Grow v. WA Thomas Co.

• Decision Date: 22 October 1999
• Docket Number: Docket No. 209865.
• Parties: Shirley A. GROW, Plaintiff-Appellee, v. W.A. THOMAS COMPANY and Dennis Arquette, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

601 N.W.2d 426

236 Mich. App. 696

Shirley A. GROW, Plaintiff-Appellee, v. W.A. THOMAS COMPANY and Dennis Arquette, Defendants-Appellants.

Docket No. 209865.

Court of Appeals of Michigan.

Submitted July 1, 1999, at Lansing.

Decided August 6, 1999, at 9:00 a.m.

Released for Publication October 22, 1999.

Kurt Berggren, Ann Arbor, for Shirley A. Grow.

Barlow & Derby (by Matthew S. Derby and Christine R. Essique), Troy, for W.A. Thomas Company and Dennis Arquette.

Clark Hill P.L.C. (by Duane L. Tarnacki, J. Walker Henry, and Julie A. Lawson ), Detroit, amicus curiae for Michigan Manufacturers Association.

Before MURPHY, P.J., and DOCTOROFF and NEFF, JJ.

NEFF, J.

Defendants W.A. Thomas Company (hereafter defendant) and Dennis Arquette appeal as of right from the trial court's judgment for plaintiff in this sexual harassment case involving an alleged hostile work environment. We affirm in part, vacate the judgment in part, and remand for further proceedings consistent with this opinion.

I

Plaintiff began working for defendant in March 1994. Plaintiff testified that from the very beginning Arquette, her supervisor, subjected her to continuous sexual harassment. We do not deem it necessary to describe in detail the specific conduct described by plaintiff. It is sufficient to note that plaintiff testified that Arquette's alleged conduct toward her included sexually explicit comments and unwanted kissing and groping. Plaintiff testified that she complained about Arquette's conduct to another supervisor and to the plant manager, and that these men personally witnessed some of Arquette's sexual conduct in the workplace, but that no action was taken to punish Arquette for the sexual harassment or to prevent further occurrences.

Plaintiff testified that after Arquette began berating her for things such as her attitude, work output, and attendance record, she quit. Plaintiff testified that defendant sent her a copy of a newly formed sexual harassment policy and ordered her to return to work. Plaintiff complied, but found the harassment had turned from sexual to something more hostile. After four days back on the job, plaintiff quit again. She described for the jury the emotional distress she suffered, including a suicide attempt and various physical ailments.

Defendants denied that plaintiff was subjected to a sexual and hostile work environment. Arquette stated that although he may have touched plaintiff, or given her a casual hug on occasion, he denied ever touching her in a sexual manner. In addition, defendant's plant manager denied witnessing any inappropriate conduct by Arquette and denied that plaintiff ever complained of sexual harassment before quitting. Defendants presented evidence regarding their investigation of Arquette's conduct, which failed to reveal any corroboration of plaintiff's allegations.¹

Defendants also presented evidence that plaintiff, rather than Arquette, was the one who made crude, sexual comments and engaged in offensive behavior in the workplace. In addition, defendants presented the testimony of some of plaintiff's former employers, who testified that the reasons for plaintiff's leaving previous employment were insubordination and poor attendance, contrary to plaintiff's representations on her employment application with defendant.

Plaintiff filed a complaint alleging a hostile work environment pursuant to the Civil Rights Act (CRA), M.C.L. § 37.2101 et seq.; MSA 3.548(101) et seq. On defendants' motion, plaintiff's constructive discharge claim was summarily dismissed, thus leaving only her claim for emotional distress damages. A mediation evaluation for $125,000 was accepted by plaintiff and rejected by defendants.

After a six-day jury trial, the jury found defendants liable and awarded plaintiff $80,555 in emotional distress damages. The court awarded plaintiff $43,376.66 in attorney fees and costs, and $37,827.50 in mediation sanctions, bringing the total judgment to $192,684. This appeal followed.

