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Michigan Supreme Court Lansing, Michigan

Opinion
MILISSA MCCLEMENTS, v FORD MOTOR COMPANY,

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 26, 2005

Plaintiff-Appellee/Cross-Appellant, No. 126276

Defendant-Appellant/Cross-Appellee. _______________________________ BEFORE THE ENTIRE BENCH MARKMAN, J. We granted leave to appeal in this case to resolve two questions: (1) whether a common-law claim of negligent

retention can be premised on sexual harassment in light of the remedies provided by the Civil Rights Act (CRA), MCL 37.2101 et seq.; and (2) whether an employer can be held liable under the CRA for sexual harassment against a nonemployee. defendant The trial court granted summary disposition to on both notice issues, to Ford ruling to that the there was

insufficient

support

negligent

retention theory, and that plaintiff could not pursue a claim under the CRA without demonstrating at least a

"quasi-employment"

relationship.

The

Court

of

Appeals

affirmed with respect to the CRA claim, but reversed with respect to plaintiff's negligent retention claim. We hold

that: (1) a common-law claim for negligent retention cannot be premised upon workplace sexual harassment; and (2)

because plaintiff has failed to establish a genuine issue of material fact that defendant affected or controlled the terms, cannot conditions, bring a or privileges against of her employment, under the she CRA.

claim

defendant

Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals, and reinstate the trial court's order of summary disposition in favor of defendant. I. FACTS
AND

PROCEDURAL HISTORY

Defendant Ford Motor Company hired AVI Food Systems to operate three cafeterias at its Wixom assembly plant.

Plaintiff Milissa McClements was hired by AVI as a cashier at the Wixom plant in March 1998.1 Plaintiff testified that

Daniel Bennett, then a superintendent in the predelivery department of the plant, had in November 19982 invited her

Within a month, plaintiff filed a complaint with AVI alleging that she was sexually harassed by a non-AVI contractor. After an investigation, AVI had the offending nonemployee removed from its premises. The record is replete with confusion over when the alleged incidents took place. In her complaint, plaintiff alleged that the incidents with Bennett occurred in (continued...) 2

2

1

on "three or four" occasions to meet him at a local fast food restaurant. invitation. persistent, interested." On each occasion, plaintiff rebuffed his

According to plaintiff, Bennett "seemed very like he didn't understand that I wasn't

Plaintiff acknowledged that, at this point,

Bennett was polite, and there was no testimony that he used sexual or foul language. invitations. Plaintiff described two additional encounters with Bennett denies making any such

Bennett that occurred during this same time period.

During

the first of these encounters, Bennett allegedly entered the cafeteria while it was closed, and approached plaintiff from behind. opposite way. Plaintiff testified that "I was facing the He came up and just grabbed me and turned me After "a few encounter with

around and stuck his tongue in my mouth." days," plaintiff allegedly had a second

Bennett in the closed cafeteria.

According to plaintiff,

Bennett again grabbed her from behind, attempted to stick his tongue in her mouth, and stated, "Come on, I know you want it. Plaintiff Isn't there somewhere we can go and have sex?" refused this advance, and Bennett left the

(...continued) September 1998. However, in her deposition, plaintiff testified that the incident could have taken place in late November, early December 1998, because she "seem[ed] to remember it being Thanksgiving . . . ."

3


cafeteria.

Plaintiff allegedly reported the incidents to

her union steward, but claims that she was advised that if she reported the incident to defendant, it would "turn

around and stab you in the back and you [would] end up losing your job." either filed. In 2000, plaintiff was approached by another Ford defendant Plaintiff did not report the incident to or AVI until the instant lawsuit was

employee, Justine Maldonado,3 who claimed that she had also been sexually harassed by Bennett. Specifically, Maldonado

claimed that in January or February 1998, Bennett exposed himself to her and demanded oral sex in the parking lot of the Wixom plant. Bennett also allegedly followed Maldonado

in his car, got out after she had stopped at a floral shop, and reached into her car and tugged on her blouse. In

late-October 1998, Maldonado told Joe Howard, her uncle and a production manager at Wixom, about the incidents.4 During

"the last couple days" in October, Maldonado told David Ferris, a former Ford superintendent who was on temporary In a separate action by Maldonado, we directed oral argument on whether to grant Maldonado's application for leave to appeal or take other peremptory action permitted by MCR 7.302(G)(1). Maldonado v Ford Motor Co, 471 Mich 940 (2004). Howard testified that his conversation with Maldonado about the alleged harassment did not take place until October 1999.
4 3

4


assignment to her union, about the incidents.

