BRENDA SUE JAGER V NATIONWIDE TRUCK BROKERS INC
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STATE OF MICHIGAN
COURT OF APPEALS
BRENDA SUE JAGER,
FOR PUBLICATION
August 9, 2002
9:20 a.m.
Plaintiff/CounterdefendantAppellant,
v
Nos. 226007; 228672
Kent Circuit Court
LC No. 98-005934-CZ
NATIONWIDE TRUCK BROKERS, INC.,
Defendant-Appellee,
and
JAMES WILKERSON,
Defendant/CounterplaintiffAppellee,
and
DESIGNED ADMINISTRATIVE RESOURCES
AND TECHNOLOGIES, INC., and SIMPLIFIED
EMPLOYMENT SERVICES, INC.,
Updated Copy
October 11, 2002
Defendants.
Before: Wilder, P.J., and Bandstra and Hoekstra, JJ.
HOEKSTRA, J.
In these consolidated appeals stemming from plaintiff 's sexual harassment action against
her employers and her supervisor, plaintiff appeals as of right the trial court's grant of summary
disposition in favor of defendant Nationwide Truck Brokers, Inc. (NTB), and defendant James
Wilkerson (Docket No. 226007), and the trial court's grant of case evaluation sanctions to those
defendants (Docket No. 228672). We affirm.
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I. Facts and Procedural History
Plaintiff was employed with defendants Designed Administrative Resources and
Technologies, Inc. (DART), and Simplified Employment Services, Inc. (SES).1 Through an
employee lease agreement, plaintiff worked for NTB under the supervision of Wilkerson as a log
entry clerk in NTB's safety department. According to plaintiff, in August 1996, Wilkerson began
making unwanted sexual advances toward her, including sending her sexually explicit electronic
mail "pop up" messages, repeatedly asking her to go out with him, and telling her that she
"smelled" good. Further, Wilkerson allegedly grabbed her breasts and buttocks, put his face
close to her breasts, pulled her skirt up over her waist, ran a toy golf club up the slit of her skirt,
presented her with a gift of lingerie, and made sexually explicit remarks to her.
Plaintiff testified at a deposition that she told certain employees of NTB about
Wilkerson's conduct, including Dave Wojtaszek and Mark Doyle, and talked to Dave Birge about
possibly transferring to his department. On February 17, 1997, plaintiff left work at NTB.
Thereafter, plaintiff contacted an attorney, who sent a letter on that same date to Henry Schwarz,
the president of NTB, notifying NTB of the harassment. Plaintiff was given paid leave, as she
requested, and Wilkerson was placed on suspension pending the outcome of an investigation.
NTB, DART, and SES conducted an investigation and were unable to substantiate
plaintiff 's allegations of harassment. Thereafter, NTB invited plaintiff to return to work at NTB,
but indicated that plaintiff would not have any contact with Wilkerson, either directly or
indirectly. Similarly, DART and SES offered to assist plaintiff with finding a new job
assignment if she preferred not to return to NTB. Plaintiff declined both offers.
On June 8, 1998, plaintiff filed a complaint against NTB, DART, SES, and Wilkerson,
alleging two counts of discrimination in violation of Michigan's Civil Rights Act (CRA), MCL
37.2101 et seq. The only count at issue on appeal is plaintiff 's claim of "sexual discrimination
and harassment."2 Defendants answered the complaint, and Wilkerson also filed a counterclaim
alleging slander and intentional infliction of emotional distress.3 Discovery ensued and in
September 1999, NTB and Wilkerson moved for summary disposition under MCR 2.116(C)(10).
These defendants argued, in essence, that plaintiff could not demonstrate quid pro quo sexual
harassment because defendants took no adverse employment action against plaintiff and that
1
These defendants are not parties to this appeal. Pursuant to an October 17, 2001, order of this
Court, the appeal relative to DART and SES "will remain closed and may be reopened upon
written notification to this Court that the bankruptcy stay has been lifted, the bankruptcy
proceedings have been dismissed, or a party to the case has obtained relief from the stay."
2
The second count alleged religious and familial/marital status discrimination. With regard to
that count, the trial court granted summary disposition in favor of NTB and Wilkerson and that
aspect of the case is not before this Court on appeal.
