Elezovic v. Ford Motor Co.

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion
LULA ELEZOVIC,

Plaintiff-Appellant,
Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILEDDDAnd

FILED JUNE 1, 2005

LULA ELEZOVIC,

Plaintiff-Appellant,

and

JOSEPH ELEZOVIC,

Plaintiff,

v No. 125166

FORD MOTOR COMPANY and DANIEL P.
BENNETT,

Defendants-Appellees.

_______________________________

BEFORE THE ENTIRE BENCH

TAYLOR, C.J.

At issue in this case is (1) whether the Michigan

Civil Rights Act (CRA)1 provides a cause of action against

an individual agent of an employer and (2) whether

plaintiff’s employer, Ford Motor Company, was entitled to a

1
MCL 37.2101 et seq.
directed verdict in plaintiff’s sexual harassment lawsuit

against it.

We hold that an agent may be individually sued under §

37.2202(1)(a)2 of the CRA. Thus, we overrule Jager v

Nationwide Truck Brokers, Inc, 252 Mich App 464, 485; 652

NW2d 503 (2002), because it held to the contrary,3 and

reverse the Court of Appeals judgment in favor of Daniel

Bennett that followed Jager.

We also hold, consistently with the lower courts, that

Ford was entitled to a directed verdict. Thus, we affirm

the trial court and Court of Appeals judgments in favor of

Ford.

I. Facts and Proceedings Below

Plaintiff filed a lawsuit in November 1999 pursuant to

the CRA against Ford Motor Company and Daniel Bennett, a

2
MCL 37.2202(1)(a) provides:

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.
3
Jager had concluded that “a supervisor engaging in
activity prohibited by the CRA may not be held individually
liable for violating a plaintiff's civil rights." Id.

2

supervisor at Ford’s Wixom assembly plant where she worked.

As relevant here, her claim was that she had been sexually

harassed as a result of a hostile work environment.4 The

CRA allows such a lawsuit against an employer.5

Plaintiff’s lawsuit named Bennett as an individual

defendant consistently with the then-controlling case of

Jenkins v Southeastern Michigan Chapter, American Red

4
As set forth in Radtke v Everett, 442 Mich 368, 382-
383; 501 NW2d 155 (1993), the five elements necessary to
establish a prima facie case of sexual harassment based on
a hostile work environment are:

(1) the employee belonged to a protected group;

(2) the employee was subjected to communication
or conduct on the basis of sex;

(3) the employee was subjected to unwelcome
sexual conduct or communication;

(4) the unwelcome sexual conduct or communication
was intended to or in fact did substantially
interfere with the employee’s employment or
created an intimidating, hostile, or offensive
work environment; and

(5) respondeat superior. [Emphasis added.]

See also Chambers v Trettco, Inc, 463 Mich 297, 311;
614 NW2d 910 (2000). Respondeat superior liability exists
when an employer has adequate notice of the harassment and
fails to take appropriate corrective action. Id. at 312.
5
M Civ JI 105.10, Employment Discrimination—Sexual
Harassment.

3

Cross, 141 Mich App 785; 369 NW2d 223 (1985),6 which held

that individual supervisors could be liable under the CRA.7

Regarding the specifics in her complaint, plaintiff

alleged that, while she was on the job in the summer of

1995, Bennett exposed himself to her while masturbating and

requested she perform oral sex. Further, she claimed that

after that he repeatedly continued to harass her by

grabbing, rubbing, and touching his groin and licking his

lips and making sexually related comments.

Before trial, defendants filed a joint motion in

limine to exclude from evidence an unrelated, prior

criminal misdemeanor conviction of Bennett for indecent

exposure. Defendants pointed out that the incident did not

occur on Ford property and involved non-Ford employees.

Plaintiff, however, argued that the indecent exposure

conviction was evidence of a scheme or plan Bennett had of

exposing himself to women and that it provided notice to

6
Jager overruled Jenkins while plaintiff’s appeal was
pending in the Court of Appeals.
7
The CRA states that an “employer” includes an “agent”
of the employer.

MCL 37.2201(a) provides: “‘Employer’ means a person
who has 1 or more employees, and includes an agent of that
person.” (Emphasis added.)

MCL 37.2103(g), in turn, provides: “‘Person’ means an
individual, agent, association, [or] corporation . . . .”

