Jager v. Nationwide Truck Brokers, Inc.

• Decision Date: 18 October 2002
• Docket Number: Docket No. 226007,Docket No. 228672.
• Citation: 252 Mich. App. 464,652 N.W.2d 503
• Parties: Brenda Sue JAGER, Plaintiff/Counterdefendant-Appellant, v. NATIONWIDE TRUCK BROKERS, INC., Defendant-Appellee, and James Wilkerson, Defendant/Counterplaintiff-Appellee, and Designed Administrative Resources and Technologies, Inc., and Simplified Employment Services, Inc., Defendants.
• Court: Court of Appeal of Michigan — District of US

652 N.W.2d 503

252 Mich. App. 464

Brenda Sue JAGER, Plaintiff/Counterdefendant-Appellant, v. NATIONWIDE TRUCK BROKERS, INC., Defendant-Appellee, and James Wilkerson, Defendant/Counterplaintiff-Appellee, and Designed Administrative Resources and Technologies, Inc., and Simplified Employment Services, Inc., Defendants.

Docket Nos. 226007, 228672.

Court of Appeals of Michigan.

Submitted May 8, 2002, at Grand Rapids.

Decided August 9, 2002, at 9:20 a.m.

Released for Publication October 18, 2002.

Eardley Law Offices, P.C. (by Eugenie B. Eardley), Cannonsburg, for the plaintiff.

Warner Norcross & Judd LLP (by Paul T. Sorensen and Andrea J. Bernard), Grand Rapids, for Nationwide Truck Brokers, Inc., and James Wilkerson.

Before: WILDER, P.J., and BANDSTRA and HOEKSTRA, JJ.

HOEKSTRA, J.

In these consolidated appeals stemming from plaintiff's sexual harassment action against her employers and her supervisor, plaintiff appeals as of right the trial court's grant of summary disposition in favor of defendant Nationwide Truck Brokers, Inc. (NTB), and defendant James Wilkerson (Docket No. 226007), and the trial court's grant of case evaluation sanctions to those defendants (Docket No. 228672). We affirm.

I. Facts and Procedural History

Plaintiff was employed with defendants Designed Administrative Resources and Technologies, Inc. (DART), and Simplified Employment Services, Inc. (SES).¹ Through an employee lease agreement, plaintiff worked for NTB under the supervision of Wilkerson as a log entry clerk in NTB's safety department. According to plaintiff, in August 1996, Wilkerson began making unwanted sexual advances toward her, including sending her sexually explicit electronic mail "pop up" messages, repeatedly asking her to go out with him, and telling her that she "smelled" good. Further, Wilkerson allegedly grabbed her breasts and buttocks, put his face close to her breasts, pulled her skirt up over her waist, ran a toy golf club up the slit of her skirt, presented her with a gift of lingerie, and made sexually explicit remarks to her.

Plaintiff testified at a deposition that she told certain employees of NTB about Wilkerson's conduct, including Dave Wojtaszek and Mark Doyle, and talked to Dave Birge about possibly transferring to his department. On February 17, 1997, plaintiff left work at NTB. Thereafter, plaintiff contacted an attorney, who sent a letter on that same date to Henry Schwarz, the president of NTB, notifying NTB of the harassment. Plaintiff was given paid leave, as she requested, and Wilkerson was placed on suspension pending the outcome of an investigation.

NTB, DART, and SES conducted an investigation and were unable to substantiate plaintiff's allegations of harassment. Thereafter, NTB invited plaintiff to return to work at NTB, but indicated that plaintiff would not have any contact with Wilkerson, either directly or indirectly. Similarly, DART and SES offered to assist plaintiff with finding a new job assignment if she preferred not to return to NTB. Plaintiff declined both offers.

On June 8, 1998, plaintiff filed a complaint against NTB, DART, SES, and Wilkerson, alleging two counts of discrimination in violation of Michigan's Civil Rights Act (CRA), M.C.L. § 37.2101 et seq. The only count at issue on appeal is plaintiff's claim of "sexual discrimination and harassment."² Defendants answered the complaint, and Wilkerson also filed a counterclaim alleging slander and intentional infliction of emotional distress.³ Discovery ensued and in September 1999, NTB and Wilkerson moved for summary disposition under MCR 2.116(C)(10). These defendants argued, in essence, that plaintiff could not demonstrate quid pro quo sexual harassment because defendants took no adverse employment action against plaintiff and that plaintiff could not demonstrate a hostile work environment because she had not properly notified NTB of the harassment. In response, plaintiff claimed she was subjected to severe and pervasive harassment and that notice had been given to defendant NTB because plaintiff told NTB employees Dave Wojtaszek, Mark Doyle, and Al Szukala about the harassment.