3
Wilkerson's counterclaim was dismissed pursuant to stipulation and order on March 2, 2000.
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plaintiff could not demonstrate a hostile work environment because she had not properly notified
NTB of the harassment. In response, plaintiff claimed she was subjected to severe and pervasive
harassment and that notice had been given to defendant NTB because plaintiff told NTB
employees Dave Wojtaszek, Mark Doyle, and Al Szukala about the harassment.
After a hearing on the motion, on February 4, 2000, the trial court granted summary
disposition in favor of NTB and Wilkerson and dismissed the sexual harassment count of
plaintiff 's complaint. The trial court noted that under the quid pro quo theory of sexual
harassment, plaintiff had not demonstrated that any adverse job action was taken against her.
The trial court also rejected plaintiff 's hostile environment sexual harassment claim because
NTB was not notified of the sexual harassment until NTB received the letter from plaintiff 's
attorney and thereafter NTB suspended Wilkerson, provided plaintiff with paid leave, and
conducted a prompt investigation. Further, the trial court explained that plaintiff provided no
authority for the proposition that an individual employee could be held liable for sexual
harassment where the employer had been dismissed.
In another order relevant to this appeal, the trial court denied plaintiff 's oral motion to
amend the complaint to add an assault and battery count against Wilkerson. Further, NTB and
Wilkerson moved for case evaluation sanctions in accordance with MCR 2.403(O), which the
trial court awarded, albeit in an amount less than requested.
II. Summary disposition of plaintiff 's sexual harassment claims against NTB
On appeal, plaintiff first argues that the trial court erred in granting summary disposition
pursuant to MCR 2.116(C)(10) in favor of NTB under two separate theories of liability, quid pro
quo sexual harassment and hostile environment sexual harassment. Plaintiff claims that she
produced sufficient evidence to create a question of fact and, thus, that her sexual harassment
claims under these theories should have gone to a jury. We review de novo a trial court's grant of
summary disposition. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201
(1998).
A motion pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the claim.
Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). "When reviewing a motion for
summary disposition brought under MCR 2.116(C)(10), the trial court must consider the
affidavits, pleadings, depositions, admissions, and documentary evidence submitted by the
parties in the light most favorable to the party opposing the motion." Meyer v Center Line, 242
Mich App 560, 574; 619 NW2d 182 (2000). Summary disposition is appropriate where the
proffered evidence fails to establish a genuine issue of material fact. Maiden, supra; Smith v
Globe Life Ins Co, 460 Mich 446, 455-456, n 2; 597 NW2d 28 (1999).
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The CRA prohibits an employer from, among other things, discriminating because of sex,
which includes sexual harassment.4 MCL 37.2202(1); MCL 37.2103(i); Chambers v Trettco, Inc
(On Remand), 244 Mich App 614, 617; 624 NW2d 543 (2001). Section 103(i) of the act, MCL
37.2103(i), defines sexual harassment:
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 . . . .
(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 . . .
.
(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.
When sexual harassment falls under one of the first two subsections, it is commonly labeled quid
pro quo harassment, and when it falls under the third subsection, it is commonly labeled hostile
environment harassment. Chambers v Trettco, Inc, 463 Mich 297, 310; 614 NW2d 910 (2000).
With regard to each of these two categories of sexual harassment, our Supreme Court has
identified the elements that a plaintiff must establish to make out a claim. Id. Quoting its
previous decisions in Champion v Nation Wide Security, Inc, 450 Mich 702; 545 NW2d 596
(1996), and Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993), our Supreme Court
explained:
In order to establish a claim of quid pro quo harassment, an employee
must, by a preponderance of the evidence, demonstrate:
"(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, supra at 708-709.]"
4
As our Supreme Court has noted, "[t]hrough the Civil Rights Act, Michigan law recognizes
that, in employment, freedom from discrimination because of sex is a civil right" and
"[e]mployers are prohibited from violating this right." Chambers v Trettco, Inc, 463 Mich 297,
309; 614 NW2d 910 (2000).