4

Ford that Bennett engaged in inappropriate sexual acts.

The trial court ruled that the indecent exposure conviction

was inadmissible with regard to Bennett under MRE 404(b)(1)8

because it was not offered for any purpose other than to

show that he had a propensity to expose himself. The court

also held it was inadmissible with regard to Ford pursuant

to MRE 4039 because any probative value would be

substantially outweighed by the danger of unfair prejudice.

The case was tried before a jury for three weeks.

Plaintiff testified consistently with the allegations in

her complaint against Bennett. While it was uncontested

8
MRE 404(b)(1) provides:

Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person
in order to show action in conformity therewith.
It may, however, be admissible for other
purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in
doing an act, knowledge, identity, or absence of
mistake or accident when the same is material,
whether such other crimes, wrongs, or acts are
contemporaneous with, or prior or subsequent to
the conduct at issue in the case.
9
MRE 403 provides:

Although relevant, evidence may be excluded
if its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of
time, or needless presentation of cumulative
evidence.

5

that she had not filed a formal written complaint of sexual

harassment pursuant to Ford’s antiharassment policy,

plaintiff attempted to establish that Ford was otherwise

aware, or on notice, of the sexual harassment for several

reasons. She claimed that she told two first-line

supervisors (friends of hers who were under Bennett in the

chain of command) that Bennett had exposed himself to her,

but admitted that she had pledged them to secrecy. She

also introduced two letters her psychologist had written to

the Wixom plant physician, one indicating that in his view

plaintiff was descending into mental illness “[d]ue to the

harassment she perceived from Mr. Bennett” and a second

stating that plaintiff continued “to feel uncomfortable

with Dan Bennett.” These letters were offered with a third

letter from the same psychologist to the Wixom plant

manager regarding complaints against a different coworker

in which it was said “there has been harassment going on

for the past year and a half at her Wixom plant job.” Also

introduced was testimony from an employee to a Ford Labor

Relations Department representative to the effect that the

employee would remain on medical leave until someone did

something about the situation between plaintiff and

Bennett. Finally, reference was made to a letter from

plaintiff’s attorney (her son-in-law) to the Ford Labor

6

Relations Department in which he asserted he might take

legal action “to insure that our client [plaintiff] is not

subjected to working in a hostile environment.”

At the close of plaintiff’s proofs, defendants filed a

joint motion for a directed verdict, arguing that plaintiff

had not presented a prima facie case against them.10 Ford

emphasized that plaintiff had not established that it had

notice of the alleged sexual harassment by Bennett and,

thus, it could not be held liable for any improper acts by

him.

The trial court took the joint motion under

advisement, with defendants continuing to present their

cases to the jury. Bennett testified that he had not

sexually harassed the plaintiff and that her claims were

false. Ford presented evidence showing that the only time

plaintiff had ever filed a sexual harassment complaint was

in 1991, involving a UAW committeeman, and that none of the

several grievances and complaints plaintiff filed against

Bennett had mentioned sexual harassment. Rather, with

regard to Bennett, her complaints concerned having her

shift changed from days to afternoons and disputes

10
MCR 2.515 provides: “A party may move for a
directed verdict at the close of the evidence offered by an
opponent.”

7

regarding overtime. She also filed a complaint alleging

that a female coworker had physically threatened her.

Upon the close of defendants’ proofs, the trial court

granted directed verdicts to the defendants. The trial

court held that plaintiff had failed to establish a prima

facie case of sexual harassment with regard to either

defendant and, in particular, found that Ford could not be

liable because it had no notice of Bennett’s alleged

harassment.

