YVONNE ALTAHER V AMERICAN TRANS AIR INC
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STATE OF MICHIGAN
COURT OF APPEALS
YVONNE ALTAHER,
UNPUBLISHED
June 1, 2001
Plaintiff-Appellee,
v
No. 215937
Wayne Circuit Court
LC No. 96-640206-NO
AMERICAN TRANS AIR, INC., an Indiana
Corporation,
Defendant-Appellant,
and
MICHAEL BRANHAM and GARY SCHMANN,
Individually and as Agents and Employees of
Defendant American Trans Air, Inc.,
Defendants.
Before: Griffin, P.J., and Jansen and Gage, JJ.
PER CURIAM.
Defendant American Trans Air (ATA) appeals as of right a jury verdict in the amount of
$190,000 rendered in favor of plaintiff Yvonne Altaher in this cause of action alleging hostile
work environment sexual harassment under the Michigan Civil Rights Act, MCL 37.2101 et seq.;
MSA 3.548(101) et seq. We reverse.
I
Plaintiff instituted this action in September 1996 against defendant ATA and defendants
Branham and Schmann, two flight attendants employed by ATA. In her complaint, plaintiff
contended that she was subjected to sexual harassment while employed as a flight attendant for
ATA. Plaintiff’s complaint included claims of hostile work environment sexual harassment
under the Civil Rights Act,1 negligent supervision,2 and intentional infliction of emotional
1
The Michigan Civil Rights Act prohibits employers from discriminating against an individual
with respect to employment on the basis of sex or marital status. MCL 37.2202; MSA
(continued…)
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distress. Plaintiff’s claims are based on her alleged exposure to conduct that she found to be
offensive and various incidents where remarks allegedly were made about her body odor.
Plaintiff averred that the individual defendants and other coworkers undressed in front of her,
“mooned” her, made derogatory comments about her body and sexual organs, and made sexually
offensive gestures to and about her.
Plaintiff worked for ATA for slightly over one year, from early May 1995 to late May
1996. On June 1, 1996, plaintiff commenced a medical leave, receiving disability benefits until
early September 1997. At that time, plaintiff commenced employment with another airline as a
flight attendant and resigned her employment with ATA. Plaintiff filed the present suit against
defendants in September 1996. The case proceeded to trial by jury and concluded in a verdict
assessing damages against ATA in the amount of $190,000 based on a theory of respondeat
superior, and against each individual defendant in the amount of $5,000.3 Defendant ATA now
appeals the order of judgment.
II
Defendant ATA argues that the trial court erred in denying its motion for a directed
verdict with respect to plaintiff’s hostile environment sexual harassment claim. Defendant
maintains that pursuant to Chamber v Trettco, Inc, 463 Mich 297; 614 NW2d 910 (2000), and
Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993), when a claim of hostile work
environment sexual harassment is alleged under Michigan’s Civil Rights Act, the violation can
only be attributed to the employer on a theory of respondeat superior if the employer failed to
take prompt and appropriate remedial action after having been put on notice of the harassment.
Defendant ATA contends that it maintained a written policy against sexual harassment which
included a complaint procedure which plaintiff never pursued, and plaintiff did not provide ATA
with adequate notice that sexual harassment was occurring; therefore, defendant’s motion for a
directed verdict should have been granted. We agree.
(…continued)
3.5548(202). Discrimination because of sex includes sexual harassment, MCL 37.2103(i)(iii);
MSA 3.548(103)(i)(iii), which is specifically defined in pertinent part to include
. . . unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct or communication of a sexual nature under the following
conditions:
***
(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.
2
Plaintiff’s claim of negligent supervision was dismissed before trial.
3
Defendants Branham and Schmann have not pursued an appeal.
-2-
When evaluating a motion for a directed verdict, a court must consider the evidence in the
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 on which
reasonable minds may differ. Id.
