ZENOVIA MURRAY V WHITE CASTLE SYSTEMS INC
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STATE OF MICHIGAN
COURT OF APPEALS
ZENOVIA MURRAY,
UNPUBLISHED
February 2, 1999
Plaintiff-Appellant,
v
No. 203004
Wayne Circuit Court
LC No. 96-604197 CZ
WHITE CASTLE SYSTEMS, INC., and
MARINA JONES,
Defendants-Appellees,
and
DEREK NEWMAN,
Defendant.
Before: Kelly, P.J., and Hood and Markey, JJ.
PER CURIAM.
In this sexual harassment action, plaintiff appeals as of right from an order granting summary
disposition in favor of defendants White Castle Systems, Inc., and Marina Jones pursuant to MCR
2.116(C)(10). Defendant Newman was never served and therefore is not a party to this appeal. We
affirm in part, reverse in part, and remand for further proceedings.
Plaintiff, a seventeen year old entry-level employee of White Castle, alleged that during her 3:00
p.m. to 11:00 p.m. shift on July 31, 1995, she was attacked by her assistant supervisor, Derek
Newman, on three occasions. During each encounter, Newman picked plaintiff up and attempted to
kiss her. On the third occasion, however, Newman pulled plaintiff into the manager’s office where he
sucked on her cheek causing a bruise. Crew manager Jones witnessed some of the events but did not
intercede. Plaintiff testified that in the preceding months, Newman had made several remarks to her of a
sexual nature and had once touched her buttocks. However, plaintiff did not complain to anyone until
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August 1, 1995. At that time, Newman was immediately suspended. Five days later, he was fired.
Plaintiff never returned to work after the incident.
Plaintiff first argues that the trial court erred in dismissing her claim of quid pro quo sexual
harassment. We agree and find that genuine issues of material fact existed precluding summary
disposition.
The Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.,
specifically outlaws two forms of sexual harassment: hostile work environment and quid pro quo sexual
harassment. Radtke v Everett, 442 Mich 368, 380-381; 501 NW2d 155 (1993). The act further
refines the definition of sexual harassment by setting forth two separate theories under which a party
may make out a claim for quid pro quo sexual harassment:
(i) Discrimination because of sex includes sexual harassment which means unwelcome
sexual advances, requests for sexual favors, and other verbal or physical conduct or
communication of a sexual nature when:
(i) Submission to such 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 such conduct or communication by an
individual is used as a factor in decisions affecting such individual’s employment, public
accommodations or public services, education, or h
ousing. [MCL 37.2103(i); MSA
3.548(103)(i).]
In order to pursue a claim under MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii), the plaintiff must
establish: “(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 v
Nationwide Security, Inc, 450 Mich 702, 708-709; 545 NW2d 596 (1996). In this case, we believe
that plaintiff has presented evidence of both elements.
It is undisputed that plaintiff was subject to unwelcome sexual advances in the form of
suggestive remarks, touching and attempted kisses. Thus, the first prong is satisfied.
Contrary to defendant’s arguments, plaintiff has made out a prima facie case under the second
prong by evidence that Newman forced himself on her after she refused his advances. In Champion,
supra, a case involving the rape of an employee by her supervisor, the Supreme Court noted:
It is this Court’s opinion that Mr. Fountain’s decision to rape Ms. Champion
constituted the requisite ‘decision affecting . . . employment.’ In addition, this was
a decision taken in response to Ms. Champion’s refusal to voluntarily submit to Mr.
Fountain’s sexual request. Indeed, lack of consent is the gravamen of a sexual assault.
[champion, supra, 450 Mich at 709-710 (emphasis added).]
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Similarly, Newman’s decision to forcibly kiss plaintiff was itself the decision affecting her employment
and was similarly triggered by her refusal to submit to his sexual advances. Additionally, the fact that
Newman did not discharge plaintiff does not vitiate her claim:
However, in ruling that the constructive discharge in this case did not result from Ms.
Champion’s refusal to submit to Mr. Fountain’s sexual conduct, the Court of Appeals
misapprehends the point when the constructive discharge occurred. The discharge did
not occur following the rape, but contemporaneously w it. The decision to use
ith
force, in other words, was the equivalent of a decision to discharge because Mr.
Fountain should have expected that it would lead to Ms. Champion’s resignation. This
“decision affecting .. . employment” is actionable under . . . because Ms. Champion’s
refusal to comply with Mr. Fountain’s requests for sexual favors led to his decision to
use force. [Champion, supra, 450 Mich at 711 (emphasis added) (citation omitted).]
We note that Newman was an assistant supervisor and was often, and particularly on July 31, 1995, the
only manager on duty. He used his authority over plaintiff and his key to the manager’s office to force
himself on plaintiff, and no fellow employees came to her aid. We conclude, therefore, that plaintiff has
made out a prima facie case of quid pro quo sexual harassment under MCL 37.2103(i)(ii); MSA
3.548(103)(i)(ii).
With respect to defendants’ argument that plaintiff has waived her quid pro quo claim by failing
to plead it in her complaint, we find that facts sufficient to support the theory were adequately set forth
in plaintiff’s complaint.1 On remand, the trial court is instructed to allow plaintiff to refine her quid pro
quo claim as provided by MCR 2.116(I)(5) and MCR 2.118.
Next, plaintiff argues that the trial court erred when it dismissed her sexual harassment claim
premised upon hostile work environment. We disagree.
