Chambers v. Trettco, Inc.

• Decision Date: 20 November 1998
• Docket Number: Docket No. 202151
• Citation: 232 Mich.App. 560,591 N.W.2d 413
• Parties: Robyn CHAMBERS, Plaintiff-Appellee, v. TRETTCO, INC., d/b/a HDS, Defendant-Appellant. and ADP, Inc., Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 413

591 N.W.2d 413

232 Mich.App. 560

Robyn CHAMBERS, Plaintiff-Appellee, v. TRETTCO, INC., d/b/a HDS, Defendant-Appellant and ADP, Inc., Defendant.

Docket No. 202151.

Court of Appeals of Michigan.

Submitted June 10, 1998, at Lansing.

Decided Nov. 20, 1998, at 9:10 a.m.

Released for Publication Feb. 16, 1999.

Garris, Garris, Garris & Garris, P.C. by Steven Z. Garris, Ann Arbor, for Robyn Chambers.

MacDonald and Goren, P.C. by Cindy Rhodes Victor and Lawrence C. Atorthy, Birmingham, for Trettco, Inc.

Before: JANSEN, P.J., and MARKEY and O'CONNELL, JJ.

JANSEN, P.J.

Defendant ¹ appeals as of right from a jury's verdict in favor of plaintiff in this sexual harassment case. We affirm.

Defendant, a corporation engaged in managing food service operations for various businesses, hired plaintiff as a temporary cook in June 1995, intending to use plaintiff in various locations pending possible placement in a permanent position. Defendant initially assigned plaintiff to take the place of a cook at ADP, Inc., in Ann Arbor. During this assignment, while the regular on-site supervisor was on vacation, defendant assigned a temporary supervisor, Paul Wolshon. According to the evidence at trial, Wolshon immediately commenced a pattern of sexually harassing plaintiff. Plaintiff filed suit against defendant, alleging assault, sexual assault, sexual harassment, and retaliatory discharge. Plaintiff agreed to dismiss her claims of assault and sexual assault at the close of her proofs at trial, and she withdrew her claim of retaliatory discharge before closing argument. The jury found in plaintiff's favor with respect to her claim of sexual harassment.

This appeal essentially concerns an employer's vicarious liability (respondeat superior) in a sexual harassment case brought under the Civil Rights Act, M.C.L. § 37.2101 et seq.; MSA 3.548(101) et seq. The arguments made by the employer in this case have been squarely rejected by the United States Supreme Court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). ² The Supreme Court held that the labels "quid pro quo" and "hostile work environment" are not controlling for purposes of establishing employer liability. Ellerth, supra, 118 S.Ct. p. 2265, 2270, 141 L.Ed.2d pp. 648, 655. However, for any sexual harassment preceding the employment decision to be actionable, the conduct must be severe or pervasive. Id., 118 S.Ct. p. 2265, 141 L.Ed.2d p. 648. Further, an employer can be liable for a supervisor's sexual harassment where the employer's own negligence is a cause of the harassment. Id., 118 S.Ct. p. 2267, 141 L.Ed.2d p. 651. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Id.

First, defendant's claim that plaintiff failed to establish a claim of sexual harassment in the form of hostile work environment is meritless. ³ During a one-week period in July 1995, Paul Wolshon, a "float manager" (but not plaintiff's full-time manager) engaged in numerous incidents of sexually harassing plaintiff. There was evidence that Wolshon rubbed plaintiff's buttocks, grabbed her breasts, asked plaintiff to go to a hotel and have oral sex with him, and rubbed whipped cream on plaintiff's hands and stated, "Now tell everybody you were creamed by Paul." One of plaintiff's co-workers also testified that Wolshon stated that he would like to put whipped cream on his tongue and put it between plaintiff's legs and lick plaintiff's breasts. The same co-worker also saw Wolshon grab plaintiff's breasts. Plaintiff also testified that these types of harassing incidents occurred every day of the week that Wolshon was her supervisor.

Defendant's claim that plaintiff's allegations are "a discrete, singular set of occurrences" that were not sufficiently outrageous to form a single incident of hostile work environment is incorrect and meritless. The evidence proferred by plaintiff was clearly sufficient to establish a hostile work environment claim of sexual harassment because it was severe or pervasive. Therefore, the jury's finding that Wolshon sexually assaulted or molested plaintiff through the use of his supervisory powers over her is entirely supportable by the evidence presented. Accordingly, the trial court did not err in denying defendant's motion for a directed verdict on this basis.

