Eide v. Kelsey-Hayes Co., KELSEY-HAYES

• Decision Date: 29 December 1986
• Docket Number: No. 79637,KELSEY-HAYES,79637
• Citation: 154 Mich.App. 142,47 Fair Empl.Prac.Cas. (BNA) 1043,397 N.W.2d 532
• Parties: Valerie A. EIDE and Craig Eide, Plaintiffs-Appellees, Cross-Appellants, v.COMPANY, Defendant-Appellant, Cross-Appellee. 154 Mich.App. 142, 397 N.W.2d 532, 47 Fair Empl.Prac.Cas. (BNA) 1043
• Court: Court of Appeal of Michigan — District of US

Page 532

397 N.W.2d 532

Valerie A. EIDE and Craig Eide, Plaintiffs-Appellees Cross-Appellants, v. KELSEY-HAYES COMPANY, Defendant-Appellant, Cross-Appellee.

No. 79637.

154 Mich.App. 142, 397 N.W.2d 532,

47 Fair Empl.Prac.Cas. (BNA) 1043

Court of Appeals of Michigan.

Submitted May 8, 1986.

Decided Aug. 19, 1986.

Released for Publication Dec. 29, 1986.

[154 MICHAPP 146] Susan Winshall & Associates, P.C. by Susan Winshall, Thomas Wilczak, and Shelley Portney Hutton, Southfield, for plaintiffs-appellees, cross-appellants.

Berry, Moorman, King, Cook & Hudson by Thomas M. Sullivan and Sheryl A. Laughren, Detroit, for defendant-appellant, cross-appellee.

Before BRONSON, P.J., and GRIBBS and M.E. CLEMENTS, ^* JJ.

PER CURIAM.

Plaintiffs filed the present action against the defendant in Wayne County Court under the Elliott-Larsen Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq., alleging that Valerie Eide was sexually harassed during her employment with the defendant. Craig Eide sought damages for loss of consortium resulting from the sexual harassment suffered by his wife. A jury trial was held and a verdict was returned in favor of the plaintiffs, awarding Mrs. Eide $240,000 in compensatory damages and $32,000 in exemplary damages. [154 MICHAPP 147] Mr. Eide was awarded $28,000 on his loss of consortium claim. Defendant appeals as of right and plaintiffs have filed a cross-appeal, with both sides raising a total of twelve issues. After reviewing the record, we find that none of the issues require reversal.

I

Valerie Eide began her employment with the defendant in January, 1972, at the age of 18, as a line inspector. In 1976, she became a floor inspector and in 1978, a component inspector in department TO-3, a predominantly male department, on the midnight shift. Her husband also worked for the defendant on the midnight shift. After a 1980 strike and layoff, Mrs. Eide was transferred to the afternoon shift. Ten days later, on April 10, 1980, she walked out of the plant never to return. In her complaint, Mrs. Eide sought damages for sexual harassment based on an alleged hostile working environment. Her claim of sexual harassment concerned a period from the spring of 1979 through April 9, 1980. The claim of Mr. Eide was derivative in nature and sought damages for loss of consortium.

Defendant, Kelsey-Hayes Company, located in Milford, is a small plant which, during the 1979-1980 period, employed approximately 170 people. The work force was about fifty percent male and fifty percent female. Mrs. Eide described the environment at the plant as a "zoo." Testimony revealed a mixture of so-called horseplay and alleged sexual harassment. Mrs. Eide admitted that she participated in some of the horseplay. Concerning events which were of a sexual nature, she testified to the following: a large poster-size picture of a woman that was totally naked with her legs [154 MICHAPP 148] spread apart hung on the assembly line; unwelcome touching and requests by foreman Ralph Ives for sex in the first aid room; degrading comments; and a difference between nicknames given to the men and nicknames given to the women.

In the spring of 1979, Mrs. Eide was given the nickname "Fluffy LeBush" by foreman Lynn Sonnenberg. The nickname was based on an ad for a pornographic movie featuring an actress of the same name. From that time on, Mrs. Eide testified, she was referred to as "Fluffy" or "Fluffy LeBush" by her male co-workers and supervisors. On her last day at work, union representative Lloyd Peltier, without Mrs. Eide's knowledge, double-taped an obscene drawing to her back. The drawing was of a nude woman from the waist down with her pubic hair colored red and the name "Fluffy LeBush" underneath. The drawing was allowed to stay on Mrs. Eide's back long enough to allow everyone on the assembly line to see the drawing. Also, prior to this incident, Tim Rowbotham, a foreman at the plant, attempted to handcuff Mrs. Eide to her work station.

