building, which took him through the building, including plaintiff‘s area. Scoby testified that he recalled that, before the rubbing-up incident, plaintiff had told him something like that Knapp was hanging around her.
Cleven testified that Scoby was his supervisor and that he (Cleven) and Scoby were two of plaintiff‘s supervisors. He testified that as lead night custodian, he had an area to clean, but also supervised the night crew and assigned work. Cleven testified that Knapp came to him and asked to be assigned with plaintiff at the football field on the day Knapp exposed himself to plaintiff. Cleven testified that at the time he assigned plaintiff and Knapp to work together, he knew that a prior complaint of sexual harassment had been made against Knapp by Employee “A,” and that Knapp had been transferred and almost lost his job as a result. Cleven also testified that plaintiff had previously told him that while she worked at the pool Knapp had “come around every now and then and kind of bugged her,” that he knew that Knapp was “interested in” plaintiff, and knew that plaintiff was uncomfortable working with Knapp. Cleven testified that he nonetheless assigned plaintiff and Knapp to work together. He testified that he told VanderJagt and Northuis, after plaintiff complained in August 1993, that he thought assigning plaintiff and Knapp was okay because “he didn‘t think Vern [Knapp] would be that dumb.” Cleven testified:
At the time when Vern asked if Vicki could work with him on the football field, it just didn‘t occur to me at that time that there would be a problem, and she certainly didn‘t give any inclination [sic] that she had a problem going down to work with him.
In Chambers v Trettco, Inc, 463 Mich 297, 319; 614 NW2d 910 (2000), the Supreme Court ruled that “notice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that sexual harassment was occurring.”4 In so holding, the Supreme Court did not require that “higher management” would have been aware of a substantial probability that sexual harassment was occurring. The term “higher management” appears in McCarthy v State Farm Ins Co, 170 Mich App 451; 428 NW2d 692 (1988), decided twelve years before Chambers was decided.5 While the nature of the supervisory responsibilities of the person or persons notified of the harassment may be a relevant consideration in evaluating whether the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that harassment was occurring, Chambers enunciates the test as one requiring the evaluation of the totality of the
circumstances and does not speak of “higher management.”
In the instant case, the harassment was by a coworker. Both plaintiff and the co-worker had the same immediate supervisors. Plaintiff presented evidence that the supervisors were aware of the harassment. It was for the trier of fact to determine whether the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that sexual harassment was occurring.
The majority‘s formulation for determining whether notice may be fairly imputed to the employer does not take into account the innumerable variations in workplaces, such as multiple levels of supervisory and managerial personnel; workers being at different locations, perhaps even different cities, or on different shifts than “management employees who have actual authority to effectuate change in the workplace“; and that the employer‘s sexual harassment policies may neither ask nor require workers to report harassment to persons with such “actual authority” over the harassing employee. Additionally, it is neither reasonable nor workable to require an employee subjected to workplace harassment to determine who in the chain of command has “actual authority to effectuate change in the workplace” of the harassing employee. There is no support for the imposition of such a requirement.
Defendant‘s written policy barring sexual harassment states that any employee who has been subject to sexual harassment in the workplace “is requested and encouraged to report the sexual harassment to an appropriate supervisor or to the Assistant Superintendent for Personnel and to cooperate in any subsequent investigation.” (Emphasis added.) The policy does not define “appropriate supervisor.” See Parkins v Civil Constructors of Illinois, Inc, 163 F3d 1027, 1035 (CA 7, 1998) (if employer‘s policy does not clearly specify who can receive complaints, or an identified person is not easily accessible, an employer can receive notice from a department head or someone that plaintiff “reasonably believed was authorized to receive and forward (or respond to) a complaint of harassment“). In the instant case, Scoby (and Cleven) worked at the same location as plaintiff and Knapp, and VanderJagt did not. Scoby told plaintiff that he would handle her complaints against Knapp and that she need not go to a person higher than he was, and testified that his duties included handling problems that arose between custodial personnel. Scoby reassigned plaintiff after Knapp rubbed up against her in 1993, before the incident in August 1993 when Knapp exposed himself to plaintiff. Defendant presented no evidence that, although Scoby was vested with authority to determine the work assignments of the custodial staff, he was not empowered to receive complaints of sexual harassment.6
In sum, plaintiff presented evidence that Scoby had the authority to assign her custodial duties, told her to report any problems she had with Knapp to him and that he would take care of them, and reassigned plaintiff when she told him that Knapp had rubbed up against her. Scoby acknowledged that he handled problems that arose between the custodial personnel. Handlin‘s letter to plaintiff at the time she was transferred to Northern indicates that plaintiff was expected to interact with Scoby as someone on a supervisory level. Further, Scoby told plaintiff that she need not report the problems she had with Knapp to a person higher in the chain of command than he was.
