Elezovic v. Ford Motor Co.

• Citation: 697 N.W.2d 851,472 Mich. 408
• Decision Date: 01 June 2005
• Docket Number: No. 125166.,125166.
• Parties: Lula ELEZOVIC, Plaintiff-Appellant, and Joseph Elezovic, Plaintiff, v. FORD MOTOR COMPANY and Daniel P. Bennett, Defendants-Appellees.
• Court: Supreme Court of Michigan

697 N.W.2d 851

472 Mich. 408

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

No. 125166.

Supreme Court of Michigan.

June 1, 2005.

Mark Granzotto, P.C. (by Mark Granzotto) Royal Oak, MI, and Edwards & Jennings, P.C. (by Alice B. Jennings), Detroit, MI, for the plaintiff.

Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Elizabeth Hardy and Julia Turner Baumhart) (Patricia J. Boyle, of counsel), Birmingham, MI, for the defendants.

Scheff & Washington, P.C. (by George B. Washington and Miranda K.S. Massie), Detroit, MI, for amici curiae Justine Maldonado, Milissa McClements, and Pamela Perez.

Carol Hogan for Michigan Conference of the National Organization, Warren, MI, for amici curiae Women.

TAYLOR, C.J.

At issue in this case is (1) whether the Michigan Civil Rights Act (CRA)¹ provides a cause of action against an individual agent of an employer and (2) whether plaintiff's employer, Ford Motor Company, was entitled to a directed verdict in plaintiff's sexual harassment lawsuit against it.

We hold that an agent may be individually sued under § 37.2202(1)(a)² of the CRA. Thus, we overrule Jager v. Nationwide Truck Brokers, Inc., 252 Mich.App. 464, 485, 652 N.W.2d 503 (2002), because it held to the contrary,³ and reverse the Court of Appeals judgment in favor of Daniel Bennett that followed Jager.

We also hold, consistently with the lower courts, that Ford was entitled to a directed verdict. Thus, we affirm the trial court and Court of Appeals judgments in favor of Ford.

I. FACTS AND PROCEEDINGS BELOW

Plaintiff filed a lawsuit in November 1999 pursuant to the CRA against Ford Motor Company and Daniel Bennett, a supervisor at Ford's Wixom assembly plant where she worked. As relevant here, her claim was that she had been sexually harassed as a result of a hostile work environment.⁴ The CRA allows such a lawsuit against an employer.⁵

Plaintiff's lawsuit named Bennett as an individual defendant consistently with the then-controlling case of Jenkins v. Southeastern Michigan Chapter, American Red Cross, 141 Mich.App. 785, 369 N.W.2d 223 (1985),⁶ which held that individual supervisors could be liable under the CRA.⁷

Regarding the specifics in her complaint, plaintiff alleged that, while she was on the job in the summer of 1995, Bennett exposed himself to her while masturbating and requested she perform oral sex. Further, she claimed that after that he repeatedly continued to harass her by grabbing, rubbing, and touching his groin and licking his lips and making sexually related comments.

Before trial, defendants filed a joint motion in limine to exclude from evidence an unrelated, prior criminal misdemeanor conviction of Bennett for indecent exposure. Defendants pointed out that the incident did not occur on Ford property and involved non-Ford employees. Plaintiff, however, argued that the indecent exposure conviction was evidence of a scheme or plan Bennett had of exposing himself to women and that it provided notice to Ford that Bennett engaged in inappropriate sexual acts. The trial court ruled that the indecent exposure conviction was inadmissible with regard to Bennett under MRE 404(b)(1)⁸ because it was not offered for any purpose other than to show that he had a propensity to expose himself. The court also held it was inadmissible with regard to Ford pursuant to MRE 403⁹ because any probative value would be substantially outweighed by the danger of unfair prejudice.

The case was tried before a jury for three weeks. Plaintiff testified consistently with the allegations in her complaint against Bennett. While it was uncontested that she had not filed a formal written complaint of sexual harassment pursuant to Ford's antiharassment policy, plaintiff attempted to establish that Ford was otherwise aware, or on notice, of the sexual harassment for several reasons. She claimed that she told two first-line supervisors (friends of hers who were under Bennett in the chain of command) that Bennett had exposed himself to her, but admitted that she had pledged them to secrecy. She also introduced two letters her psychologist had written to the Wixom plant physician, one indicating that in his view plaintiff was descending into mental illness "[d]ue to the harassment she perceived from Mr. Bennett" and a second stating that plaintiff continued "to feel uncomfortable with Dan Bennett." These letters were offered with a third letter from the same psychologist to the Wixom plant manager regarding complaints against a different coworker in which it was said "there has been harassment going on for the past year and a half at her Wixom plant job." Also introduced was testimony from an employee to a Ford Labor Relations Department representative to the effect that the employee would remain on medical leave until someone did something about the situation between plaintiff and Bennett. Finally, reference was made to a letter from plaintiff's attorney (her son-in-law) to the Ford Labor Relations Department in which he asserted he might take legal action "to insure that our client [plaintiff] is not subjected to working in a hostile environment."

