Milissa McClements v. Ford Motor Co

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion 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
MILISSA MCCLEMENTS,

Plaintiff-Appellee/Cross-Appellant,

v No. 126276

FORD MOTOR COMPANY,

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 non-

employee. The trial court granted summary disposition to

defendant on both issues, ruling that there was

insufficient notice to Ford to support the 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, conditions, or privileges of her employment, she

cannot bring a claim against defendant under the CRA.

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

1
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.
2
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…)

on “three or four” occasions to meet him at a local fast

food restaurant. On each occasion, plaintiff rebuffed his

invitation. According to plaintiff, Bennett “seemed very

persistent, like he didn’t understand that I wasn’t

interested.” Plaintiff acknowledged that, at this point,

Bennett was polite, and there was no testimony that he used

sexual or foul language. Bennett denies making any such

invitations.

Plaintiff described two additional encounters with

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. Plaintiff testified that “I was facing the

opposite way. He came up and just grabbed me and turned me

around and stuck his tongue in my mouth.” After “a few

days,” plaintiff allegedly had a second encounter with

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. Isn’t there somewhere we can go and have sex?”

Plaintiff 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 . . . .”

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.” Plaintiff did not report the incident to

either defendant or AVI until the instant lawsuit was

filed.

In 2000, plaintiff was approached by another Ford

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

3
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).
4
Howard testified that his conversation with Maldonado
about the alleged harassment did not take place until
October 1999.

assignment to her union, about the incidents. Maldonado

testified that she spoke with Ferris just before undergoing

knee surgery on November 2, 1998. Ferris testified that

“two or three days” later, he confronted Bennett about

Maldonado’s accusations. The next day, Ferris informed

Jerome Rush, Wixom’s director of labor relations, about the

alleged incidents of sexual harassment. Ferris testified

that the conversation lasted a minute “at the most.” Rush

allegedly told Ferris that he “need not be involved in

these types of issues” and took no further action.

Even after learning of the Maldonado incidents,

plaintiff did not come forward with her allegations.

However, plaintiff’s attitude changed after Maldonado

informed her in August 2001 that Bennett had exposed

himself to three teenage girls. In 1995, Bennett was

convicted of misdemeanor indecent exposure, for exposing

himself to three teenage girls on I-275 while he was

driving a company car. Defendant was aware of the

incident, because the police determined Bennett’s identity

by tracing the car through Ford.5

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.

After learning about the indecent exposure arrest and

conviction, plaintiff filed the instant lawsuit in

September 2001. Plaintiff claimed that defendant: (1)

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

held liable under the negligent retention theory. Second,

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

curiam of the Court of Appeals, issued April 22, 2004

(Docket No. 243764). The Court of Appeals held that

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 sexually derogatory behavior toward female

employees.” 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. Kreiner v Fischer, 471 Mich 109, 129;

683 NW2d 611 (2004). A motion under MCR 2.116(C)(10) tests

the factual support of a plaintiff’s claim. Spiek v Dep’t

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

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 to sexually harass women; and (2) whether

defendant is responsible under the CRA for failing to

prevent sexual harassment of plaintiff even though

plaintiff was not a direct employee of defendant.

A. NEGLIGENT RETENTION CLAIM

Plaintiff’s first theory is that defendant negligently

retained Bennett as a supervisor after learning of his

propensity to sexually harass women. In general, an

employer is not responsible for an intentional tort in the

workplace committed by its employee acting outside the

scope of employment. Martin v Jones, 302 Mich 355, 358; 4

NW2d 686 (1942). However, this Court has previously

recognized an exception to this general rule of liability

when the employer “‘knew or should have known of his

employee’s propensities and criminal record before

commission of an intentional tort by [that] employee

. . . .’” Hersh v Kentfield Builders, Inc, 385 Mich 410,

412; 189 NW2d 286 (1971) (citation omitted). Plaintiff

argues that defendant knew of Bennett’s “propensity” to

engage in sexually harassing behavior because of: (1)

Bennett’s 1995 indecent exposure conviction; and (2)

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

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…)

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). In the instant case, however, the entire premise

for plaintiff’s negligent retention claim is the

statutorily based tort of sexual harassment. Before

passage of the CRA, Michigan did not provide a common-law

remedy for workplace discrimination. Pompey v Gen Motors

Corp, 385 Mich 537, 552; 189 NW2d 243 (1971). Plaintiff’s

protections against being sexually harassed in the

workplace are wholly creatures of statute. “‘Where a

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.

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

7
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.

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. MCL 37.2202(1)

states in pertinent part:

8
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.
9
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.

An employer shall not do any of the
following:

(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 based on sex includes sexual

harassment. 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.

