Elezovic v. Ford Motor Co.

• Decision Date: 25 January 2007
• Docket Number: Docket No. 267747.
• Citation: 731 N.W.2d 452,274 Mich. App. 1
• Parties: Lula ELEZOVIC, Plaintiff-Appellant/Cross Appellee, and Joseph Elezovic, Plaintiff, v. Daniel P. BENNETT, Defendant-Appellee/Cross Appellant, and Ford Motor Company, Defendant.
• Court: Court of Appeal of Michigan — District of US

731 N.W.2d 452

274 Mich. App. 1

Lula ELEZOVIC, Plaintiff-Appellant/Cross Appellee, and Joseph Elezovic, Plaintiff, v. Daniel P. BENNETT, Defendant-Appellee/Cross Appellant, and Ford Motor Company, Defendant.

Docket No. 267747.

Court of Appeals of Michigan.

Submitted August 2, 2006, at Lansing.

Decided January 25, 2007, at 9:00 a.m.

Released for Publication April 24, 2007.

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

Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Julia Turner Baumhart and Elizabeth Hardy), Birmingham, for Daniel Bennett.

Before: MARK J. CAVANAGH, P.J., and SMOLENSKI and TALBOT, JJ.

CAVANAGH, P.J.

This appeal follows the remand of this matter to the circuit court by our Supreme Court¹ for consideration of plaintiff Lula Elezovic's sexual harassment claim premised on a hostile work environment theory, MCL 37.2103(i)(iii), against her former supervisor, defendant Daniel Bennett, only.² On remand, the circuit court granted defendant's motion for summary disposition on the ground that, under the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq., defendant was not functioning as an "agent" of the Ford Motor Company when he committed the charged acts of sexual harassment. Plaintiff appeals this decision. Defendant cross-appeals by delayed leave granted, challenging the trial court's denial of his renewed pretrial motion for summary disposition of plaintiff's hostile work environment claim on its merits.

Because the facts related to this matter have been extensively detailed in previous opinions, we reiterate only the salient facts here. See Elezovic v. Ford Motor Co., 472 Mich. 408, 411-418, 697 N.W.2d 851 (2005); Elezovic v. Ford Motor Co., 259 Mich.App. 187, 190-191, 673 N.W.2d 776 (2003). Plaintiff was an hourly production worker at Ford's Wixom assembly plant when she was allegedly sexually harassed by defendant, her supervisor. She brought sexual harassment claims against both Ford and defendant. Following a three-week jury trial, the trial court granted defendants' motion for a directed verdict, holding that plaintiff failed to establish a prima facie case of sexual harassment against either Ford or defendant.

On appeal, this Court affirmed the trial court's decisions. With regard to defendant, this Court relied on the then-recent case of Jager v. Nationwide Truck Brokers, Inc., 252 Mich.App. 464, 485, 652 N.W.2d 503 (2002), which held that a supervisor may not be held individually liable for violating the CRA. Elezovic, supra, 259 Mich.App. at 197, 202, 673 N.W.2d 776. Our Supreme Court granted leave to appeal, and affirmed with regard to the issue of Ford's liability. Elezovic, 472 Mich. at 430, 697 N.W.2d 851. However, the Court overruled the Jager holding, concluding that an agent who sexually harasses an employee in the workplace can be held individually liable under the CRA. Id. at 411, 697 N.W.2d 851. The Court remanded the matter to the circuit court for further proceedings regarding defendant. Id. at 431, 697 N.W.2d 851. As noted above, on remand, the circuit court granted defendant's renewed motion for summary disposition on the ground that defendant was not functioning as an "agent" of Ford when he committed the charged acts of sexual harassment. This appeal followed.

Plaintiff argues that the trial court erred in concluding that defendant was not functioning as an "agent" of Ford under the CRA when he committed the charged acts of sexual harassment and, thus, could not be held individually liable. We agree.

This Court reviews de novo the ruling on a motion for summary disposition. Walsh v. Taylor, 263 Mich.App. 618, 621, 689 N.W.2d 506 (2004). Although the trial court did not specify under which subrule of MCR 2.116(C) it found summary disposition appropriate, because the court looked beyond the pleadings, it appears that the decision was premised on MCR 2.116(C)(10). MCR 2.116(C)(10) tests the factual support of a claim and requires this Court to consider the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether a genuine issue of material fact warranting a trial exists. Walsh, supra.

