DEBORAH PELLENS V REGGIE RICHARDSON
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STATE OF MICHIGAN
COURT OF APPEALS
DEBORAH PELLENS and FREDRIC PELLENS,
UNPUBLISHED
July 9, 2002
Plaintiffs-Appellants,
v
No. 231452
Genesee Circuit Court
LC No. 98-62492-CZ
CITY OF FLINT and FLINT HOUSING
COMMISSION,
Defendants-Appellees,
and
REGGIE RICHARDSON,
Defendant.
Before: Judge Kelly, P.J., and Murphy and White, JJ.
PER CURIAM.
Plaintiffs appeal as of right from a judgment granting defendants’ motion for summary
disposition pursuant to MCR 2.116(C)(10) in this hostile work environment sexual harassment
case brought under the Civil Rights Act (CRA), MCL 37.2101 et seq. We affirm.
I. BASIC FACTS
Plaintiff1 had been employed with the City of Flint off and on since the mid-1970s. In
the late fall of 1994, Reggie Richardson was appointed as the director of the Flint Housing
Commission. Plaintiff worked full-time as Richardson’s executive secretary. Initially, plaintiff
had a positive relationship with Richardson, and she considered him a friend. On occasion,
plaintiff and Richardson would go out to lunch together, and at times they would discuss their
respective personal lives.
1
For purposes of this opinion, when we reference “plaintiff” in the singular, it shall refer to
Deborah Pellens. Reference to “defendants” applies to the city and the commission.
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By the early fall of 1995, plaintiff began having severe headaches, and she was missing
time from work. At about that same time, plaintiff believed that Richardson started behaving in
a manner that constituted sexual harassment. Plaintiff asserted that Richardson’s behavior
consisted of hugging her from behind, telling her that she smelled good, telling her how to dress,
buying jogging suits for her, telling her that she looked sexy in jeans or other outfits, telling her
that she had nice black woman legs, commenting to her about the size of his sexual organ, asking
her about her bras, telling her that if they had sex, he would drive her wild, telling her that he
was “horny,” and giving her unwanted kisses. Plaintiff would typically respond by telling him to
stop it so that she could get her work done. Plaintiff considered Richardson’s actions and
language to be serious sexual advances, and not merely joking around.
Around the time of the alleged incidents of harassment, Richardson had told plaintiff to
keep her office door closed so that others in the office would not interfere with her work. The
alleged harassment continued and grew worse over time, and plaintiff’s headaches also became
worse. Plaintiff claimed that she did not want to be left alone with Richardson, and she began to
dread going into work. Plaintiff continued missing time at work, and she last worked at the
office during normal hours on December 8, 1995. Between December 8, 1995, and May of
1996, plaintiff, at times, would come into the office with her daughter late at night to get some
work done and to avoid Richardson, but otherwise she was drawing sick pay. Plaintiff’s sick
leave applications indicated that she was suffering from headaches, stress at work and home,
confusion, inability to concentrate, depression, and inability to sleep. There was no mention of
sexual harassment.
After May 1996, plaintiff was not working in any manner, and she was on extended sick
leave with a July 1996 sick leave application indicating severe depression and inability to sleep.
In July 1996, plaintiff filed for workers’ compensation benefits based on emotional stress related
to work. It was only during the processing of the workers’ compensation claim that plaintiff first
revealed to anyone the allegations of sexual harassment. The allegations were made by plaintiff
to a doctor in November 1996. There is no issue of fact that plaintiff did not tell anyone of the
sexual harassment until she was no longer working for defendants.
Plaintiff testified that she did not lodge any complaints with city officials because she
was fearful that Richardson would retaliate against her in light of his control over her job.
Plaintiff’s fear of retaliation was based, in part, on an incident involving negative anonymous
letters concerning Richardson sent to the mayor and city commissioners. Richardson called a
meeting with employees, and according to plaintiff, the following occurred:
He addressed the situation about the anonymous letters. And he looked at
everyone there in the staff and said you know who you are, you are in a political
arena, you have to play the political game; you mark my words, if you don’t play
the game, Reggie Richardson will be here, you will not be here.
