Chambers v. Trettco, Inc., Docket No. 114085, Calendar No. 5.

CourtSupreme Court of Michigan
Writing for the CourtMARKMAN, J.
Citation614 N.W.2d 910,463 Mich. 297
PartiesRobyn CHAMBERS, Plaintiff-Appellee, v. TRETTCO, INC, a Michigan Profit Corporation, doing business as HDS Services, Defendant-Appellant.
Docket NumberDocket No. 114085, Calendar No. 5.
Decision Date31 July 2000

Garris, Garris, Garris & Garris, P.C. (by Steven Z. Garris), Ann Arbor, for plaintiff-appellant.

C.R. Victor & Associates, P.L.L.C. (by Cindy Rhodes Victor), Bloomfield Hills, for defendant-appellant.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Angelita Espino, Assistant Attorney General, Detroit, amicus curiae for Michigan Department of Civil Rights.

Pitt, Dowty, McGehee & Mirer, P.C. (by Michael L. Pitt and Shannon L. Dunn), Royal Oak, amicus curiae for Women's Justice Center.

Honigman, Miller, Schwartz & Cohn (by Cameron J. Evans), Detroit, amicus curiae for Michigan Health and Hospital Association.

The Fishman Group (by Steven J. Fishman and Thomas A. Pinch), Bloomfield Hills, amicus curiae for Michigan Chamber of Commerce and Michigan Restaurant Association. Amberg, McNenly, Firestone & Lee, P.C. (by Joseph H. Firestone), Southfield, for amicus curiae Michigan Education Association.

Clark Hill, P.L.C. (by Duane L. Tarnacki, Rachelle G. Silberberg, and Lira A. Johnson), Detroit, amicus curiae for Michigan Manufacturers Association.

Diane M. Soubly, Deputy General Counsel, Litigation, Comerica Incorporated, Detroit, amicus curiae for American Society of Employers.


We granted leave to consider whether the Court of Appeals properly held an employer vicariously liable under the Civil Rights Act (CRA), M.C.L. § 37.2101 et seq; MSA 3.548(101) et seq., for sexual harassment by a supervisory employee against a subordinate employee. A divided Court of Appeals panel affirmed the judgment on a jury verdict returned in plaintiff's favor. The majority utilized vicarious liability principles articulated in two recent United States Supreme Court decisions applying the federal Civil Rights Act. We hold that the principles stated in the federal cases relied on by the Court of Appeals do not apply to claims brought under Michigan's Civil Rights Act. Instead, we adhere to prior Michigan precedent and the specific language of the Michigan statute. We also hold that defendant was entitled to a directed verdict on plaintiff's claim of quid pro quo sexual harassment. Accordingly, we vacate the Court of Appeals opinion and remand to the Court of Appeals for reconsideration of plaintiff's claim of hostile environment sexual harassment in light of this opinion.


Defendant Trettco, Inc., a corporation that manages food service operations for a number of businesses, hired plaintiff as a cook in June 1995, planning to use her in various locations, pending possible placement in a permanent position. Plaintiff was initially assigned to replace a cook who was on medical leave. During her second week in this position, a temporary supervisor, Paul Wolshon, was assigned to cover the duties of the regular on-site supervisor, Jennifer Hostutler, who was on vacation. Wolshon was a "float manager" for defendant, meaning that he moved from location to location working as an interim manager as needed. Wolshon lacked the authority to hire, fire, or discipline other employees. Plaintiff, however, believed that Wolshon had the authority to fire her.

According to the trial testimony, during the four-day period that Wolshon was at the facility,1 he engaged in a course of offensive conduct toward plaintiff, including rubbing plaintiff's buttocks, grabbing her breasts, and repeatedly propositioning plaintiff for sexual favors. Plaintiff testified that she felt intimidated and threatened by Wolshon's behavior. Defendant had a written sexual harassment policy in its company handbook, which all employees were required to read and sign. The policy defined sexual harassment, explained that persons engaging in sexual harassment were subject to discipline, including immediate termination, and instructed all employees experiencing or witnessing an incident that they considered sexual harassment or discrimination were to report the incident to defendant's vice president. All defendant's managers were also required to attend a yearly management-development seminar that included a segment on sexual-harassment education.

