LULA ELEZOVIC V FORD MOTOR CO
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STATE OF MICHIGAN
COURT OF APPEALS
JOSEPH ELEZOVIC,
FOR PUBLICATION
October 23, 2003
9:10 a.m.
Plaintiff,
and
LULA ELEZOVIC,
Plaintiff-Appellant/Cross-Appellee,
v
No. 236749
Wayne Circuit Court
LC No. 99-934515-NO
FORD MOTOR COMPANY and DANIEL P.
BENNETT,
Defendants-Appellees/CrossAppellants.
Updated Copy
December 30, 2003
Before: Jansen, P.J., and Neff and Kelly, JJ.
NEFF, J.
Plaintiff Lula Elezovic1 appeals as of right the trial court's grant of a directed verdict in
favor of defendant Ford Motor Company and defendant Daniel Bennett, a former supervisor at
Ford, on plaintiff 's claims of sexual harassment and gender discrimination. We affirm the grant
of the directed verdict in favor of Ford. We also affirm the grant of a directed verdict in favor of
Bennett, but only because we are bound to do so by the recent holding in Jager v Nationwide
Truck Brokers, Inc, 252 Mich App 464, 478; 652 NW2d 503 (2002), in which a panel of this
Court decided that under the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq., an
individual supervisor cannot be held liable, separate from his employer, for hostile environment
sexual harassment. MCR 7.215(J). Were we not bound by the holding in Jager, we would
reverse the grant of a directed verdict in favor of Bennett on plaintiff 's hostile environment
claim, MCL 37.2103(i)(iii).
1
Plaintiff Joseph Elezovic, Lula's husband, is not involved in this appeal.
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I
Plaintiff, an hourly production worker at Ford's Wixom Assembly Plant, filed this action
in November 1999 against Ford and Bennett, alleging claims of sexual harassment, gender
discrimination, and retaliation. At the core of plaintiff 's claims was alleged conduct by Bennett
from 1995 through 1999 that included Bennett exposing his penis and masturbating when alone
with plaintiff in the Wixom plant rail yard, obscene gestures and lewd facial expressions
simulating oral sex, a physical attack at a plant bathroom, and repeated sexual remarks such as
asking plaintiff if her "boobs [were] real," saying that he "would like to stick [his] dick in
between [her] boobs," and licking his lips and asking for a "blow job." According to plaintiff,
she did not complain to Ford of Bennett's sexual harassment because of her Albanian cultural
background and fear of reprisals or further intimidation by Bennett. However, plaintiff
complained about nonsexual matters involving Bennett and her work conditions at Ford. She
also sought psychological counseling and medical care, which she said were made necessary by
the harassment at work.
Following a three-week jury trial in August 2001, the trial court directed a verdict in
favor of defendants, finding that plaintiff had failed to establish a prima facie case of
discrimination or retaliation by Ford or Bennett. Plaintiff appeals the grant of directed verdict on
her claims of sexual harassment and gender discrimination.2 She also alleges error requiring
reversal in the court's evidentiary rulings.
II
The sexual conduct alleged by plaintiff formed the basis of separate claims of sex
discrimination under the CRA. We find error only with regard to the claim of hostile
environment sexual harassment, and only with regard to defendant Bennett. We therefore first
address plaintiff 's claim that the court erred in directing a verdict for defendants on her hostile
environment sexual harassment claim.
A
This Court reviews de novo a trial court's decision on a motion for a directed verdict.
Derbabian v S & C Snowplowing, Inc, 249 Mich App 695, 701; 644 NW2d 779 (2002). A
directed verdict is appropriate only when no factual question exists upon which reasonable minds
could differ. Cacevic v Simplematic Engineering Co (On Remand), 248 Mich App 670, 679680; 645 NW2d 287 (2001). We view all the evidence admitted up to the time of the motion, in
the light most favorable to the nonmoving party, granting that party every reasonable inference,
to determine whether a question of fact existed. Id. at 679; Tobin v Providence Hosp, 244 Mich
App 626, 651-652; 624 NW2d 548 (2001). When the evidence could lead reasonable jurors to
disagree, the court may not substitute its judgment for that of the jury. Id. at 652.
2
Plaintiff does not appeal the grant of a directed verdict regarding her retaliation claim.