Maldonado

testified that she spoke with Ferris just before undergoing knee surgery on November 2, 1998. "two or three days" later, he Ferris testified that Bennett about

confronted next day,

Maldonado's

accusations.

The

Ferris

informed

Jerome Rush, Wixom's director of labor relations, about the alleged incidents of sexual harassment. Ferris testified Rush

that the conversation lasted a minute "at the most."

allegedly told Ferris that he "need not be involved in these types of issues" and took no further action. Even plaintiff However, informed himself after did learning come of the Maldonado with her incidents, allegations. Maldonado exposed was

not

forward

plaintiff's her to in

attitude 2001

changed that

after

August teenage

Bennett In 1995,

had

three

girls.

Bennett

convicted of misdemeanor indecent exposure, for exposing himself driving to a three company teenage car. girls on I-275 was while aware he of was the

Defendant

incident, because the police determined Bennett's identity by tracing the car through Ford.5

Bennett's conviction was expunged by the district court in November 2001. Before granting summary disposition to defendant, the trial court granted defendant's motion to strike all references to the conviction from the complaint.

5

5


After learning about the indecent exposure arrest and conviction, September plaintiff filed the claimed instant that lawsuit in (1)

2001.

Plaintiff

defendant:

negligently retained Bennett, whom it knew had a propensity to sexually harass women; and (2) breached its obligation under the CRA to prevent Bennett from sexually harassing her. The trial court granted defendant's motion for summary disposition. First, the trial court found that there was

no evidence that defendant knew of Bennett's propensity to sexually harass women in the workplace. Maldonado's

complaints to her uncle and friend were not sufficient to give defendant notice of Bennett's sexually harassing

behavior and the 1995 conviction alone is insufficient to establish that propensity. Thus, defendant could not be Second,

held liable under the negligent retention theory.

the trial court found that plaintiff as a nonemployee could not hold defendant liable under the CRA. However, even if

defendant were potentially liable under the CRA, it could not be held liable under these circumstances, because its higher management was never made aware of the allegedly sexually harassing behavior. In an unpublished opinion,

the Court of Appeals affirmed in part and reversed in part the judgment of the trial court. Unpublished opinion per

6


curiam (Docket

of

the

Court

of

Appeals, The Court

issued of

April

22, held

2004 that

No.

243764).

Appeals

defendant's knowledge of the indecent exposure arrest and Maldonado's allegations created a genuine issue of material fact whether defendant "knew or should have known of

Bennett's employees."

sexually

derogatory

behavior

toward

female

However, the Court of Appeals also applied the

"economic reality test," Ashker v Ford Motor Co, 245 Mich App 9, 14; 627 NW2d 1 (2001), and held that defendant was not plaintiff's employer. As a result, the Court of

Appeals concluded that plaintiff could not maintain a CRA complaint against an entity that is not her employer. This

Court granted defendant's application for leave to appeal, as well as plaintiff's application for leave to file a cross-appeal. 471 Mich 937 (2004). II. STANDARD
OF

REVIEW

We review de novo the grant or denial of a motion for summary disposition. 683 NW2d 611 (2004). Kreiner v Fischer, 471 Mich 109, 129; A motion under MCR 2.116(C)(10) tests Spiek v Dep't

the factual support of a plaintiff's claim.

of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Summary disposition is only permitted if the evidence,

while viewed in a light most favorable to the plaintiff, fails to establish a claim as a matter of law. Wilkinson v

7


Lee, 463 Mich 388, 391; 617 NW2d 305 (2000).