In Radtke, supra at 382-383, our Supreme Court held that to establish a prima facie claim
of hostile environment harassment under our Civil Rights Act, an employee must prove the
following elements: (1) the employee belonged to an affected 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 communication or
conduct was intended to or in fact substantially interfered with the employee’s employment or
created an intimidating, hostile, or otherwise offensive work environment; and (5) respondeat
superior. With regard to the latter element, the Radtke Court explained the underlying basis for
requiring proof of vicarious liability:
“Strict liability is illogical in a pure hostile environment setting. In a
hostile environment case, no quid pro quo exists. The supervisor does not act as
the company; the supervisor acts outside ‘the scope of actual or apparent authority
to hire, fire, discipline, or promote.’ Corporate liability, therefore, exists only
through respondeat superior; liability exists where the corporate defendant knew
or should have known of the harassment and failed to take prompt remedial action
against the supervisor. [Steele v Offshore Shipbuilding, Inc, 876 F2d 1311, 1316
(CA 11, 1989).]” [Id. at 396, n 46.]
Consequently, the Radtke Court held that
Under the Michigan Civil Rights Act, an employer may avoid liability “if
it adequately investigated and took prompt and appropriate remedial action upon
notice of the alleged hostile work environment.” Downer v Detroit Receiving
Hosp, 191 Mich App 232, 234; 477 NW2d 146 (1991) (applying the standard to a
Civil Rights Act claim) . . . . Such prompt and appropriate remedial action will
permit an employer to avoid liability if the plaintiff accuses either a coworker, . . .
or a supervisor of sexual harassment . . . . An employer, of course, must have
notice of alleged harassment before being held liable for not implementing action.
. . . However, if an employer is accused of sexual harassment, then the respondeat
superior inquiry is unnecessary because holding an employer liable for personal
actions is not unfair. [Id. at 396-397, citations and footnotes omitted (emphasis
added).]
Recently, in Chambers, supra, the Michigan Supreme Court reaffirmed the principles of Radtke
and reiterated a plaintiff’s burden of satisfying the notice requirement where hostile work
environment sexual harassment is alleged under the state civil rights act. In so doing, the
Chambers Court expressly declined to apply a divergent standard of proof articulated in two
United States Supreme Court decisions decided after Radtke with regard to similar claims
brought pursuant to Title VII of the federal Civil Rights Act, 42 USC 2000e-2(a)(1). The
Chambers Court acknowledged that in Faragher v City of Boca Raton, 524 US 775; 118 S Ct
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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 held that once a plaintiff has
established that a supervisor created a hostile working environment, the burden then shifts to the
employer to disprove vicarious liability for the supervisor’s actions.4 As the Chambers Court
noted, however, the Faragher/Ellerth affirmative defense would “represent a significant change
in our approach to determining employers’ vicarious liability for sexual harassment” because it
would “shift the burden of proof from the employee to the employer regarding whether the
employer should be held vicariously liable” for an actionable hostile environment created by a
supervisor. Id. at 314. Pointing out significant differences in the language of the state and
federal civil rights statutes, the Chambers Court therefore chose under the circumstances5 not to
rely on federal case law in interpreting the state statute, because to adopt the principles of
Faragher and Ellerth
4
The United States Supreme Court held:
An employer is subject to vicarious liability to a victimized employee for
an actionable hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee. When no tangible employment
action is taken, a defending employer may raise an affirmative defense to liability
or damages, subject to proof by a preponderance of the evidence . . . . The
defense comprises two necessary elements: (a) that the employer reasonably
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 . . . . No affirmative defense is available, however, when the
supervisor’s harassment culminates in a tangible employment action, such as
discharge, demotion, or undesirable reassignment. [Faragher, supra at 807-808;
Ellerth, supra at 765 (emphasis added).]
5
The Chambers Court explained, supra at 313-314:
We are many times guided in our interpretation of the Michigan Civil
Rights Act by federal court interpretations of its counterpart federal statute. See,
e.g., Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 525; 398 NW2d 368
(1986). However, we have generally been careful to make it clear that we are not
compelled to follow those federal interpretations. See, e.g., Radtke, supra at 381382. Instead, our primary obligation when interpreting Michigan law is always
“to ascertain and give effect to the intent of the Legislature, . . . ‘as gathered from
the act itself.’” McJunkin v Cellasto Plastic Corp, 461 Mich 590, 598; 608
NW2d 57 (2000). Although there will often be good reasons to look for guidance
in federal interpretations of similar laws, particularly where the Legislature has
acted to conform Michigan law with the decisions of the federal judiciary, . . . we
cannot defer to federal interpretations if doing so would nullify a portion of the
Legislature’s enactment.