At the close of plaintiff's proofs, defendants filed a joint motion for a directed verdict, arguing that plaintiff had not presented a prima facie case against them.¹⁰ Ford emphasized that plaintiff had not established that it had notice of the alleged sexual harassment by Bennett and, thus, it could not be held liable for any improper acts by him.

The trial court took the joint motion under advisement, with defendants continuing to present their cases to the jury. Bennett testified that he had not sexually harassed the plaintiff and that her claims were false. Ford presented evidence showing that the only time plaintiff had ever filed a sexual harassment complaint was in 1991, involving a UAW committeeman, and that none of the several grievances and complaints plaintiff filed against Bennett had mentioned sexual harassment. Rather, with regard to Bennett, her complaints concerned having her shift changed from days to afternoons and disputes regarding overtime. She also filed a complaint alleging that a female coworker had physically threatened her.

Upon the close of defendants' proofs, the trial court granted directed verdicts to the defendants. The trial court held that plaintiff had failed to establish a prima facie case of sexual harassment with regard to either defendant and, in particular, found that Ford could not be liable because it had no notice of Bennett's alleged harassment.

Plaintiff, asserting that she had established a prima facie case against Bennett and Ford, appealed to the Court of Appeals. That Court, however, affirmed the orders of the trial court in a published opinion.¹¹ In ruling for Bennett, the majority in Elezovic relied on the then-recent holding in Jager, supra at 485, 652 N.W.2d 503, that "a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiff's civil rights." The Jager Court had reached its conclusion by relying largely on federal court holdings that under Title VII of the federal civil rights act, the federal analogue to our CRA, there is no individual liability.¹² While it was obligatory that the majority in Elezovic follow Jager pursuant to MCR 7.215(J)(1), the majority indicated at the same time that, but for that court rule, it would have reached the opposite result.¹³ It was the majority's view that Jager was wrongly decided simply because it was not consistent with the actual language of our CRA, which it concluded made agents individually liable. Moreover, it believed Jager was inconsistent with Chambers v. Trettco, Inc., 463 Mich. 297, 614 N.W.2d 910 (2000), which it read as recognizing that an individual may be held liable for sexual harassment under the CRA.¹⁴

With regard to the directed verdict for Ford, the Court of Appeals rejected plaintiff's claim that her evidence regarding notice had been sufficient to enable her to reach the jury. The Court held that plaintiff's report of Bennett's conduct to her supervisors did not constitute actual notice to Ford because of her request at the same time that this information not be conveyed to their supervisor or other appropriate persons. Elezovic v. Ford Motor Co., 259 Mich.App. 187, 194, 673 N.W.2d 776 (2003). As for the letters that had been sent to Ford, the Court of Appeals concluded that these also did not provide notice because, importantly, none of them referred to sexual conduct. The Court held that this fact, when viewed in the context that plaintiff's previous harassment complaints had not been sexual in nature, but were explicitly nonsexual concerning Bennett and others (with the exception of the 1991 complaint against a UAW committeeman that plaintiff did not rely on as part of her case), meant Ford would not reasonably have been put on notice. Id. at 195, 673 N.W.2d 776. Finally, the Court also affirmed the trial court's decision to exclude evidence regarding Bennett's indecent exposure conviction. It was the Court's conclusion that plaintiff failed to establish that the evidence was offered for a proper purpose because Bennett's act of indecent exposure outside the workplace was not sufficiently similar to sexually harassing an employee in the workplace to establish a common plan, scheme, or system. Id. at 206, 673 N.W.2d 776. The Court further concluded that the trial court had not abused its discretion, concerning defendant Ford, in holding that the probative value of this evidence would have been substantially outweighed by the danger of unfair prejudice.¹⁵ Id. at 207-208, 673 N.W.2d 776.

Plaintiff applied for leave to appeal in this Court, and we granted leave to appeal and directed the parties to include among the issues briefed whether a supervisor engaging in activity prohibited by the Michigan Civil Rights Act, MCL...