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B
The CRA prohibits an employer from discriminating because of sex, which includes
sexual harassment. MCL 37.2202(1); MCL 37.2103(i); Chambers v Trettco, Inc, 463 Mich 297,
309; 614 NW2d 910 (2000); Chambers v Trettco, Inc (On Remand), 244 Mich App 614, 617;
624 NW2d 543 (2001). MCL 37.2103(i) provides:
Discrimination because of sex includes 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 referred to
as quid pro quo harassment; when it falls under the third subsection, it is commonly labeled
hostile environment harassment. Chambers, supra, 463 Mich 310.
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." [Id. at 311, quoting Radtke v Everett, 442 Mich
368, 382-383; 501 NW2d 155 (1993).]
With regard to the respondeat superior element of a claim of hostile environment
harassment, the Chambers Court explained:
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"Under the Michigan Civil Rights Act, an employer may avoid liability [in
a hostile environment case] 'if it adequately investigated and took prompt and
appropriate remedial action upon notice of the alleged hostile work environment.'
. . . Such prompt and appropriate remedial action will permit an employer to avoid
liability if the plaintiff accuses either a co-worker . . . or a supervisor of sexual
harassment. … An employer, of course must have notice of alleged harassment
before being held liable for not implementing action." [Id. at 312, quoting
Radtke, supra at 396-397.]
Thus, an employer may avoid liability for a claim of sexual harassment if it does not have
actual or constructive notice of the alleged harassment. Radtke, supra at 396 n 44.
In this case, the trial court granted a directed verdict on the basis that plaintiff had failed
to establish that Ford had notice of the alleged sexual harassment. Even viewing the evidence in
the light most favorable to plaintiff, we find no error in the court's conclusion.
In McCarthy v State Farm Ins Co, 170 Mich App 451, 457; 428 NW2d 692 (1988), this
Court explained what is meant by actual or constructive notice:
"Where . . . the plaintiff seeks to hold the employer responsible for the
hostile environment created by the plaintiff 's supervisor or co-worker, she must
show that the employer knew or should have known of the harassment in question
and failed to take prompt remedial action. . . . The employee can demonstrate
that the employer knew of the harassment by showing that she complained to
higher management of the harassment . . . or by showing the pervasiveness of the
harassment, which gives rise to the inference of knowledge or constructive
knowledge." [Id. at 457, quoting Henson v Dundee, 682 F2d 897, 905 (CA 11,
1982).]
In Sheridan v Forest Hills Pub Schools, 247 Mich App 611, 622; 637 NW2d 536 (2001), this
Court defined the term "higher management" to mean 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.
With regard to actual notice, plaintiff asserts that she told two of her supervisors of the
1995 incident in which Bennett masturbated in front of her. However, plaintiff asked them as
friends to keep this confidential and to not tell anyone. She admitted that she did not want them
to report Bennett's conduct to labor relations, the department responsible for investigating
complaints of sexual harassment. Under these circumstances, plaintiff 's report of Bennett's
conduct to her supervisors does not constitute actual notice to Ford, such that it could investigate
the matter and take remedial action.
Our conclusion regarding actual notice is not altered by the fact that Ford's
antiharassment policy sets forth procedures requiring supervisors to report complaints of sexual
harassment. "[N]otice 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
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substantial probability that sexual harassment was occurring." Chambers, supra, 463 Mich 319.
Given that plaintiff asked her supervisors to keep the information in confidence and not tell
anyone about Bennett's unwanted advances, there was not a "substantial probability" that Ford
would have been aware of the hostile work environment claim so as to trigger "prompt and
adequate remedial action" on its part.
We also reject plaintiff 's argument that actual notice was provided by other
communications to Ford made on behalf of plaintiff. Contrary to plaintiff 's contention, there is
no evidence that the letters from her psychologist, Dr. Parker, provided Ford with adequate
notice that plaintiff was being subjected to sexual harassment by Bennett or to a work
environment made hostile by sexual harassment. These letters make no reference to sexual
conduct, and, as plaintiff herself admitted, she filed various grievances and labor relations
complaints over the years against Bennett, but never once complained about sexual harassment
by him.
