Sheridan v. Forest Hills Public Schools, Docket No. 215572.

• Decision Date: 12 December 2001
• Docket Number: Docket No. 215572.
• Citation: 247 Mich. App. 611,637 N.W.2d 536
• Parties: Vicki S. SHERIDAN, Plaintiff-Appellant, v. FOREST HILLS PUBLIC SCHOOLS, Defendant-Appellee, and Vern Knapp and Citizens Insurance Company of America, Defendants.
• Court: Court of Appeal of Michigan — District of US

637 N.W.2d 536

247 Mich. App. 611

Vicki S. SHERIDAN, Plaintiff-Appellant, v. FOREST HILLS PUBLIC SCHOOLS, Defendant-Appellee, and Vern Knapp and Citizens Insurance Company of America, Defendants.

Docket No. 215572.

Court of Appeals of Michigan.

Submitted February 10, 2000, at Grand Rapids.

Decided September 25, 2001, at 9:25 a.m.

Released for Publication December 12, 2001.

Elizabeth S. Holmes, Grand Rapids, for the plaintiff.

Miller, Johnson, Snell & Cummiskey, P.L.C. (by Jon G. March and Susan B. Hoekema), Grand Rapids, for the defendant.

Before: ZAHRA, P.J., and WHITE and HOEKSTRA, JJ.

ZAHRA, P.J.

Plaintiff Vicki S. Sheridan appeals as of right the circuit court's order granting defendant Forest Hills Public Schools¹ summary disposition under MCR 2.116(C)(10) in this hostile work environment sexual harassment case brought under the Civil Rights Act (CRA), M.C.L. § 37.2101 et seq. We affirm.

FACTS

This case arises out of the alleged sexual harassment of plaintiff by Vern Knapp. Both plaintiff and Knapp were custodians employed by defendant when the alleged sexual harassment occurred. The genuine and material facts viewed in a light most favorable to plaintiff establish the following.² On August 26, 1993, plaintiff informed defendant's assistant superintendent of personnel that she was sexually harassed on the job. In a follow-up meeting on August 31, 1993, plaintiff complained that, in the course of her employment on August 23, 1993, Knapp propositioned her and physically exposed himself to her. Defendant immediately began an investigation that culminated in the termination of Knapp's employment on October 4, 1993.

After reporting the incident, plaintiff took a leave of absence and was subsequently placed on a medical leave. Plaintiff never returned to work. On February 28, 1996, plaintiff brought this suit, specifically alleging that Knapp raped her in defendant's Community and Aquatic Center (the "pool building") in the spring of 1991.³ Plaintiff also alleged that Knapp repeatedly harassed and abused her with "sexual demands, unconsented touchings and propositions to engage in sexual activities." Plaintiff maintained that defendant was liable pursuant to the CRA for Knapp's actions under a theory of respondeat superior.⁴

Defendant brought a motion for summary disposition, arguing, in relevant part, that plaintiff never reported any acts of assault or sexual harassment to defendant before August 1993. Defendant maintained that there was no evidence that it failed to take prompt remedial action against Knapp. In the absence of such evidence, defendant argued, it could not be held liable for the actions of Knapp. The trial court granted defendant's motion for summary disposition. This appeal followed.

A. The management structure of Forest Hills Public Schools

Defendant is a suburban Grand Rapids school district that is operated under the supervision of a superintendent. Employee matters are administered through the assistant superintendent for personnel. Both plaintiff and Knapp were custodians for defendant. Custodians are supervised by the director of buildings and grounds who reports to the director of operations. The director of operations reports directly to the assistant superintendent for personnel. Custodial crews are divided by facility. At each facility, one custodian is designated the "head custodian." The head custodian is responsible for noting attendance and insuring that custodial work is properly completed. When a custodial crew consists of more than one custodian per shift, one member of the shift is designated a "lead custodian," who assumes the duties of the head custodian for that shift. All custodians are members of a collective bargaining unit. The director of buildings and grounds, and all persons above him are not members of the collective bargaining unit. The lead and head custodians do not have authority to hire, fire, or discipline employees or to render recommendations regarding pay, hours, or job transfers. Such decisions are made by the superintendent on the basis of recommendations from the director of buildings and grounds, the director of operations, and the assistant superintendent for personnel.

