Quinto v. Cross and Peters Co.

Boyle, J.

In this case, the trial court dismissed plaintiffs claim pursuant to the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., on defendant’s motion for summary disposition. We hold that the trial court properly found that plaintiff had failed to sufficiently support a prima facie case of hostile work environment with documentary evidence and therefore affirm the decision of the Court of Appeals, which upheld the findings of the trial court.

*360FACTS

Plaintiff Elena Quinto was employed by defendant Cross and Peters Company, the maker of Better Made Potato Chips, for eighteen years. Plaintiffs first amended complaint sought judgment against Cross and Peters and John Kujawski, alleging that during four years at Cross and Peters, Kujawski, her supervisor, “demeaned and humiliated” and made “discriminatory decisions” concerning her that created a hostile work environment on the basis of her age, sex, and national origin. The complaint further alleged that, on one occasion, after a co-worker made obscene gestures, Kujawski asked her what happened “in a demeaning manner” and pushed her. Plaintiff was sixty years old and held the position of potato chip inspector when she left defendant’s employ.

Plaintiff filed a two-count complaint against Cross and Peters and Kujawski.1 In her first count, she alleged an assault and battery by Kujawski. The second count alleged that defendant created a hostile work environment by demeaning and humiliating her in violation of the Civil Rights Act, MCL 37.2101 et seq.\ MSA 3.548(101) et seq. Summary disposition was requested on behalf of both Cross and Peters and Kujawski on both counts. The trial judge stated that the two dispositive questions were whether plaintiff’s intentional tort claim was barred by the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131), and whether plaintiff had established a prima facie case of age, sex; or national origin discrimination.

*361The trial court ultimately held that no intentional tort existed to take count I, plaintiffs assault and battery claim against defendant Cross and Peters, outside the worker’s compensation act because “[t]he evidence . . . does not establish that Defendant, Cross and Peters, her employer, had actual knowledge that any injury was certain to occur . . . Summary disposition was denied with respect to Kujawski. Regarding count n, the discrimination claim, the trial court found that, accepting plaintiff’s allegations of harassment as true, there were no specific facts in plaintiff’s affidavit sufficiently severe or pervasive to create a question of fact regarding Cross and Peters’ creation of a hostile work environment.

The Court of Appeals affirmed the lower court in an unpublished memorandum opinion.2 Plaintiff appealed to this Court. We granted leave, limited to the issue whether the trial court erred in granting summary disposition on plaintiff’s claim of discrimination under the Civil Rights Act with regard to Cross and Peters. 448 Mich 868 (1995).

i

MCR 2.116 is modeled in part on Rule 56(e) of the Federal Rules of Civil Procedure. As pointed out by Justice Brennan in Celotex v Catrett, 477 US 317; 106 S Ct 2548; 91 L Ed 2d 265 (1986), the initial burden of production is on the moving party, and the moving party may satisfy the burden in one of two ways.3

*362First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim. Second,, the moving party may demonstrate to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim. If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law. [477 US 331 (citations omitted).]

In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4).

In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Neubacher v Globe Furniture Rentals, 205 Mich App 418, 420; 522 NW2d 335 (1994). The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Id. Where the burden of proof at trial on a dis-positive issue rests on a nonmoving party, the non-moving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. McCart v J Walter Thompson, 437 Mich 109, 115; 469 NW2d 284 (1991). *363If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. McCormic v Auto Club Ins Ass’n, 202 Mich App 233, 237; 507 NW2d 741 (1993).

Plaintiff alleged that her supervisor, John Kujawski, created a hostile work environment contrary to the Civil Rights Act, MCL 37.2101 et seq.] MSA 3.548(101) et seq., by “continually” demeaning her in front of coemployees. Although the main thrust of defendant’s initial motion was the exclusive remedy issue, defendant also briefly addressed the hostile work environment claim. Plaintiff’s brief in reply responded to defendant’s claim that summary disposition should be granted in respect to the discrimination claim. Defendant’s responsive brief asserted that plaintiff had failed to provide specific facts to support allegations of discriminatory treatment. It referenced exhibits, attached deposition testimony4 and other evidence that

refutes Plaintiff’s claims of alleged discrimination by Defendant Kujawsld resulting in the creation of a hostile working environment. Plaintiff has come forth with no evidence to establish a genuine issue of factual dispute; therefore, Defendant’s motion for Summary Disposition should be granted.

