Preview:

Michigan Supreme Court Lansing, Michigan

Opinion
TARA KATHERINE HAMED, Plaintiff-Appellee, v WAYNE COUNTY and WAYNE COUNTY SHERIFF'S DEPARTMENT, Defendants-Appellants, and SERGEANT KENNETH DARWISH, CORPORAL NETTIE JACKSON, SHERIFF WARREN C. EVANS, and DEPUTY REGINALD JOHNSON, Defendants.

Chief Justice:

Justices:

Robert P. Young, Jr. Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra

FILED JULY 29, 2011 STATE OF MICHIGAN SUPREME COURT

No. 139505

BEFORE THE ENTIRE BENCH MARY BETH KELLY, J. We granted leave to appeal in this case to determine the scope of an employer's vicarious liability for quid pro quo sexual harassment affecting public services under

Michigan's Civil Rights Act (CRA).1 Specifically, we consider whether Wayne County and its sheriff's department may be held vicariously liable for a civil rights claim under MCL 37.2103(i) based on a criminal act of a deputy sheriff committed during working hours but plainly beyond the scope of his employment. We hold that defendants may not be held vicariously liable for quid pro quo sexual harassment affecting public services under traditional principles of respondeat superior. Accordingly, we reverse the Court of Appeals' judgment and reinstate the circuit court's order granting summary disposition in defendants' favor. I. FACTS AND PROCEDURAL HISTORY In August 2001, Livingston County deputy sheriffs arrested plaintiff, Tara Katherine Hamed, on a warrant for unpaid child support. Because plaintiff also had outstanding warrants for probation violations in Wayne County, the Livingston County deputies later transferred plaintiff to the custody of Wayne County. Wayne County deputies transported plaintiff to the Wayne County jail. When plaintiff arrived at the jail, Deputy Reginald Johnson was the only officer on duty in the inmate registry area.2 While alone with plaintiff, Johnson subjected her to sexually charged comments and offers for better treatment in exchange for sexual favors. Plaintiff resisted these

advances, but Johnson transferred plaintiff into an area of the jail not subject to
1 2

MCL 37.2101 et seq.

Wayne County jail regulations require that a female officer be in attendance when female inmates are present. The officers who transported plaintiff to the jail informed a supervisor that Johnson was the only deputy on duty. The supervisor advised the officers to leave plaintiff with Johnson.

2

surveillance cameras and sexually assaulted her. Shortly thereafter, a female deputy transported plaintiff to another part of the jail. After her release, plaintiff reported the incident to departmental authorities. The Wayne County Sheriff's Department

terminated Johnson's employment, and the state subsequently charged Johnson with criminal sexual conduct, of which he was ultimately convicted.3 In 2003, plaintiff filed a complaint against Johnson, Wayne County, the Wayne County Sheriff's Department, and the Wayne County Sheriff, among others, alleging various claims of gross negligence.4 In 2006, plaintiff moved to amend her complaint, adding civil rights claims of quid pro quo and hostile-environment sexual harassment pursuant to MCL 37.2103(i). Defendants then moved for summary disposition under MCR 2.116(C)(8) and (10), arguing that, under the CRA, jails are excluded from liability and, because defendants had no notice of Johnson's sexually harassing conduct, they could not be vicariously liable for his actions. The circuit court granted defendants summary disposition in two separate orders and dismissed all of plaintiff's civil rights claims. It concluded that plaintiff's hostileenvironment claim failed because defendants had no prior notice that Johnson was a sexual predator. The circuit court also dismissed plaintiff's quid pro quo sexual

3 4

See MCL 750.520c(k).

The only remaining defendants are Wayne County and the Wayne County Sheriff's Department. Plaintiff received a default judgment against Johnson; Johnson, while a defendant in plaintiff's action, is not a party to this appeal. Thus, for the purposes of this opinion, our references to "defendants" encompass only the institutional defendants.

3

harassment claim on the basis that defendants are not vicariously liable for the criminal acts of sheriff's department employees.5 Plaintiff then appealed the circuit court's decision only with regard to her quid pro quo sexual harassment claim. The Court of Appeals reversed and applied this Court's analysis in Champion v Nation Wide Security, Inc6 to hold that "[e]mployers are vicariously liable for acts of quid pro quo sexual harassment committed by their employees when those employees use their supervisory authority to perpetrate the harassment."7 The Court of Appeals held that plaintiff had established a viable quid pro quo sexual harassment claim because "Johnson used his authority as a sheriff's deputy to exploit plaintiff's vulnerability . . . ."8 We granted leave to consider whether defendants may be held vicariously liable for quid pro quo sexual harassment affecting public services under MCL 37.2103(i).9 II. STANDARD OF REVIEW We review de novo whether the Court of Appeals erred by reversing the circuit court's grant of summary disposition.10 Whether defendants may be held vicariously liable for quid pro quo sexual harassment affecting a public service under the CRA is a
5 6 7 8 9

See Zsigo v Hurley Med Ctr, 475 Mich 215; 716 NW2d 220 (2006). Champion v Nation Wide Security, Inc, 450 Mich 702; 545 NW2d 596 (1996). Hamed v Wayne Co, 284 Mich App 681, 693; 775 NW2d 1 (2009). Id. Hamed v Wayne Co, 486 Mich 996 (2010). Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).

