Pena v. Ingham County Road Com'n, Docket No. 231482.

CourtCourt of Appeal of Michigan (US)
Citation255 Mich. App. 299,660 N.W.2d 351
Docket NumberDocket No. 231482.
PartiesJoseph Guadalupe PENA, Plaintiff-Appellee, v. INGHAM COUNTY ROAD COMMISSION, Defendant-Appellant.
Decision Date06 May 2003

660 N.W.2d 351
255 Mich.
App. 299

Joseph Guadalupe PENA, Plaintiff-Appellee,

Docket No. 231482.

Court of Appeals of Michigan.

Submitted January 8, 2003, at Lansing.

Decided February 11, 2003, at 9:00 a.m.

Released for Publication May 6, 2003.

660 N.W.2d 353
Fett & Linderman, P.C. (by James K. Fett and Marla A. Linderman), Pinckney, for the plaintiff

Michael R. Kluck & Associates (by Michael R. Kluck), Okemos, for the defendant.


660 N.W.2d 352

Defendant appeals of right from the final judgment entered in favor of plaintiff on his discrimination and retaliation claims brought under the Civil Rights Act (CRA), M.C.L. § 37.2101 et. seq. We affirm in part, reverse in part, and remand.

I. Material Facts and Proceedings

Because of the limited nature of the issues properly presented on appeal, we provide the reader with only a brief summary of the material facts and proceedings that led to the jury verdict. Plaintiff commenced his employment with defendant in October 1987. Plaintiff continues to be employed by defendant and is currently a class-four highway worker.

The amended complaint filed by plaintiff asserts that he was subjected to a hostile work environment on the basis of his race or national origin, to disparate treatment, and to retaliation. Specifically, plaintiff claimed that from the inception of his employment he has been on the receiving end of numerous derogatory and discriminatory remarks directed at his national origin, and that when he opposed this alleged harassment (including by the filing of this lawsuit), defendant took adverse employment action against him. Defendant sought pretrial dismissal of plaintiff's claims on the basis that a hostile work environment did not exist, and plaintiff had not suffered an adverse employment action. Defendant's motion for summary disposition was denied by the trial court.

At trial, plaintiff presented testimony regarding the repeated national-origin slurs that had been directed at him over the course of his thirteen years of employment. Specifically, plaintiff and other employees testified that plaintiff was called a "wetback," "spic," "beaner," "f___ing Mexican" and "pickle plucker" by coworkers and supervisors alike on an almost daily basis throughout the course of his employment. Defendant did not deny that these words were at times utilized by its workers. However, defendant presented testimony that this was simply good natured "shop talk," that plaintiff had good working

660 N.W.2d 354
relations with the supervisors and coworkers he now complains of, and that at some point the slurs ended

The jury apparently accepted plaintiff's version of the facts, because it returned a verdict finding defendant liable for both a hostile work environment and for retaliating against plaintiff.1 The jury awarded $650,000 in "damages to date" while awarding him an additional $650,000 for "future damages." The verdict form did not differentiate between the amount awarded for the harassment claim and the amount awarded for the retaliation claim.

On appeal, defendant argues that the trial court committed three errors that require reversal, namely: (1) that it was denied a fair trial by the trial court's decision to exclude from evidence plaintiff's own workplace conduct; (2) that plaintiff's retaliation claim should have been summarily dismissed because plaintiff had not suffered an adverse employment action; and (3) that the trial court should have set aside the future damages award because it was excessive in light of the evidence and was punitive in nature. For the forthcoming reasons, we agree with defendant that plaintiff's retaliation claim should have been summarily dismissed. Defendant's remaining arguments, however, do not garner our support.2

II. Analysis

A. The Trial Court's Evidentiary Decision

"A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion." Barrett v. Kirtland Community College, 245 Mich.App. 306, 325, 628 N.W.2d 63 (2001). Establishing an abuse of discretion is, however, quite difficult, for an abuse will only be found "when the decision is `so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.'" Dacon v. Transue, 441 Mich. 315, 329, 490 N.W.2d 369 (1992), quoting Spalding v. Spalding, 355 Mich. 382, 384-385, 94 N.W.2d 810 (1959). Because such an abuse will usually occur only in extreme cases, Barrett, supra at 325, 628 N.W.2d 63, it is only stating the obvious to say that an abuse of discretion will normally not be found when addressing a close evidentiary question. Hilgendorf v. Saint John Hosp. & Medical Ctr., 245 Mich.App. 670, 707 n. 49, 630 N.W.2d 356 (2001), quoting People v. Bahoda, 448 Mich. 261, 289, 531 N.W.2d 659 (1995), quoting People v. Golochowicz, 413 Mich. 298, 322, 319 N.W.2d 518 (1982) ("`"The decision upon a close evidentiary question by definition ordinarily cannot be an abuse of discretion."'").

