Chambers v. Trettco, Inc

591 N.W.2d 413, 232 Mich. App. 560
CourtMichigan Court of Appeals
DecidedFebruary 16, 1999
DocketDocket 202151
StatusPublished
Cited by7 cases

This text of 591 N.W.2d 413 (Chambers v. Trettco, Inc) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chambers v. Trettco, Inc, 591 N.W.2d 413, 232 Mich. App. 560 (Mich. Ct. App. 1999).

Opinions

Jansen, RJ.

Defendant1 appeals as of right from a jury’s verdict in favor of plaintiff in this sexual harassment case. We affirm.

[562]*562Defendant, a corporation engaged in managing food service operations for various businesses, hired plaintiff as a temporary cook in June 1995, intending to use plaintiff in various locations pending possible placement in a permanent position. Defendant initially assigned plaintiff to take the place of a cook at ADP, Inc., in Ann Arbor. During this assignment, while the regular on-site supervisor was on vacation, defendant assigned a temporary supervisor, Paul Wolshon. According to the evidence at trial, Wolshon immediately commenced a pattern of sexually harassing plaintiff. Plaintiff filed suit against defendant, alleging assault, sexual assault, sexual harassment, and retaliatory discharge. Plaintiff agreed to dismiss her claims of assault and sexual assault at the close of her proofs at trial, and she withdrew her claim of retaliatory discharge before closing argument. The jury found in plaintiffs favor with respect to her claim of sexual harassment.

This appeal essentially concerns an employer’s vicarious liability (respondeat superior) in a sexual harassment case brought under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The arguments made by the employer in this case have been squarely rejected by the United States Supreme Court in Burlington Industries, Inc v Ellerth, 524 US 742; 118 S Ct 2257; 141 L Ed 2d 633 (1998), and Faragher v Boca Raton, 524 US_; 118 S Ct 2275; 141 L Ed 2d 662 (1998).2 The Supreme Court held that the labels “quid pro quo” and “hostile work environ[563]*563ment” are not controlling for purposes of establishing employer liability. Ellerth, supra, 141 L Ed 2d 648, 655. However, for any sexual harassment preceding the employment decision to be actionable, the conduct must be severe or pervasive. Id., p 648. Further, an employer can be liable for a supervisor’s sexual harassment where the employer’s own negligence is a cause of the harassment. Id., p 651. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Id.

First, defendant’s claim that plaintiff failed to establish a claim of sexual harassment in the form of hostile work environment is meritless.3 During a one-week period in July 1995, Paul Wolshon, a “float manager” (but not plaintiff’s full-time manager) engaged in numerous incidents of sexually harassing plaintiff. There was evidence that Wolshon rubbed plaintiff’s buttocks, grabbed her breasts, asked plaintiff to go to a hotel and have oral sex with him, and rubbed whipped cream on plaintiff’s hands and stated, “Now tell everybody you were creamed by Paul.” One of plaintiff’s co-workers also testified that Wolshon stated that he would like to put whipped cream on his tongue and put it between plaintiff’s legs and lick plaintiff’s breasts. The same co-worker also saw Wolshon grab plaintiff’s breasts. Plaintiff also testified [564]*564that these types of harassing incidents occurred every day of the week that Wolshon was her supervisor.

Defendant’s claim that plaintiff’s allegations are “a discrete, singular set of occurrences” that were not sufficiently outrageous to form a single incident of hostile work environment is incorrect and meritless. The evidence preferred by plaintiff was clearly sufficient to establish a hostile work environment claim of sexual harassment because it was severe or pervasive. Therefore, the jury’s finding that Wolshon sexually assaulted or molested plaintiff through the use of his supervisory powers over her is entirely supportable by the evidence presented. Accordingly, the trial court did not err in denying defendant’s motion for a directed verdict on this basis.

Further, defendant’s claims that the terms of plaintiff’s employment were not affected by her rejection of Wolshon’s overtures and that plaintiff did not believe that any terms of her employment would be affected by accepting or rejecting the sexual overtures are likewise without merit. Plaintiff was discharged from her position on September 11, 1995. Defendant claimed that she was discharged because of her failure to arrive for work or call regarding her absence. Plaintiff claimed that she was never told why she was discharged. Even if the discharge was not related to the sexual harassment incidents, the terms of plaintiff’s employment were clearly affected; that is, Wolshon’s harassment toward her was severe or pervasive and created an intimidating, hostile, or offensive work environment. Id., p 648; Faragher, supra, 141 L Ed 2d 675; Harris v Forklift Systems, Inc, 510 US 17, 21; 114 S Ct 367; 126 L Ed 2d 295 (1993); Radtke v Everett, 442 Mich 368, 382-383; 501 [565]*565NW2d 155 (1993). It is not necessary that a plaintiff suffer economic harm or tangible discrimination. Harris, supra, p 21.

All that was necessary was that plaintiff show that the supervisor created a hostile work environment, which the evidence at trial showed that she did. Thus, we turn to the question of the employer’s vicarious liability.

With respect to the question of vicarious liability, the Supreme Court held:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence .... The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. ... No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. [Ellerth, supra, 141 L Ed 2d 655; Faragher, supra, 141 L Ed 2d 689.]

In the present case, the jury found that defendant failed to take prompt remedial action after it knew or should have known that plaintiff had been sexually harassed. This finding is supportable by the evidence presented at trial. Plaintiff testified that she spoke to Kevin McLaughlin, the regional director of operations for HDS, on the telephone on July 6, 1995. McLaughlin asked plaintiff if something was wrong, and [566]*566McLaughlin testified that he could sense that something was bothering plaintiff. Plaintiff indicated that she could not express her complaints of Wolshon at that time because Wolshon was standing next to her. McLaughlin told plaintiff that he would be at ADP, Inc., on July 8, 1995, and would speak to her at that time. It is disputed whether McLaughlin went there on July 8. He testified that he went there, but plaintiff made no attempt to talk to him. However, plaintiff testified that McLaughlin never went to ADP that week.

When plaintiffs regular supervisor, Jennifer Hostutler, returned to work on July 11, 1995, plaintiff reported her specific complaints regarding Wolshon.

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Related

Chambers v. Trettco, Inc.
624 N.W.2d 543 (Michigan Court of Appeals, 2001)
Chambers v. Trettco, Inc
614 N.W.2d 910 (Michigan Supreme Court, 2000)
Plumb v. Abbott Laboratories
60 F. Supp. 2d 642 (E.D. Michigan, 1999)

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Bluebook (online)
591 N.W.2d 413, 232 Mich. App. 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chambers-v-trettco-inc-michctapp-1999.