Michigan law holds that an employer can avoid liability for a hostile work environment claim if it
adequately investigates and takes prompt remedial action upon notice of the alleged hostile work
environment. Radtke, supra, 442 Mich at 396; Downer v Detroit Receiving Hosp, 191 Mich App
232, 234; 477 NW2d 146 (1991). “An employer, of course, must have notice of the alleged
harassment before being held liable for not implementing [corrective] action.” Radtke, supra, 442
Mich at 395; Downer, supra at 235.
Since Radtke, the United States Supreme Court has held that, in Title VII cases where
“vicarious liability” is sought to be imposed on an employer “for an actionable hostile environment
created by a supervisor with immediate (or successively higher) authority over the employee” and “no
tangible employment action is taken, a defending employer may raise an affirmative defense to liability or
damages . . . compris[ing] two necessary elements: (a) that the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.” Burlington Industries, Inc v Ellerth, ___ US ___; 118 S Ct
2257, 2270; 141 L Ed 2d 633 (1998). Interestingly, the Supreme Court also stated that “
[n]o
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affirmative defense is available . . . when the supervisor’s harassment culminates in a tangible
employment action, such as discharge, demotion, or undesirable reassignment.” Burlington, 118
S Ct at 2270.
The Burlington decision was recently followed by another panel of this Court in a hostile
environment case. See Chambers v Trettco, Inc, ___ Mich App ___; ___ NW2d ____; slip op at 2
(Docket No 202151, published 11/20/98). In Chambers, however, unlike in the present case, “the
jury found that defendant [employer] failed to take prompt remedial action after it knew or should have
known that plaintiff had been sexually harassed.” Chambers, supra, slip op at 3. The Chambers
Court was therefore not faced with the conflict between Radtke and Burlington concerning whether
prompt remedial action is a defense in hostile environment cases.
Further, and also unlike the present case, the plaintiff in Chambers did not immediately resign as
a consequence of the harassment. Chambers, supra, slip op at 1-2. Because of that fact, and because
plaintiff withdrew her claim of retaliation, this Court “[a]ssum[ed] that plaintiff was not discharged for
reporting [her supervisor’s] actions” and found “no tangible employment action.” Chambers, supra,
slip op at 3. Here, by contrast, it could be argued that, under Burlington, there remains a question of
fact concerning whether the supervisor’s harassment resulted in tangible employment action. See
Burlington, 118 S Ct at 2270; see also Champion, supra, 450 Mich at 708-711.We would then be
squarely faced with the issue of whether prompt remedial action continues to be a defense in Michigan
where a “supervisor’s harassment culminates in tangible employment action.” We are, however, bound
by Radtke.
In this case, plaintiff did not complain to anyone at work until August 1, 1995. Newman was
immediately suspended, and discharged six days later. Thus, there is no question that, once notified of
the problem, White Castle took prompt remedial action.
However, although plaintiff presented evidence that Newman had been admonished for dating
co-workers and that he flirted and clowned around with fellow employees, there is no evidence that
Newman had ever engaged in the kind of inappropriate behavior to which plaintiff was subjected. Thus,
plaintiff has failed to raise a question of fact concerning whether White Castle knew about Newman’s
behavior prior to August 1, 1995, and therefore, whether it failed to take prompt remedial action prior
to that date. Under Radtke, the trial court properly granted summary disposition of plaintiff’s hostile
work environment claim.
Lastly, plaintiff contends that the trial court improperly dismissed her claims against Jones.
Plaintiff argues that Jones is liable in this case because she was either an “employer” under the act, or
because she aided and abetted Newman in the harassment. We disagree on both counts.
On the supervisory chain, Jones was a crew manager, which placed her above plaintiff, but
below Newman. There is no evidence that she had authority to make personnel decisions and,
therefore, she was not an “agent” in this context.2 Jenkins v Southeastern Michigan Chapter,
American Red Cross, 141 Mich App 785, 799-800; 369 NW2d 223 (1985). Similarly, the evidence
shows that Jones was merely present during the events and did nothing. There is no indication that
Jones supported, encouraged or incited the harassment. Therefore, plaintiff has failed to create a
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question of fact regarding Jones’ liability under the aiding and abetting provision of the act. See MCL
37.2701(b); MSA 3.548(701)(b).
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Affirmed in part, reversed in part and remanded for further proceedings not inconsistent with this
opinion. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Harold Hood
/s/ Jane E. Markey
1
It is unclear from the trial court’s terse bench decision whether it granted summary disposition on the
quid pro quo claim on the basis of prompt remedial action. We find that, to the extent it did so, the trial
court erred because prompt remedial action is not a defense to a quid pro quo sexual harassment claim.
See Radtke, supra, 442 Mich at 396 n 46; McCalla v Ellis, 180 Mich App 372, 380; 446 NW2d
904 (1989), lv den 434 Mich 893 (1990); see also Blankenship v Parke Care Centers, Inc,, 123
F3d 868, 872-873 (CA 6, 1997), cert den 522 US ___; 118 S Ct 1039; 140 L Ed 2d 105 (1998); 29
CFR § 1604.11(c)-(e); see generally Davis v McNea, 108 F3d 1376; 1997 WL 123745, **4
(Unpublished) (CA 6, 1997).
2
Jones testified in deposition that, if a fight broke out, a crew manager could send the involved
employees “home to come back and talk to a supervisor, but we can’t actually fire them.” We do not
consider this part of the deposition because it was not made part of the record below. However, even
if it had been included below, it fails to show the requisite authority to make personnel decisions.
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