This Court also reviews de novo issues of statutory interpretation. Bloomfield Twp. v. Oakland Co. Clerk, 253 Mich. App. 1, 9, 654 N.W.2d 610 (2002). Our purpose in reviewing questions of statutory construction is to discern and give effect to the Legislature's intent. Echelon Homes, LLC v. Carter Lumber Co., 472 Mich. 192, 196, 694 N.W.2d 544 (2005). We begin our analysis by examining the plain language of the statute. If the language is unambiguous, no judicial construction is required or permitted and the statute must be enforced as written. Id., quoting People v. Morey, 461 Mich. 325, 330, 603 N.W.2d 250 (1999). The undefined words of a statute must be given their plain and ordinary meaning, which may be ascertained by looking at dictionary definitions. Koontz v. Ameritech Services, Inc., 466 Mich. 304, 312, 645 N.W.2d 34 (2002).

The CRA is remedial and thus must be "liberally construed to suppress the evil and advance the remedy." Eide v. Kelsey-Hayes Co., 431 Mich. 26, 34, 427 N.W.2d 488 (1988). One of the purposes of the CRA, specifically MCL 37.2202, is to eradicate particular forms of discrimination in the workplace. See Champion v. Nationwide Security, Inc., 450 Mich. 702, 713, 545 N.W.2d 596 (1996). "MCL 37.2202 forbids any employer from engaging in acts of discrimination that are prohibited by the CRA." McClements v. Ford Motor Co., 473 Mich. 373, 386, 702 N.W.2d 166, amended 474 Mich. 1201, 704 N.W.2d 68 (2005) (emphasis in original). One form of discrimination the CRA prohibits is discrimination based on sex. MCL 37.2202(1). Thus, an employer shall not discriminate on the basis of sex, which includes sexual harassment. MCR 37.2202(1)(a), 37.2103(i). The CRA is the exclusive remedy for a claim based on sexual harassment. McClements, supra at 383, 702 N.W.2d 166.

There are two categories of sexual harassment: (1) quid pro quo and (2) hostile work environment. See Chambers v. Trettco, Inc., 463 Mich. 297, 310-311, 614 N.W.2d 910 (2000). At issue in this case is the latter type, hostile work environment sexual harassment, which is defined to include

unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:

* * *

(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. [MCL 37.2103(i).]

When the hostile work environment is created by the actions of coworkers and other coemployees, the alleged victim seeking a remedy under the CRA must file a claim of hostile work environment sexual harassment against her³ employer on a vicarious liability theory. See e.g., Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 791-792, 685 N.W.2d 391 (2004). Thus, to establish a prima facie case of hostile work environment sexual harassment, the plaintiff employee must prove (1) that she belonged to a protected group; (2) that she was subjected to communication or conduct on the basis of sex; (3) that she was subjected to unwelcome sexual conduct or communication; (4) that the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with her employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior. See Radtke v. Everett, 442 Mich. 368, 382-383, 501 N.W.2d 155 (1993). Respondeat superior liability exists when an employer has adequate notice of the harassment and fails to take appropriate corrective action. See Chambers, supra at 318-319, 614 N.W.2d 910.

However, "if an employer is accused of sexual harassment, then the respondeat superior inquiry is unnecessary because holding an employer liable for personal actions is not unfair." Radtke, supra at 397, 501 N.W.2d 155 (emphasis in original). Thus, when the hostile work environment is created by the actions of the employer, the alleged victim seeking a remedy under the CRA may file such a claim against her employer premised on a direct theory of liability. Similarly, this case involves not vicarious liability but the individual liability of the alleged sexual harasser, who is a purported "agent" of the employing entity, not a coworker.

In this case, defendant argued in the trial court on remand that plaintiff's case had to be summarily dismissed because defendant was never vested with authority to create a sexually hostile work environment; i.e., defendant "was not Ford's agent for purposes of creating a sexually hostile work environment." The trial court agreed with defendant, granting defendant's motion for summary disposition on the ground that defendant was not functioning as an agent at the time he committed the alleged unlawful acts of discrimination. We conclude that both defendant and the trial court misconstrued the applicable legal principles of agency. This unjust and unreasonable result permits an agent to pursue and accomplish his illegal objective by using his position and power, but immunizes him from liability because he was not supposed to do that. In other words, in this case, defendant could not be held personally liable for violating the purported victim's civil rights because Ford did not tell him to sexually harass her. We do not believe that the Legislature intended this incongruous result.

Article 2 of the CRA defines an "employer" as "a person who has 1 or more employees, and includes an agent of that person."⁴ MCL 37.2201(a). Our Supreme Court, in this case, declared that an agent of an employer is considered an "employer" for purposes of the CRA, holding

[W]hen a statute says "employer" means "a person who has 1 or more employees, and ...