MILISSA MCCLEMENTS V FORD MOTOR CO
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 26, 2005
MILISSA MCCLEMENTS,
Plaintiff-Appellee/Cross-Appellant,
v
No. 126276
FORD MOTOR COMPANY,
Defendant-Appellant/Cross-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal in this case to resolve two
questions:
(1)
whether
a
common-law
claim
of
negligent
retention can be premised on sexual harassment in light of
the remedies provided by the Civil Rights Act (CRA), MCL
37.2101 et seq.; and (2) whether an employer can be held
liable under the CRA for sexual harassment against a nonemployee.
The trial court granted summary disposition to
defendant
on
insufficient
both
notice
issues,
to
Ford
ruling
to
that
support
there
the
was
negligent
retention theory, and that plaintiff could not pursue a
claim
under
the
CRA
without
demonstrating
at
least
a
“quasi-employment”
relationship.
The
Court
of
Appeals
affirmed with respect to the CRA claim, but reversed with
respect to plaintiff’s negligent retention claim.
We hold
that: (1) a common-law claim for negligent retention cannot
be
premised
upon
workplace
sexual
harassment;
and
(2)
because plaintiff has failed to establish a genuine issue
of material fact that defendant affected or controlled the
terms,
conditions,
cannot
bring
a
or
privileges
claim
against
of
her
defendant
employment,
under
the
she
CRA.
Accordingly, we affirm in part and reverse in part the
judgment of the Court of Appeals, and reinstate the trial
court’s order of summary disposition in favor of defendant.
I. FACTS
AND
PROCEDURAL HISTORY
Defendant Ford Motor Company hired AVI Food Systems to
operate
three
cafeterias
at
its
Wixom
assembly
plant.
Plaintiff Milissa McClements was hired by AVI as a cashier
at the Wixom plant in March 1998.1
Plaintiff testified that
Daniel Bennett, then a superintendent in the predelivery
department of the plant, had in November 19982 invited her
1
Within a month, plaintiff filed a complaint with AVI
alleging that she was sexually harassed by a non-AVI
contractor. After an investigation, AVI had the offending
nonemployee removed from its premises.
2
The record is replete with confusion over when the
alleged incidents took place. In her complaint, plaintiff
alleged that the incidents with Bennett occurred in
(continued…)
2
on “three or four” occasions to meet him at a local fast
food restaurant.
invitation.
On each occasion, plaintiff rebuffed his
According to plaintiff, Bennett “seemed very
persistent,
like
interested.”
he
didn’t
understand
that
I
wasn’t
Plaintiff acknowledged that, at this point,
Bennett was polite, and there was no testimony that he used
sexual or foul language.
Bennett denies making any such
invitations.
Plaintiff
described
two
additional
encounters
Bennett that occurred during this same time period.
with
During
the first of these encounters, Bennett allegedly entered
the cafeteria while it was closed, and approached plaintiff
from behind.
Plaintiff testified that “I was facing the
opposite way.
He came up and just grabbed me and turned me
around and stuck his tongue in my mouth.”
days,”
plaintiff
allegedly
had
a
Bennett in the closed cafeteria.
second
After “a few
encounter
with
According to plaintiff,
Bennett again grabbed her from behind, attempted to stick
his tongue in her mouth, and stated, “Come on, I know you
want it.
Isn’t there somewhere we can go and have sex?”
Plaintiff
refused
this
advance,
and
Bennett
left
the
(…continued)
September 1998.
However, in her deposition, plaintiff
testified that the incident could have taken place in late
November, early December 1998, because she “seem[ed] to
remember it being Thanksgiving . . . .”
3
cafeteria.
Plaintiff allegedly reported the incidents to
her union steward, but claims that she was advised that if
she
reported
the
incident
to
defendant,
it
would
“turn
around and stab you in the back and you [would] end up
losing your job.”
either
defendant
Plaintiff did not report the incident to
or
AVI
until
the
instant
lawsuit
was
filed.
In
2000,
plaintiff
was
approached
by
another
Ford
employee, Justine Maldonado,3 who claimed that she had also
been sexually harassed by Bennett.
Specifically, Maldonado
claimed that in January or February 1998, Bennett exposed
himself to her and demanded oral sex in the parking lot of
the Wixom plant.
Bennett also allegedly followed Maldonado
in his car, got out after she had stopped at a floral shop,
and reached into her car and tugged on her blouse.
In
late-October 1998, Maldonado told Joe Howard, her uncle and
a production manager at Wixom, about the incidents.4
During
“the last couple days” in October, Maldonado told David
Ferris, a former Ford superintendent who was on temporary
3
In a separate action by Maldonado, we directed oral
argument on whether to grant Maldonado’s application for
leave to appeal or take other peremptory action permitted
by MCR 7.302(G)(1).
Maldonado v Ford Motor Co, 471 Mich
940 (2004).
4
Howard testified that his conversation with Maldonado
about the alleged harassment did not take place until
October 1999.
4
assignment to her union, about the incidents.
Maldonado
testified that she spoke with Ferris just before undergoing
knee surgery on November 2, 1998.
“two
or
three
Maldonado’s
days”
later,
accusations.
he
The
Ferris testified that
confronted
next
day,
Bennett
Ferris
about
informed
Jerome Rush, Wixom’s director of labor relations, about the
alleged incidents of sexual harassment.