Plaintiff claims that she presented additional evidence that she complained to Ford
officials that Bennett was harassing her, that she was frightened of him, and, further, that her
son-in-law, Paul Lulgjuraj, wrote a letter to Ford's supervisor of labor relations, Jerome Rush,
asserting that Lulgjuraj might take legal action "to insure that our client is not subjected to
working in a hostile environment." The letter did not mention that plaintiff was being subjected
to sexual harassment. Although the letter from Lulgjuraj referenced a "hostile environment,"
plaintiff admitted that its purpose was to notify Ford that she was accusing her co-worker, Tami
Holcomb, of threatening her life and she also admitted that the letter was not communicating
anything to Ford about there being sexual harassment at Ford. This additional evidence does not,
under the objective standard of Chambers, establish that Ford would have been aware that sexual
harassment was occurring. Chambers, supra, 463 Mich 319. Plaintiff failed to show that Ford
had actual notice of the alleged sexual harassment.
We also find no error in the court's conclusion that plaintiff failed to establish
constructive notice of the alleged sexual harassment. The trial court held that plaintiff had not
adduced sufficient evidence showing that Bennett's conduct was so pervasive that it gives rise to
the inference of knowledge or constructive knowledge. Sheridan, supra at 627; McCarthy, supra
at 457. In addition to the incidents involving Bennett's sexual harassment, plaintiff provided
testimony that other supervisors sexually harassed her and that other female employees were
sexually harassed. Nonetheless, this evidence did not establish that the sexual harassment was
such that Ford had constructive notice. Plaintiff indicated that there were no witnesses to the
alleged incidents of sexual harassment against her. Further, the complaint of alleged sexual
harassment of plaintiff 's coworker cannot be said to establish notice with respect to plaintiff 's
claim of harassment. Sheridan, supra at 627-628.
Because plaintiff failed to show that she provided actual or constructive notice to Ford
concerning the existence of a sexually hostile working environment, Ford cannot be vicariously
liable for her hostile environment claim. Chambers, supra, 463 Mich 312; Radtke, supra at 395
n 41. Thus, the trial court did not err in directing a verdict for Ford on plaintiff 's hostile
environment claim.
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C
We find error in the trial court's conclusion that plaintiff failed to establish a hostile
environment sexual harassment claim against Bennett; however, we are nonetheless obligated to
affirm the court's decision in light of Jager, supra. As Bennett notes, and plaintiff concedes on
appeal, this Court recently held that the CRA imposes liability only on employers, and not on
individual employees of employers, with regard to sexual harassment claims. Id. at 478, 485.
Thus, the Jager Court concluded that "a supervisor engaging in activity prohibited by the CRA
may not be held individually liable for violating a plaintiff 's civil rights." Id. at 485.
Accordingly, Jager requires a conclusion that Bennett has no individual liability for sexual
harassment.
Nonetheless, we conclude that Jager was wrongly decided. The Court in Jager relied on
federal precedent and analyses under title VII in deciding that the CRA does not allow for
individual liability for sexual harassment, stating: "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, rather than individual liability." Jager, supra at 484.
We find Jager's reliance on federal law misplaced. The Michigan Supreme Court has
recognized that unlike the federal law, the CRA expressly establishes a cause of action for sexual
harassment and that employer liability under the CRA for sexual harassment is based on
traditional agency principles. Chambers, supra at 311, 315-316, 326. Thus, this Court has
observed that the theories of liability underlying federal sexual harassment cases must be
distinguished from those underlying the CRA:
To the extent that the dissent relies on federal cases involving sexual
harassment claims under title VII, that reliance is misplaced. In Chambers, our
Supreme Court held that federal principles of vicarious liability related to sexual
harassment claims brought under the federal title VII do not apply to claims
brought under Michigan's CRA. The Court reasoned that federal principles are
contrary to Michigan case law and the express language of the CRA. Chambers,
supra at 303, 316. . . . The Court concluded that common-law agency principles
determine when an employer is liable for sexual harassment committed by its
employees under the CRA, whereas federal principles of vicarious liability
pertinent to title VII are founded in negligence. As such, the Court refused to
apply federal principles to sexual harassment claims alleging employer liability
under the CRA. Id. at 311, 314-316. See Chambers v Trettco, Inc (On Remand),
244 Mich App 614, 618; 624 NW2d 543 (2001) (recognizing that under federal
law, once "a plaintiff has established that a supervisor created a hostile working
environment, the burden shifts to the employer to disprove vicarious liability for
the supervisor's actions," but that "under state law, vicarious liability will be
found only where the plaintiff has carried the burden of proving respondeat
superior"). Given that clear mandate by our Supreme Court, we cannot apply
federal title VII principles of vicarious liability in defining the term "higher
management" as it relates to a claim under the CRA. We instead rely on the
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express language of the CRA and the cited Michigan cases in determining the
proper standard. Chambers, supra, 463 Mich 303, 316. [Sheridan, supra at 622623 n 12.]