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would be inconsistent with our decision in Radtke, in which we applied agency
principles to hold that it is the plaintiff’s burden to prove that the employer failed
to take prompt and adequate remedial action upon reasonable notice of the
creation of a hostile environment, even where the harassing conduct is committed
by a supervisor.
We find no statutory basis for singling out sexual harassment cases, as
opposed to other classes of prohibited discrimination, for the application of a new
rule of vicarious liability. For example, in cases brought under the Civil Rights
Act alleging disparate treatment on the basis of membership in a protected class,
the overall burden of proving the elements of a discrimination claim always
remains with the plaintiff (although a framework exists for temporarily placing a
burden of production on the defendant). See Lytle v Malady (On Rehearing), 458
Mich 153, 177-178 (Weaver, J., joined by Boyle and Taylor, JJ.), 185 (Brickley,
J., concurring); 579 NW2d 906 (1998); Town v Michigan Bell Telephone Co, 455
Mich 688, 695-696 (Brickley, J., joined by Boyle and Weaver, JJ.), 707 (Riley, J.,
concurring in relevant part); 568 NW2d 64 (1997). Absent some articulable basis
in our statutory law for treating sexual harassment claims differently than other
forms of discrimination, we see no justification for imposing upon defendants the
burden of affirmatively disproving vicarious liability, or conditioning the success
of that defense on factors not necessarily rooted in traditional agency principles.
Instead, we adhere to the established principles of Michigan law regarding sexual
harassment and agency principles . . . . [Id. at 315-316.]
Applying these principles of Michigan law to the facts before it, the Chambers Court remanded
the plaintiff’s hostile work environment claim to the Court of Appeals, stating:
Plaintiff’s testimony clearly established the existence of a hostile work
environment. The central question to be addressed on remand is whether plaintiff
presented sufficient evidence to demonstrate that defendant “failed to rectify a
problem after adequate notice.” Radtke, supra at 395. That is, whether defendant
failed to take prompt and appropriate remedial action after receiving adequate
notice that Wolshon was sexually harassing plaintiff. As an additional word of
clarification, we observed in Radtke that a reasonableness inquiry, accomplished
by objectively examining the totality of the circumstances, is necessary to fulfill
the purposes of the Michigan Civil Rights Act. Id. at 386-387. This also holds
true for an inquiry into the adequacy of the notice. Therefore, notice of sexual
harassment is adequate if, by an objective standard, the totality of the
circumstances were such that a reasonable employer would have been aware of a
substantial probability that sexual harassment was occurring. [Id. at 318-319
(emphasis added).]6
6
On remand, this Court concluded that the facts as alleged by the plaintiff did not render the
defendant vicariously liable for the conduct of its temporary supervisor. Chambers v Trettco, Inc
(On Remand), 244 Mich App 614, 618-619; 624 NW2d 543 (2001)(opinion by O’Connell, J.).
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The Chambers Court emphasized:
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. That is the essence of
Radtke’s requirement that a plaintiff prove that the employer failed to take prompt
and adequate remedial action upon notice of the creation of a hostile work
environment. [Id. at 312 (emphasis in original).]
In the instant case, therefore, the pertinent issue to be decided is whether under the totality of the
circumstances, viewed from an objective standpoint, a reasonable employer would have been
aware of a substantial probability that sexual harassment was occurring. If so, then adequate
notice was given by plaintiff of alleged harassment, satisfying the Chambers test. Reviewing the
proofs, we conclude that defendant ATA did not have adequate notice of the alleged harassment
and, therefore, a directed verdict should have been granted in defendant’s favor.