B. Claims of harassment before August 1993

1. Knapp's harassment of plaintiff

Plaintiff testified that in April 1990 Knapp entered the pool building and raped her. Plaintiff admitted that she did not report the rape to anyone. Plaintiff also testified that after the rape, Knapp harassed her by calling her pager repeatedly and by loitering outside the pool building while plaintiff worked. Plaintiff informed Donald Finch, the director of buildings and grounds, and Kathy Knapp, the head custodian at the pool building, that she did not feel safe working nights.⁵ Plaintiff asked that security be provided during her shift. However, plaintiff did not complain to anyone that Knapp was harassing her. Plaintiff also testified that in 1991 Knapp entered the pool building and assaulted her in the boiler room by kissing her on the lips and touching her inappropriately. Again, plaintiff admitted that she did not report this incident to anyone.

Later in 1991, plaintiff met with Finch and Terri Handlin, director of the community education program and pool building administrator, to discuss job-related problems, including plaintiff's security concerns and plaintiff's conduct of bringing her children to work.⁶ Handlin's handwritten notes from the meeting indicate that plaintiff believed Knapp was calling her pager and loitering outside the pool building while plaintiff worked. The notes also indicate, however, that plaintiff did not want Finch or Handlin to assist plaintiff in dealing with Knapp. Plaintiff's recollection of the meeting is consistent with Handlin's notes. Plaintiff testified that Handlin and Finch offered to assist her if Knapp was causing her problems. However, plaintiff declined their help, indicating that she "will take care of it [and] handle it" herself. Plaintiff admitted that she did not tell Finch or Handlin about the rape, and she did not provide them with any specifics about the assault in the boiler room. Handlin discussed the matter with a number of people, including Linda VanderJagt, the assistant superintendent for personnel.

Plaintiff also met with VanderJagt, Paul Northuis, the director of operations, and a union representative sometime in the summer of 1991 to discuss her work situation. VanderJagt testified that she asked plaintiff to attend the meeting to discuss plaintiff's claims that Knapp was making noises outside the pool building and calling plaintiff's pager.⁷ VanderJagt asked plaintiff if Knapp was bothering her. Plaintiff responded that it was none of their business. Plaintiff claimed that she and Knapp were friends. Plaintiff indicated that she did not want the school involved in her personal life. VanderJagt focused on Knapp because it was brought to her attention that plaintiff had mentioned his name as being the person calling her pager and loitering outside the pool building while she worked. Additionally, VanderJagt was aware that Knapp was previously disciplined because of a 1988 complaint of sexual harassment by another employee.

After VanderJagt met with plaintiff, she met with Knapp. Because plaintiff did not make any complaint against Knapp, VanderJagt merely informed Knapp that there had been rumors that Knapp had made "inappropriate statements or gestures." VanderJagt reminded Knapp that, pursuant to the 1988 discipline, any further acts of harassment would result in the termination of his employment. VanderJagt did not discipline Knapp at that time.

In September 1991, plaintiff was assigned to work at Northern High School (Northern). Shortly thereafter, Knapp applied for and received a custodial position at Northern. Plaintiff testified that after Knapp received the position she told Mark Scoby, the head custodian at Northern, that "[Knapp] better not come on my side of the building." Scoby specifically inquired about what had happened at the pool building. Plaintiff informed Scoby that the pool incident "was bad." However, plaintiff admitted that she did not provide Scoby with specifics and did not tell Scoby that she had been raped or sexually assaulted.⁸ Plaintiff testified that Scoby told her not to worry and that if anything happened at Northern, "we'll take care of it."

Plaintiff claimed that in the summer of 1993 Knapp tried to communicate with her and "rubbed up" against her when she and Knapp were assigned to work together at Northern. Plaintiff complained to Scoby about Knapp making physical contact with her. Scoby confronted Knapp and told plaintiff that she could work in a different area. Neither Scoby nor plaintiff informed their immediate supervisor, Finch, or anyone else about the incident of physical contact.

2. Prior complaints against Knapp

In 1988, a female employee claimed that she was sexually harassed by Knapp in the course of her employment. Defendant immediately investigated the complaint and found it to be meritorious. Knapp was disciplined. The discipline included a five-day suspension without pay. Additionally, Knapp was ordered to stay away from the employee who was the victim of his harassment, reassigned, and placed on probation. Shortly after Knapp was suspended in 1988, another female employee informed Finch that she had "problems" with Knapp three years earlier.⁹ No specifics were provided to Finch and no formal complaint was made.¹⁰

ANALYSIS

We review de novo a motion for summary disposition based on MCR 2.116(C)(10). Motions brought under this court rule test the factual support of a claim. Quinto v. Cross & Peters Co., 451 Mich. 358, 362-363, 547 N.W.2d 314 (1996). The moving party has the initial burden of supporting its position with documentary evidence such as affidavits, depositions, admissions, or interrogatory responses. Smith v. Globe Life Ins. Co., 460 Mich. 446,...