Michigan's CRA is rooted in common-law agency principles. Chambers, supra, 463
Mich 311. The Chambers Court stated, "[b]ecause the Civil Rights Act expressly defines
'employer' to include agents, we rely on common-law agency principles in determining when an
employer is liable for sexual harassment committed by its employees." Id. In this case, we can
find no basis for distinguishing Chambers on the ground that it involved an issue of employer
liability.
The CRA prohibits an employer from discriminating because of sex, which includes
sexual harassment, as defined in MCL 37.2103(i). The statute expressly defines an employer as
including an agent:
"Employer" means a person who has 1 or more employees, and includes
an agent of that person. [MCL 37.2201(a).]
"Person" means an individual, agent, association, corporation, joint
apprenticeship committee, joint stock company, labor organization, legal
representative, mutual company, partnership, receiver, trust, trustee in bankruptcy,
unincorporated organization, the state or a political subdivision of the state or an
agency of the state, or any other legal or commercial entity. [MCL 37.2103(g).]
The Legislature expressly and separately added "agent" to the definition of "employer." This
definitional language indicates that an agent bears liability for discrimination. Common-law
agency principles are in keeping with this language. Under agency principles, an agent is
generally liable to a third person for misfeasance and for his own tortious acts. See Michigan
Pleading and Practice, Agency, § 104, p 366; Warren Tool Co v Stephenson, 11 Mich App 274,
300; 161 NW2d 133 (1968).
In reaching its holding, the Jager Court relied on the reasoning of the Sixth Circuit Court
of Appeals in Wathen v Gen Electric Co, 115 F3d 400, 406 (CA 6, 1997), which found that the
language "and any agent of such a person"3 in the federal act did not impose individual liability
for sexual harassment. However, the Walthen court relied in key part on the limitation in the
federal law's definition of employer that limits liability for discrimination to employers with
fifteen or more employees. Id. at 406. We disagree with the Jager Court's conclusion that this
distinction "does not signal an intent by the Legislature to make individuals as well as employers
liable under the act." Jager, supra at 483-484. The Walthen court reasoned that it was
3
"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.'" Jager, supra at 483 n 12,
quoting 42 USC 2000e(b).
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inconceivable that a Congress concerned with protecting small employers would simultaneously
allow civil liability to run against individuals. Id. at 406. Unlike the federal act, the CRA
expressly prohibits sexual harassment, Chambers, supra, 463 Mich 315, and clearly expresses
the Legislature's intent that sexual harassment be strictly prohibited in this state's work
environment, including the workplace of the smallest employer. MCL 37.2201(a). Further,
contrary to the reasoning of Walthen,4 the CRA's remedy provisions are not incompatible with
the imposition of individual liability for violations of the act since the CRA allows damages for
injury or loss caused by each violation of the CRA, including reasonable attorney fees. MCL
37.2801(1) and (3); Hall v State Farm Ins Co, 18 F Supp 2d 751, 764 (ED Mich, 1998).
We are not the first to question the statutory interpretation espoused in Jager. While
adhering to the Jager holding, the court in United States ex rel Diop v Wayne Co Community
College Dist, 242 F Supp 2d 497, 507 (ED Mich, 2003), noted its disagreement with the Jager
interpretation of the CRA given the statutory language: "[T]his Court does not necessarily
endorse the Michigan Court of Appeals' interpretation of the language in the Elliott-Larsen Act
in Jager, as it believes that the language 'includes an agent of that employer,' could, under
principles of strict statutory construction, well be read as extending liability to individuals.