We review de

novo the questions whether the CRA displaces a common-law claim for negligent retention based upon sexual harassment in the workplace and whether an employer can be held liable under the CRA for sexual harassment against a nonemployee because they are questions of law. Morales v Auto-Owners

Ins Co (After Remand), 469 Mich 487, 490; 672 NW2d 849 (2003). III. ANALYSIS The issue in this case is not whether Bennett has engaged in reprehensible conduct either inside or outside the workplace. Rather, the issues are: (1) whether

defendant negligently retained Bennett as a supervisor as of the time Bennett allegedly sexually harassed plaintiff, despite the fact that it knew or should have known of his propensity defendant prevent to is sexually responsible harass under of women; the CRA and for (2) whether to

failing even

sexual

harassment

plaintiff

though

plaintiff was not a direct employee of defendant. A. NEGLIGENT RETENTION CLAIM Plaintiff's first theory is that defendant negligently retained Bennett to as a supervisor harass after learning In of his an

propensity

sexually

women.

general,

employer is not responsible for an intentional tort in the

8


workplace

committed

by

its

employee

acting

outside

the

scope of employment. NW2d 686 (1942).

Martin v Jones, 302 Mich 355, 358; 4 However, this Court has previously

recognized an exception to this general rule of liability when the employer "`knew or and should have known record [that] of his

employee's commission . . . .'"

propensities of an

criminal tort by

before employee

intentional

Hersh v Kentfield Builders, Inc, 385 Mich 410, Plaintiff to (1) (2)

412; 189 NW2d 286 (1971) (citation omitted). argues engage that in defendant sexually 1995 knew of Bennett's behavior

"propensity" because of: and

harassing

Bennett's

indecent

exposure

conviction;

Maldonado's complaints to defendant's supervisor (Howard) and labor relations representative (Rush) concerning

Bennett's harassment.

Plaintiff concludes that defendant

breached its duty of reasonable care by retaining Bennett despite its knowledge of his previous actions. The Court

of Appeals held that whether defendant "knew or should have known" of Bennett's propensities was a question of fact for the jury.6

Defendant argues that the Court of Appeals improperly allowed the jury to resolve the issue of whether defendant had a duty towards plaintiff. We agree that whether a duty exists to a particular plaintiff is a question for the court. Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500-501; 418 NW2d 381 (1988). An employer's duty is (continued...) 9


6

However, in those cases in which we have held that an employer can be held liable on the basis of its knowledge of an employee's propensities, the underlying conduct

comprised the common-law tort of assault.

See Hersh, supra

at 412; Bradley v Stevens, 329 Mich 556, 563; 46 NW2d 382 (1951). for In the instant case, however, the entire premise negligent tort of retention sexual claim is the Before

plaintiff's based

statutorily

harassment.

passage of the CRA, Michigan did not provide a common-law remedy for workplace discrimination. Pompey v Gen Motors Plaintiff's in the a

Corp, 385 Mich 537, 552; 189 NW2d 243 (1971). protections workplace against wholly being sexually of

harassed

are

creatures

statute.

"`Where

statute gives new rights and prescribes new remedies, such remedies must be strictly pursued; and a party seeking a remedy under the act is confined to the remedy conferred (...continued) to exercise reasonable care in selecting and retaining its employees. However, it is the province of the jury to determine whether an employer has breached that duty by retaining the employee in question. In order for the jury to determine whether an employer has breached this duty, it must first determine whether the employer "knew or should have known" that its employee had a propensity to engage in the conduct that caused the injury to the plaintiff. The propensity at issue in the instant case is an alleged propensity to sexually harass women. Because plaintiff's exclusive remedy for a claim based on sexual harassment is the CRA, there is no question of fact for the jury and, therefore, summary disposition was appropriate.

10


thereby and to that only.'"

Monroe Beverage Co, Inc v

Stroh Brewery Co, 454 Mich 41, 45; 559 NW2d 297 (1997), quoting Lafayette Transfer & Storage Co v Pub Utilities Comm, 287 Mich 488, 491; 283 NW 659 (1939). Here, the CRA

provides the right to be free from sexual harassment, MCL 37.2103(i), and accords an aggrieved worker the remedy of "a civil action for appropriate injunctive relief or

damages, or both."

MCL 37.2801(1).