Ferris testified
that the conversation lasted a minute “at the most.”
Rush
allegedly told Ferris that he “need not be involved in
these types of issues” and took no further action.
Even
after
plaintiff
did
learning
not
come
However,
plaintiff’s
informed
her
himself
to
in
the
forward
attitude
August
three
of
teenage
2001
Maldonado
with
changed
that
girls.
her
allegations.
after
Bennett
In
incidents,
Maldonado
had
1995,
exposed
Bennett
was
convicted of misdemeanor indecent exposure, for exposing
himself
to
three
teenage
driving
a
company
car.
girls
on
Defendant
I-275
while
he
was
was
aware
of
the
incident, because the police determined Bennett’s identity
by tracing the car through Ford.5
5
Bennett’s conviction was expunged by the district
court
in
November
2001.
Before
granting
summary
disposition
to
defendant,
the
trial
court
granted
defendant’s motion to strike all references to the
conviction from the complaint.
5
After learning about the indecent exposure arrest and
conviction,
September
plaintiff
2001.
filed
Plaintiff
the
instant
claimed
in
defendant:
that
lawsuit
(1)
negligently retained Bennett, whom it knew had a propensity
to sexually harass women; and (2) breached its obligation
under the CRA to prevent Bennett from sexually harassing
her.
The trial court granted defendant’s motion for summary
disposition.
First, the trial court found that there was
no evidence that defendant knew of Bennett’s propensity to
sexually
harass
women
in
the
workplace.
Maldonado’s
complaints to her uncle and friend were not sufficient to
give
defendant
notice
of
Bennett’s
sexually
harassing
behavior and the 1995 conviction alone is insufficient to
establish that propensity.
Thus, defendant could not be
held liable under the negligent retention theory.
Second,
the trial court found that plaintiff as a nonemployee could
not hold defendant liable under the CRA.
However, even if
defendant were potentially liable under the CRA, it could
not be held liable under these circumstances, because its
higher management was never made aware of the allegedly
sexually harassing behavior.
In an unpublished opinion,
the Court of Appeals affirmed in part and reversed in part
the judgment of the trial court.
6
Unpublished opinion per
curiam
(Docket
of
the
No.
Court
of
243764).
Appeals,
The
Court
issued
of
April
2004
held
Appeals
22,
that
defendant’s knowledge of the indecent exposure arrest and
Maldonado’s allegations created a genuine issue of material
fact
whether
Bennett’s
defendant
sexually
employees.”
“knew
or
derogatory
should
behavior
have
known
toward
of
female
However, the Court of Appeals also applied the
“economic reality test,” Ashker v Ford Motor Co, 245 Mich
App 9, 14; 627 NW2d 1 (2001), and held that defendant was
not
plaintiff’s
employer.
As
a
result,
the
Court
of
Appeals concluded that plaintiff could not maintain a CRA
complaint against an entity that is not her employer.
This
Court granted defendant’s application for leave to appeal,
as well as plaintiff’s application for leave to file a
cross-appeal.
471 Mich 937 (2004).
II. STANDARD
OF
REVIEW
We review de novo the grant or denial of a motion for
summary disposition.
Kreiner v Fischer, 471 Mich 109, 129;
683 NW2d 611 (2004).
A motion under MCR 2.116(C)(10) tests
the factual support of a plaintiff’s claim.
Spiek v Dep’t
of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
Summary
disposition
is
only
permitted
if
the
evidence,
while viewed in a light most favorable to the plaintiff,
fails to establish a claim as a matter of law.
7
Wilkinson v
Lee, 463 Mich 388, 391; 617 NW2d 305 (2000).
We review de
novo the questions whether the CRA displaces a common-law
claim for negligent retention based upon sexual harassment
in the workplace and whether an employer can be held liable
under the CRA for sexual harassment against a nonemployee
because they are questions of law.
Morales v Auto-Owners
Ins Co (After Remand), 469 Mich 487, 490; 672 NW2d 849
(2003).
III. ANALYSIS
The issue in this case is not whether Bennett has
engaged in reprehensible conduct either inside or outside
the
workplace.
Rather,
the
issues
are:
(1)
whether
defendant negligently retained Bennett as a supervisor as
of the time Bennett allegedly sexually harassed plaintiff,
despite the fact that it knew or should have known of his
propensity
defendant
prevent
to
is
sexually
harass
responsible
sexual
under
harassment
women;
the
of
CRA
and
(2)
for
plaintiff
whether
failing
even
to
though
plaintiff was not a direct employee of defendant.
A. NEGLIGENT RETENTION CLAIM
Plaintiff’s first theory is that defendant negligently
retained
Bennett
propensity
to
as
a
sexually
supervisor
harass
after
women.
learning
In
of
general,
his
an
employer is not responsible for an intentional tort in the
8
workplace
committed
by
scope of employment.
NW2d
686
its
employee
acting
outside
the
Martin v Jones, 302 Mich 355, 358; 4
(1942).
However,
this
Court
has
previously
recognized an exception to this general rule of liability
when
the
employer
employee’s
“‘knew
propensities
an
or
and
intentional
should
have
criminal
tort
by
known
record
[that]
of
his
before
commission
of
. . . .’”