Otherwise, this phrase is merely surplusage, as it adds nothing to the definitional scope of
"employer," which itself defines the term 'employer' as a person." We concur with this
observation.
Chambers, implicitly, if not explicitly, recognized that an individual may be held liable
for sexual harassment under the CRA. The Court noted that its distinctions with regard to
employer liability for hostile environment sexual harassment "simply allows this Court to
determine whether the sexual harasser's employer, in addition to the sexual harasser himself, is to
be held responsible for the misconduct." Chambers, supra at 320 (emphasis in original). We are
unable to reconcile the holding in Jager with the Supreme Court's analyses in Chambers or the
language of the CRA.
The facts of this case bear out the anomalous result with respect to Bennett under the
holding in Jager. Merely because the company is absolved of legal fault for lack of notice, the
alleged perpetrator-supervisor is also shielded from liability, even though he purposely created a
hostile work environment, and even though his conduct, if proved, undeniably constitutes sexual
harassment.5
4
The Walthen court reasoned that Congress did not envision individual liability because title
VII's remedial provisions initially limited recovery to reinstatement and back pay, remedies
available only from an employer, and when it was subsequently amended to allow compensatory
and punitive damages, Congress calibrated the amounts recoverable to the size of the employer.
Walthen, supra at 406.
5
The holding in Jager appears to be leading to greater inconsistency in outcomes with regard to
claims under the CRA. Recently, in Poaches v Electronic Data Systems Corp, 266 F Supp 2d
(continued…)
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We conclude that under the controlling legal principles regarding sexual harassment
under Michigan law, Chambers, supra at 313, the Legislature did not intend to preclude
individual liability for sexual harassment. Were it not for this Court's holding in Jager, we
would reverse the trial court's grant of a directed verdict in favor of Bennett with regard to
plaintiff 's hostile environment claim.
III
We find no error requiring reversal with regard to plaintiff 's remaining claims. The trial
court did not err in granting a directed verdict on plaintiff 's claim of gender discrimination. To
establish a claim of gender discrimination, plaintiff must show, by a preponderance of the
evidence, that (1) she is female, (2) she was subjected to an adverse employment action, (3) she
was qualified for the position, and (4) similarly situated male employees were treated more
favorably so as to be "unaffected by the employer's adverse conduct." Town v Michigan Bell
Telephone Co, 455 Mich 688, 695; 568 NW2d 64 (1997). Contrary to plaintiff 's claim, the trial
court properly concluded that plaintiff failed to identify and prove that a similarly situated male
employee had been treated more favorably.
IV
The trial court did not err in granting a directed verdict on plaintiff 's claim of quid pro
quo sexual harassment. In Chambers, supra, 463 Mich 310, the Court, quoting Champion v
Nation Wide Security, Inc, 450 Mich 702, 708-709; 545 NW2d 596 (1996), set forth the elements
of quid pro quo sexual harassment claim. Specifically, a plaintiff must prove:
"(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."
(…continued)
623, 628 (ED Mich, 2003), the United States District Court for the Eastern District of Michigan
rejected the analysis of Jager with regard to an anti-retaliation claim under the CRA, concluding
that the Legislature's use of the broader term "person" under the anti-retaliation provision
supports a conclusion that the Legislature intended the imposition of individual liability for
retaliation under the CRA:
Here, the Michigan Legislature has clearly spoken—it has prohibited
retaliation by any "person," in contrast to its prohibition on discrimination by an
"employer," and it has expressly defined "person" more broadly than "employer,"
with the former encompassing the latter. Following this plain language where it
naturally leads, the Court concludes that the scope of liability is broader under the
Elliott-Larsen Act's anti-retaliation provision than under the Act's antidiscrimination provision. If this is not what the Michigan Legislature intended
through its use of different terms in the two provisions, it is the task of that body,
and not this Court, to amend the Act accordingly.
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Plaintiff failed to introduce sufficient evidence identifying a tangible employment action
resulting from Bennett's sexual harassment. There was no "objective evidence" that plaintiff
suffered a "materially and objectively adverse" employment decision. Chambers, supra, 463
Mich 320 n 7. The record reflects that plaintiff suffered no tangible employment action with
regard to being "bumped" because she continued to perform the same job for the same wage and
returned to her former shift within a few weeks. Plaintiff presented no evidence that she was
denied overtime after Bennett's sexual harassment.