Plaintiff's remedy,

then, for any act of sexual harassment is limited to those provided by the CRA. Accordingly, there is no common-law

claim for negligent retention in the context of workplace sexual harassment.7 Plaintiff invokes MCL 37.2803, which states that the CRA "shall not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state." However, contrary to the

dissent's theory, post at 7, this statutory language does not allow a worker to bring a CRA claim under the guise of We note defendant's assertion that the Hersh rule is contrary to public policy concerning the rehabilitation of first-time offenders. According to defendant, Hersh encourages employers to refuse to hire anyone who was ever convicted of even a misdemeanor, for fear that they might later be held liable for any conduct by the employee that somehow could be linked, after the fact, to the circumstances of that crime. Because we hold that plaintiff's negligent retention claim cannot be maintained, there is no need at this time to reach defendant's public policy argument.
7

11


a negligent retention claim.

Rather, this provision simply

allows a worker to bring suit under any legal theory that existed before the passage of the CRA. Thus, a worker

would not be barred by the CRA from bringing a common-law negligent retention claim, as long as the premise for that claim is a tort that existed before passage of civil rights legislation.8 Therefore, because the CRA provides the exclusive

remedy for a claim based on sexual harassment, plaintiff has failed to establish a claim of negligent retention,9 and no inquiry into whether defendant possessed sufficient

notice that Bennett was engaged in sexual harassment is necessary. B. CIVIL RIGHTS ACT CLAIM Plaintiff's second theory is that defendant failed to prevent sexual harassment in the workplace. states in pertinent part: MCL 37.2202(1)

For example, if an employee had a history of committing simple assault, and the employer knew or should have known of that history, then a third party who was assaulted by the employee might be able to hold the employer liable under a negligent retention theory premised on simple assault. Both the dissent and the concurrence/dissent argue that plaintiff's negligent retention claim "implicates other torts such as assault and battery." Post at 3. While that may be, plaintiff premised her claim on sexual harassment, not assault or battery.
9

8

12


An employer following:

shall

not

do

any

of

the

(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. (b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status. (c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including, but not limited to, a benefit plan or system. Discrimination harassment. based on sex includes sexual

MCL 37.2103(i).

The statute defines sexual

harassment as follows: 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, public accommodations or public services, education, or housing. (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, public accommodations or public services, education, or housing.

13


(iii) The conduct or communication has the purpose or effect of substantially interfering with an individual's employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment. [MCL 37.2103(i).] Plaintiff claims that CRA forbids any entity

classified as an employer from discriminating against any individual, including nonemployees. actions of defendant's employee Therefore, because the allegedly created a

sexually hostile work environment, defendant can be held liable under the CRA. Defendant, on the other hand, argues

that an employer can only be held liable for discrimination against a nonemployee if some form of employment

relationship exists between the parties.

Both the trial

court and the Court of Appeals held that plaintiff was required to prove before a at least under a "quasi-employment the CRA could be

relationship" maintained.

claim

We conclude that, unless an individual can

establish a genuine issue of material fact that an employer affected or controlled the terms, conditions, or privileges of his or her employment, a nonemployee may not bring a claim under the CRA. Fundamental canons of statutory interpretation require us to discern and give effect to the Legislature's intent as expressed by the language of its statutes. 14
DiBenedetto

v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000). If the language is unambiguous, as is generally the case, Klapp v United Ins Group Agency, Inc, 468 Mich 459; 663 NW2d 447 (2003), "we presume that the Legislature intended the meaning clearly expressed--no further judicial

construction is required or permitted, and the statute must be enforced as written." DiBenedetto, supra at 402.

MCL 37.2201(a) defines an "employer" for purposes of the CRA as "a person who has 1 or more employees, and includes an agent of that person." As recognized by

plaintiff, the language of the statute does not otherwise narrow the scope of who may be considered an employer. Thus, MCL 37.2202 forbids any employer from engaging in acts of discrimination that are prohibited by the CRA. MCL

37.2202 does not state that an employer is only forbidden from engaging the in such acts to against clearly its own employees. claims by

Indeed,

CRA

appears

envision

nonemployees for the failure or refusal to hire or recruit, MCL 37.2202(1)(a); by a the improper prohibited classification under the CRA, of MCL

applicants

status the

37.2202(1)(b);

and

discrimination

against

former

employees by operation of a benefit plan or system, MCL 37.2202(1)(c). Accordingly, to limit the availability of

relief under the CRA to those suits brought by an employee

15


against his or her employer is not consistent with the statute. However, the language of the statute is also clear in requiring some form of nexus or connection between the

employer and the status of the nonemployee.