*366Whatever the procedural peculiarities of the prior pleading and responses, it is clear that at the time of hearing on November 1, 1991, the parties knew that the civil rights claim was in issue. After the hearing and before the decision, plaintiff filed a reply brief and an affidavit in support, disputing the credibility of the deposition testimony regarding whether Ms. Quinto had been pushed by her supervisor. The affidavit5 also contained allegations regarding plaintiffs discrimination claim, stating in pertinent part:

*3679. . . . [M]y supervisor, John Kujawski, had continually harassed me by demeaning and humiliating me in front of fellow employees.
10. His conduct included comments regarding my age, my sex, my national origin and my ability to speak English.
11. That all of these incidents took place while I was at work.
12. That I reported these incidents to my superiors at work.

Thus, the narrow issue before us is whether the affidavit raised a genuine issue of material fact sufficient to permit a reasonable jury to find a hostile work environment.

The trial court concluded that plaintiff failed to present specific facts to support a prima facie case of discrimination. In particular, it found that plaintiffs allegations, taken as true, did not “rise to the level of *368severity necessary to sustain an actionable claim of hostile environment discrimination” against Cross and Peters. The Court of Appeals agreed.

A

We have not had occasion to address whether a claim of discrimination based on hostile environment, when the allegations of discrimination involve conduct or communication that is not “of a sexual nature,” is encompassed by the Civil Rights Act. MCL 37.2103(i)(iii); MSA 3.548(103)(i)(iii); Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993). Nor do we decide that issue today.6 Rather, we assume without deciding that plaintiff is within the class protected and that a hostile environment claim may be maintained on conduct involving a plaintiffs gender, age, or national origin.7

In Radtke, supra at 382-383, we set forth the five elements necessary to establish a prima facie case of discrimination based on hostile work environment:

(1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of [her protected status]; (3) the employee was subjected to unwelcome . . . conduct or communication [involving her protected status]; (4) the unwelcome . . . conduct was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and *369(5) respondeat superior. MCL 37.2103(h); 37.2202(l)(a); MSA 3.548(103)(h); 3.548(202)(l)(a).

Our review centers on the third and fourth elements — whether Kujawski’s actions involved conduct or communication involving her protected status, and whether the conduct toward plaintiff was intended to, or in fact did, substantially interfere with her employment or created an intimidating, hostile, or offensive work environment. Under Radtke, whether a hostile work environment was created by the unwelcome conduct “shall be determined by whether a reasonable person, in the totality of circumstances, would have perceived the conduct at issue as substantially interfering with the plaintiff’s employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment.” 442 Mich 394. Consequently, to survive summary disposition, plaintiff had to present documentary evidence to the trial court that a genuine issue existed regarding whether a reasonable person would find that, in the totality of circumstances, Kujawski’s comments to plaintiff were sufficiently severe or pervasive to create a hostile work environment.8

*370B

There is no serious claim that plaintiff was not on notice of the need to respond to the (C)(10) motion with regard to count H or that the motion was prematurely filed or prematurely granted. Despite plaintiffs burden to respond with “specific facts showing that there is a genuine issue for trial,” MCR 2.116(G)(4), plaintiff responded with conclusory allegations.

At the stage where all that was before the court with respect to count n was the deposition testimony and the affidavit of the plaintiff, the only evidence of record supporting the plaintiffs claim of discrimination by Cross and Peters was inadequate under this standard. Had plaintiff testified in conclusory form at trial that her supervisor’s conduct was “continually” demeaning and humiliating regarding her age, sex, national origin, and ability to speak English, a reasonable jury could not have found from a preponderance of the evidence that the comments were of a type, severity, or duration to have created an objectively hostile work environment.9

Plaintiff’s affidavit disclosed no specific instances of ethnic, sexist, or “ageist” remarks hostile to a protected class from which an inference of a hostile work environment could be drawn. It did not describe *371with particularity when, where, or how plaintiff was harassed. Although, as the trial judge recognized, a single act by an employer may so poison the environment as to constitute discrimination, it does not follow that allegations of a push without evidence of conduct or communication violative of the act presents a claim to submit to a jury. Plaintiffs affidavit conclusorily states that Kujawski subjected her to harassing comments regarding her age, sex, national origin, and ability to speak English. As a consequence, the trial court properly found that plaintiff did not establish the existence of a genuine issue of material fact on an essential element of her claim.10