Hersh v Kentfield Builders, Inc, 385 Mich 410,
412; 189 NW2d 286 (1971) (citation omitted).
argues
that
engage
in
Bennett’s
defendant
sexually
1995
knew
of
harassing
indecent
Bennett’s
behavior
exposure
employee
Plaintiff
“propensity”
because
conviction;
to
of:
(1)
and
(2)
Maldonado’s complaints to defendant’s supervisor (Howard)
and
labor
relations
Bennett’s harassment.
representative
(Rush)
concerning
Plaintiff concludes that defendant
breached its duty of reasonable care by retaining Bennett
despite its knowledge of his previous actions.
The Court
of Appeals held that whether defendant “knew or should have
known” of Bennett’s propensities was a question of fact for
the jury.6
6
Defendant argues that the Court of Appeals improperly
allowed the jury to resolve the issue of whether defendant
had a duty towards plaintiff. We agree that whether a duty
exists to a particular plaintiff is a question for the
court.
Williams v Cunningham Drug Stores, Inc, 429 Mich
495, 500-501; 418 NW2d 381 (1988).
An employer’s duty is
(continued…)
9
However, in those cases in which we have held that an
employer can be held liable on the basis of its knowledge
of
an
employee’s
propensities,
the
underlying
comprised the common-law tort of assault.
conduct
See Hersh, supra
at 412; Bradley v Stevens, 329 Mich 556, 563; 46 NW2d 382
(1951).
for
In the instant case, however, the entire premise
plaintiff’s
statutorily
based
negligent
tort
of
retention
sexual
claim
harassment.
is
the
Before
passage of the CRA, Michigan did not provide a common-law
remedy for workplace discrimination.
Pompey v Gen Motors
Corp, 385 Mich 537, 552; 189 NW2d 243 (1971).
protections
workplace
against
are
wholly
being
sexually
creatures
of
Plaintiff’s
harassed
statute.
in
the
“‘Where
a
statute gives new rights and prescribes new remedies, such
remedies must be strictly pursued; and a party seeking a
remedy under the act is confined to the remedy conferred
(…continued)
to exercise reasonable care in selecting and retaining its
employees.
However, it is the province of the jury to
determine whether an employer has breached that duty by
retaining the employee in question. In order for the jury
to determine whether an employer has breached this duty, it
must first determine whether the employer “knew or should
have known” that its employee had a propensity to engage in
the conduct that caused the injury to the plaintiff.
The
propensity at issue in the instant case is an alleged
propensity to sexually harass women.
Because plaintiff’s
exclusive remedy for a claim based on sexual harassment is
the CRA, there is no question of fact for the jury and,
therefore, summary disposition was appropriate.
10
thereby and to that only.’”
Monroe Beverage Co, Inc v
Stroh Brewery Co, 454 Mich 41, 45; 559 NW2d 297 (1997),
quoting Lafayette Transfer & Storage Co v Pub Utilities
Comm, 287 Mich 488, 491; 283 NW 659 (1939).
Here, the CRA
provides the right to be free from sexual harassment, MCL
37.2103(i), and accords an aggrieved worker the remedy of
“a
civil
action
for
damages, or both.”
appropriate
MCL 37.2801(1).
injunctive
relief
or
Plaintiff’s remedy,
then, for any act of sexual harassment is limited to those
provided by the CRA.
Accordingly, there is no common-law
claim for negligent retention in the context of workplace
sexual harassment.7
Plaintiff invokes MCL 37.2803, which states that the
CRA “shall not be construed to diminish the right of a
person to direct or immediate legal or equitable remedies
in the courts of this state.”
However, contrary to the
dissent’s theory, post at 7, this statutory language does
not allow a worker to bring a CRA claim under the guise of
7
We note defendant’s assertion that the Hersh rule is
contrary to public policy concerning the rehabilitation of
first-time offenders.
According to defendant, Hersh
encourages employers to refuse to hire anyone who was ever
convicted of even a misdemeanor, for fear that they might
later be held liable for any conduct by the employee that
somehow
could
be
linked,
after
the
fact,
to
the
circumstances of that crime.
Because we hold that
plaintiff’s negligent retention claim cannot be maintained,
there is no need at this time to reach defendant’s public
policy argument.
11
a negligent retention claim.
Rather, this provision simply
allows a worker to bring suit under any legal theory that
existed before the passage of the CRA.
Thus, a worker
would not be barred by the CRA from bringing a common-law
negligent retention claim, as long as the premise for that
claim is a tort that existed before passage of civil rights
legislation.8
Therefore,
because
the
CRA
provides
the
exclusive
remedy for a claim based on sexual harassment, plaintiff
has failed to establish a claim of negligent retention,9 and
no
inquiry
into
whether
defendant
possessed
sufficient
notice that Bennett was engaged in sexual harassment is
necessary.
B. CIVIL RIGHTS ACT CLAIM
Plaintiff’s second theory is that defendant failed to
prevent sexual harassment in the workplace.
MCL 37.2202(1)
states in pertinent part:
8
For example, if an employee had a history of
committing simple assault, and the employer knew or should
have known of that history, then a third party who was
assaulted by the employee might be able to hold the
employer liable under a negligent retention theory premised
on simple assault.
