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STATE OF MICHIGAN COURT OF APPEALS

JUDITH ACKLEY, Plaintiff-Appellee, v RALEIGH & RON CORPORATION, Defendant-Appellant.

UNPUBLISHED October 5, 2010

No. 292341 Macomb Circuit Court LC No. 2007-003588-CD

Before: GLEICHER, P.J., and ZAHRA and K. F. KELLY, JJ. PER CURIAM. In this sexual harassment and retaliation suit, brought pursuant to the Michigan's ElliottLarsen Civil Rights Act, MCL 37.2101 et seq., a jury found defendant terminated plaintiff's employment in retaliation for her complaints of sexual harassment in the workplace. The trial court entered a judgment in plaintiff's favor, consistent with the jury's verdict, awarding plaintiff $11,000 in noneconomic damages and $30,250 in attorneys fees and costs. Defendant now appeals by right. We affirm. I. BASIC FACTS In October 2006, plaintiff was employed as a cashier at Oak Ridge Market, which is owned by defendant and located in Warren, Michigan. During her employment, plaintiff's coworker, Jason Felimonik, made sexually suggestive comments and gestures toward plaintiff. Plaintiff reported these incidents to management on numerous occasions. Nothing was done about these incidents until plaintiff sent a written letter to defendant. Subsequently, plaintiff's work hours were reduced and she was told that she would have to work at the store's Hoover location. Plaintiff informed management that she did not have transportation to that location. On December 8, 2006, after plaintiff finished her shift, she received a phone call from a store manager around 9:30 p.m. instructing her to call another store manager, Mark Capri, the next day. Plaintiff did as she was asked and called Capri the next morning. Capri told her that she was already expected to have arrived at the Hoover location that morning. When plaintiff indicated that she did not have enough time to arrange transportation, Capri indicated that if she did not immediately report, she would be considered "a quit." Plaintiff did not make it to the Hoover location and her employment ended. Plaintiff then brought this lawsuit, alleging in a two count complaint claims of sexual harassment and retaliation. The matter went to trial, during which plaintiff testified, over -1-

defendant's objection, to overhearing a conversation between Felimonik and another man, in which Felimonik made statements of a sexual nature. Plaintiff also testified regarding statements she heard Felimonik make while talking on his cell phone, in which he referenced the size of his genitals and what he wanted to do with them to another woman. Defendant also objected to this testimony, based on lack of notice. The next day, defendant moved for a mistrial, arguing that plaintiff's testimony regarding the statements Felimonik had made were unforgettable and would undermine the validity of the entire trial. The trial court denied the motion, reasoning that a curative instruction would remedy any prejudice. It instructed the jury: You will recall that during the course of plaintiff's testimony last week she indicated that she was subjected to comments that took place in the break room that Jason had made while he was on the telephone. You'll recall that one of those comments dealt with anal sex. It's not the subject matter of this case, and you are to totally disregard anything that the plaintiff heard while he

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