In conclusion, we hold that once defendant supported its motion for summary disposition under MCR 2.116(C)(10) with documentary evidence, plaintiff, as the opposing party, had the duty to rebut with documentary evidence defendant’s contention that no genuine issue of material fact existed. Plaintiff’s affidavit did not satisfy her burden as the opposing party; rather, it constituted mere conclusory allegations and was devoid of detail that would permit the conclusion *372that there was such conduct or communication of a type or severity that a reasonable person could find that a hostile work environment existed. The Court of Appeals properly affirmed the trial court’s grant of summary disposition in favor of defendant.

Brickley, C.J., and Cavanagh, Riley, and Mallett, JJ., concurred with Boyle, J.

Kujawski is now deceased. The only defendant before this Court is Cross and Peters.

Issued February 17, 1994 (Docket No. 151198).

Although writing in dissent, Justice Brennan did “not disagree with the Court’s legal analysis.” 477 US 329. On this point, his views harmonized with the majority. See 477 US 322-324.

The deposition testimony of three co-workers and two upper-level employees indicated that defendant KryawsM treated plaintiff the same as everyone else, that he was a tough but fair boss, and that, if anything, it was plaintiff who was antagonistic and hypersensitive.

The following deposition testimony from Senoia Waters, a co-worker, is relevant.

Q. Did [plaintiff] have any problems with Mr. KujowsM [sic]?

A. Not as I know of.

Q. Was he [KujawsM] a tough guy to get along with at all?

*364A. None of them are, no.

Q. Was he an aggravating guy in any way?

A. No.

Q. Would he try and aggravate people?

A. No.

Q. Would John [Kujawsld] at any time get frustrated with [plaintiff]?

A. Frustrated — you can get frustrated with all of us.

Q. When he would get frustrated, would he — how would he respond? . . . Was he somebody who yelled? . . .

A. No, he didn’t yell. When we were making him angry and not doing what we was supposed to do, he got frustrated with all of us, but it was never at the point where he would yell at you or none of that land of stuff, no.

Co-worker Warner Scott stated:

Q. Had he [Kryawsld] had any problems with Mrs. Quinto up to this point that you’re aware of?

A. I’m sure he have [sic].

Q. Why do you say you’re sure he had?

A. Because she’s just a bossy lady. She’s bossy.

Q. Have you seen them argue before?

A. No, not — I can’t say I have.

A. She [plaintiff] always talk in — sometimes she talk in Italian and nobody understands her. She don’t talk English that well to me and she gets mad sometimes because you don’t understand that.

Q. Was he [Kujawsld] ever tough with Mrs. Quinto?

A. He was tough with all of us.

Q. Was he ever sarcastic? Do you know what that means?

A. Yeah, I know what it means. He wasn’t to me, no.

Q. Was he to Mrs. Quinto?

A. I don’t believe so.

Q. Was he ever antagonistic with Mrs. Quinto?

A. I don’t think so.

*365Q. Was he a demanding boss?

A. He’s demanding.

Q. Did John Kujowski [sic] treat all the employees the same?

A. Yes.

Q. Was he fair?

A. Very fair.

Co-worker Rene Meservey stated:

A. . . . She [plaintiff] had been in so many arguments with so many people.

Q. . . . Was this kind of an argumentative lady or what, or was she the butt of everybody’s jokes?

A. Yeah, or she would be afraid somebody was talking about her or picking on her or something like that, which especially — well, I can say, you know, a black person, because she was extremely prejudiced.

Q. . . . [S]he had difficulty speaking English from what I understand.

A. Yes.

Q. Would anybody make fun of her or taunt her or anything like that?

A. No, but I know she was always worried about that. ... It was just stuck in her head that people were talking about her. Why, I don’t know. That’s the type of woman she was, I guess.

Q. She’s an older Italian woman who doesn’t speak English so good. Did that cause the same kind of bias in other people that you witnessed where people would kind of make fun of her?

A. Toward Elaina [sic], no, no. I mean, I will agree we’ve got some rotten people there, but nobody is going to come up to somebody and cut them down because of their race. Most people hold it to themselves.