(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. Therefore, because the

actions of defendant’s employee 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 at least a “quasi-employment

relationship” before a claim under the CRA could be

maintained. 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. 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 in such acts against its own employees.

Indeed, the CRA appears to clearly envision claims by

nonemployees for the failure or refusal to hire or recruit,

MCL 37.2202(1)(a); the improper classification of

applicants by a status prohibited under the CRA, MCL

37.2202(1)(b); and the 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

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 . . . a term, condition, or privilege of

employment," MCL 37.2202(1)(a); to “deprive the . . .

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 affect or control an individual’s

employment or potential employment. Thus, the key to

liability under the CRA is not simply the status of an

individual as an “employee”; rather, liability is

contingent upon the employer’s affecting or 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

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

10
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.
11
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…)

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 employed by a separate, though affiliated,

company. 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.” Id. at

468-469. However, the authority to affect a 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.
12
The definition of an employer is essentially the
same under the CRA. MCL 37.2201(1)(a).

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 to affect adversely the terms and

conditions of an individual’s employment or 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. Thus, to be liable under the

PWDCRA, the employer defendant must actually affect or

control the terms, conditions, or privileges of an

individual’s employment. The Court of Appeals in Chiles

determined that the employer defendant directly supervised

13
Thus, contrary to the concurrence\dissent’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.

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. As a result, the Court of

Appeals determined that the parties’ relationship fell

within the scope of the PWDCRA and, therefore, the

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,

condition, or privilege of the worker’s employment. In the

instant case, plaintiff has failed to establish that

defendant affected or controlled the terms, conditions, or

privileges of her employment.14 Plaintiff was hired, paid,

14
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, 708-
709; 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…)

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. Plaintiff

has failed to demonstrate that defendant affected or

controlled whether she was hired, her benefits of

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 fact that defendant affected or

controlled a term, condition, or privilege of her

employment. Accordingly, plaintiff may not maintain a

cause of action under the CRA against this defendant, and,

again, no inquiry into whether defendant possessed

sufficient notice that Bennett was engaged in sexual

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.

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.

S T A T E O F M I C H I G A N

SUPREME COURT

MILISSA MCCLEMENTS,

Plaintiff-Appellee/Cross-Appellant,

v No. 126276

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 establish that the

nonemployer defendant affected or controlled a term,

condition, or privilege of the worker’s employment. Ante

at 20. But I dissent from the majority’s conclusion that

plaintiff failed to present a genuine issue of material

fact that defendant affected or controlled a term,

condition, or privilege of plaintiff’s employment. As

noted by the majority, when plaintiff reported the

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.” Ante at 4. While

this statement standing alone would probably 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

harassment.” Ante at 10 (emphasis deleted). I disagree.

Plaintiff’s negligent retention claim is not premised

solely on “the statutorily based tort of sexual

harassment,” but also implicates other torts such as

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

S T A T E O F M I C H I G A N

SUPREME COURT

MILISSA MCCLEMENTS,

Plaintiff-Appellee,

v No. 126276

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

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 notice of Bennett’s propensity to sexually

harass and assault women and the pervasiveness of the

existing sexual harassment perpetrated by Bennett. Bennett

was one of defendant’s supervisors. In 1995, defendant

learned that Bennett had exposed himself to three teenage

girls while driving one of defendant’s vehicles. Bennett

was convicted of indecent exposure.1 While the facts

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. Ferris told Jerome Rush,

defendant’s director of labor relations at defendant’s

Wixom plant.

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.
2
The production manager was also Maldonado’s uncle.

(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 had stated that Bennett sexually harassed her.

This information was shared with the director of labor

relations–the same director of labor relations who learned

of Maldonado’s complaints. Further, other coworkers had

also discussed sexual harassment involving Bennett with the

director of labor relations.3

An employer can only avoid liability if it adequately

investigates a claim of sexual harassment and takes prompt

and appropriate remedial action. Radtke v Everett, 442

Mich 368, 396; 501 NW2d 155 (1993). Managers and the

director of labor relations knew of claims that Bennett was

sexually harassing women. These claims, along with

knowledge that Bennett had exposed himself to three teenage

girls, are sufficient evidence to allow a jury to determine

whether, under the totality of the circumstances, defendant

adequately investigated these claims and took appropriate

3
Interestingly, in yet another case involving Bennett,
Perez v Ford Motor Co, unpublished opinion per curiam of
the Court of Appeals, issued March 10, 2005 (Docket No.
249737), slip op at 3, the Court of Appeals notes,
“Defendant admits that the proper procedure for reporting a
sexual harassment claim was to report to the labor
relations department or a UAW committeeperson.” (Emphasis
added.)

remedial action. See Chambers v Trettco, Inc, 463 Mich

297, 312, 318-319; 614 NW2d 910 (2000).

