McCallum v. Department of Corrections

• Decision Date: 21 December 1992
• Docket Number: Docket No. 127000
• Citation: 496 N.W.2d 361,197 Mich.App. 589
• Parties: William McCALLUM, as Personal Representative of the Estate of Josephine C. McCallum, deceased, Individually, and as Guardian of Michael J. McCallum, Minor, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS, Robert Brown, Jr., Dale Foltz, John Whelan, and John Does I, II, III, Jointly and Severally, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 361

496 N.W.2d 361

197 Mich.App. 589

William McCALLUM, as Personal Representative of the Estate of Josephine C. McCallum, deceased, Individually and as Guardian of Michael J. McCallum Minor, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS, Robert Brown, Jr., Dale Foltz John Whelan, and John Does I, II, III, Jointly and Severally, Defendants-Appellees.

Docket No. 127000.

Court of Appeals of Michigan.

Submitted March 3, 1992, at Lansing.

Decided Dec. 21, 1992, at 10:15 a.m.

Released for Publication March 18, 1993.

Steven J. Vander Ark, Grand Rapids, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Stewart H. Freeman, Margaret A. Nelson, and Thomas R. Wheeker, Asst. Attys. Gen., for defendants-appellees.

Before: MARILYN J. KELLY, P.J., and McDONALD and ALLEN, ^* JJ.

ALLEN, Judge.

In this wrongful death-sexual harassment action, plaintiff appeals as of right from a March 1, 1990, order of the Ingham Circuit Court granting summary disposition under MCR 2.116(C)(10) to defendants. More than thirty depositions and hundreds of exhibits establish the following relevant facts.

Josephine McCallum, age twenty-seven, wife of William C. McCallum and mother of Michael McCallum, age nine, began her career as a corrections officer for the Department of Corrections (DOC) in October 1986. She completed her on-the-job training in January 1987, graduated from the Correction Officers Academy on February 7, 1987, and was first assigned to duty on the 6:00 a.m. to 2:00 p.m. shift at the State Prison of Southern Michigan (SPSM) Central Complex. The assignment required her to begin each day working in the cafeteria dining room under the supervision of Sergeant John Rakowski.

About one week before her death on March 24, 1987, McCallum complained to several of her academy classmates that she was having problems with Rakowski. She told Brenda Wilson that Rakowski wanted to go out with her socially after work, that he "had the hots for her," that she did not like it, and that it became more irritating as time went on. She asked academy classmates Wilson and Steve Horn to join her whenever they saw Rakowski engaging her in conversation. She explained that Rakowski did not want other people around when he was talking to her.

Steve Horn explained that McCallum asked him to intervene because Rakowski was "bullshitting her" about all the power he had and how he could help her out or could keep people from going anywhere in the department. Horn stated that he did not recall that McCallum ever said anything about Rakowski asking to go to bed with her, but according to Horn, "You would have to be a blind man not to see that that's what he was getting at."

McCallum complained to classmate Lynda Gradoville about the rotten dining room assignments Rakowski gave her and that Rakowski kept asking her for a date or a drink after work, but nothing else of a sexual nature was mentioned. At breakfast on March 23, 1987, McCallum complained to Officer Pamela Williams Jacobson that a particular sergeant was coming on to her real strong, kept asking her for dates, and was giving her bad assignments. That evening, McCallum told her husband that Rakowski was continually harassing her and wanted to go to bed with her, and that if she did not give in to him she would be on her own.

In the dining room on the morning of March 24, 1987, McCallum told Brenda Wilson "she was not going to take any more of his [Rakowski's] shit" and was going to report him even if it meant she might lose her job. Then Captain Douglas McMurtrie changed McCallum's work assignment from 6 Block to the JCC gate post because the officer assigned to the gate post that morning had called in sick. Rakowski and McMurtrie were social friends who often attended after-work parties together. Shift assignments were routinely prepared a week in advance, but changes such as occurred on March 24 were not unusual and were made when the assigned person called in sick or an emergency arose.

McCallum's movements on the morning of her death were as follows. Upon arriving for work on March 24, McCallum was first assigned to the dining hall for inmate breakfast from 6:00 a.m. to 7:30 a.m. Upon leaving the dining hall, McCallum proceeded to walk to the JCC gate located adjacent to the commissary dock area. At approximately 6:30 a.m. on March 24, inmate Edward Clay Hill, serving eighteen to forty years for manslaughter and rape, reported to work at the commissary dock. His supervisor was Robert Follick. Follick observed that Hill appeared to have been drinking, refused to help unload a truck, and even made threatening remarks to him. Nevertheless Hill was allowed to remain in the commissary dock area.

