Elezovic v. Ford Motor Co.

• Decision Date: 08 January 2004
• Docket Number: Docket No. 236749.
• Citation: 673 N.W.2d 776,259 Mich. App. 187
• Parties: Joseph ELEZOVIC, Plaintiff, and Lula Elezovic, Plaintiff-Appellant/Cross-Appellee, v. FORD MOTOR COMPANY and Daniel P. Bennett, Defendants-Appellees/Cross-Appellants.
• Court: Court of Appeal of Michigan — District of US

673 N.W.2d 776

259 Mich. App. 187

Joseph ELEZOVIC, Plaintiff, and Lula Elezovic, Plaintiff-Appellant/Cross-Appellee, v. FORD MOTOR COMPANY and Daniel P. Bennett, Defendants-Appellees/Cross-Appellants.

Docket No. 236749.

Court of Appeals of Michigan.

Submitted August 7, 2003, at Detroit.

Decided October 23, 2003, at 9:10 a.m.

Released for Publication January 8, 2004.

Granzotto & Nicita, P.C. (by Mark Granzotto) and Edwards & Jennings, P.C. (by Alice B. Jennings), Detroit, for Lula Elezovic.

Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Julia Turner Baumhart), Birmingham and Robert W. Powell, Dearborn, for Ford Motor Company.

Sommers, Schwartz, Silver & Schwartz, P.C. (by Sam G. Morgan and Patrick Burkett), Southfield, for Daniel P. Bennett.

Before: JANSEN, P.J., and NEFF and KIRSTEN FRANK KELLY, JJ.

NEFF, J.

Plaintiff Lula Elezovic¹ appeals as of right the trial court's grant of a directed verdict in favor of defendant Ford Motor Company and defendant Daniel Bennett, a former supervisor at Ford, on plaintiff's claims of sexual harassment and gender discrimination. We affirm the grant of the directed verdict in favor of Ford. We also affirm the grant of a directed verdict in favor of Bennett, but only because we are bound to do so by the recent holding in Jager v. Nationwide Truck Brokers, Inc., 252 Mich.App. 464, 478, 652 N.W.2d 503 (2002), in which a panel of this Court decided that under the Michigan Civil Rights Act (CRA), M.C.L. § 37.2101 et seq., an individual supervisor cannot be held liable, separate from his employer, for hostile environment sexual harassment. MCR 7.215(J). Were we not bound by the holding in Jager, we would reverse the grant of a directed verdict in favor of Bennett on plaintiff's hostile environment claim, M.C.L. § 37.2103(i)(iii).

I

Plaintiff, an hourly production worker at Ford's Wixom Assembly Plant, filed this action in November 1999 against Ford and Bennett, alleging claims of sexual harassment, gender discrimination, and retaliation. At the core of plaintiff's claims was alleged conduct by Bennett from 1995 through 1999 that included Bennett exposing his penis and masturbating when alone with plaintiff in the Wixom plant rail yard, obscene gestures and lewd facial expressions simulating oral sex, a physical attack at a plant bathroom, and repeated sexual remarks such as asking plaintiff if her "boobs [were] real," saying that he "would like to stick [his] dick in between [her] boobs," and licking his lips and asking for a "blow job." According to plaintiff, she did not complain to Ford of Bennett's sexual harassment because of her Albanian cultural background and fear of reprisals or further intimidation by Bennett. However, plaintiff complained about nonsexual matters involving Bennett and her work conditions at Ford. She also sought psychological counseling and medical care, which she said were made necessary by the harassment at work.

Following a three-week jury trial in August 2001, the trial court directed a verdict in favor of defendants, finding that plaintiff had failed to establish a prima facie case of discrimination or retaliation by Ford or Bennett. Plaintiff appeals the grant of directed verdict on her claims of sexual harassment and gender discrimination.² She also alleges error requiring reversal in the court's evidentiary rulings.

II

The sexual conduct alleged by plaintiff formed the basis of separate claims of sex discrimination under the CRA. We find error only with regard to the claim of hostile environment sexual harassment, and only with regard to defendant Bennett. We therefore first address plaintiff's claim that the court erred in directing a verdict for defendants on her hostile environment sexual harassment claim.