-4-
In order to establish a claim of hostile environment harassment, an
employee must prove the following elements by a preponderance of the evidence:
"(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. [Radtke, supra at 382-383.]" [Chambers, supra,
463 Mich 310-311.]
However, when hostile environment harassment is committed by an agent of the employer, an
employer may avoid liability if it adequately investigated and took prompt and appropriate
remedial action upon notice of the alleged harassment. Chambers, supra, 463 Mich 312. "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." Id. "An employer, of course, must have notice of
alleged harassment before being held liable for not implementing action." Radtke, supra at 396397. When considering whether the employer was provided adequate notice, courts must apply
an objective standard. Chambers, supra, 463 Mich 319 ("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").
A. Quid pro quo harassment
We first address plaintiff 's claim of quid pro quo harassment and conclude that plaintiff
satisfied only the first of the two elements. Viewing the evidence in a light most favorable to
plaintiff, plaintiff did present evidence that created a genuine issue of material fact concerning
whether she was subjected to unwelcome sexual conduct and communication. Plaintiff presented
evidence that Wilkerson made sexually explicit comments to her and made inappropriate sexual
contact with her. However, plaintiff must also present evidence that her submission to or
rejection of the sexual advances was used as a factor in a decision affecting her employment.
Chambers, supra, 463 Mich 310.
Here, plaintiff offers no evidence of a decision affecting her employment made by
Wilkerson that related to her submission to or rejection of his sexual advances. Rather, on
appeal, she argues that she was constructively discharged because her efforts to alert someone to
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the harassment appeared to be futile, she felt hopeless, she thought she needed outside help, she
felt humiliated after NTB conducted its investigation but found her charges unsubstantiated, and
she was dissatisfied with NTB's request that she return to work under a different supervisor or
seek reassignment through DART and SES, while Wilkerson returned to his job. While we
acknowledge that under certain circumstances a constructive discharge can be an adverse
employment action resulting from submission to or rejection of sexual advances, see Champion,
supra at 710-713, plaintiff has not shown that connection in this case. Chambers, supra 463
Mich 317. In other words, the events on which plaintiff bases her quid pro quo harassment claim
do not constitute an adverse employment action resulting from her submission to or rejection of
Wilkerson's sexual advances. Thus, the trial court properly granted summary disposition to NTB
on plaintiff 's claim of sexual harassment under the quid pro quo theory.
B. Hostile environment harassment
With regard to plaintiff 's claim of hostile environment harassment, the parties focus on
the fifth element, respondeat superior, which is necessary for plaintiff to demonstrate a prima
facie case of hostile work environment. Radtke, supra at 382-383. Again, an employer "must
have notice of alleged harassment before being held liable for not implementing action." Id. at
396-397. Plaintiff argues that she notified defendant NTB of the sexual harassment by informing
Dave Wojtaszek, Dave Birge, Mark Doyle, and Wilkerson of the harassment.
The parties agree that plaintiff told Wojtaszek, a service manager at NTB who supervised
the mechanics, about the harassment. However, they disagree concerning whether telling
Wojtaszek constitutes informing NTB of the harassment. A plaintiff must demonstrate that the
employer knew of the harassment, which can be shown by evidence that a complaint was made to
a higher management or that the employer should have known about the harassment because of
its pervasiveness. Sheridan v Forest Hills Public Schools, 247 Mich App 611, 621; 637 NW2d
536 (2001); Hartleip v McNeilab, Inc, 83 F3d 767, 776-777 (CA 6, 1996). This Court has
defined higher management as "someone in the employer's chain of command who possesses the
ability to exercise significant influence in the decision-making process of hiring, firing, and
disciplining the offensive employee." Sheridan, supra at 622. According to the evidence
presented here, Wojtaszek had no authority over Wilkerson. Notifying an employee who is not
plaintiff 's supervisor or higher management is insufficient to provide notice to the employer. See
id. at 622-623 (by defining "higher management," this Court identified management employees
who have actual authority to effectuate change in the workplace and they are the employees
whose knowledge may fairly be imputed to the employer). Further, there is no indication in the
record that plaintiff told Wojtaszek of the harassment for the purpose of informing NTB of the
harassment and getting the harassment to stop.5
5
In fact, in a sworn statement, plaintiff indicated that when she told Wojtaszek about the
harassment, Wojtaszek encouraged her to tell NTB's president.