At trial, Mrs. Eide alleged that management had knowledge of the various incidents which occurred through her complaints to the shift superintendent, various foremen, the company counseling service and union representatives. None of Mrs. Eide's complaints were investigated until after she left her employment with the defendant. Further, after investigating her complaints, the company concluded that no sexual harassment existed. However, several employees were cited for violating the company policy prohibiting horseplay.

II

Initially, defendant argues that the trial court [154 MICHAPP 149] failed to adequately instruct the jury concerning Mrs. Eide's claim of sexual harassment. We find no error.

The Elliott-Larsen Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq., provides:

"Sec. 202. (1) An employer shall not:

"(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of ... sex...." M.C.L. Sec. 37.2202; M.S.A. Sec. 3.548(202).

and,

"(h) Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when:

* * *

"(iii) Such conduct or communication has the purpose or effect of substantially interfering with an individual's employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment." M.C.L. Sec. 37.2103(h); M.S.A. Sec. 3.548(103)(h).

Defendant objected to the trial court's failure to give the following requested instructions:

"Voluntary Participation-Effect

"If you find Plaintiff, Valerie A. Eide, was involved, appeared to voluntarily participate in, or appeared to consent to conduct similar to that of which she now complains, then all of the claims of both Plaintiffs must fail, and you must return a verdict for Kelsey-Hayes Company.

[154 MICHAPP 150] "Constructive Discharge-Maintenance of Distasteful Environment-Employee's Conduct-Effect

"If you find that Plaintiff, Valerie Eide, appeared to welcome or encourage the alleged wrongful conduct by her own conduct or by appearing to voluntarily participate in or consent to conduct of a similar nature, the employer cannot be held to have constructively discharged Plaintiff through maintenance of distasteful working environment, and the claims of both Plaintiffs must fail, and you must return a verdict for Kelsey-Hayes Company.

"Unwelcome Conduct-Defined

"Unwelcome conduct is conduct which the employee did not appear to solicit, incite, voluntarily participate in, or consent to."

The defendant's proposed instructions closely paralleled the defendant's theory of the case. Defendant asserts that the instructions were necessary because of the substantial testimony concerning Mrs. Eide's participation in horseplay at the plant, which made it appear that she may have voluntarily participated in the complained-of-acts.

Instructions of the trial court must be reviewed as a whole and not in selected excerpts to determine if error has occurred. See Froling v. Bischoff, 73 Mich.App. 496, 503, 252 N.W.2d 832 (1977). Few standard civil jury instructions exist in the area of employment discrimination. When the standard jury instructions do not adequately cover a particular area, the trial court is obligated to give additional jury instructions when requested where those instructions properly instruct on the applicable law. Cornforth v. Borman's, Inc, 148 Mich.App. 469, 475, 385 N.W.2d 645 (1986). It is within the trial court's discretion whether a proposed instruction is applicable and accurately states the law. Cox v. LaLonde, 101 Mich.App. 342, 300 N.W.2d 564 (1980), lv. den. 412 Mich. 875 (1981). Further, the refusal to give even an applicable standard jury [154 MICHAPP 151] instruction will not result in reversible error unless the failure to give the requested instruction so unfairly prejudiced one of the parties that the failure to vacate the jury's verdict would be inconsistent with substantial justice. Johnson v. Corbet, 423 Mich. 304, 327, 377 N.W.2d 713 (1985).

In this case, we find that defendant's proposed instruction did not properly state the applicable law and therefore was properly denied. The Elliott-Larsen Civil Rights Act states that the complained-of conduct or communication must be unwelcome. The term unwelcome is not further defined in the act. The trial court in this case instructed the jury that, pursuant to the act, sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature. Further definition was not required. Defendant's instructions would equate the term unwelcome with not appearing to consent and not appearing to participate in. We do not believe that that was what the Legislature intended by use of the term unwelcome. One can appear to consent while still finding the conduct or communication unwelcome. Bundy v. Jackson, 205 U.S.App.D.C. 444, 641 F.2d 934 (1981).

Also, in our opinion, the defendant's instructions were prejudicial because they would have materially increased the burden of proof the plaintiffs were required to sustain. Moreover, the trial court did instruct the jury on the defendant's theory of the case, which included its argument that Mrs. Eide had consented and voluntarily participated in the complained-of or similar conduct and communication. Therefore, we find no error in the court's refusal to give defendant's proposed instructions.

Defendant also claims that the trial court committed reversible error in its jury instructions[154 MICHAPP 152] by refusing defendant's request that the jury be instructed that a portion of plaint...