Further, defendant's claims that the terms of plaintiff's employment were not affected by her rejection of Wolshon's overtures and that plaintiff did not believe that any terms of her employment would be affected by accepting or rejecting the sexual overtures are likewise without merit. Plaintiff was discharged from her position on September 11, 1995. Defendant claimed that she was discharged because of her failure to arrive for work or call regarding her absence. Plaintiff claimed that she was never told why she was discharged. Even if the discharge was not related to the sexual harassment incidents, the terms of plaintiff's employment were clearly affected; that is, Wolshon's harassment toward her was severe or pervasive and created an intimidating, hostile, or offensive work environment. Id., 118 S.Ct. p. 2265, 141 L.Ed.2d at p. 648; Faragher, supra, 118 S.Ct. p. 2282, 141 L.Ed.2d p. 675; Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Radtke v. Everett, 442 Mich. 368, 382-383, 501 N.W.2d 155 (1993). It is not necessary that a plaintiff suffer economic harm or tangible discrimination. Harris, supra, p. 21, 114 S.Ct. 367.

All that was necessary was that plaintiff show that the supervisor created a hostile work environment, which the evidence at trial showed that she did. Thus, we turn to the question of the employer's vicarious liability.

With respect to the question of vicarious liability, the Supreme Court held:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.... The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.... No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. [Ellerth, supra, 524 U.S. 742, 118 S.Ct. p. 2270, 141 L.Ed.2d at 655; Faragher, supra, 118 S.Ct. p. 2293, 141 L.Ed.2d p. 689.]

In the present case, the jury found that defendant failed to take prompt remedial action after it knew or should have known that plaintiff had been sexually harassed. This finding is supportable by the evidence presented at trial. Plaintiff testified that she spoke to Kevin McLaughlin, the regional director of operations for HDS, on the telephone on July 6, 1995. McLaughlin asked plaintiff if something was wrong, and McLaughlin testified that he could sense that something was bothering plaintiff. Plaintiff indicated that she could not express her complaints of Wolshon at that time because Wolshon was standing next to her. McLaughlin told plaintiff that he would be at ADP, Inc., on July 8, 1995, and would speak to her at that time. It is disputed whether McLaughlin went there on July 8. He testified that he went there, but plaintiff made no attempt to talk to him. However, plaintiff testified that McLaughlin never went to ADP that week.

When plaintiff's regular supervisor, Jennifer Hostutler, returned to work on July 11, 1995, plaintiff reported her specific complaints regarding Wolshon. Hostutler asked plaintiff to write down her allegations, which plaintiff did. Plaintiff also testified that she spoke to McLaughlin, who told her that he would investigate the matter. Plaintiff testified that McLaughlin never asked her what happened regarding Wolshon and that no one from HDS ever contacted her or informed her of any results of the investigation.

In reviewing the evidence and all legitimate inferences drawn from the evidence in a light most favorable to plaintiff, Mason v. Royal Dequindre, Inc., 455 Mich. 391, 397, 566 N.W.2d 199 (1997), plaintiff has satisfied the requirements of Ellerth and Faragher. That is, defendant is subject to vicarious liability for an actionable hostile environment created by Wolshon, plaintiff's immediate supervisor. Assuming that plaintiff was not discharged for reporting Wolshon's actions, although there is no tangible employment action, defendant may raise the affirmative defense that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that plaintiff failed to take advantage of any preventive or corrective opportunities provided by defendant or to otherwise avoid harm. Here, the jury could have, and apparently did, reject McLaughlin's testimony and accept plaintiff's testimony regarding defendant's attempts to prevent or correct Wolshon's sexually harassing behavior. Accordingly, the jury could reasonably infer that defendant was vicariously liable for Wolshon's sexually harassing behavior because defendant failed to exercise reasonable care to prevent and correct promptly Wolshon's behavior.

The facts of the present case are as compelling as those in Ellerth or Faragher to support a finding in favor of the plaintiff. In Ellerth, the plaintiff did not allege that she suffered a tangible employment action at the hands of her supervisor, but the Supreme...