On Wednesday, July 6, 1995, defendant's regional director, Kevin McLaughlin, called the facility and plaintiff answered the telephone. After sensing something "wrong" in plaintiff's voice, McLaughlin inquired whether there was a problem. Without specifying the nature of the problem, plaintiff indicated that something was wrong and that she needed to talk to him. When McLaughlin sought to get more information over the telephone, plaintiff refused to elaborate. Plaintiff later testified that this was because Wolshon was standing next to her. There was conflicting testimony regarding whether McLaughlin did anything further to determine the nature of the undescribed problem. According to McLaughlin, he called the following day and plaintiff again refused to say what was wrong. Plaintiff testified that he only called on Wednesday. They both agree that McLaughlin said that he would come to the facility on Friday. McLaughlin testified that he did so, but did not speak to plaintiff. Plaintiff and others testified that they did not see him on that day. It is undisputed, however, that at no time during the week did plaintiff ever specifically tell McLaughlin about the sexual harassment perpetrated by Wolshon. Nor did she follow the process outlined in the policy manual for reporting sexual harassment. McLaughlin testified that it never occurred to him that plaintiff might be having problems with her male supervisor.

On the following Monday, when Hostutler returned from vacation, and plaintiff informed her of Wolshon's conduct. Hostutler immediately telephoned McLaughlin and relayed the news. McLaughlin instructed Hostutler to prevent Wolshon from entering the facility, where he was scheduled to work that morning, and to send him directly to the home office. McLaughlin then commenced an investigation of the incident. He instructed Hostutler to have plaintiff prepare a written statement, which was then submitted to McLaughlin. Shortly thereafter, McLaughlin met with plaintiff and Hostutler, and assured plaintiff that she would never have to work with Wolshon again. Thus, as soon as plaintiff reported the sexual harassment, Wolshon was removed from the facility and plaintiff never again had contact with Wolshon. When the permanent cook returned, plaintiff was transferred to another facility operated by defendant. Plaintiff was eventually discharged in September 1995 when she failed to show up for work for several consecutive days.

Plaintiff then brought suit against defendant, alleging assault, sexual assault, sexual harassment, and retaliatory discharge. Wolshon was not named as a defendant. The trial court dismissed the assault and sexual assault charges on defendant's motion for a directed verdict. Plaintiff voluntarily dismissed her retaliatory discharge claim before the case went to the jury. Thus, plaintiff advances no claim that the discharge had any connection to the sexual harassment. The trial court denied defendant's motions for a directed verdict on plaintiff's claim of sexual harassment, both after plaintiff's proofs and at the close of all the evidence.

The case was submitted to the jury on separate theories of liability—quid pro quo sexual harassment and hostile environment sexual harassment. The jury verdict form required the jury to answer two specific interrogatories corresponding to these theories, and to only proceed to assess damages if it held for plaintiff on either of these two questions. The jury answered both interrogatories in plaintiff's favor and then assessed damages at $150,000.


Defendant appealed, and the Court of Appeals affirmed in a two-to-one decision.2 The majority rejected defendant's argument that plaintiff had failed to prove the existence of a hostile work environment, reasoning that the severe and pervasive sexual harassment occurring during Wolshon's week in charge was sufficiently outrageous to qualify as a hostile work environment. With respect to defendant's vicarious liability, rather than analyzing the case pursuant to Radtke v. Everett, 442 Mich. 368, 501 N.W.2d 155 (1993), the majority adopted Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). In those cases, the United States Supreme Court, applying the federal Civil Rights Act, 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. [Faragher, supra, 524 U.S. at 807-808, 118 S.Ct. 2275; Ellerth, supra, 524 U.S. at 765, 118 S.Ct. 2257.]

The Court of Appeals majority concluded that defendant could properly be found to be vicariously liable, because Wolshon's conduct created a hostile work environment and defendant could not have established the necessary...

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