Elezovic v. Ford Motor Co.

673 N.W.2d 776, 259 Mich. App. 187
CourtMichigan Court of Appeals
DecidedJanuary 8, 2004
DocketDocket 236749
StatusPublished
Cited by16 cases

This text of 673 N.W.2d 776 (Elezovic v. Ford Motor Co.) 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
Elezovic v. Ford Motor Co., 673 N.W.2d 776, 259 Mich. App. 187 (Mich. Ct. App. 2004).

Opinions

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 [190]*190favor of Bennett on plaintiff’s hostile environment claim, MCL 37.2103(i)(iii).

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 [191]*191and gender discrimination.2 She also alleges error requiring reversal in the court’s evidentiary rulings.

n

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, 679-680; 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.

[192]*192B

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;
[193]*193“(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:

“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,

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673 N.W.2d 776, 259 Mich. App. 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elezovic-v-ford-motor-co-michctapp-2004.