George Orris, the plant manager, stated:

Q. She’s [plaintiff’s] a fairly difficult lady to understand, isn’t she, when she’s trying to communicate?

A. When she’s excited.

*366Q. When she's not excited, is she difficult to understand?

A. I’ve worked with her so many years, I could understand her very good.

A. She [plaintiff] was always worrying about what anybody was talking about . . . and John [Kpjawsld] told her . . . don’t pay. any attention to what they’re talking about.

Q. Did she [plaintiff] file any [union] grievances?

A. No.

Q. Had Mr. Kpjowsld [sic] been disciplined in any way for two or three years prior to Mrs. Quinto leaving the company?

A. Disciplined, no.

Q. Had grievances been filed against him by any members of the union?

A. Not that I know of.

Robert Marraeino, the general manager, stated:

A. Well, her [plaintiff’s] biggest problem was that she always thought someone was talking about her. She had a difficult time with the English language and when the people were talking a little distance from her, she always got the impression that they were talking about her because of her hang-up on the English language.

*367I Elena Quinto state for the record, that during the last two years of employment with Better Made Potato Chips, while under the supervision of John, was subjected to various abuse. Listed below are some of the comments that were said to me during that time.

- Dumb Dago, your [sic] coo-coo.

- Incompetent, don’t understand anything

- Would not allow her to go use the rest room

- Old Lady, granny

- stupid

- Threw boxes at her.

- He stated, He was watching my every move.

- Would not allow others help her when the machine would malfunction.

This second affidavit was not before the trial court. The affidavit was filed with a motion for rehearing, after the trial court granted defendant’s dis-positive motion. In ruling on a motion for summary disposition, a court considers the evidence then available to it. Apfelblat v Nat’l Bank Wyandotte-Taylor, 158 Mich App 258, 263; 404 NW2d 725 (1987). Accordingly, in ruling on the propriety of the trial court’s grant of defendant’s motion for summary disposition, we do not consider the second affidavit.

Plaintiff also relies on a second affidavit, filed after the trial court granted defendant’s motion for summary disposition. That affidavit states:

We recognize that federal courts have held that harassing behavior based on ethnicity and age is violative of title VH.

But see Koester v City of Novi, 213 Mich App 653, 669-670; 540 NW2d 765 (1995), holding that gender-biased comments to a female employee about pregnancy, career choice, and child rearing are not communications “of a sexual nature” that create a hostile work environment.

This inquiry is consistent with the purpose of the Civil Rights Act. Radtke at 387 states:

As noted, the purpose of the act is to combat serious demeaning and degrading conduct based on sex in the workplace, and to allow women the opportunity to fairly compete in the marketplace. The reasonableness inquiry (i.e., objectively examining the totality of the circumstances) in a hostile work environment action, is simply a method of objectively determining whether a hostile work environment existed. The alternative would be to accept all plaintiffs’ subjective evaluations of conduct, thereby imposing upon employers liability for behavior that, for idiosyncratic reasons, is offensive to an employee.

As Justice Sandra Day O’Connor observed in the title VII context for the Court in Harris v Forklift Systems, Inc, 510 US 17, 22-23; 114 S Ct 367; 126 L Ed 2d 295 (1993):

This is not, and by its nature cannot be, a mathematically precise test. . . . But we can say that whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

Federal courts have granted summary judgment to defendants in discrimination cases when plaintiffs have submitted similarly conclusory affidavits. See, e.g., Johnson v United Airlines, Inc, 680 F Supp 1425, 1431 (D Hawaii, 1987) (an affidavit that stated, “United Airlines and Jack Wilcox have both discriminated against me based upon my race and my age” was insufficient to create a genuine issue of material fact); Farrell v Potomac Electric Power Co, 616 F Supp 995, 1000 (D DC, 1985) (an affidavit stating that the defendant should know that “a Caucasian male received benefits under the contract for alleged misconduct similar to that for which [I] was discriminated” was not specific enough to prevent the entry of summary judgment for the defendant); De Loraine v MEBA Pension Trust, 355 F Supp 89, 92 (SD NY, 1973), aff’d 499 F2d 49 (CA 2, 1974) (an affidavit alleging, “I believe the regulation amendment was proposed by the union for the sole purpose of discriminating against older workers” was insufficient to withstand the defendant’s motion for summary judgment).