Scoby was Cleven‘s superior, and it is clear that at Knapp‘s request, Cleven, in the exercise of his actual authority to supervise the night crew and assign work, assigned Knapp to work with plaintiff at the football field on the day Knapp exposed himself to plaintiff. Under the circumstances, I conclude that there is a genuine issue of material fact whether plaintiff reported the harassment to an appropriate supervisor.
IV
Plaintiff further contends that defendant‘s knowledge that Knapp had harassed others is relevant to both the issue of notice and whether defendant acted reasonably in transferring Knapp to Northern and assigning him to work with plaintiff. I agree with plaintiff that defendant‘s knowledge that Knapp had previously harassed others may be considered in deciding whether defendant had notice of Knapp‘s harassing conduct. See Dees v Johnson Controls World Services, Inc, 168 F3d 417, 422-423 (CA 11, 1999), where the court concluded that there were material issues of fact whether the defendant had notice of the harassing conduct
Defendant‘s higher management, including VanderJagt, Finch, and Northuis, was aware, before plaintiff raised any concerns regarding Knapp, of Knapp‘s involvement in the Employee “A” incident, his resultant discipline, and that he had been admonished in writing that his immediate dismissal would be recommended if another incident of that nature occurred. Plaintiff also presented evidence that, after Employee “A” complained about Knapp, Employee “B” attempted to tell Finch that Knapp had sexually harassed her, and that Finch was not receptive.
Having in mind that plaintiff does not seek to impose liability on defendant for incidents that occurred before 1993, this information is pertinent to the issue whether plaintiff‘s complaints regarding Knapp provided sufficient notice that her complaints were sexual in nature. Plaintiff‘s pre-1993 complaints included that Knapp paged her continually while she was at work, made noises outside the pool facility at which she worked alone at night, gained entrance to the locked pool facility while plaintiff worked, made plaintiff fearful of being alone in the building, and that plaintiff told him to leave her alone.
The trier of fact could properly conclude that a reasonable employer would have been aware from these complaints, in light of Knapp‘s history, that there was a substantial probability that plaintiff was being sexually harassed. Chambers, supra.
I conclude that there is a genuine issue of material fact whether defendant had adequate notice of a hostile environment.
I would reverse.
Notes
Beginning around the summer of 1991, plaintiff and Terri Handlin, defendant‘s Director of Adult and Community Education, who worked at the pool building, had a number of conversations in which plaintiff said that while she worked alone at the pool at night she heard noises, suspected someone was outside the building, and was afraid. Plaintiff testified atHad I not worked for his wife and had been new in the building, worried about what people would think, being in a new position, had I known his history also to have something to — you know, there wasn‘t a witness there. I was ashamed, embarrassed, humiliated by — I didn‘t know who to tell to be safe and not have it spread through the district, and be embarrassed as I finished working there for the rest of my life until I retired, I hoped. But his wife was my boss, so it was a pretty — it was a pretty awkward situation for me.
[W]e observed in Radtke [v Everett, 442 Mich 368; 501 NW2d 155 (1993)] that a reasonableness inquiry, accomplished by objectively examining the totality of the circumstances, is necessary to fulfill the purposes of the
Michigan Civil Rights Act . Id. at 386-387. This also holds true for an inquiry into the adequacy of notice. Therefore, notice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that sexual harassment was occurring. See Perry v Harris Chernin, Inc, 126 F3d 1010, 1014 (CA 7, 1997) (the law against sexual harassment is not self-enforcing; although an employee has no duty under the law to report discriminating harassment, an employer cannot be expected to correct such harassment unless the employer has reason to know that it is occurring). [Chambers, supra at 319 (emphasis added).]
[Defendant‘s counsel]: And Mr. Cleven was the lead custodian?
[Plaintiff]: Yes.
[Defendant‘s counsel]: He was not your supervisor; right?
[Plaintiff]: Right.
*
*
*
[Defendant‘s counsel]: So your testimony is that Mr. Cleven had asked you on several occasions what had happened at the pool regarding Vern Knapp, and ultimately in the fall of ‘92 you told him that Vern Knapp had raped you at the pool; correct?
[Plaintiff]: I believe so. I think so.
[Defendant‘s counsel]: Are you certain of that or not?
[Plaintiff]: I‘m pretty sure I finally told him that —
[Defendant‘s counsel]: At this point you haven‘t told your supervisors at Forest Hills; right?
[Plaintiff]: Right.
*
*
*
[Plaintiff]: And I spoke to the supervisor or maybe Pete or not supervisor — excuse me — the head custodian, Mark Scoby.
In light of plaintiff‘s testimony, we do not consider Cleven‘s statement that he believed he and Scoby were plaintiff‘s supervisors as material to whether plaintiff complied with defendant‘s sexual harassment policy. Plaintiff admitted Scoby and Cleven were not her supervisors. Moreover, even if Scoby and Cleven were considered supervisors of plaintiff, no evidence supports the conclusion that they were “appropriate supervisors” under defendant‘s sexual harassment policy.