10

4

question of law that we review de novo.11 To the extent that defendants' arguments require us to interpret the meaning of the CRA, our review is also de novo.12 When interpreting the meaning of a statute, we discern the Legislature's intent by examining the language used.13 We read the statutory language in context and as a whole, considering the plain and ordinary meaning of every word.14 If the language is clear and

unambiguous, then we apply the statute as written without judicial construction.15 III. ANALYSIS
A. QUID PRO QUO SEXUAL HARASSMENT UNDER THE CRA

The CRA recognizes that freedom from discrimination because of sex is a civil right.16 Accordingly, the act prohibits discrimination because of sex in employment, places of public accommodation, and public services.17 MCL 37.2103(i) broadly defines "discrimination because of sex" as follows: Discrimination because of sex includes sexual harassment. Sexual harassment means unwelcome sexual advances, requests for sexual favors,
11 12 13 14 15 16 17

See Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). Id. Danse Corp v Madison Hts, 466 Mich 175, 181-182; 644 NW2d 721 (2002). Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008). Danse Corp, 466 Mich at 182. MCL 37.2102(1).

MCL 37.2202 (employment); MCL 37.2302 (public accommodations and public services). For purposes of this opinion, we assume, without deciding, that the Wayne County jail is a "public service" as defined by MCL 37.2301(b).

5

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. (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. [Emphasis added.] The first two subdivisions of MCL 37.2301(i) describe quid pro quo sexual harassment, while the third subdivision refers to hostile-environment sexual harassment.18 A plaintiff alleging quid pro quo sexual harassment affecting public services must show by a preponderance of the evidence (1) that he or she was subjected to any of the types of unwelcome sexual conduct or communication described in the statute and (2) that the public service provider or the public service provider's agent made submission to the proscribed conduct a term or condition of obtaining public services or used the plaintiff's submission to or rejection of the proscribed conduct as a factor in a decision affecting his or her receipt of public services.19

18 19

Chambers v Trettco, Inc, 463 Mich 297, 310; 614 NW2d 910 (2000).

See id. (stating the test for quid pro quo sexual harassment in the employment context). For purposes of our analysis, we also assume, without deciding, that plaintiff can establish the elements of quid pro quo sexual harassment affecting public services.

6

When the harassment was committed by an agent and the plaintiff is pursuing a civil rights claim against the principal, as in this case, a court must always "determine the extent of the employer's vicarious liability . . . ."20 We require this analysis because the CRA specifically incorporates common-law agency principles.21 Thus, if a defendant is not vicariously liable for the acts of its agent under traditional principles of respondeat superior, the plaintiff's claim under the CRA fails as a matter of law. B. RESPONDEAT SUPERIOR The doctrine of respondeat superior is well established in this state: An employer is generally liable for the torts its employees commit within the scope of their employment.22 It follows that "an employer is not liable for the torts . . . committed by an employee when those torts are beyond the scope of the employer's business."23 This Court has defined "within the scope of employment" to mean "`engaged in the service of his master, or while about his master's business.'"24 Independent action, intended solely to further the employee's individual interests, cannot be fairly characterized as falling

20 21

Id. at 311.

Id. We reached this conclusion in Chambers because MCL 37.2201(a) "expressly defines `employer' to include agents," thereby incorporating common-law agency principles into the act. Chambers, 463 Mich at 311. See, e.g., Zsigo, 475 Mich at 221; Bradley v Stevens, 329 Mich 556, 562; 46 NW2d 382 (1951); Martin v Jones, 302 Mich 355, 358; 4 NW2d 686 (1942); Davidson v Chinese Republic Restaurant Co, 201 Mich 389, 396; 167 NW 967 (1918).
23 24 22

Zsigo, 475 Mich at 221.

Barnes v Mitchell, 341 Mich 7, 13; 67 NW2d 208 (1954), quoting Riley v Roach, 168 Mich 294, 307; 134 NW 14 (1912).

7

within the scope of employment.25 Although an act may be contrary to an employer's instructions, liability will nonetheless attach if the employee accomplished the act in furtherance, or the interest, of the employer's business.26 Here, there is no question that Johnson's sexual assault of plaintiff was beyond the scope of his employment as a deputy sheriff. The sexual assault was an independent action accomplished solely in furtherance of Johnson's own criminal interests. It cannot be said that any of the institutional defendants benefited in any way from Johnson's criminal assault or his exercise of unlawful authority over plaintiff. In fact, Johnson's behavior was expressly prohibited by defendants' rules regarding treatment of detainees and defendants' antidiscrimination policies, to say nothing of the criminal law. In short, there is no fair basis on which one could conclude that the sheriff or county themselves vicariously took part in the wrongful acts. The general rule that an employer is not liable for acts of its employee outside the scope of its business, however, does not preclude vicarious liability in every instance. This Court has consistently recognized that an employer can be held liable for its employee's conduct if "the employer `knew or should have known of [the] employee's propensities and criminal record'" before that employee committed an intentional tort.27 This inquiry involves an analysis of whether an employer had (1) actual or constructive
25 26 27

2 Restatement Agency, 3d,

Download TARA HAMED V WAYNE COUNTY.pdf

Michigan Law