II

Defendants raise several challenges to the instructions given to the jury. A trial court's decisions regarding jury instructions are reviewed for an abuse of discretion. Lagalo v. Allied Corp. (On Remand), 233 Mich.App. 514, 519, 592 N.W.2d 786 (1999). We review the instructions in their entirety and will not reverse a court's decision regarding supplemental instructions unless failure to vacate the verdict would be inconsistent with substantial justice Nabozny v. Pioneer State Mut. Ins. Co., 233 Mich.App. 206, 217, 591 N.W.2d 685 (1998)

.

A

Defendants first argue that the trial court erred in its instructions regarding the effect of defendants' investigation of plaintiff's complaints and subsequent remedial action. We disagree.

As defendants correctly note, an employer may avoid liability under the CRA "if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment." Downer v. Detroit Receiving Hosp., 191 Mich.App. 232, 234, 477 N.W.2d 146 (1991); see Radtke v. Everett, 442 Mich. 368, 396, 501 N.W.2d 155 (1993). However, the duty to investigate arises only if the employer has actual or constructive notice of the alleged offensive environment. Downer, supra at 234-235, 477 N.W.2d 146.

In the recent cases of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)— both decided after trial in the present case— the United States Supreme Court held that an employer is vicariously liable for a supervisor's creation of a hostile environment unless the employer can prove, by a preponderance of the evidence, both elements of the following affirmative defense:

(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. Ellerth, supra, 524 U.S. 742,

118 S.Ct. at 2270; Faragher, supra, 524 U.S. 775,

118 S.Ct. at 2293.]

This affirmative defense is not available where the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. Id.

On appeal, defendants complain that the trial court erred in refusing to give their proposed instruction regarding this subject in its entirety.² We find no abuse of discretion in the trial court's decision. Although the court's instructions perhaps were not as detailed as defendants may have liked, they fairly and accurately advised the jury of the applicable law. The jury was instructed that it must determine whether defendant, once it knew or should have known of the alleged harassment committed by Arquette, adequately investigated and implemented prompt and appropriate corrective action. On its verdict form, the jury specifically found that defendant did not.³ The result of this determination by the jury, whether viewed as an element of plaintiff's claim or as a part of an affirmative defense, is vicarious liability for defendant. Consequently, substantial justice does not require reversal of the jury's verdict on the basis of the trial court's failure to read instruction 36 in its entirety.

B

Defendants also argue about the trial court's rulings regarding defendant's proposed instructions 33 and 34, which focus on evidence of plaintiff's own sexual activities in the workplace. The trial court gave the first paragraph, but not the second, of each of these instructions:

33.

DEFINITION OF UNWELCOME SEXUAL CONDUCT OR COMMUNICATION

The threshold for determining that sexual conduct or communication is unwelcome is that the employee did not solicit or incite it, and the employee regarded the sexual conduct or communication as undesirable or offensive.

Evidence of an employee's participation and/or initiation in the sexual conduct or communication is relevant to determining whether the employee found the sexual conduct or communication of others unwelcome. An employee's participation and/or initiation in the sexual conduct or communication will defeat an employee's allegation of unwelcomeness unless the employee establishes a point at which her participation and/or initiation stopped and at which she made known to her coworkers or supervisors that the sexual conduct or communication would henceforth be considered unwelcome.

34.

DEFINITION OF INTIMIDATING, HOSTILE, OR OFFENSIVE WORK ENVIRONMENT

Not all sexual conduct or communication constitutes hostile environment sexual harassment. To sustain a claim of hostile environment sexual harassment, the harassment must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.

Evidence of an employee's active contribution in the sexual conduct or communication is relevant to determining whether a hostile working environment existed. An employee's active contribution in the sexual conduct or communication will defeat an employee's allegation of hostile work environment.

In the present case, plaintiff bore the burden of establishing the following elements of a hostile work environment:

(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. Radtke, supra at 382-383, 501 N.W.2d 155 (emphasis added).]

Defendants presented evidence in support of their claim that plaintiff often engaged in sexual conduct herself. Plaintiff's own conduct was therefore relevant to the question whether...