Plaintiff did testify that during her employment with Richardson, he never acted in a
vindictive manner towards her. Phyllis Miller, a member of the board of commissioners,
testified that the commission was not aware of any sexual harassment claims during plaintiff’s
employment; therefore, they had taken no action on the matter. Only after plaintiff had filed a
workers’ compensation claim and was no longer working did the commission become aware of
plaintiff’s claims. Richardson had told the commission that plaintiff filed a workers’
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compensation claim because of an aneurysm. Miller testified that the people working under
Richardson were fearful of retribution and loss of employment if they made any complaints
about him.2
The magistrate handling the workers’ compensation claim awarded plaintiff benefits in
the amount of $386 per week. The magistrate found that work-related factors supported the
disability claim based on emotional stress brought on by the actions of Richardson. The
magistrate believed the testimony of plaintiff concerning the claims of sexual harassment and
rejected Richardson’s denials.
Richardson denied that he ever made any sexual advances towards plaintiff, and that
plaintiff invented and mischaracterized her allegations. Defendants also point out that plaintiff
admitted to participating in some male/female horseplay with other employees. Defendants also
reference Christmas cards from plaintiff to Richardson that are very pleasant and indicate that
plaintiff thought very highly of Richardson.
Plaintiffs filed a complaint, which included a claim against Richardson,3 a separate claim
against the city and the commission based on sexual harassment/hostile work environment, and a
2
Miller testified at her deposition as follows:
Q. Was it - - did it ever reach the point where you felt that the staff was
intimidated to come forward to the Commission and air anything that was going
on?
A. Yes. Nobody wanted - - nobody wants to lose their job, and I feel this way
and like I told some of the people, some of the staff, I said, you know, I can say
this, and I can say a lot of different things, I said, but I don’t want anybody to lose
their job. And the only thing I can do is get mad. I’m over there at the Delphi
working every day and you’re out there on the street, because Reggie has all of
this in his office, like an attitude problem, and it always came back when he got
up in the staff meetings and act nasty [sic] towards his staff. It did get back, it
came back. Everybody know about the nasty staff meetings he had, how nasty he
was, and rude to the staff.
***
Q. Would it have been an environment where if an employee wanted to tell you
about a problem they were experiencing, that you would have been open to listen
to whatever they had to say?
A. Yes, but they wouldn’t. They would not come forward, because nobody
wanted to lose their job. And I would come through there every Friday to sign the
checks, stop to talk to different people. The people that was [sic] having the
problems, they never told me. I heard it from somebody else and I felt so bad,
because I didn’t know what to do without somebody losing their job.
-3-
claim by Fredric Pellens against all defendants based on loss of consortium. Defendants moved
for summary disposition pursuant to MCR 2.116(C)(10) on the basis that they received no notice
of sexual harassment claims; therefore, there could be no liability based on a hostile work
environment.
II. TRIAL COURT’S RULING
The trial court granted defendants’ motion for summary disposition pursuant to MCR
2.116(C)(10). The trial court ruled:
[P]laintiff has come forward with no evidence to show knowledge or
notice on the part of [defendants].
Therefore, there is no genuine issue as to a material fact on that particular
element of proof. And without that element of proof the Plaintiff cannot sustain
an action against Mr. Richardson’s employer.
III. PARTIES’ ARGUMENTS ON APPEAL
Plaintiffs argue that the trial court erred in granting summary disposition to defendants
because it failed to take into consideration the reasons why plaintiff failed to provide notice to
defendants; those reasons being intimidation and fear of losing employment. Plaintiffs rely on
Burlington Industries, Inc v Ellerth, 524 US 742; 118 S Ct 2257; 141 L Ed 2d 633 (1998), for
their proposition that an employer must prove that it promptly addressed claims of sexual
harassment and corrected the situation, or, in cases where there is no notice, the employer must
prove that the employee unreasonably failed to take advantage of any preventative or corrective
options. Plaintiffs argue that there is a question of fact regarding whether it was reasonable not
to provide notice. Plaintiffs also make an argument that Richardson was verbally disciplined in
the late 1980s for sexually harassing a female “client;” therefore, defendants had some notice of
Richardson’s proclivity for sexual harassment, but yet he was made director of the housing
commission.