Before the originally scheduled trial date, plaintiff filed a motion in limine. By way of that motion, plaintiff sought to exclude evidence that he was short-tempered, and that he had conflicts with members of the public and with his coworkers. During oral argument on the motion, plaintiff indicated that through his motion in limine he was not seeking to preclude evidence that he utilized ethnic or racial slurs in the workplace. Instead, plaintiff argued that any evidence of coworker confrontations, or abusive and vulgar (but not discriminatory) language should be excluded. After hearing arguments, the trial court entered an order allowing defendant

660 N.W.2d 355
to introduce any evidence that plaintiff utilized racial or ethnic slurs, but precluding defendant from introducing any evidence of abusive or vulgar language utilized by plaintiff or any evidence of his coworker or citizen confrontations, unless plaintiff asserted at trial that he was unlawfully denied a promotion.

Citing both state and federal law, defendant argues that the trial court should not have prevented it from showing to the jury that plaintiff utilized foul language and made threats of harm to coworkers and to one member of the public. In particular, defendant claims support for this proposition in Radtke v. Everett, 442 Mich. 368, 501 N.W.2d 155 (1993), Henson v. Dundee, 682 F.2d 897 (C.A.11, 1982), Scusa v. Nestle USA Co. Inc., 181 F.3d 958 (C.A.8, 1999), and Morgan v. Hertz Corp., 542 F.Supp. 123 (W.D.Tenn., 1981). None of these cases, however, supports the specific argument made by defendant. Rather, they support the trial court's decision.

In Radtke, our Supreme Court held that in determining whether a work environment is illegally hostile, it must be gauged by a reasonable person's standard viewing the "totality of circumstances." Radtke, supra at 394, 501 N.W.2d 155. This does not mean, as defendant would have us hold, that everything affecting plaintiff's employment is relevant and admissible in a harassment case. Rather, we have previously held that what is relevant is evidence that plaintiff himself engaged in the type of conduct similar to that at issue in the case. In Grow v. W A Thomas Co., 236 Mich.App. 696, 706, 601 N.W.2d 426 (1999), we held in a sexual harassment case that evidence of the plaintiff's own sexual conduct at work was relevant in determining whether the conduct complained of (also sexual in nature) was "unwelcome" or "hostile":

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 Arguette's alleged acts were "unwelcome." See, e.g., Balletti v. Sun-Sentinel Co., 909 F.Supp. 1539, 1547 (S.D.Fla., 1995) ("Where a plaintiff's action in the work place shows that she was a willing and frequent participant in the conduct at issue, courts are less likely to find that the conduct was `unwelcome' or `hostile.'") [.] However, plaintiff's participation in sexual behavior or comments, standing alone, does not necessarily defeat a claim of hostile work environment. To the contrary, it is merely a factor to consider when determining whether the conduct or comments at issue were "unwelcome."

Accordingly, in a hostile work environment claim, a plaintiff's engaging in conduct similar to that complained of is relevant to a proper determination whether the plaintiff was subjected to an unlawfully hostile work environment. Grow, supra. This same conclusion has been reached by the federal courts that have considered this issue under Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. See, e.g., Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1537-1538 (C.A.10, 1995); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 729-730 (C.A.8, 2000); Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 962-963 (C.A.8, 1993); Barta v. Honolulu, 169 F.R.D. 132 (D.Hawai'i, 1996); Herchenroeder v. Johns Hopkins Univ. Applied Physics Laboratory, 171 F.R.D. 179, 182 (D.Md., 1997). The rationale of these cases is a logical one: if the plaintiff himself sees fit to utilize discriminatory language or commit discriminating acts in the workplace, the jury should be apprised of that fact to determine how that plaintiff would reasonably

660 N.W.2d 356
perceive his work environment when he is the recipient of the same or similar conduct. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 69, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) ("While `voluntariness' in the sense of consent is not a defense to such a claim, it does not follow that a complainant's sexually provocative speech or dress is irrelevant as a matter of law in determining whether he or she found particular sexual advances...

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