-6-
Further, plaintiff has failed to show that she notified Birge, the director of transportation
at NTB, of the harassment, or that notice to him constituted notice to the employer. Birge
admitted that plaintiff asked him if she could transfer to a position in his department; however,
Birge did not recall when plaintiff made this request, and plaintiff did not tell Birge that she
wanted to transfer because Wilkerson was harassing her. And plaintiff stated only that she told
Birge that she "wanted to make a change" and that "she worked harder than [Wilkerson]."
Plaintiff has not cited any place in the record, nor are we aware of one, that indicates that plaintiff
requested the transfer because she was being harassed by Wilkerson.
With respect to plaintiff 's notification to Doyle, the human resource coordinator, Doyle
acknowledged learning about the alleged harassment from plaintiff, but that was not until the
Thursday before plaintiff left work at NTB on Monday, February 17, 1997. On that Monday,
plaintiff 's attorney notified NTB's president of the alleged harassment, and thereafter NTB
immediately began its investigation, suspended Wilkerson, and placed plaintiff on paid leave.
Thus, even if plaintiff 's conversation with Doyle constituted notice to the employer, the evidence
demonstrates that NTB took prompt action to investigate the allegations and provided
appropriate remedial action relative to the time that Doyle was informed of the alleged
harassment. Radtke, supra.
Plaintiff also argues that her threats to Wilkerson to stop the harassment put defendant
NTB on notice that she was being harassed. To the contrary, we note that telling only the
harasser ensures that higher management in the company will not learn of the harassment
because it is in the best interests of the harasser to conceal such information. Nor do plaintiff 's
threats to Wilkerson constitute notice to higher management. Sheridan, supra.
Further, to the extent that plaintiff intended to argue that NTB had constructive
knowledge of the harassment, see Sheridan, supra at 621, 627, plaintiff has failed to demonstrate
that the harassment was so pervasive that NTB should have been alerted to the possibility that
plaintiff was being harassed. In fact, the letter from plaintiff 's attorney to NTB appears to
concede that plaintiff had not put NTB on notice that she was being harassed before she left NTB
and the letter itself was meant to put NTB on notice of the alleged sexual harassment. Under
these circumstances, the trial court properly granted summary disposition to NTB.6
III. Plaintiff 's claim of individual liability under the CRA
Plaintiff next argues that the trial court erred in finding that the individual defendant,
Wilkerson, could not be held liable under the CRA after the corporate defendants were
dismissed. According to plaintiff, the CRA provides for individual liability and Michigan case
law supports that interpretation. Thus, the question before us is whether Wilkerson, who is
6
Plaintiff also asserts that defendants and the trial court relied on inadmissible interview notes to
support the motion for summary disposition. Because resolution of the issues raised on appeal
does not hinge on the admissibility of the interview notes, we decline to reach that issue.
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employed in a supervisory capacity, can be held individually liable, separate from his employer,
for actions toward an employee under his supervision that violate the prohibition of the CRA
against sexual harassment. We hold that he cannot.
Our consideration of whether the CRA provides for individual liability begins with this
Court's decision in Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich
App 785; 369 NW2d 223 (1985). There, the plaintiff alleged race discrimination in violation of
the CRA against his former employer and two of its employees. On appeal, this Court addressed
whether the trial court erred in failing to dismiss the individual defendants and found that the trial
court did not err in denying a directed verdict with respect to the two individuals' claim that they
were not employers within the meaning of MCL 37.2201(a). Because the two individual
defendants "were responsible for making personnel decisions affecting plaintiff, and were agents
within the meaning of ยง 201(a)," this Court held that they could be found liable under the CRA.
This Court stated that its decision was controlled by a federal district court decision, Munford v
James T Barnes & Co, 441 F Supp 459 (ED Mich, 1977). Further, the Jenkins Court stated,
without elaboration, that it "has examined defendants' attempts to distinguish Munford and policy
arguments against application of Munford in the present case, and finds them to be without
merit." Jenkins, supra at 800.