Defendants first argue that even accepting as true the facts asserted by plaintiff regarding
the actions and statements of Richardson, they were insufficient to create a hostile work
environment. This issue was not addressed by plaintiffs or the trial court. Defendants next argue
that notice was required to hold defendants liable. Defendants maintain that Ellerth, supra is not
applicable in light of our Supreme Court decision in Chambers v Trettco, Inc, 463 Mich 297; 614
NW2d 910 (2000). Defendant finally argues that there is no issue of genuine fact that plaintiff
failed to provide notice to defendants during her employment.
(…continued)
3
The claim against Richardson was dismissed per a stipulation with plaintiffs based on an
agreement to submit the claim to arbitration.
-4-
IV. ANALYSIS
A. MCR 2.116(C)(10) and Standard of Review
MCR 2.116(C)(10) provides for summary disposition where there is no genuine issue as
to any material fact, and the moving party is entitled to judgment or partial judgment as a matter
of law. Our Supreme Court has ruled that a trial court may grant a motion for summary
disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that
there is no genuine issue in respect to any material fact, and the moving party is entitled to
judgment as a matter of law. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28
(1999). In addition, all affidavits, pleadings, depositions, admissions, and other documentary
evidence filed in the action or submitted by the parties is viewed “in the light most favorable to
the party opposing the motion.” Id.
This Court reviews rulings on motions for summary disposition de novo. Van v Zahorik,
460 Mich 320, 326; 597 NW2d 15 (1999).
B. Sexual Harassment and Hostile Work Environment
In Corley v Detroit Bd of Ed, 246 Mich App 15, 19; 632 NW2d 147 (2001), this Court,
addressing a sex discrimination claim, stated:
Under Michigan law, freedom from discrimination in employment
because of a person’s sex is a civil right. MCL 37.2102; Chambers v Trettco, Inc,
463 Mich 297, 309; 614 NW2d 910 (2000). Subsection 202(1)(a) of the CRA
provides that an employer may not “discharge, or otherwise discriminate against
an individual with respect to employment, compensation, or a term, condition, or
privilege of employment, because of . . . sex . . . .” MCL 37.2202(1)(a).
Discrimination because of a person’s sex includes sexual harassment of the
person. MCL 37.2103(i); Chambers, supra at 309. [Omissions in original.]
MCL 37.2103(i) defines sexual harassment as “unwelcome sexual advances, requests for
sexual favors, and other verbal or physical conduct or communication of a sexual nature” under
particular circumstances as defined in the statute. The circumstance at issue here is sexual
harassment creating a hostile work environment, which is addressed in MCL 37.2103(i)(iii), and
which provides:
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.
Our Supreme Court in Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993),
stated that there are five necessary elements to establish a prima facie case of a hostile work
environment, which factors are “(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
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employment or created an intimidating, hostile, or offensive work environment; and (5)
respondent superior.” Citations omitted.
The Radtke Court held that a gender-neutral reasonable person standard is to be applied in
determining whether a hostile work environment has been established. Id. at 392-394.
Defendants’ argument to the contrary, we believe that the deposition testimony of plaintiff
regarding the numerous actions and statements of Richardson clearly established an issue of fact
as to whether there was an intimidating, hostile, or offensive work environment.
C. Employer Liability and Notice
Addressing the issue of respondeat superior and notice, the Radtke Court stated:
Under the Michigan Civil Rights Act, an employer may avoid liability “if
it adequately investigated and took prompt and appropriate remedial action upon
notice of the alleged hostile work environment.” Downer v Detroit Receiving
Hosp, 191 Mich App 232, 234; 477 NW2d 146 (1991). . . . Such prompt and
appropriate remedial action will permit an employer to avoid liability if the
plaintiff accuses either a co-worker, McCarthy v State Farm Ins Co, 170 Mich
App 451, 457; 428 NW2d 692 (1988), or a supervisor of sexual harassment.
McCalla v Ellis, 180 Mich App 372, 380; 446 NW2d 904 (1989) . . . . An
employer, of course, must have notice of alleged harassment before being
liable for not implementing action. [Radtke, supra at 396-397 (emphasis added;
some citations omitted).]