The evidence of record indicates that defendant maintained a policy prohibiting sexual
harassment, that the policy provided employees who felt victimized with a procedure to bring
complaints to management, and that plaintiff received training regarding this policy and had a
copy of it in her employee handbook, but she nonetheless did not avail herself of the provided
procedures.7 To the extent that plaintiff did complain, her own deposition testimony shows that
she talked with three persons. First, she mentioned the alleged “mooning” incident to a fellow
flight attendant, but did not identify the participants and indicated that she was not willing to
complain to management. Plaintiff subsequently called and complained to a secretary for
defendant ATA in Indianapolis but identified neither herself nor the individuals who engaged in
the offensive conduct. The secretary recommended that the caller should lodge a complaint with
her base manager, but the caller stated that she did not want to cause trouble for the involved
7
This significance of this fact has been explained by the Chambers Court, supra at 325, as
follows:
[T]he dissent, reasoning that whether plaintiff actually knew of the policy
was a significant issue to be resolved by the jury, makes much of the fact that
plaintiff testified that she did not actually know of defendant’s policy against
sexual harassment. As much as anything else, this demonstrates that the dissent
misses the point. Whether defendant can be held responsible for acts perpetrated
by Wolshon [supervisor] turns on: (1) the nature of defendant’s relationship with
Wolshon; and (2) any failings on the part of defendant that contributed to
Wolshon’s success in harassing plaintiff. Hence, it would be relevant to
demonstrate that plaintiff was unaware of defendant’s policy because of an
omission on the part of defendant. However, if defendant had done all that could
reasonably be expected in order to make plaintiff aware of its policy, it matters
little to the issue of vicarious liability if, for reasons not attributable to defendant,
plaintiff was not actually aware of the policy. Hence, absent evidence attributing
plaintiff’s claimed lack of knowledge to a failing by defendant, the dissent’s
argument in this regard carries little weight. To the extent that the dissent’s
arguments are relevant, they pertain primarily to the sufficiency of the evidence
issues to be considered on remand.
-6-
employees. When plaintiff ultimately did talk to a base supervisor in Detroit, she never
mentioned the names of those engaged in the allegedly offensive conduct and did not describe
the conduct with specificity, stating only that she had “come off a very stressful flight.” Plaintiff
admitted that she did not make any complaints to anyone else at ATA management because she
“didn’t want anybody to get in trouble.” According to the testimony of defendant’s human
resources representative, the first time defendant received a tangible complaint was when
plaintiff’s attorney sent defendant a letter after plaintiff had left active employment and
commenced her medical leave. According to the representative, the allegations of harassment
were vague and subsequent correspondence between the parties yielded only a description of the
conduct; no perpetrators of such conduct were identified and no specific flights or dates were
identified during which such conduct occurred. Defendant initiated an internal investigation,
consisting of interviews with other employees identified as “having knowledge” of the alleged
misconduct. Each employee denied any improper conduct, and defendant ultimately concluded
that plaintiff’s claims were without foundation. During this process, plaintiff declined ATA’s
request to provide a written statement or be interviewed and only provided more specific
information regarding the identity of the alleged perpetrators and nature and times of the alleged
harassment after the present suit was filed.
Under the totality of the circumstances and pursuant to the test set forth in Chambers,
supra, the evidence clearly demonstrates that defendant never received adequate notice of the
alleged harassment to allow for appropriate remedial action. Plaintiff never made a formal
complaint and never identified the employees who allegedly engaged in offensive conduct until
after she left active employment and initiated the present suit. Thus, we conclude that plaintiff
failed in her burden of proving by a preponderance of the evidence the essential element of
respondeat superior necessary to sustain a prima facie case of hostile working environment
sexual harassment. Radtke, supra at 382-383, 396-397. “Imputing notice of sexual harassment
to an employer on the basis of such nebulous implications would have the effect of making an
employer an insurer of an employee’s personal anguish of which the employer had little or no
understanding.” Chambers v Trettco, Inc (On Remand), 244 Mich 614, 619; 624 NW2d 543
(2001) (opinion by O’Connell, J.), quoting Chambers v Trettco, Inc, 232 Mich App 560, 574;
591 NW2d 413 (1998) (O’Connell, J., dissenting). See also Schemansky v California Pizza
Kitchen, Inc, 122 F Supp 2d 761, 773 (ED Mich, 2000). Therefore, the trial court erred in
denying defendant’s motion for a directed verdict on plaintiff’s hostile work environment sexual
harassment claim, Meagher, supra, and the matter is remanded to the trial court with instructions
to enter a judgment in favor of defendant ATA. In light of this disposition, the other issues
raised by defendant on appeal need not be addressed.
Reversed and remanded. We do not retain jurisdiction.
/s/ Richard Allen Griffin
/s/ Kathleen Jansen
/s/ Hilda R. Gage
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