In Munford, the plaintiff alleged, in part, employment discrimination in violation of title
VII of the federal Civil Rights Act of 1964 on the basis that her employer discharged her because
she refused to engage in sexual relations with her supervisor. Munford, supra at 460. The
Munford court determined that under the definition of employer of title VII, two individual
defendants, who admittedly had responsibility for making personnel decisions for the employer,
would be considered agents of the company and thus were within the statutory definition of
employer. Id. at 466. The Munford court concluded that, for purposes of the defendants' motion
for summary judgment, the plaintiff had stated a cause of action under title VII against all three
defendants, i.e., the employer and the two individual employees. Id.
Subsequently, the Sixth Circuit Court of Appeals addressed this issue in a later decision,
Wathen v General Electric Co, 115 F3d 400, 403-406 (CA 6, 1997), and implicitly overruled
Munford. In Wathen, the plaintiff appealed the district court's grant of summary judgment for her
former employer and three former employees in her cause of action alleging sexual harassment.
Id. at 401. The plaintiff claimed, in part, that the individual defendants were employed in
supervisory positions and thus were agents of the employer, and she sued them in their individual
capacities for, in part, alleged violation of title VII. Id. at 403. The plaintiff argued that the use
of the term "agent" in title VII allows for suits against the individual defendants in their
individual capacities as agents for the employer. Id. at 405. However, the court noted that the
reference to "agent" in the definition of "employer" was to create respondeat superior liability.
Id. Considering the language of title VII, congressional intent, the statutory scheme, and
remedial provisions, the court held that "an individual employee/supervisor, who does not
otherwise qualify as an 'employer,' may not be held personally liable under Title VII." Id. The
court found that "the statute as a whole, the legislative history and the case law support the
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conclusion that Congress did not intend individuals to face liability under the definition of
'employer' it selected for Title VII." Id. at 406. Thus, the decision of the Sixth Circuit Court of
Appeals in Wathen effectively rejected the holding in Munford. Furthermore, Wathen expresses
the prevailing view in the majority of federal courts.7
We further note that at least two decisions from federal district courts in Michigan, Hall v
State Farm Ins Co, 18 F Supp 2d 751 (ED Mich, 1998), and Comiskey v Automotive Industry
Action Group, 40 F Supp 2d 877, 891 (ED Mich, 1999), have considered whether Michigan's
CRA provides for individual liability and, following Jenkins, determined that it does.8 These
cases acknowledge that federal district courts are bound by decisions of Michigan's intermediate
appellate courts unless convinced that the Michigan Supreme Court would decide the question
differently. Id.; Hall, supra at 763. When stating that it was not convinced "that the Michigan
Supreme Court would construe the Michigan statute as limited by Wathen," the Comiskey court
further noted that if Michigan's CRA "is to be limited, that matter is best addressed by Michigan
courts and the Michigan legislature." Comiskey, supra at 891.
To summarize, this Court in Jenkins held that individual liability exists under Michigan's
CRA. However, the Jenkins Court stated that its decision was controlled by a federal district
court case, Munford, that has been implicitly overruled and does not reflect the majority
7
See Tomka v Seiler Corp, 66 F3d 1295, 1313 (CA 2, 1995) (holding that "individual defendants
with supervisory control over a plaintiff may not be held personally liable under Title VII"),
abrogated on other grounds by Burlington Industries, Inc v Ellerth, 524 US 742; 118 S Ct 2257;
141 L Ed 2d 633 (1998); Sheridan v E I DuPont de Nemours & Co, 100 F3d 1061, 1078 (CA 3,
1996) ("we are persuaded that Congress did not intend to hold individual employees liable under
Title VII"); Birkbeck v Marvel Lighting Corp, 30 F3d 507, 510 (CA 4, 1994) (like title VII, the
Age Discrimination in Employment Act [ADEA], 29 USC 621 et seq., limits civil liability to the
employer); Grant v Lone Star Co, 21 F3d 649, 653 (CA 5, 1994) ("title VII does not permit the
imposition of liability upon individuals unless they meet title VII's definition of 'employer'");
Williams v Banning, 72 F3d 552, 555 (CA 7, 1995) (a supervisor, in his individual capacity, does
not fall within the definition of employer in title VII); Lenhardt v Basic Institute of Technology,
Inc, 55 F3d 377, 381 (CA 8, 1995) ("[e]very circuit that has considered the issue ultimately has
concluded that an employee, even one possessing supervisory authority, is not an employer upon
whom liability can be imposed under Title VII"); Miller v Maxwell's Int'l Inc, 991 F2d 583, 587588 (CA 9, 1993) (concluding that individuals cannot be held liable for damages under title VII
and the ADEA); Sauers v Salt Lake Co, 1 F3d 1122, 1125 (CA 10, 1993) ("[u]nder Title VII,
suits against individuals must proceed in their official capacity; individual capacity suits are
inappropriate"); Smith v Lomax, 45 F3d 402, 403 (CA 11, 1995) (recognizing that employees
cannot be held liable under title VII or the ADEA); Gary v Long, 313 US App DC 403, 411; 59
F3d 1391 (1995) ("while a supervisory employee may be joined as a party defendant in a Title
VII action, that employee must be viewed as being sued in his capacity as the agent of the
employer, who is alone liable for a violation of Title VII").
