CINDY L ZIRGIBEL V LOBDELL-EMERY CORPORATION
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STATE OF MICHIGAN
COURT OF APPEALS
CINDY L. ZIRGIBEL,
UNPUBLISHED
March 30, 1999
Plaintiff-Appellee,
v
No. 201392
Gratiot Circuit Court
LC No. 95-003662 CL
LOBDELL-EMERY CORPORATION, d/b/a
LOBDELL-EMERY MANUFACTURING
CORPORATION,
Defendant-Appellant.
Before: MacKenzie, P.J., and Whitbeck and G. S. Allen, Jr.*, JJ.
MacKENZIE, P.J. (dissenting).
I respectfully dissent. I would affirm the trial court’s denial of defendants’ motion for directed
verdict with regard to plaintiff’s claim of sexual harassment by Robert Gullage.
When evaluating a motion for directed verdict, a court must consider the evidence in a light most
favorable to the nonmoving party, making all reasonable inferences in favor of the nonmoving party.
Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997). Directed verdicts
are appropriate only when no factual question exists upon which reasonable minds may differ. Id.
In Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993), our Supreme Court
set forth the five necessary elements to establish a prima facie case of a hostile work environment: (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. A single incident of sexual harassment may establish a
hostile work environment, provided the incident is sufficiently extreme. Id., pp 394-396.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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The majority concludes that, as a matter of law, Gullage’s conduct was not sufficiently severe to
create a hostile work environment. I disagree with that conclusion. There is no question that the
conduct in this case did not rise to the level of rape or violent sexual assault, two scenarios used by the
Radtke Court to illustrate severe single incidents of misconduct. 442 Mich 395. Nevertheless, viewing
the evidence in a light most favorable to plaintiff, I am of the opinion that reasonable minds could differ
as to whether Gullage’s conduct toward plaintiff was sufficiently severe to create a hostile work
environment. Within a matter of a few hours, Gullage repeatedly arranged to be alone with plaintiff,
insisted that he drive her to the hotel although she wanted to go with her coworkers, insisted that plaintiff
ride in the hotel elevator with him although she wanted to take the stairs, persistently touched her and
her clothing after being asked not to, suggested that she go swimming in her underwear, attempted to
open her jacket, and suggested that they spend the night together. Even outside plaintiff’s presence, he
continued to pursue her, telephoning her in the early morning hours. Plaintiff was not in a position to
escape Gullage’s behavior since he was her supervisor for this work assignment, they were staying at
the same hotel, plaintiff had no transportation, and she was not familiar with the Dearborn area.
Giving the benefit of reasonable doubt to plaintiff, as it was obligated to do, the trial court
denied defendant’s motion for directed verdict. In my opinion, this was correct. As characterized by
the majority, Gullage’s conduct was “unquestionably reprehensible” and “despicable.” Whether that
predatory conduct was severe enough to create an intimidating, hostile, or offensive work environment
was for the jury – not the trial judge or this Court – to decide.
The majority emphasizes that the defendant in this case is plaintiff’s employer and not Gullage.
That, in my estimation, goes to the question whether defendant has an affirmative defense rather than the
question whether plaintiff’s case should have gone to the jury in the first instance. In Radtke, supra, pp
396-397, the Court observed that an employer may avoid liability for an employee’s conduct if it
adequately investigated and took prompt and appropriate remedial action upon notice of the alleged
hostile work environment. More recently, in Faragher v City of Boca Raton, 524 US 775; 118 S Ct
2275; 141 L Ed 2d 662 (1998) and Burlington Industries, Inc v Ellerth, 524 US 742; 118 S Ct
2257; 141 L Ed 2d 633 (1998), the United States Supreme Court examined claims of sexual
harassment by supervisors in violation of title VII of the Civil Rights Act of 1964. See 42 USC
§ 2000e-2(a)(1). There, the Court held that where an employee is subjected to an actionable hostile
work environment created by a supervisor, the employer is vicariously liable for the hostile environment
unless the employer can prove as an affirmative defense that (1) the employer exercised reasonable care
to prevent and correct promptly any sexually harassing behavior, and (2) the employee unreasonably
failed to take advantage of any preventive or corrective opportunities provided by the employer to
avoid harm. Faragher, supra, 118 S Ct 2275, 2292-2293; Burlington, supra, 118 S Ct 2257,
2270.
In my view, rather than granting a directed verdict, the proper approach was to let the jury
decide whether Gullage’s conduct amounted to creating a hostile work environment, and if so, whether
defendant’s response was adequate under Radtke, Faragher and Burlington, supra, to avoid liability.
The jury made that decision and this Court should not interfere with its verdict. Accordingly, I would
affirm.
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/s/ Barbara B. MacKenzie
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