9
Both the dissent and the concurrence/dissent argue
that plaintiff’s negligent retention claim “implicates
other torts such as assault and battery.”
Post at 3.
While that may be, plaintiff premised her claim on sexual
harassment, not assault or battery.
12
An employer
following:
shall
not
do
any
of
the
(a) Fail or refuse to hire or recruit,
discharge, or otherwise discriminate against an
individual
with
respect
to
employment,
compensation, or a term, condition, or privilege
of employment, because of religion, race, color,
national origin, age, sex, height, weight, or
marital status.
(b)
Limit,
segregate,
or
classify
an
employee or applicant for employment in a way
that deprives or tends to deprive the employee or
applicant
of
an
employment
opportunity,
or
otherwise adversely affects the status of an
employee or applicant because of religion, race,
color, national origin, age, sex, height, weight,
or marital status.
(c)
Segregate,
classify,
or
otherwise
discriminate against a person on the basis of sex
with respect to a term, condition, or privilege
of employment, including, but not limited to, a
benefit plan or system.
Discrimination
harassment.
based
on
MCL 37.2103(i).
sex
includes
sexual
The statute defines sexual
harassment as follows:
Sexual harassment means unwelcome sexual
advances, requests for sexual favors, and other
verbal or physical conduct or communication of a
sexual nature under the following conditions:
(i)
Submission
to
the
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 the
conduct or communication by an individual is used
as
a
factor
in
decisions
affecting
the
individual’s employment, public accommodations or
public services, education, or housing.
13
(iii)
The conduct or communication has the
purpose or effect of substantially interfering
with
an
individual’s
employment,
public
accommodations or public services, education, or
housing, or creating an intimidating, hostile, or
offensive
employment,
public
accommodations,
public
services,
educational,
or
housing
environment. [MCL 37.2103(i).]
Plaintiff
claims
that
CRA
forbids
any
entity
classified as an employer from discriminating against any
individual, including nonemployees.
Therefore, because the
actions
allegedly
of
defendant’s
employee
created
a
sexually hostile work environment, defendant can be held
liable under the CRA.
Defendant, on the other hand, argues
that an employer can only be held liable for discrimination
against
a
nonemployee
if
some
form
of
relationship exists between the parties.
employment
Both the trial
court and the Court of Appeals held that plaintiff was
required
to
prove
relationship”
before
maintained.
at
a
least
claim
under
a
“quasi-employment
the
CRA
could
be
We conclude that, unless an individual can
establish a genuine issue of material fact that an employer
affected or controlled the terms, conditions, or privileges
of his or her employment, a nonemployee may not bring a
claim under the CRA.
Fundamental canons of statutory interpretation require
us to discern and give effect to the Legislature’s intent
as expressed by the language of its statutes.
14
DiBenedetto
v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000).
If the language is unambiguous, as is generally the case,
Klapp v United Ins Group Agency, Inc, 468 Mich 459; 663
NW2d 447 (2003), “we presume that the Legislature intended
the
meaning
clearly
expressed—no
further
judicial
construction is required or permitted, and the statute must
be enforced as written.”
DiBenedetto, supra at 402.
MCL 37.2201(a) defines an “employer” for purposes of
the CRA as “a person who has 1 or more employees, and
includes
an
agent
of
that
person.”
As
recognized
by
plaintiff, the language of the statute does not otherwise
narrow the scope of who may be considered an employer.
Thus, MCL 37.2202 forbids any employer from engaging in
acts of discrimination that are prohibited by the CRA.
MCL
37.2202 does not state that an employer is only forbidden
from
engaging
Indeed,
the
in
CRA
such
acts
appears
to
against
its
own
clearly
envision
employees.
claims
by
nonemployees for the failure or refusal to hire or recruit,
MCL
37.2202(1)(a);
applicants
by
37.2202(1)(b);
a
the
status
and
the
improper
prohibited
classification
under
discrimination
the
CRA,
against
of
MCL
former
employees by operation of a benefit plan or system, MCL
37.2202(1)(c).
Accordingly, to limit the availability of
relief under the CRA to those suits brought by an employee
15
against his or her employer is not consistent with the
statute.
However, the language of the statute is also clear in
requiring
some
form
of
nexus
or
connection
between
employer and the status of the nonemployee.
the
MCL 37.2202
forbids an employer from using a classification protected
by the CRA: to “discriminate against an individual with
respect
to
.
employment,"
.
MCL
.
a
term,
condition,
37.2202(1)(a);
to
or
privilege
“deprive
the
.
of
.
.
applicant of an employment opportunity,” MCL 37.2202(1)(b);
or to “discriminate against a person . . . with respect to
a
term,
condition,
37.2202(1)(c).
or
privilege
of
employment,”
MCL
In other words, an employer is liable under
the CRA when it utilizes a prohibited characteristic in
order
to
employment
adversely
or
affect
potential
or
control
employment.
an
individual’s
Thus,
the
key
to
liability under the CRA is not simply the status of an
individual
as
an
“employee”;
contingent
upon
the
employer’s
that individual’s work status.
rather,
affecting
liability
or
is
controlling
Accordingly, an employer
can be held liable under the CRA for discriminatory acts
against a nonemployee if the nonemployee can demonstrate
16
that
the
employer
affected
or
controlled
the
terms,
conditions, or privileges of the nonemployee’s employment.10
In Chiles v Machine Shop, Inc, 238 Mich App 462; 606
NW2d 398 (1999), the Court of Appeals came to the same
conclusion
while
interpreting
similar
language
in
the
Persons with Disabilities Civil Rights Act (PWDCRA), MCL
37.1202.11
In Chiles, an employee injured his back on the
10
For example, a secretary who works for a temporary
employment agency might not be an “employee” at the office
where she is sent to fill in.