8
In Hall, supra, the district court also found significant that Michigan's CRA covers any
employer "who has 1 or more employees," and that remedies include damages.
-9-
interpretation of title VII. Further, the Jenkins Court indicated that policy arguments against the
application of Munford were without merit; however, it did not identify the policy arguments
made or provide its reasoning, and thus this analysis is unhelpful to us here. Despite these
circumstances, at least two federal district courts have followed Jenkins. In this context, we
decline to follow Jenkins because we are not bound by it, MCR 7.215(I)(1),9 because it relied on
a case that was not controlling10 and that since has been implicitly overruled11 and because we
find its reasoning unpersuasive. Rather, we undertake to consider the statutory language of the
CRA and determine if the intent of the statute was to make individuals liable for violations of the
act.
When considering the statutory language, we abide by the well-established rules of
statutory construction:
An anchoring rule of jurisprudence, and the foremost rule of statutory
construction, is that courts are to effect the intent of the Legislature. To do so, we
begin with an examination of the language of the statute. If the statute's language
is clear and unambiguous, then we assume that the Legislature intended its plain
meaning and the statute is enforced as written. A necessary corollary of these
principles is that a court may read nothing into an unambiguous statute that is not
within the manifest intent of the Legislature as derived from the words of the
statute itself. [Roberts v Mecosta Co General Hosp, 466 Mich 57, 63; 642 NW2d
663 (2002) (citations omitted).]
Further, we must consider the context in which the language is used. LeRoux v Secretary of
State, 465 Mich 594, 616-617; 640 NW2d 849 (2002). "[P]arts of a statute should be construed
together in the context of the whole statute, bearing in mind the purpose of the Legislature, to
arrive at an harmonious whole." Slater v Ann Arbor Public Schools Bd of Ed, 250 Mich App
419, 429; 648 NW2d 205 (2002). When addressing a claim under the CRA, Michigan courts,
although not bound by federal precedent interpreting title VII, may find it highly persuasive.
9
MCR 7.215(I) provides in relevant part:
(1) Precedential Effect of Published Decisions. A panel of the Court of
Appeals must follow the rule of law established by a prior published decision of
the Court of Appeals issued on or after November 1, 1990, that has not been
reversed or modified by the Supreme Court, or by a special panel of the Court of
Appeals as provided in this rule.
10
When addressing a claim under the CRA, Michigan courts are not bound by federal precedent
interpreting title VII, Chambers, supra, 463 Mich 313; Barrett v Kirtland Community College,
245 Mich App 306, 314; 628 NW2d 63 (2001).
11
See Wathen, supra.
-10-
Chambers, supra, 463 Mich 313; Barrett v Kirtland Community College, 245 Mich App 306,
314; 628 NW2d 63 (2001); Meyer, supra at 569.