Moreover, plaintiff failed to present sufficient evidence showing that the "bumping" and
the denial of overtime were caused by Bennett's misconduct. Decisions regarding bumps in
shifts and overtime were a function of the collective bargaining agreement and were not
controlled by individual supervisors. Finally, given the passage of time from Bennett's
misconduct in 1995 to the alleged adverse employment action, plaintiff failed to show the
necessary causal linkage required by Chambers, supra, 463 Mich 317.
V
We find no basis for reversal with regard to plaintiff 's evidentiary claims. The decision
whether to admit evidence is within the discretion of the trial court and will not be disturbed on
appeal absent a clear abuse of discretion. Chmielewski v Xermac, Inc, 457 Mich 593, 614; 580
NW2d 817 (1998); Peña v Ingham Co Rd Comm, 255 Mich App 299, 303; 660 NW2d 351
(2003). 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.
People v Rice (On Remand), 235 Mich App 429, 439; 597 NW2d 843 (1999).
A
The trial court did not abuse its discretion in excluding, under MRE 404(b) evidence of
Bennett's 1995 conviction of indecent exposure and the facts associated with that conviction.
According to plaintiff, Bennett's indecent exposure conviction arose from a nonwork-related
incident in which Bennett reportedly followed a car on the expressway with three teenage girls in
it, pulled alongside the girls' car, and began waving and pointing at his groin area, whereupon the
girls saw that Bennett was masturbating. Because Bennett was driving a company car, the police
traced the license plate to Ford, and the head of security informed them that the car was assigned
to Bennett. He was convicted of indecent exposure after a trial.6
MRE 404(b) provides:
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
6
According to defendant Ford, Bennett's conviction was subsequently expunged.
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intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
To be admissible under MRE 404(b), evidence generally must satisfy three requirements: (1) it
must be offered for a proper purpose, (2) it must be relevant, and (3) its probative value must not
be substantially outweighed by its potential for unfair prejudice, MRE 403. People v Starr, 457
Mich 490, 496, 498; 577 NW2d 673 (1998); People v VanderVliet, 444 Mich 52, 74-75; 508
NW2d 114 (1993), mod 445 Mich 1205 (1994). A proper purpose is one other than establishing
the defendant's character to show his propensity to commit the offense. Id. at 74.
1
The trial court did not abuse its discretion in excluding evidence of Bennett's conviction.
Plaintiff failed to establish that the evidence was offered for a proper purpose.
Bennett's act of indecent exposure outside the workplace is not sufficiently similar to
sexually harassing an employee in the workplace to establish a common plan, scheme, or system.
People v Sabin (After Remand), 463 Mich 43, 63-66; 614 NW2d 888 (2000). Unlike in Sabin,
id. at 64-65, here, there was not a sufficiently strong showing that evidence of Bennett's
conviction shared a "concurrence of common features" with his alleged sexual harassment of
plaintiff. Further, even if the evidence was admitted for a proper purpose, we would find no
abuse of discretion in the court's exclusion of the evidence otherwise under MRE 404(b).
2
We also reject plaintiff 's claim that Bennett's conviction was admissible against Ford
because it was essential evidence of notice to Ford of Bennett's conduct, which was necessary to
proving respondeat superior. Chambers, supra at 312. As plaintiff correctly notes, the Michigan
Supreme Court has taken a "sliding scale" approach to the MRE 403 analysis. See People v
Mills, 450 Mich 61, 75-76; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995). "[T]he idea of
prejudice denotes a situation in which there exists a danger that marginally probative evidence
will be given undue or pre-emptive weight by the jury." Mills, supra at 75, quoting Sclafani v
Peter S Cusimano, Inc, 130 Mich App 728, 735; 344 NW2d 347 (1983).
Plaintiff contends that Bennett's conviction was highly probative evidence and should
have been admitted because it was "absolutely essential background fact" in considering the
totality of the circumstances with regard to notice. Sheridan, supra at 622. Plaintiff maintains
that knowledge of the indecent exposure conviction would lead a reasonable employer to
conclude that plaintiff 's general complaints about Bennett were indicative of sexual harassment.