However, there is little
question that the employer at that office would dictate the
terms, conditions, or privileges of her employment with the
temporary employment agency, at least during the pendency
of her temporary employment.
11
This provision of the PWDCRA is identical in all
relevant respects to the CRA.
MCL 37.1202(1) states in
relevant part:
Except as otherwise required by federal law,
an employer shall not:
(a) Fail or refuse to hire, recruit, or
promote an individual because of a disability or
genetic information that is unrelated to the
individual’s ability to perform the duties of a
particular job or position.
(b) Discharge or otherwise discriminate
against
an
individual
with
respect
to
compensation
or
the
terms,
conditions,
or
privileges of employment, because of a disability
or genetic information that is unrelated to the
individual’s ability to perform the duties of a
particular job or position.
(c)
Limit,
segregate,
or
classify
an
employee or applicant for employment in a way
which deprives or tends to deprive an individual
(continued…)
17
job and filed for worker’s compensation benefits.
After he
was laid off, the employee brought suit under the PWDCRA.
The “employer,” who laid off the plaintiff, argued that it
was not liable under the PWDCRA because the employee was
technically
company.
employed
by
a
separate,
though
affiliated,
The Court in Chiles noted that the PWDCRA
addresses the conduct of an “employer” who takes
adverse employment action against an “individual”
because of a handicap that is unrelated to the
individual’s ability to perform the duties of a
particular
job.
MCL
37.1202(1)(a);
MSA
3.550(202)(1)(a).
The act does not limit the
definition of “employer” to the plaintiff's
employer but, instead, simply defines it as a
“person who has 1 or more employees.” MCL
37.1201(b); MSA 3.550(201)(b). [Chiles, supra at
468 (emphasis supplied).][12]
Thus,
liability
under
the
PWDCRA
“does
not
require
that an employment relationship exist,” but it does require
that the employer defendant “have the authority to affect a
plaintiff’s employment or potential employment.”
468-469.
However,
the
authority
to
affect
a
Id. at
worker’s
employment alone is not sufficient to impose liability upon
(…continued)
of
employment
opportunities
or
otherwise
adversely affects the status of an employee
because of a disability or genetic information
that is unrelated to the individual’s ability to
perform the duties of a particular job or
position.
12
The definition of an employer is essentially the
same under the CRA. MCL 37.2201(1)(a).
18
an employer defendant.13
Rather, in order to be liable
under the PWDCRA, the employer defendant must also “take[]
adverse employment action” against the worker plaintiff.
Accordingly, under Chiles, the employer defendant must (1)
have
“the
conditions
ability
of
an
to
affect
adversely
individual’s
employment
the
or
terms
and
potential
employment,” id. at 468; and (2) “take[] adverse employment
action against an ‘individual’ because of a handicap that
is unrelated to the individual’s ability to perform the
duties of a particular job . . ., e.g., discriminatorily
refusing to hire an applicant on account of a disability,”
id. at 468, quoting MCL 37.1202(1)(a).
In other words, the
more precise articulation of the Chiles rule is that the
employer defendant must, in fact, use such authority by
“tak[ing] adverse employment action against an individual”
in violation of the PWDCRA.
PWDCRA,
control
the
the
employer
terms,
Thus, to be liable under the
defendant
conditions,
individual’s employment.
must
or
actually
affect
privileges
of
or
an
The Court of Appeals in Chiles
determined that the employer defendant directly supervised
13
Thus,
contrary
to
the
concurrence\dissent’s
position, the fact that plaintiff produced some evidence
that defendant had the ability to “affect or control a
term, condition, or privilege of plaintiff’s employment,”
post at 2, is not sufficient to present a genuine issue of
material fact for the jury.
19
the employee, controlled what tasks he worked at, and had
the ability to fire or discipline the employee.
Further,
the employer defendant actually affected the plaintiff’s
employment by laying him off.
Appeals
within
determined
the
scope
that
of
the
the
As a result, the Court of
parties’
PWDCRA
relationship
and,
therefore,
fell
the
plaintiff could maintain an action under the PWDCRA.
We hold that a worker is entitled to bring an action
against a nonemployer defendant if the worker can establish
that
the
defendant
affected
or
controlled
a
condition, or privilege of the worker’s employment.
instant
case,
plaintiff
has
failed
to
establish
term,
In the
that
defendant affected or controlled the terms, conditions, or
privileges of her employment.14
14
Plaintiff was hired, paid,
The dissent argues that, because defendant had the
authority to control Bennett and Bennett affected a
condition of plaintiff’s employment, it follows that
defendant itself “affect[ed] a condition of plaintiff’s
employment.”
Post at 6.
