Hamed v. Wayne County, Docket No. 278017.

• Decision Date: 07 July 2009
• Docket Number: Docket No. 278017.
• Citation: 284 Mich. App. 681,775 N.W.2d 1
• Parties: HAMED v. WAYNE COUNTY.
• Court: Court of Appeal of Michigan — District of US

775 N.W.2d 1

284 Mich. App. 681

HAMED v. WAYNE COUNTY.

Docket No. 278017.

Court of Appeals of Michigan.

Submitted June 3, 2009, at Detroit.

Decided July 7, 2009, at 9:00 a.m.

Gentry Law Offices, P.C. (by Kevin S. Gentry), for Tara K. Hamed.

Zausmer, Kaufman, August, Caldwell & Tayler, P.C. (by Carson J. Tucker), for Wayne County and others.

Before: BORRELLO, P.J., and METER and STEPHENS, JJ.

PER CURIAM.

In this action arising from alleged violations of the Michigan Civil Rights Act (CRA), plaintiff, Tara K. Hamed, appeals as of right the trial court's April 10, 2007, order granting partial summary disposition to defendants Wayne County and Wayne County Sheriff's Department (the department) with respect to plaintiff's claims for hostile environment sexual harassment and "application of county rules, policies and procedures." Plaintiff also appeals as of right the trial court's April 26, 2007, order granting summary disposition to Wayne County and the department with respect to plaintiff's claim for quid pro quo sexual harassment. Wayne County and the department's cross-appeal, arguing that the trial court erred by denying their motion to strike allegations in plaintiff's amended complaint and by rejecting some of their alternative arguments in support of summary disposition. We reverse and remand for further proceedings.

I. FACTUAL BASIS FOR THE CAUSE OF ACTION

Plaintiff was arrested on an outstanding warrant for unpaid child support in Livingston County on or around September 7, 2001. The Livingston Circuit Court ordered her to serve 45 days in the Livingston County Jail, subject to a release upon payment of $1,500. The court did not immediately order her into custody, but instead ordered her to check into an inpatient substance abuse treatment program and to report to the Livingston County Jail on September 14, 2001, to serve her term, unless she was in a drug treatment program.

On the night of September 7-8, 2001, Livingston County officials transferred her to the custody of Wayne County deputy sheriffs, who transported her to the Wayne County Jail pursuant to outstanding warrants for probation violation. When the officers arrived with plaintiff at the Wayne County Jail, they realized that Deputy Reginald Johnson was alone on duty in the male registry area. Jail regulations require the attendance of a female deputy when female inmates are present. The transporting officers contacted Sergeant Kenneth Dawwish to advise him of the situation. He permitted them to leave plaintiff alone with Johnson.

After the transporting officers left, Johnson kept plaintiff with him in the command "bubble" instead of placing her in a cell. He allegedly commented to plaintiff that he could "help" her and that she would be "indebted" to him for his help. Plaintiff's complaint avers that she interpreted Johnson's comments as an offer of favorable treatment in exchange for sexual favors. Johnson placed her in Cell No. 2 without locking the door, but, for no apparent reason, switched her to Cell No. 7, which was dark and infested with cockroaches. Plaintiff allegedly begged him to let her out. Johnson asked plaintiff whether she would be a "good girl" before he released her from Cell No. 7. He then directed her into a private office that was closed to inmates and outside the range of surveillance cameras. Johnson sexually assaulted plaintiff inside the office. He partially removed her clothes and fondled her breasts and buttocks. He ejaculated on her clothing and made an unsuccessful attempt to sexually penetrate her. Afterward, a female officer, apparently unaware of the assault, escorted plaintiff to the women's area of the jail.

Plaintiff reported the incident to the department's officials, and the department later terminated Johnson's employment. He was subsequently convicted of criminal sexual conduct. Defendants do not dispute that Johnson sexually assaulted plaintiff inside the jail, although they challenge her allegations regarding the details of the events preceding the assault.