Plaintiffs recognize the holding of Radtke, but they argue that subsequent United States
Supreme Court precedent in Ellerth supports their position. We find it unnecessary to review
Ellerth to determine if it supports plaintiffs’ position because our Supreme Court’s decision in
Chambers clearly rejected plaintiffs’ argument.
The Chambers Court noted that strict imposition of vicarious liability on an employer is
illogical in a hostile work environment claim because the supervisor acts outside the scope of
actual or apparent authority to hire, fire, discipline, or promote. Chambers, supra at 311.4 The
Supreme Court continued by stating:
The bottom line is that, in cases involving a hostile work environment
claim, a plaintiff must show some fault on the part of the employer. That is the
essence of Radtke’s requirement that a plaintiff prove that the employer failed to
take prompt and adequate remedial action upon notice of the creation of a hostile
work environment. [Id. at 312 (emphasis in original).]
4
The Supreme Court distinguished a case of quid pro quo harassment where there is vicarious
liability because the harasser, by definition, uses the power of the employer to alter the terms and
conditions of employment. Chambers, supra at 311. Here, the parties agree that this is not a
quid pro quo case.
-6-
The Chambers Court, specifically rejecting the analysis and holding in Ellerth in
addressing a sexual harassment claim under our CRA, stated:
If this Court were to adopt the principles announced by the United States
Supreme Court in Faragher [v Boca Raton, 524 US 775; 118 S Ct 2275; 141 L Ed
2d 662 (1998)] and Ellerth, it would represent a significant change in our
approach to determining employers’ vicarious liability for sexual harassment.
Specifically, the holdings issued by the United States Supreme Court in those
cases both: (1) conflate the concepts of quid pro quo harassment and hostile
environment harassment, and (2) shift the burden of proof from the employee to
the employer regarding whether the employer should be held vicariously liable
“for an actionable hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee.” Faragher, supra, 524 US 807;
Ellerth, supra, 524 US 765. To avoid vicarious liability under this new federal
rule, an employer, essentially, must establish affirmatively that it was not
negligent in failing to prevent the harassment and that the victim was negligent in
failing to avail herself of opportunities provided by the employer to avoid the
harm from such harassment. Id. [Chambers, supra at 314-315.]
The Chambers Court, in further rejecting Ellerth, stated that the decision would be
inconsistent with the decision in Radtke. Chambers, supra at 315. Therefore, the principles
announced in Radtke and reaffirmed in Chambers require notice to the employer in a hostile
work environment case brought under the CRA in order to allow the employer an opportunity to
correct the problem and avoid liability. Plaintiffs fail to cite any cases, other than those rejected
by Chambers, to support their proposition that there is an exception to the notice requirement
where an employee is fearful of retaliation. Neither Chambers nor Radtke enunciate such an
exception. Here, there is no genuine issue of fact that defendants did not receive notice until
after plaintiff ceased working, and thus the trial court properly granted defendants’ motion for
summary disposition.5
That being said, we observe that although there is no evidence that the employer
had notice of Richardson’s alleged harassing conduct, there was evidence that the employer had
notice that employees were afraid to complain about Richardson. While in Chambers, supra, the
Supreme Court clearly rejected the federal approach, and reiterated that notice is required in a
hostile environment case, the Court was not there presented with a situation where there is
evidence that the employer knew that, based on well-founded fears of retribution, employees
would forego notifying the employer of complaints regarding the supervisory employee alleged
5
As to plaintiffs’ argument regarding a sexual harassment claim against Richardson back in the
1980s by another woman, plaintiffs fail to cite any authority supporting their position that the
incident put defendants on notice of a hostile work environment arising out of plaintiff’s
employment years later. “It is not enough for an appellant in his brief simply to announce a
position or assert an error and then leave it up to this Court to discover and rationalize the basis
for his claims, or unravel and elaborate for him his arguments, and then search for authority
either to sustain or reject his position.” Mudge v Macomb Co, 458 Mich 87, 104-105; 580 NW2d
845 (1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Moreover, it
appears that defendants addressed the prior incident by reprimanding Richardson.
-7-
to have created the hostile environment. Should the Supreme Court wish to modify the notice
requirement in such cases, the issue is squarely presented.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ William B. Murphy
/s/ Helene N. White
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