MCL 37.2202

forbids an employer from using a classification protected by the CRA: to "discriminate against an individual with respect to . . MCL . a term, condition, to or privilege the . . of .

employment,"

37.2202(1)(a);

"deprive

applicant of an employment opportunity," MCL 37.2202(1)(b); or to "discriminate against a person . . . with respect to a term, condition, or privilege of employment," MCL

37.2202(1)(c).

In other words, an employer is liable under

the CRA when it utilizes a prohibited characteristic in order to adversely or affect or control an individual's the key to

employment

potential

employment.

Thus,

liability under the CRA is not simply the status of an individual contingent as upon an the "employee"; employer's rather, affecting liability or is

controlling

that individual's work status.

Accordingly, an employer

can be held liable under the CRA for discriminatory acts against a nonemployee if the nonemployee can demonstrate

16


that

the

employer

affected

or

controlled

the

terms,

conditions, or privileges of the nonemployee's employment.10 In Chiles v Machine Shop, Inc, 238 Mich App 462; 606 NW2d 398 (1999), the Court of Appeals came to the same conclusion while interpreting similar language in the

Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1202.11 In Chiles, an employee injured his back on the

For example, a secretary who works for a temporary employment agency might not be an "employee" at the office where she is sent to fill in. However, there is little question that the employer at that office would dictate the terms, conditions, or privileges of her employment with the temporary employment agency, at least during the pendency of her temporary employment. This provision of the PWDCRA is identical in all relevant respects to the CRA. MCL 37.1202(1) states in relevant part: Except as otherwise required by federal law, an employer shall not: (a) Fail or refuse to hire, recruit, or promote an individual because of a disability or genetic information that is unrelated to the individual's ability to perform the duties of a particular job or position. (b) Discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a disability or genetic information that is unrelated to the individual's ability to perform the duties of a particular job or position. (c) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive an individual (continued...) 17

11

10

job and filed for worker's compensation benefits.

After he

was laid off, the employee brought suit under the PWDCRA. The "employer," who laid off the plaintiff, argued that it was not liable under the PWDCRA because the employee was technically company. employed by a separate, though affiliated,

The Court in Chiles noted that the PWDCRA

addresses the conduct of an "employer" who takes adverse employment action against an "individual" because of a handicap that is unrelated to the individual's ability to perform the duties of a particular job. MCL 37.1202(1)(a); MSA 3.550(202)(1)(a). The act does not limit the definition of "employer" to the plaintiff's employer but, instead, simply defines it as a "person who has 1 or more employees." MCL 37.1201(b); MSA 3.550(201)(b). [Chiles, supra at 468 (emphasis supplied).][12] Thus, liability under the PWDCRA "does not require

that an employment relationship exist," but it does require that the employer defendant "have the authority to affect a plaintiff's employment or potential employment." 468-469. However, the authority to affect a Id. at worker's

employment alone is not sufficient to impose liability upon (...continued) of employment opportunities or otherwise adversely affects the status of an employee because of a disability or genetic information that is unrelated to the individual's ability to perform the duties of a particular job or position. The definition of an employer is essentially the same under the CRA. MCL 37.2201(1)(a).
12

18


an employer defendant.13

Rather, in order to be liable

under the PWDCRA, the employer defendant must also "take[] adverse employment action" against the worker plaintiff. Accordingly, under Chiles, the employer defendant must (1) have "the ability of an to affect adversely employment the or terms and

conditions

individual's

potential

employment," id. at 468; and (2) "take[] adverse employment action against an `individual' because of a handicap that is unrelated to the individual's ability to perform the duties of a particular job . . ., e.g., discriminatorily refusing to hire an applicant on account of a disability," id. at 468, quoting MCL 37.1202(1)(a). In other words, the

more precise articulation of the Chiles rule is that the employer defendant must, in fact, use such authority by "tak[ing] adverse employment action against an individual" in violation of the PWDCRA. PWDCRA, control the the employer terms, Thus, to be liable under the must or actually affect of or an

defendant conditions,

privileges

individual's employment.