II. RESPONDEAT SUPERIOR LIABILITY

On appeal, plaintiff first claims that the trial court erred by determining that Wayne County and the department could not be found liable under a theory of respondeat superior. We agree with plaintiff.

This Court reviews de novo a trial court's resolution of a summary disposition motion. Reed v. Breton, 475 Mich. 531, 537, 718 N.W.2d 770 (2006). Defendants moved for summary disposition under MCR 2.116(C)(8) and (10). A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint. Adair v. Michigan, 470 Mich. 105, 119, 680 N.W.2d 386 (2004). The reviewing court accepts all well-pleaded factual allegations as true and construes them in a light most favorable to the nonmoving party. Id. The motion may be granted only where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Id.

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Wilson v. Alpena Co. Rd. Comm., 474 Mich. 161, 166, 713 N.W.2d 717 (2006). When ruling on a motion brought under MCR 2.116(C)(10), the trial court must consider the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Reed, supra at 537, 718 N.W.2d 770. The moving party is entitled to judgment as a matter of law if the proffered evidence fails to establish a genuine issue of material fact. Id.

The question raised here is whether the rule of strict vicarious liability for employers, applicable in quid pro quo sexual harassment cases in the employment discrimination context, also applies to quid pro quo sexual harassment arising from the provision of public accommodations and public services when the harassment consists of a sexual assault. This is a question of first impression in Michigan.

The CRA defines discrimination based on sex to include sexual harassment. MCL 37.2103(i) defines sexual harassment as follows:

(i) 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.

This definition is generally applicable to all provisions of the CRA and does not differentiate between discrimination in employment, public accommodations, or public services.

Sexual harassment that falls within subsection i or ii of this definition is known as quid pro quo harassment. Sexual harassment that falls within subsection iii is known as hostile environment sexual harassment. Chambers v. Trettco, Inc., 463 Mich. 297, 310, 614 N.W.2d 910 (2000). In order to establish a claim of quid pro quo harassment in the employment context, a plaintiff must demonstrate (1) that she was subjected to unwelcome sexual conduct or communication as described in the statute and (2) that her employer or the employer's agent used her submission to or rejection of the unwanted conduct as a factor in a decision affecting her employment. Id. at 310, 614 N.W.2d 910. By analogy, a plaintiff claiming quid pro quo harassment in the context of public accommodations or public services must show that the provider of those services or accommodations, or the provider's agent, used her submission to or rejection of the unwanted conduct as a factor in a decision affecting the plaintiff's access to the public services or accommodations.

Plaintiff alleged that Johnson subjected her to unwanted sexual conduct under circumstances that suggested that her treatment as an inmate would depend on whether she submitted to that conduct. She alleged that Johnson fraternized with her by talking about having a close personal relationship with her in which she would be "indebted" to him upon her release. Johnson moved her to an uncomfortable cell and asked her whether she would be a "good girl" before he released her. He did not refer her to a female deputy or the female area of the jail until after he sexually assaulted her. These allegations permit an inference that his treatment of plaintiff in the jail would depend on whether she complied with his request for sexual favors, and the complaint therefore sufficiently alleges quid pro quo sexual harassment. Chambers, supra at 310-311, 614 N.W.2d 910. While defendants challenge certain aspects of plaintiff's amended pleading, they do not argue that plaintiff failed to allege facts in support of these elements. Instead, they argue that plaintiff failed to establish their vicarious liability for Johnson's conduct.

The parties' primary dispute arises from their conflicting views regarding the application of Champion v. Nationwide Security, Inc., 450 Mich. 702, 545 N.W.2d 596 (1996), and Zsigo v. Hurley Med. Ctr., 475 Mich. 215, 716 N.W.2d 220 (2006). In Champion our Supreme Court held that a supervisor's sexual assault of a subordinate employee is a form of quid pro quo sexual harassment and that the employer is liable for the supervisor's conduct where the assault is "accomplished through the use of the supervisor's managerial powers." Id. at 704, 545 N.W.2d 596. The Court...