Plaintiff asserts that such essential evidence can never be excluded under MRE 403.
We find plaintiff 's argument unconvincing. Plaintiff had previously made a specific
complaint of sexual harassment against her union committeeman at Ford and, on the contrary,
voiced only nonsexual complaints against Bennett. Under these circumstances, we cannot agree
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with plaintiff 's contention that the evidence was essentially conclusively probative of notice.
Plaintiff has otherwise failed to show any link between Ford's knowledge of Bennett's indecent
exposure conviction and Ford's receipt or investigation of plaintiff 's work complaints. The court
did not abuse its discretion in excluding the conviction evidence on the basis that its probative
value was substantially outweighed by the danger of unfair prejudice. At most, the evidentiary
issue presented a close question. There can ordinarily be no abuse of discretion in a trial court's
decision regarding a close evidentiary question. Sabin, supra at 67.
B
The trial court did not abuse its discretion in excluding evidence of other sexual
harassment complaints at Ford Wixom. According to plaintiff, the trial court's exclusion of a
database of sexual harassment claims brought at Ford Wixom, prepared by her counsel,
prevented her from exploring at trial these other charges of sexual harassment and was directly
relevant in assessing Ford's respondeat superior liability.
Contrary to plaintiff 's contention, the database evidence was not automatically
admissible merely because Chambers requires consideration of the totality of the circumstances.
As Ford correctly argues, the phrase "the totality of circumstances" refers to the circumstances of
a plaintiff 's work environment.
A hostile work environment claim is actionable only when, in the totality
of the circumstances, the work environment is so tainted by harassment that a
reasonable person would have understood that the defendant's conduct or
communication had either the purpose or effect of substantially interfering with
the plaintiff 's employment, or subjecting the plaintiff to an intimidating, hostile,
or offensive work environment. [Radtke, supra at 398.]
Even though the trial court excluded the "database" enumerating the complaints filed at
Ford Wixom, it did not exclude those complaints that were relevant to plaintiff 's work
environment. Accordingly, the trial court did not abuse its discretion by excluding the
complaints that did not pertain to plaintiff 's work environment.
VI
The trial court did not abuse its discretion in refusing plaintiff 's request to add Pamela
Perez to her witness list. A trial court's decision to bar testimony of a witness who was not
identified within the period established by the court is reviewed for an abuse of discretion.
Hayes-Albion Corp v Kuberski, 421 Mich 170, 188; 364 NW2d 609 (1984). "This Court will
not disturb a trial court's decision regarding whether to permit a witness to testify, after a party
has failed to comply with a deadline for submission of a witness list, absent an abuse of
discretion." Carmack v Macomb Co Community College, 199 Mich App 544, 546; 502 NW2d
746 (1993).
Plaintiff 's complaint was filed in November 1999. After extensive discovery and
numerous pretrial motions, the trial court scheduled the trial to begin on August 13, 2001. On
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June 28, 2001, it came to light, during a deposition in an unrelated case against the same
defendants, that another Ford Wixom female employee, Perez, claimed that she too had been
subjected to unwanted sexual advances made by Bennett.
On July 2, 2001, plaintiff filed an emergency motion to add Perez as a witness in this
case. Perez appeared for her deposition on July 25, 2001, which was less than three weeks
before the trial was scheduled to start. At the deposition, Perez testified about several incidents
involving inappropriate sexual behavior on the part of Bennett. After hearing argument from
counsel, the trial court refused to allow Perez to testify.
Although plaintiff argues that defendants were not prejudiced because they had the
opportunity to depose Perez, plaintiff acknowledges that defendants needed time to find the
witnesses who could confirm or deny the allegations made by Perez. We therefore find no abuse
of discretion in the denial of plaintiff 's request to add Perez as a witness in this case, especially
considering that plaintiff had filed her complaint in November 1999 and that the case was about
to go to trial.
VII
In light of our above conclusions, we do not address defendants' claim on cross-appeal
that plaintiff 's sexual harassment allegation concerning the alleged exposure incident was barred
by the statute of limitations.
Affirmed.
Jansen, P.J., concurred.
/s/ Janet T. Neff
/s/ Kathleen Jansen
-13-
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