Based on this reasoning, an
employer would apparently always be liable for its agent’s
creation of a sexually hostile work environment. However,
we have held that such imposition of vicarious liability is
proper only in sexual discrimination cases in which the
employer’s agent has used his or her authority to alter the
terms and conditions of employment.
Chambers v Trettco,
Inc, 463 Mich 297, 310; 614 NW2d 910 (2000), citing
Champion v Nation Wide Security, Inc, 450 Mich 702, 708709; 545 NW2d 596 (1996).
We have declined to treat
sexually hostile work environment cases in the same manner,
noting that “strict imposition of vicarious liability on an
employer ‘is illogical in a pure hostile environment
setting’
because,
generally,
in
such
a
case,
‘the
(continued…)
20
and subject to discipline by AVI.
AVI placed plaintiff in
the Wixom plant and had the sole authority to move her to
different cafeterias or even to another plant.
has
failed
controlled
to
demonstrate
whether
she
that
was
defendant
hired,
her
Plaintiff
affected
or
benefits
of
employment, or where she was assigned to work.
Further,
although the cafeterias were located in the Wixom plant,
they were operated solely by AVI, and were off-limits to
defendant’s employees except during break-times.
We conclude that plaintiff failed to raise a genuine
issue
of
controlled
employment.
material
a
fact
term,
that
condition,
Accordingly,
defendant
or
plaintiff
affected
privilege
may
not
of
or
her
maintain
a
cause of action under the CRA against this defendant, and,
again,
no
sufficient
inquiry
notice
into
that
whether
Bennett
was
defendant
engaged
possessed
in
sexual
harassment is necessary.
(…continued)
supervisor acts outside ‘the scope of actual or apparent
authority
to
hire,
fire,
discipline,
or
promote.’”
Chambers, supra at 311, quoting Radtke v Everett, 442 Mich
368, 396 n 46; 501 NW2d 155 (1993).
We again decline to
strictly impose vicarious liability in sexually hostile
work environment cases, absent an awareness by the employer
of the offensive conduct.
21
IV. CONCLUSION
We conclude that plaintiff has failed to establish a
genuine issue of material fact that defendant affected or
controlled
the
terms,
conditions,
or
privileges
of
her
employment and, therefore, she cannot bring a claim against
defendant
under
the
CRA.
Further,
we
conclude
that
a
common-law claim for negligent retention cannot be premised
upon workplace sexual harassment.
Accordingly, we affirm
the judgment of the Court of Appeals that plaintiff has
failed to establish that she may bring a claim under the
CRA against this defendant, we reverse the judgment of the
Court of Appeals that plaintiff has an actionable claim for
negligent retention, and reinstate the trial court’s order
of judgment in favor of defendant.
Stephen J. Markman
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
22
S T A T E
O F
M I C H I G A N
SUPREME COURT
MILISSA MCCLEMENTS,
Plaintiff-Appellee/Cross-Appellant,
v
No. 126276
FORD MOTOR COMPANY,
Defendant-Appellant/Cross-Appellee.
_______________________________
WEAVER, J. (concurring in part and dissenting in part).
I concur in the majority’s holding that a worker may
bring a claim against a nonemployer defendant under the
Civil
Act1
Rights
nonemployer
if
defendant
the
worker
affected
can
or
establish
controlled
that
a
condition, or privilege of the worker’s employment.
at 20.
the
term,
Ante
But I dissent from the majority’s conclusion that
plaintiff failed to present a genuine issue of material
fact
that
defendant
condition,
or
noted
the
by
affected
privilege
majority,
of
or
controlled
plaintiff’s
when
a
employment.
plaintiff
reported
term,
As
the
incidents to her union steward, she stated that she was
advised that if she reported the incidents to defendant,
defendant would “turn around and stab you in the back and
1
MCL 37.2101 et seq.
you [would] end up losing your job.”
this
statement
standing
alone
Ante at 4.
would
probably
While
not
be
sufficient to establish that defendant did, in fact, affect
or control a term, condition, or privilege of plaintiff’s
employment, it does raise a question whether defendant had
that ability.
Therefore, I would allow the parties to
present evidence on this issue and let the question go to
the jury.
I
also
dissent
from
the
majority’s
conclusion
that
plaintiff may not pursue a common-law claim for negligent
retention.
As noted by the majority, MCL 37.2803 provides
that “[t]his act shall not be construed to diminish the
right of a person to direct or immediate legal or equitable
remedies in the courts of this state.”
As explained in
Hersh v Kentfield Builders, Inc, 385 Mich 410, 412; 189
NW2d 286 (1971), under the common-law claim of negligent
retention,
an
employer
may
be
held
liable
for
an
intentional tort committed by one of its employees if the
employer
“‘knew
or
should
have
known
of
his
employee’s
propensities and criminal record before commission of an
intentional tort . . . .’”
(Citation omitted.)
The majority asserts that plaintiff may not pursue a
common-law negligent retention claim because the claim is
premised entirely on “the statutorily based tort of sexual
2
harassment.”
Ante at 10 (emphasis deleted).
Plaintiff’s
negligent
solely
“the
on
harassment,”
but
retention
statutorily
also
assault and battery.
claim
based
implicates
is
I disagree.
not
tort
other
of
torts
premised
sexual
such
as
Therefore, I would allow plaintiff
the opportunity to establish her negligent retention claim
and let the jury determine whether she has successfully
done so.