A

This Court reviews de novo a trial court's decision on a motion for a directed verdict. Derbabian v. S & C Snowplowing, Inc., 249 Mich.App. 695, 701, 644 N.W.2d 779 (2002). A directed verdict is appropriate only when no factual question exists upon which reasonable minds could differ. Cacevic v. Simplematic Engineering Co. (On Remand), 248 Mich.App. 670, 679-680, 645 N.W.2d 287 (2001). We view all the evidence admitted up to the time of the motion, in the light most favorable to the nonmoving party, granting that party every reasonable inference, to determine whether a question of fact existed. Id. at 679, 645 N.W.2d 287; Tobin v. Providence Hosp., 244 Mich.App. 626, 651-652, 624 N.W.2d 548 (2001). When the evidence could lead reasonable jurors to disagree, the court may not substitute its judgment for that of the jury. Id. at 652, 624 N.W.2d 548.

B

The CRA prohibits an employer from discriminating because of sex, which includes sexual harassment. M.C.L. § 37.2202(1); M.C.L. § 37.2103(i); Chambers v. Trettco, Inc., 463 Mich. 297, 309, 614 N.W.2d 910 (2000); Chambers v. Trettco, Inc. (On Remand), 244 Mich.App. 614, 617, 624 N.W.2d 543 (2001). M.C.L. § 37.2103(i) provides:

Discrimination because of sex includes sexual harassment. Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:

(i) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment....

(ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual's employment....

(iii) The conduct or communication has the purpose or effect of substantially interfering with an individual's employment... or creating an intimidating, hostile, or offensive employment ... environment.

When sexual harassment falls under one of the first two subsections, it is commonly referred to as quid pro quo harassment; when it falls under the third subsection, it is commonly labeled hostile environment harassment. Chambers, supra, 463 Mich. at 310, 614 N.W.2d 910.

To establish a claim of hostile environment harassment, an employee must prove the following elements by a preponderance of the evidence:

"(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." [Id. at 311, 614 N.W.2d 910, quoting Radtke v. Everett, 442 Mich. 368, 382-383, 501 N.W.2d 155 (1993).]

With regard to the respondeat superior element of a claim of hostile environment harassment, the Chambers Court explained:

"Under the Michigan Civil Rights Act, an employer may avoid liability [in a hostile environment case] `if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment.'... Such prompt and appropriate remedial action will permit an employer to avoid liability if the plaintiff accuses either a co-worker ... or a supervisor of sexual harassment.... An employer, of course must have notice of alleged harassment before being held liable for not implementing action." [Id. at 312, 614 N.W.2d 910, quoting Radtke, supra at 396-397, 501 N.W.2d 155.]

Thus, an employer may avoid liability for a claim of sexual harassment if it does not have actual or constructive notice of the alleged harassment. Radtke, supra at 396 n. 44, 501 N.W.2d 155.

In this case, the trial court granted a directed verdict on the basis that plaintiff had failed to establish that Ford had notice of the alleged sexual harassment. Even viewing the evidence in the light most favorable to plaintiff, we find no error in the court's conclusion.

In McCarthy v. State Farm Ins. Co., 170 Mich.App. 451, 457, 428 N.W.2d 692 (1988), this Court explained what is meant by actual or constructive notice:

"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, 428 N.W.2d 692, quoting Henson v. Dundee, 682 F.2d 897, 905 (C.A.11,1982).]

In Sheridan v. Forest Hills Pub. Schools, 247 Mich.App. 611, 622, 637 N.W.2d 536 (2001), this Court defined the term "higher management" to mean someone in the employer's chain of command who possesses the ability to exercise significant influence in the decision-making process of hiring, firing, and disciplining the offensive employee.

With regard to actual notice, plaintiff asserts that she told two of her supervisors of the 1995 incident in which Bennett masturbated in front of her. However, plaintiff asked them as friends to keep this confidential and to not tell anyone. She admitted that she did not want them to report Bennett's conduct to labor relations, the department responsible for investigating complaints of sexual harassment. Under these circumstances, plaintiff's report of Bennett's conduct to her supervisors does not constitute actual notice to Ford, such that it could investigate the matter and take remedial action.

Our conclusion regarding actual notice is not altered by the fact that Ford's antiharassment policy sets forth procedures requiring supervisors to report complaints of sexual harassment. "[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...