Hamed v. Wayne County

• Decision Date: 29 July 2011
• Docket Number: Docket No. 139505.Calendar No. 4.
• Citation: 490 Mich. 1,112 Fair Empl.Prac.Cas. (BNA) 1717,803 N.W.2d 237
• Parties: Tara Katherine HAMED, Plaintiff–Appellee,v.WAYNE COUNTY and Wayne County Sheriff's Department, Defendants–Appellants,andSergeant Kenneth Darwish, Corporal Nettie Jackson, Sheriff Warren C. Evans, and Deputy Reginald Johnson, Defendants.
• Court: Michigan Supreme Court

490 Mich. 1
803 N.W.2d 237
112 Fair Empl.Prac.Cas. (BNA) 1717

Tara Katherine HAMED, Plaintiff–Appellee,
v.
WAYNE COUNTY and Wayne County Sheriff's Department, Defendants–Appellants,andSergeant Kenneth Darwish, Corporal Nettie Jackson, Sheriff Warren C. Evans, and Deputy Reginald Johnson, Defendants.

Docket No. 139505.Calendar No. 4.

Supreme Court of Michigan.

Argued Jan. 19, 2011.Decided July 29, 2011.

[803 N.W.2d 241]

Elmer L. Roller P.C. (by Elmer L. Roller), Brian Lavan & Associates, P.C., Brighton (by Brian Lavan), and Gary P. Supanich PLLC (by Gary P. Supanich) for Tara K. Hamed.Zausmer, Kaufman, August, Caldwell & Tayler, P.C., Farmington Hills (by Mark J. Zausmer and Carson J. Tucker), for Wayne County and Wayne County Sheriff's Department.Cohl, Stoker & Toskey, P.C., Lansing (by Peter A. Cohl and Richard D. McNulty), for amicus curiae the Michigan Association of Counties.Mellon Pries, P.C., Troy (by James T. Mellon and David A. Kowalski), for amicus curiae the Michigan Municipal Risk Management Authority.O'Connor, DeGrazia, Tamm & O'Connor, P.C., Bloomfields (by Julie McCann O'Connor and Elizabeth L. Wilhelmi), for amicus curiae the Michigan Municipal League and the Michigan Municipal League Liability & Property Pool.Johnson Rosati, LaBarge, Aseltyne & Field, P.C., Farmington Hills (by Marcelyn A. Stepanski), for amicus curiae the Michigan Defense Trial Counsel.Linderman Law P.C. (by Marla A. Linderman) for amicus curiae the Michigan Association for Justice.Bill Schuette, Attorney General, John J. Bursch, Solicitor General, and Heather S. Meingast and Ann Sherman, Assistant Attorneys General, for amicus curiae the Attorney General.Nacht, Roumel, Salvatore, Blanchard & Walker, P.C. (by Jennifer B. Salvatore), for amicus curiae the Women Lawyers Association of Michigan.Opinion MARY BETH KELLY, J.

[490 Mich. 5] We granted leave to appeal in this case to determine the scope of an employer's vicarious liability for quid pro quo sexual harassment affecting public services under Michigan's Civil Rights Act (CRA).¹ Specifically, we consider whether Wayne County and its sheriff's department may be held vicariously liable for a civil rights claim under MCL 37.2103(i) based on a criminal act of a deputy sheriff committed during working hours but plainly beyond the scope of his employment. We hold that defendants may not be held vicariously liable for quid pro quo [490 Mich. 6] sexual harassment affecting public services under traditional principles of respondeat superior. Accordingly, we reverse the Court of Appeals' judgment and reinstate the circuit court's order granting summary disposition in defendants' favor.

I. FACTS AND PROCEDURAL HISTORY

In August 2001, Livingston County deputy sheriffs arrested plaintiff, Tara Katherine Hamed, on a warrant for unpaid child support. Because plaintiff also had outstanding warrants for probation violations

[803 N.W.2d 242]

in Wayne County, the Livingston County deputies later transferred plaintiff to the custody of Wayne County. Wayne County deputies transported plaintiff to the Wayne County jail. When plaintiff arrived at the jail, Deputy Reginald Johnson was the only officer on duty in the inmate registry area.² While alone with plaintiff, Johnson subjected her to sexually charged comments and offers for better treatment in exchange for sexual favors. Plaintiff resisted these advances, but Johnson transferred plaintiff into an area of the jail not subject to surveillance cameras and sexually assaulted her. Shortly thereafter, a female deputy transported plaintiff to another part of the jail. After her release, plaintiff reported the incident to departmental authorities. The Wayne County Sheriff's Department terminated Johnson's employment, and the state subsequently charged Johnson with criminal sexual conduct, of which he was ultimately convicted.³

[490 Mich. 7] In 2003, plaintiff filed a complaint against Johnson, Wayne County, the Wayne County Sheriff's Department, and the Wayne County Sheriff, among others, alleging various claims of gross negligence.⁴ In 2006, plaintiff moved to amend her complaint, adding civil rights claims of quid pro quo and hostile-environment sexual harassment pursuant to MCL 37.2103(i). Defendants then moved for summary disposition under MCR 2.116(C)(8) and (10), arguing that, under the CRA, jails are excluded from liability and, because defendants had no notice of Johnson's sexually harassing conduct, they could not be vicariously liable for his actions.