Elizabeth A. Weaver
3
S T A T E
O F
M I C H I G A N
SUPREME COURT
MILISSA MCCLEMENTS,
Plaintiff-Appellee,
v
No. 126276
FORD MOTOR COMPANY,
Defendant-Appellant/Cross-Appellee.
_______________________________
CAVANAGH, J. (dissenting).
I believe there is ample evidence for a jury to decide
the issue of whether defendant had adequate notice that one
of its supervisors, Daniel Bennett, had the propensity to
sexually harass and assault women and was indeed doing so.
Accordingly,
because
plaintiff
presented
sufficient
evidence of notice, a jury should be allowed to determine
plaintiff’s claims against defendant for sexual harassment
under the Civil Rights Act (CRA), MCL 37.2101 et seq., and
negligent
retention.
Therefore,
I
respectfully
dissent
from the majority’s decision dismissing all of plaintiff’s
claims.
I. THERE IS SUFFICIENT EVIDENCE THAT DEFENDANT HAD NOTICE
OF BENNETT’S PROPENSITY FOR SEXUAL HARASSMENT AND ASSAULT
AND ALLEGATIONS THAT HE WAS INDEED SEXUALLY HARASSING AND
ASSAULTING WOMEN IN THE WORKPLACE
Plaintiff presented sufficient evidence that defendant
had
adequate
harass
and
notice
assault
of
Bennett’s
women
and
propensity
the
to
sexually
pervasiveness
existing sexual harassment perpetrated by Bennett.
was one of defendant’s supervisors.
of
the
Bennett
In 1995, defendant
learned that Bennett had exposed himself to three teenage
girls while driving one of defendant’s vehicles.
was
convicted
of
indecent
exposure.1
While
Bennett
the
facts
related to this conviction alone may not be enough to put
defendant on notice, defendant received other information
that Bennett was sexually harassing women.
In late October 1998, Justine Maldonado, another of
defendant’s
employees,
reported
to
a
production
that Bennett was sexually harassing her.2
manager
Maldonado also
told another of defendant’s employees, David Ferris, about
the
sexual
defendant’s
harassment.
director
of
Ferris
labor
told
relations
Jerome
at
Rush,
defendant’s
Wixom plant.
Maldonado’s complaint was not the first complaint of
this nature against Bennett.
As detailed in Elezovic v
Ford Motor Co, 472 Mich 408, 433, 442-444; 697 NW2d 851
1
This conviction was later expunged.
2
The production manager was also Maldonado’s uncle.
2
(2005) (Cavanagh, J., concurring in part and dissenting in
part;
Weaver,
J.,
concurring
in
part
and
dissenting
in
part), defendant also had notice in October 1998 that Lula
Elezovic
This
had
stated
information
was
that
Bennett
shared
with
sexually
the
harassed
director
of
her.
labor
relations–the same director of labor relations who learned
of Maldonado’s complaints.
Further, other coworkers had
also discussed sexual harassment involving Bennett with the
director of labor relations.3
An employer can only avoid liability if it adequately
investigates a claim of sexual harassment and takes prompt
and appropriate remedial action.
Mich
368,
396;
501
NW2d
155
Radtke v Everett, 442
(1993).
Managers
and
the
director of labor relations knew of claims that Bennett was
sexually
harassing
women.
These
claims,
along
with
knowledge that Bennett had exposed himself to three teenage
girls, are sufficient evidence to allow a jury to determine
whether, under the totality of the circumstances, defendant
adequately investigated these claims and took appropriate
3
Interestingly, in yet another case involving Bennett,
Perez v Ford Motor Co, unpublished opinion per curiam of
the Court of Appeals, issued March 10, 2005 (Docket No.
249737), slip op at 3, the Court of Appeals notes,
“Defendant admits that the proper procedure for reporting a
sexual harassment claim was to report to the labor
relations department or a UAW committeeperson.”
(Emphasis
added.)
3
remedial action.
See Chambers v Trettco, Inc, 463 Mich
297, 312, 318-319; 614 NW2d 910 (2000).
II. PLAINTIFF CAN BRING A CLAIM AGAINST DEFENDANT UNDER THE
CRA
The CRA, in MCL 37.2201(a), defines “[e]mployer” as “a
person who has 1 or more employees, and includes an agent
of
that
person.”
An
employer
is
prohibited
from
discriminating against an individual by doing any of the
following:
(a) Fail or refuse to hire or recruit,
discharge, or otherwise discriminate against an
individual
with
respect
to
employment,
compensation, or a term, condition, or privilege
of employment, because of religion, race, color,
national origin, age, sex, height, weight, or
marital status.
(b)
Limit,
segregate,
or
classify
an
employee or applicant for employment in a way
that deprives or tends to deprive the employee or
applicant
of
an
employment
opportunity,
or
otherwise adversely affects the status of an
employee or applicant because of religion, race,
color, national origin, age, sex, height, weight,
or marital status.
(c)
Segregate,
classify,
or
otherwise
discriminate against a person on the basis of sex
with respect to a term, condition, or privilege
of employment, including, but not limited to, a
benefit plan or system. [MCL 37.2202(1).]