With respect to coverage, Michigan's CRA is similar to title VII, although the CRA
broadens the scope of employers covered. In other words, title VII applies to employers with
fifteen or more employees, 42 USC 2000e(b),12 whereas the CRA covers employers with one or
more employees, MCL 37.2201(a). We do not believe that distinction necessarily means
individual liability is included under the CRA. Rather, we believe that this more expansive
definition of employer covered by the act merely increases the scope of employers covered rather
than extending liability to individuals. Our Legislature sought to protect all employees, not just
those of employers more likely to be able to withstand the costs associated with litigating
discrimination claims under the CRA. See Miller v Maxwell's Int'l Inc, 991 F2d 583, 587 (CA 9,
1993) (both title VII and the ADEA limit liability on the basis of the number of employees, "in
part because Congress did not want to burden small entities with the costs associated with
litigating discrimination claims"). Consequently, we find that the CRA's definition of employer
concerning the number of employees does not signal an intent by the Legislature to make
individuals as well as employers liable under the act. Rather, we believe that the statutory
language that addresses agents of the employer is the key portion of the statute relative to
resolving this issue.
In this respect, our Legislature used substantially similar language when including "agent"
in the definition of employer under the CRA ("and includes an agent of that person"), MCL
37.2201(a), as is found in title VII ("and any agent of such a person"), 42 USC 2000e(b). We
believe that, like title VII, the language in the definition of "employer" concerning an "agent" of
the employer was meant merely to denote respondeat superior liability, rather than individual
liability. In fact, our Supreme Court recently observed that the reference to "an agent" in the
CRA's definition of employer "addresses an employer's vicarious liability for sexual harassment
committed by its employees." Chambers, supra, 463 Mich 310. Further, we believe that the
reasoning in Meagher v Wayne State Univ, 222 Mich App 700; 565 NW2d 401 (1997), is
consistent with our analysis.13 There, when determining whether sanctions for a frivolous claim
were properly awarded, this Court considered the trial court's ruling that the plaintiff 's claim of
age discrimination against three of the individual defendants was devoid of arguable legal merit.
Id. at 728. This Court stated:
The mere fact that MCL 37.2201(a); MSA 3.548(201)(a) defines
"employer" as including an agent does not automatically authorize a claim against
12
Title VII defines "employer" to mean "a person engaged in an industry affecting commerce
who has fifteen or more employees . . . and any agent of such a person." 42 USC 2000e(b).
13
We acknowledge that the facts in Meagher are distinguishable from the facts in the present
case because, unlike the individual defendants referred to in Meagher, Wilkerson allegedly
participated in the challenged conduct and communications.
-11-
an agent. MCL 37.2202; MSA 3.548(202) defines the prohibited acts of the
"employer." It is one thing for an employee to file a claim against an employing
entity . . . under agency principles for the individual or collective acts of its agents
that give rise to an inference of discriminatory practices or acts, see, e.g.,
Champion v Nation Wide Security, Inc, 450 Mich 702, 712; 545 NW2d 596
(1996), it is quite another thing for an employee to file a claim against a particular
agent for prohibited acts. [Meagher, supra at 728.]
Read as a whole, the CRA envisions, in our opinion, employer liability for civil rights
violations that result from the acts of its employees who have the authority to act on the
employer's behalf rather than individual liability for those civil rights violations. Further, had our
Legislature intended individual, rather than employer, liability under the CRA, it could have
expressly stated so. Thus, we conclude that the CRA provides solely for employer liability, and a
supervisor engaging in activity prohibited by the CRA may not be held individually liable for
violating a plaintiff 's civil rights.14
In sum, plaintiff failed to present evidence satisfying a prima facie case of quid pro quo
harassment or hostile environment harassment against NTB, the CRA does not provide for
individual liability, and defendants were entitled to summary disposition as a matter of law.15
IV. Remaining claims on appeal
Next, plaintiff argues that the trial court erred in denying her an opportunity to amend her
complaint to conform to the evidence in light of the dismissal of her claims under the CRA.
After the dismissal of her CRA claims, plaintiff sought to amend her complaint to include an
assault and battery count against Wilkerson. We review for an abuse of discretion a trial court's
decision to grant or deny leave to amend. Weymers v Khera, 454 Mich 639, 654, 658; 563
NW2d 647 (1997). An abuse of discretion exists when an unprejudiced person, considering the
facts on which the trial court acted, would say that there was no justification or excuse for the
ruling. Detroit/Wayne Co Stadium Authority v 7631 Lewiston, Inc, 237 Mich App 43, 47; 601
NW2d 879 (1999).