The circuit court granted defendants summary disposition in two separate orders and dismissed all of plaintiff's civil rights claims. It concluded that plaintiff's hostile-environment claim failed because defendants had no prior notice that Johnson was a sexual predator. The circuit court also dismissed plaintiff's quid pro quo sexual harassment claim on the basis that defendants are not vicariously liable for the criminal acts of sheriff's department employees.⁵

Plaintiff then appealed the circuit court's decision only with regard to her quid pro quo sexual harassment claim. The Court of Appeals reversed and applied this Court's analysis in Champion v. Nationwide Security, Inc. ⁶ to hold that “[e]mployers are vicariously liable for acts of quid pro quo sexual harassment committed by their employees when those employees use their supervisory[490 Mich. 8] authority to perpetrate the harassment.” ⁷ The Court of Appeals held that plaintiff had established a viable quid pro quo sexual harassment claim because “Johnson used his authority as a sheriff's deputy to exploit plaintiff's vulner

[803 N.W.2d 243]

ability....” ⁸ We granted leave to consider whether defendants may be held vicariously liable for quid pro quo sexual harassment affecting public services under MCL 37.2103(i). ⁹II. STANDARD OF REVIEW

We review de novo whether the Court of Appeals erred by reversing the circuit court's grant of summary disposition. ¹⁰ Whether defendants may be held vicariously liable for quid pro quo sexual harassment affecting a public service under the CRA is a question of law that we review de novo.¹¹ To the extent that defendants' arguments require us to interpret the meaning of the CRA, our review is also de novo. ¹² When interpreting the meaning of a statute, we discern the Legislature's intent by examining the language used.¹³ We read the statutory language in context and as a whole, considering the plain and ordinary meaning of every word.¹⁴ If the language is clear and unambiguous, then we apply the statute as written without judicial construction.¹⁵

[490 Mich. 9] III. ANALYSIS A. QUID PRO QUO SEXUAL HARASSMENT UNDER THE CRA

The CRA recognizes that freedom from discrimination because of sex is a civil right.¹⁶ Accordingly, the act prohibits discrimination because of sex in employment, places of public accommodation, and public services. ¹⁷ MCL 37.2103(i) broadly defines “discrimination because of sex” as follows:

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, public accommodations or public services, education, or housing.

(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, public accommodations or public services, education, or housing.

(iii) The 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. [Emphasis added.]

[803 N.W.2d 244]

The first two subdivisions of MCL 37.2103(i) describe quid pro quo sexual harassment, while the third subdivision [490 Mich. 10] refers to hostile-environment sexual harassment.¹⁸

A plaintiff alleging quid pro quo sexual harassment affecting public services must show by a preponderance of the evidence (1) that he or she was subjected to any of the types of unwelcome sexual conduct or communication described in the statute and (2) that the public service provider or the public service provider's agent made submission to the proscribed conduct a term or condition of obtaining public services or used the plaintiff's submission to or rejection of the proscribed conduct as a factor in a decision affecting his or her receipt of public services.¹⁹

When the harassment was committed by an agent and the plaintiff is pursuing a civil rights claim against the principal, as in this case, a court must always “determine the extent of the employer's vicarious liability....” ²⁰ We require this analysis because the CRA specifically incorporates common-law agency principles.²¹ Thus, if a defendant is not vicariously liable for the acts of its agent under traditional principles of respondeat superior, the plaintiff's claim under the CRA fails as a matter of law.

B. RESPONDEAT SUPERIOR

The doctrine of respondeat superior is well established in this state: An employer is generally liable for [490 Mich. 11] the torts its employees commit within the scope of their employment.²² It follows that “an employer is not liable for the torts ... committed by an employee when those torts are beyond the scope of the employer's business.” ²³ This Court has defined “within the scope of employment” to mean “ ‘engaged in the service of his master, or while about his master's business.’ ” ²⁴ Independent action, intended solely to further the employee's individual interests, cannot be fairly characterized as falling within the scope of employment.²⁵ Although an act may be contrary to an employer's instructions, liability will...