“Discrimination
harassment.”
because
of
sex
includes
sexual
MCL 37.2103(i).
Sexual harassment means unwelcome sexual
advances, requests for sexual favors, and other
verbal or physical conduct or communication of a
sexual nature under the following conditions:
4
* * *
(iii) The conduct or communication has the
purpose or effect of substantially interfering
with
an
individual’s
employment,
public
accommodations or public services, education, or
housing, or creating an intimidating, hostile, or
offensive
employment,
public
accommodations,
public
services,
educational,
or
housing
environment. [MCL 37.2103(i)(iii).]
The
claims
majority
by
“unless
acknowledges
nonemployees,
an
individual
but
can
that
the
the
CRA
majority
establish
a
allows
states
genuine
for
that
issue
of
material fact that an employer affected or controlled the
terms, conditions, or privileges of his or her employment,
a nonemployee may not bring a claim under the CRA.”
at 14.
claim
Ante
According to the majority, plaintiff cannot bring a
against
defendant
because
“[p]laintiff
was
hired,
paid, and subject to discipline by AVI [Food Systems].
placed
plaintiff
in
the
Wixom
plant
and
had
the
AVI
sole
authority to move her to different cafeterias or even to
another plant.”
Ante at 20-21.
The majority’s application
of the statute in this case ignores the specific language
of the statute.
MCL
37.2202(1)(a)
states
that
an
employer
cannot
“otherwise discriminate against an individual with respect
to
.
.
.
a
employment. . . .”
term,
condition,
Discrimination
5
or
privilege
includes
of
sexual
harassment.
MCL 37.2103(i).
Sexual harassment includes
creating a sexually hostile or offensive work environment,
MCL 37.2103(i)(iii), and this is exactly what defendant,
through its supervisor Bennett, allegedly did to plaintiff.
Defendant’s supervisor, Bennett, did not merely have
the
ability
plaintiff’s
authority
employment,
plaintiff
hostile
or
alleged
work
to
he
affect
a
allegedly
Bennett’s
conduct
environment
at
condition
did
created
plaintiff’s
of
so
because
a
sexually
workplace.
Notably, defendant was the only one who had the authority
to control Bennett and, therefore, affect a condition of
plaintiff’s
employment.
The
CRA
prohibits
harassment by an employer or an employer’s agent.
sexual
Bennett
was defendant’s agent when he allegedly sexually harassed
plaintiff.
Therefore, plaintiff can bring a claim against
defendant for sexual harassment under the CRA.4
III. PLAINTIFF CAN BRING A CLAIM AGAINST DEFENDANT FOR
NEGLIGENT RETENTION
MCL
37.2803
states
that
the
CRA
“shall
not
be
construed to diminish the right of a person to direct or
4
Contrary to the majority’s presentation of the
dissent’s position, see ante at 20 n 14, defendant would be
liable only if it had notice and did not adequately
investigate the claim and take prompt and appropriate
remedial measures, just as in all other hostile work
environment sexual harassment cases.
6
immediate legal or equitable remedies in the courts of this
state.”
When a statute provides a remedy for enforcement
of a common-law right, it is cumulative and not exclusive.
Pompey v Gen Motors Corp, 385 Mich 537, 552-553; 189 NW2d
243
(1971).
plaintiff’s
The
right
passage
to
of
bring
the
a
CRA
did
negligent
not
abolish
retention
claim
against defendant.
As stated by plaintiff’s counsel during oral argument,
Bennett’s conduct, while indeed sexual harassment, was also
“classic
assault
Plaintiff’s
and
complaint
battery,
also
[a]
alleged
common
that
law
Bennett
tort.”
posed
a
“known danger to women” and “sexually assaulted” plaintiff.
Plaintiff’s claim that Bennett grabbed her and tried to put
his tongue in her mouth, as well as Maldonado’s claims that
Bennett
assaulted
Elezovic’s
her
that
claims
and
exposed
Bennett
assaulted
qualify as assaultive behavior.
at
395
(sexual
assault
can
himself
to
her,
her
and
certainly
See, e.g., Radtke, supra
be
sexual
harassment
that
evidence
that
creates a hostile work environment).
Plaintiff
defendant
harass
was
and
has
aware
assault
presented
of
sufficient
Bennett’s
women
and
propensity
that
defendant
retained Bennett in light of this information.
to
sexually
negligently
See Hersh v
Kentfield Builders, Inc, 385 Mich 410, 412, 415; 189 NW2d
7
286
(1971).
Accordingly,
I
believe
that
plaintiff
can
present a claim for common-law negligent retention to a
jury, and the jury should decide whether defendant acted
reasonably.
IV. CONCLUSION
I believe that plaintiff presented sufficient evidence
that defendant had adequate notice of Bennett’s propensity
to sexually harass and assault women and that Bennett was
indeed doing so in the workplace.
for
the
jury
whether
defendant’s
reasonable under the circumstances.
It is then a question
subsequent
conduct
was
Accordingly, I would
reverse the decision of the Court of Appeals in part and
allow plaintiff to proceed on her claim under the CRA.
I
would also affirm the decision of the Court of Appeals in
part
and
allow
plaintiff
to
proceed
on
her
negligent retention.
Michael F. Cavanagh
Marilyn Kelly
8
claim
for
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