After a hearing on the motion, on February 4, 2000, the trial court granted summary disposition in favor of NTB and Wilkerson and dismissed the sexual harassment count of plaintiff's complaint. The trial court noted that under the quid pro quo theory of sexual harassment, plaintiff had not demonstrated that any adverse job action was taken against her. The trial court also rejected plaintiff's hostile environment sexual harassment claim because NTB was not notified of the sexual harassment until NTB received the letter from plaintiff's attorney and thereafter NTB suspended Wilkerson, provided plaintiff with paid leave, and conducted a prompt investigation. Further, the trial court explained that plaintiff provided no authority for the proposition that an individual employee could be held liable for sexual harassment where the employer had been dismissed.

In another order relevant to this appeal, the trial court denied plaintiff's oral motion to amend the complaint to add an assault and battery count against Wilkerson. Further, NTB and Wilkerson moved for case evaluation sanctions in accordance with MCR 2.403(O), which the trial court awarded, albeit in an amount less than requested.

II. Summary disposition of plaintiff's sexual harassment claims against NTB

On appeal, plaintiff first argues that the trial court erred in granting summary disposition pursuant to MCR 2.116(C)(10) in favor of NTB under two separate theories of liability, quid pro quo sexual harassment and hostile environment sexual harassment. Plaintiff claims that she produced sufficient evidence to create a question of fact and, thus, that her sexual harassment claims under these theories should have gone to a jury. We review de novo a trial court's grant of summary disposition. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998).

A motion pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the claim. Maiden v. Rozwood, 461 Mich. 109, 120, 597 N.W.2d 817 (1999). "When reviewing a motion for summary disposition brought under MCR 2.116(C)(10), the trial court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence submitted by the parties in the light most favorable to the party opposing the motion." Meyer v. Center Line, 242 Mich. App. 560, 574, 619 N.W.2d 182 (2000). Summary disposition is appropriate where the proffered evidence fails to establish a genuine issue of material fact. Maiden, supra; Smith v. Globe Life Ins. Co., 460 Mich. 446, 455-456, n. 2, 597 N.W.2d 28 (1999).

The CRA prohibits an employer from, among other things, discriminating because of sex, which includes sexual harassment.⁴ MCL 37.2202(1); MCL 37.2103(i); Chambers v. Trettco, Inc. (On Remand), 244 Mich.App. 614, 617, 624 N.W.2d 543 (2001). Section 103(i) of the act, M.C.L. § 37.2103(i), defines 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....

(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....

(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.

When sexual harassment falls under one of the first two subsections, it is commonly labeled quid pro quo harassment, and when it falls under the third subsection, it is commonly labeled hostile environment harassment. Chambers v. Trettco, Inc., 463 Mich. 297, 310, 614 N.W.2d 910 (2000).

With regard to each of these two categories of sexual harassment, our Supreme Court has identified the elements that a plaintiff must establish to make out a claim. Id. Quoting its previous decisions in Champion v. Nationwide Security, Inc., 450 Mich. 702, 545 N.W.2d 596 (1996), and Radtke v. Everett, 442 Mich. 368, 501 N.W.2d 155 (1993), our Supreme Court explained:

In order to establish a claim of quid pro quo harassment, an employee must, by a preponderance of the evidence, demonstrate:

"(1) that she was subject to any of the types of unwelcome sexual conduct or communication described in the statute, and (2) that her employer or the employer's agent used her submission to or rejection of the proscribed conduct as a factor in a decision affecting her employment. [Champion, supra at 708-709, 545 N.W.2d 596.]"

In order to establish a claim of hostile environment harassment, an employee must prove the following elements by a preponderance of the evidence:

"(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.]" [Chambers, supra, 463 Mich. 310-311, 614 N.W.2d 910.]

However, when hostile environment harassment is committed by an agent of the employer, an employer may avoid liability if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged harassment. Chambers, supra, 463 Mich. 312, 614 N.W.2d 910. "The bottom line is that, in cases involving a hostile work environment claim, a plaintiff must show some fault on the part of the employer." Id. "An employer, of course, must have notice of alleged...