II. PLAINTIFF CAN BRING A CLAIM AGAINST DEFENDANT UNDER THE
CRA

The CRA, in MCL 37.2201(a), defines “[e]mployer” as “a

person who has 1 or more employees, and includes an agent

of that person.” An employer is prohibited from

discriminating against an individual by doing any of the

following:

“Discrimination because of sex includes sexual

harassment.” MCL 37.2103(i).

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:

* * *

The majority acknowledges that the CRA allows for

claims by nonemployees, but the majority states 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.” Ante

at 14. According to the majority, plaintiff cannot bring a

claim against defendant because “[p]laintiff was hired,

paid, and subject to discipline by AVI [Food Systems]. AVI

placed plaintiff in the Wixom plant and had the sole

authority to move her to different cafeterias or even to

another plant.” Ante at 20-21. The majority’s application

of the statute in this case ignores the specific language

of the statute.

MCL 37.2202(1)(a) states that an employer cannot

“otherwise discriminate against an individual with respect

to . . . a term, condition, or privilege of

employment. . . .” Discrimination includes sexual

harassment. MCL 37.2103(i). Sexual harassment includes

creating a sexually hostile or offensive work environment,

MCL 37.2103(i)(iii), and this is exactly what defendant,

through its supervisor Bennett, allegedly did to plaintiff.

Defendant’s supervisor, Bennett, did not merely have

the ability or authority to affect a condition of

plaintiff’s employment, he allegedly did so because

plaintiff alleged Bennett’s conduct created a sexually

hostile work environment at plaintiff’s workplace.

Notably, defendant was the only one who had the authority

to control Bennett and, therefore, affect a condition of

plaintiff’s employment. The CRA prohibits sexual

harassment by an employer or an employer’s agent. Bennett

was defendant’s agent when he allegedly sexually harassed

plaintiff. Therefore, plaintiff can bring a claim against

defendant for sexual harassment under the CRA.4

III. PLAINTIFF CAN BRING A CLAIM AGAINST DEFENDANT FOR

NEGLIGENT RETENTION

MCL 37.2803 states that the CRA “shall not be

construed to diminish the right of a person to direct or

4
Contrary to the majority’s presentation of the
dissent’s position, see ante at 20 n 14, defendant would be
liable only if it had notice and did not adequately
investigate the claim and take prompt and appropriate
remedial measures, just as in all other hostile work
environment sexual harassment cases.

immediate legal or equitable remedies in the courts of this

state.” When a statute provides a remedy for enforcement

of a common-law right, it is cumulative and not exclusive.

Pompey v Gen Motors Corp, 385 Mich 537, 552-553; 189 NW2d

243 (1971). The passage of the CRA did not abolish

plaintiff’s right to bring a negligent retention claim

against defendant.

As stated by plaintiff’s counsel during oral argument,

Bennett’s conduct, while indeed sexual harassment, was also

“classic assault and battery, [a] common law tort.”

Plaintiff’s complaint also alleged that Bennett posed a

“known danger to women” and “sexually assaulted” plaintiff.

Plaintiff’s claim that Bennett grabbed her and tried to put

his tongue in her mouth, as well as Maldonado’s claims that

Bennett assaulted her and exposed himself to her and

Elezovic’s claims that Bennett assaulted her, certainly

qualify as assaultive behavior. See, e.g., Radtke, supra

at 395 (sexual assault can be sexual harassment that

creates a hostile work environment).

Plaintiff has presented sufficient evidence that

defendant was aware of Bennett’s propensity to sexually

harass and assault women and that defendant negligently

retained Bennett in light of this information. See Hersh v

Kentfield Builders, Inc, 385 Mich 410, 412, 415; 189 NW2d

286 (1971). Accordingly, I believe that plaintiff can

present a claim for common-law negligent retention to a

jury, and the jury should decide whether defendant acted

reasonably.

IV. CONCLUSION

I believe that plaintiff presented sufficient evidence

that defendant had adequate notice of Bennett’s propensity

to sexually harass and assault women and that Bennett was

indeed doing so in the workplace. It is then a question

for the jury whether defendant’s subsequent conduct was

reasonable under the circumstances. Accordingly, I would

reverse the decision of the Court of Appeals in part and

allow plaintiff to proceed on her claim under the CRA. I

would also affirm the decision of the Court of Appeals in

part and allow plaintiff to proceed on her claim for

negligent retention.

Michael F. Cavanagh
Marilyn Kelly

Milissa McClements v. Ford Motor Co

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