At about 7:20 a.m., a second truck arrived at the commissary dock. In the truck was Sabrina Johnson, an on-the-job training officer, and the driver, Charles Eddy, a sixteen-year veteran with the DOC. As Eddy and Johnson unloaded the truck, Hill approached and began asking questions of Johnson, who could smell the odor of liquor on Hill's breath. Follick also noticed that Hill appeared to be pressing his body close to Johnson and she appeared to be trying to stay away from him. At approximately 7:40 a.m., Johnson got back into the passenger side of the truck and, while the door was still open, Hill ran his fingers alongside Johnson's thigh and buttocks. Johnson quickly pushed Hill's hand away, closed the door, and the truck drove off. As the truck pulled away, Eddy and Johnson saw McCallum walking by; through the rearview mirror, Eddy observed McCallum entering the door to the JCC gate followed by two black inmates.

Exactly what happened next is not known. Either by a forged pass or by verbally misrepresenting his identity, Hill persuaded McCallum to allow him to pass through the gate and enter the auditorium with her. There, within the next fifteen minutes, McCallum was severely beaten, raped, and strangled. Her body was dragged across the stage and dumped at the bottom of an unlighted stairwell. As a result of her death, McCallum's family will receive workers' compensation death benefits over a five-hundred-week period.

Josephine McCallum's violent death triggered a series of departmental and intradepartmental investigations. Among the results of these investigations were: (1) a report authored by Joseph Abramajtys and John Elkins based on their investigation of the policies and operating practices of the SPSM-Central Complex conducted between April and June 1987; (2) a follow-up action plan prepared by Dan Bolden, Deputy Director of the Bureau of Correctional Facilities; (3) an investigative report on the sexual harassment complaint of William McCallum prepared by Cindy Lindemyer, security investigator, and submitted to Warden John Jabe on November 18, 1987. The trial court declined to admit reports 1 and 2. Report 3 was made a part of the deposition of Cindy Lindemyer. Additional facts, as needed, are found in the discussion of the issues.

Plaintiff's amended complaint, filed on February 17, 1988, states claims under the state Civil Rights Act ¹ against the Department of Corrections (count I), Robert Brown, Jr., Director of the Department of Corrections (count II); Dale Foltz, Warden of the SPSM (count III); and John Whelan, Deputy Warden of the SPSM (count IV). Separate claims were stated under title VII of the federal Civil Rights Act ² against Dale Foltz (count V) and John Whelan (count VI).

Discovery commenced and thirty-one depositions were taken, interrogatories exchanged, and hundreds of documents produced. On September 19, 1989, defendants moved for summary disposition pursuant to MCR 2.116(C)(10). Oral argument was heard on December 4, 1989, and on March 1, 1990, the trial court issued its comprehensive and detailed opinion granting defendants' motion.

The doctrine of governmental immunity precludes suit against the DOC on grounds of tort. M.C.L. Sec. 691.1407(1); M.S.A. Sec. 3.996(107)(1); Wade v. Dep't. of Corrections, 439 Mich. 158, 166, 483 N.W.2d 26 (1992); Ross v. Consumers Power Co. (On Rehearing ), 420 Mich. 567, 363 N.W.2d 641 (1984). However, plaintiff's suit is predicated on sexual harassment as that term is defined under the state Civil Rights Act, supra, and the federal Civil Rights Act, supra.

The state Civil Rights Act and title VII of the federal Civil Rights Act recognize two types of sexual harassment in the workplace: (1) quid pro quo harassment; and (2) harassment resulting from a hostile or offensive work environment. Langlois v. McDonald's Restaurants of Michigan, Inc., 149 Mich.App. 309, 312-313, 385 N.W.2d 778 (1986); Rabidue v. Osceola Refining Co., 805 F.2d 611, 618 (C.A. 6, 1986); McCalla v. Ellis, 180 Mich.App. 372, 377, 446 N.W.2d 904 (1989). Quid pro quo harassment is that which requires that the employee either accede to sexual demands or forfeit job benefits and perks or otherwise be subject to less favorable working conditions. McCalla, supra, 180 Mich.App. p. 378, 446 N.W.2d 904. Hostile work environment harassment is unwelcome sexual conduct in the workplace that unreasonably interferes with an employee's work performance or creates an intimidating, hostile, or offensive employment environment. Both quid pro quo and hostile-environment type sexual harassment are measured under the reasonable woman standard set forth in Radtke v. Everett, 189 Mich.App. 346, 353-354, 471 N.W.2d 660 (1991).

Plaintiff's amended complaint sets forth quid pro quo harassment by Rakowski and hostile workplace harassment by prison inmates. In addition, the amended complaint asserts that in retaliation for not going to bed with him or otherwise acceding to his sexual advances, Rakowski prevailed upon his friend, Captain Douglas McMurtrie, to have McCallum assigned to the alleged dangerous JCC gate where she could be further harassed by prison inmates. Because McCallum was killed at the JCC gate, we first address...