The Court of Appeals in Chiles

determined that the employer defendant directly supervised

Thus, contrary to the concurrencedissent's position, the fact that plaintiff produced some evidence that defendant had the ability to "affect or control a term, condition, or privilege of plaintiff's employment," post at 2, is not sufficient to present a genuine issue of material fact for the jury.

13

19


the employee, controlled what tasks he worked at, and had the ability to fire or discipline the employee. Further,

the employer defendant actually affected the plaintiff's employment by laying him off. Appeals within determined the scope that of the the As a result, the Court of parties' PWDCRA relationship therefore, fell the

and,

plaintiff could maintain an action under the PWDCRA. We hold that a worker is entitled to bring an action against a nonemployer defendant if the worker can establish that the defendant affected or controlled a term, In the that

condition, or privilege of the worker's employment. instant case, plaintiff has failed to establish

defendant affected or controlled the terms, conditions, or privileges of her employment.14 Plaintiff was hired, paid,

The dissent argues that, because defendant had the authority to control Bennett and Bennett affected a condition of plaintiff's employment, it follows that defendant itself "affect[ed] a condition of plaintiff's employment." Post at 6. Based on this reasoning, an employer would apparently always be liable for its agent's creation of a sexually hostile work environment. However, we have held that such imposition of vicarious liability is proper only in sexual discrimination cases in which the employer's agent has used his or her authority to alter the terms and conditions of employment. Chambers v Trettco, Inc, 463 Mich 297, 310; 614 NW2d 910 (2000), citing Champion v Nation Wide Security, Inc, 450 Mich 702, 708709; 545 NW2d 596 (1996). We have declined to treat sexually hostile work environment cases in the same manner, noting that "strict imposition of vicarious liability on an employer `is illogical in a pure hostile environment setting' because, generally, in such a case, `the (continued...) 20


14

and subject to discipline by AVI.

AVI placed plaintiff in

the Wixom plant and had the sole authority to move her to different cafeterias or even to another plant. has failed to demonstrate she that defendant her Plaintiff or of

affected benefits

controlled

whether

was

hired,

employment, or where she was assigned to work.

Further,

although the cafeterias were located in the Wixom plant, they were operated solely by AVI, and were off-limits to defendant's employees except during break-times. We conclude that plaintiff failed to raise a genuine issue of material a term, fact that defendant or affected of or her a

controlled employment.

condition,

privilege may not

Accordingly,

plaintiff

maintain

cause of action under the CRA against this defendant, and, again, no inquiry notice into whether was defendant engaged possessed in sexual

sufficient

that

Bennett

harassment is necessary.

(...continued) supervisor acts outside `the scope of actual or apparent authority to hire, fire, discipline, or promote.'" Chambers, supra at 311, quoting Radtke v Everett, 442 Mich 368, 396 n 46; 501 NW2d 155 (1993). We again decline to strictly impose vicarious liability in sexually hostile work environment cases, absent an awareness by the employer of the offensive conduct.

21


IV. CONCLUSION We conclude that plaintiff has failed to establish a genuine issue of material fact that defendant affected or controlled the terms, conditions, or privileges of her

employment and, therefore, she cannot bring a claim against defendant under the CRA. Further, we conclude that a

common-law claim for negligent retention cannot be premised upon workplace sexual harassment. Accordingly, we affirm

the judgment of the Court of Appeals that plaintiff has failed to establish that she may bring a claim under the CRA against this defendant, we reverse the judgment of the Court of Appeals that plaintiff has an actionable claim for negligent retention, and reinstate the trial court's order of judgment in favor of defendant. Stephen J. Markman Clifford W. Taylor Maura D. Corrigan Robert P. Young, Jr.

22


S T A T E

O F

M I C H I G A N


SUPREME COURT


MILISSA MCCLEMENTS, Plaintiff-Appellee/Cross-Appellant, v FORD MOTOR COMPANY, Defendant-Appellant/Cross-Appellee. _______________________________ WEAVER, J. (concurring in part and dissenting in part). I concur in the majority's holding that a worker may bring a claim against a nonemployer defendant under the Civil Rights Act1 if the worker can or establish controlled that a the No. 126276

nonemployer

defendant

affected

term, Ante

condition, or privilege of the worker's employment. at 20.