Here, plaintiff required leave of the court to amend the complaint. MCR 2.118(A)(2).
Concerning motions to amend, our Supreme Court has explained:
A motion to amend should ordinarily be granted, and should be denied
only for the following particularized reasons:
14
We note that a plaintiff can commence an action against the supervisor under traditional tort
theories.
15
Because we affirm the trial court's grant of summary disposition, we need not address
plaintiff 's issue concerning the trial court's denial of her motion in limine.
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"'[1] undue delay, [2] bad faith or dilatory motive on the part of the
movant, [3] repeated failure to cure deficiencies by amendments previously
allowed, [4] undue prejudice to the opposing party by virtue of allowance of the
amendment, [and 5] futility . . . .'" [Weymers, supra at 658, quoting Ben P Fyke
& Sons, Inc v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973).]
Although parties should be afforded great latitude in amending their pleading before trial, that
interest must be weighed against the interest of the parties and the public in the speedy resolution
of disputes. Weymers, supra at 660. Delay, alone, does not warrant denial of a motion to amend,
but delay resulting in actual prejudice suffices. Id. at 659. "The litigation may proceed to a point
where the opposing party cannot reasonably be expected to defend against the amendment; this is
an especially pertinent factor on the eve of, during, or after trial." Fyke, supra at 663. Further, a
defendant is entitled to notice of what claims he must defend against. Heins v Detroit
Osteopathic Hosp Corp, 150 Mich App 641, 645; 389 NW2d 141 (1986).
[A] trial court may find prejudice when the moving party seeks to add a
new claim or a new theory of recovery on the basis of the same set of facts, after
discovery is closed, just before trial, and the opposing party shows that he did not
have reasonable notice, from any source, that the moving party would rely on the
new claim or theory at trial. [Weymers, supra at 659-660.]
According to the trial court, it denied leave because "the pleadings make it clear that the
cause of action was for a violation of the [CRA] and was not in any way connected with
allegations of assault and battery." The trial court further noted that all the discovery conducted
was aimed toward defending sexual harassment claims and found no reason "to allow an
amendment at this late date in order to allege what is basically a new cause of action." In other
words, the trial court's denial of the motion to amend was based on its finding that defendant
would have been prejudiced by the amendment. Plaintiff did not move to amend the complaint
to include an assault and battery count against Wilkerson until more than 1-1/2 years after she
filed her complaint. Further, the motion to amend was made after the close of discovery, after
case evaluation, and after summary disposition had been granted to defendants. As the trial court
recognized, the proposed amendment was prejudicial to Wilkerson because he had no notice that
he would be defending against an assault and battery claim. We find no abuse of discretion.16
Finally, plaintiff argues that the trial court erred in refusing to permit a "limited"
evidentiary hearing concerning the reasonableness of the attorney fees that NTB and Wilkerson
requested as case evaluation sanctions under MCR 2.403(O). A party who rejects a case
evaluation is subject to sanctions if the party fails to improve its position at trial. Elia v Hazen,
242 Mich App 374, 378; 619 NW2d 1 (2000).
16
To the extent that plaintiff relies on MCR 2.118(C)(1) in support of amendment, we find this
rule inapplicable in the present circumstances and her argument unpersuasive.
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A trial court should hold an evidentiary hearing when a party is challenging the
reasonableness of the attorney fees claimed, Miller v Meijer, Inc, 219 Mich App 476, 479; 556
NW2d 890 (1996); however, if the parties created a sufficient record to review the issue, an
evidentiary hearing is not required. See Head v Phillips Camper Sales & Rental, Inc, 234 Mich
App 94, 113; 593 NW2d 595 (1999); Giannetti Bros Constr Co, Inc v Pontiac, 175 Mich App
442, 450; 438 NW2d 313 (1989). Here, defendants provided affidavits of defense counsel,
itemized billing statements, and surveys of hourly rates from Michigan Lawyers Weekly and the
Michigan Bar Journal. We find this evidence sufficient to support the trial court's ruling
concerning attorney fees, which the trial court awarded in an amount less than requested.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Kurtis T. Wilder
/s/ Richard A. Bandstra
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