But I dissent from the majority's conclusion that

plaintiff failed to present a genuine issue of material fact that defendant or the affected of or controlled a term, As the

condition, noted by

privilege majority,

plaintiff's when

employment. reported

plaintiff

incidents to her union steward, she stated that she was advised that if she reported the incidents to defendant, defendant would "turn around and stab you in the back and
1

MCL 37.2101 et seq.

you [would] end up losing your job." this statement standing alone would

Ante at 4. probably

While not be

sufficient to establish that defendant did, in fact, affect or control a term, condition, or privilege of plaintiff's employment, it does raise a question whether defendant had that ability. Therefore, I would allow the parties to

present evidence on this issue and let the question go to the jury. I also dissent from the majority's conclusion that

plaintiff may not pursue a common-law claim for negligent retention. As noted by the majority, MCL 37.2803 provides

that "[t]his act shall not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state." As explained in

Hersh v Kentfield Builders, Inc, 385 Mich 410, 412; 189 NW2d 286 (1971), under the common-law claim of negligent retention, an employer may be held liable for an

intentional tort committed by one of its employees if the employer "`knew or should have known of his employee's

propensities and criminal record before commission of an intentional tort . . . .'" (Citation omitted.)

The majority asserts that plaintiff may not pursue a common-law negligent retention claim because the claim is premised entirely on "the statutorily based tort of sexual

2


harassment." Plaintiff's solely on

Ante at 10 (emphasis deleted). negligent "the but retention claim based is tort

I disagree. not of premised sexual such as

statutorily also

harassment,"

implicates

other

torts

assault and battery.

Therefore, I would allow plaintiff

the opportunity to establish her negligent retention claim and let the jury determine whether she has successfully done so. Elizabeth A. Weaver

3


S T A T E

O F

M I C H I G A N


SUPREME COURT


MILISSA MCCLEMENTS, Plaintiff-Appellee, v FORD MOTOR COMPANY, Defendant-Appellant/Cross-Appellee. _______________________________ CAVANAGH, J. (dissenting). I believe there is ample evidence for a jury to decide the issue of whether defendant had adequate notice that one of its supervisors, Daniel Bennett, had the propensity to sexually harass and assault women and was indeed doing so. Accordingly, because plaintiff presented sufficient No. 126276

evidence of notice, a jury should be allowed to determine plaintiff's claims against defendant for sexual harassment under the Civil Rights Act (CRA), MCL 37.2101 et seq., and negligent retention. Therefore, I respectfully dissent

from the majority's decision dismissing all of plaintiff's claims. I. THERE IS SUFFICIENT EVIDENCE THAT DEFENDANT HAD NOTICE
OF BENNETT'S PROPENSITY FOR SEXUAL HARASSMENT AND ASSAULT
AND ALLEGATIONS THAT HE WAS INDEED SEXUALLY HARASSING AND
ASSAULTING WOMEN IN THE WORKPLACE


Plaintiff presented sufficient evidence that defendant had adequate and notice assault of Bennett's and the propensity to sexually of the

harass

women

pervasiveness

existing sexual harassment perpetrated by Bennett. was one of defendant's supervisors.

Bennett

In 1995, defendant

learned that Bennett had exposed himself to three teenage girls while driving one of defendant's vehicles. was convicted of indecent exposure.1 While Bennett facts

the

related to this conviction alone may not be enough to put defendant on notice, defendant received other information that Bennett was sexually harassing women. In late October 1998, Justine Maldonado, another of defendant's employees, reported to a production manager

that Bennett was sexually harassing her.2

Maldonado also

told another of defendant's employees, David Ferris, about the sexual harassment. director of Ferris labor told Jerome at Rush,

defendant's Wixom plant.

relations

defendant's

Maldonado's complaint was not the first complaint of this nature against Bennett. As detailed in Elezovic v

Ford Motor Co, 472 Mich 408, 433, 442-444; 697 NW2d 851

1

This conviction was later expunged. The production manager was also Maldonado's uncle.

2

2


(2005) (Cavanagh, J., concurring in part and dissenting in part; Weaver, J., concurring in part and dissenting in

part), defendant also had notice in October 1998 that Lula Elezovic This had stated was that Bennett with sexually the harassed of her. labor

information

shared

director

relations

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Michigan Law