Plaintiff, asserting that she had established a prima

facie case against Bennett and Ford, appealed to the Court

of Appeals. That Court, however, affirmed the orders of

the trial court in a published opinion.11 In ruling for

Bennett, the majority in Elezovic relied on the then-recent

holding in Jager, supra at 485, that “a supervisor engaging

in activity prohibited by the CRA may not be held

individually liable for violating a plaintiff's civil

rights.” The Jager Court had reached its conclusion by

relying largely on federal court holdings that under Title

VII of the federal civil rights act, the federal analogue

11
Elezovic v Ford Motor Co, 259 Mich App 187; 673 NW2d
776 (2003).

8

to our CRA, there is no individual liability.12 While it

was obligatory that the majority in Elezovic follow Jager

pursuant to MCR 7.215(J)(1), the majority indicated at the

same time that, but for that court rule, it would have

reached the opposite result.13 It was the majority’s view

that Jager was wrongly decided simply because it was not

consistent with the actual language of our CRA, which it

concluded made agents individually liable. Moreover, it

believed Jager was inconsistent with Chambers v Trettco,

Inc, 463 Mich 297; 614 NW2d 910 (2000), which it read as

recognizing that an individual may be held liable for

sexual harassment under the CRA.14

12
The Jager panel noted that its conclusion that
individuals could not be sued under our CRA was consistent
with federal court rulings such as Wathen v Gen Electric
Co, 115 F3d 400 (CA 6, 1997), in which the Sixth Circuit
Court of Appeals determined, consistently with numerous
other federal courts of appeals, there was no individual
liability under Title VII of the federal civil rights act.
13
Under MCR 7.215(J)(1) a panel of the Court of
Appeals must follow the rule of law established by a prior
published decision of the Court of Appeals issued on or
after November 1, 1990, that has not been reversed or
modified by the Supreme Court, or by a special panel of the
Court of Appeals.

The judges of the Court of Appeals were polled
pursuant to MCR 7.215(J), but a conflict resolution panel
was not convened because a majority of the judges opposed
convening such a panel. 259 Mich App 801 (2003).
14
In making this point, the majority noted that
Chambers held that certain language in the CRA “‘allows
(continued…)

9

 With regard to the directed verdict for Ford, the

Court of Appeals rejected plaintiff’s claim that her

evidence regarding notice had been sufficient to enable her

to reach the jury. The Court held that plaintiff's report

of Bennett's conduct to her supervisors did not constitute

actual notice to Ford because of her request at the same

time that this information not be conveyed to their

supervisor or other appropriate persons. Elezovic v Ford

Motor Co, 259 Mich App 187, 194; 673 NW2d 776 (2003). As

for the letters that had been sent to Ford, the Court of

Appeals concluded that these also did not provide notice

because, importantly, none of them referred to sexual

conduct. The Court held that this fact, when viewed in the

context that plaintiff’s previous harassment complaints had

not been sexual in nature, but were explicitly nonsexual

concerning Bennett and others (with the exception of the

1991 complaint against a UAW committeeman that plaintiff

did not rely on as part of her case), meant Ford would not

reasonably have been put on notice. Id. at 195. Finally,

the Court also affirmed the trial court’s decision to

(…continued)
this Court to determine whether the sexual harasser's
employer, in addition to the sexual harasser himself, is to
be held responsible for the misconduct.’ Chambers, supra
at 320 (emphasis in original).” Elezovic, supra at 201.

10

exclude evidence regarding Bennett’s indecent exposure

conviction. It was the Court’s conclusion that plaintiff

failed to establish that the evidence was offered for a

proper purpose because Bennett's act of indecent exposure

outside the workplace was not sufficiently similar to

sexually harassing an employee in the workplace to

establish a common plan, scheme, or system. Id. at 206.

The Court further concluded that the trial court had not

abused its discretion, concerning defendant Ford, in

holding that the probative value of this evidence would

have been substantially outweighed by the danger of unfair

prejudice.15 Id. at 207-208.

Plaintiff applied for leave to appeal in this Court,

and we granted leave to appeal and directed the parties to

include among the issues briefed whether a supervisor

engaging in activity prohibited by the Michigan Civil

Rights Act, MCL 37.2101 et seq., may be held individually

liable for violating a plaintiff's civil rights. 470 Mich

892 (2004).

15
That is, the marginally probative evidence could be
given undue or preemptive weight by the jury.

11

 II. Standards of Review

We review de novo the question whether our CRA

authorizes a cause of action against an individual agent

for workplace sexual harassment because it is a question of

law. Morales v Auto-Owners Ins Co (After Remand), 469 Mich

487, 490; 672 NW2d 849 (2003). In reviewing the statute,

if its language is clear, we conclude that the Legislature

must have intended the meaning expressed, and the statute

is enforced as written. Turner v Auto Club Ins Ass'n, 448

Mich 22, 27; 528 NW2d 681 (1995).

We also review de novo a trial court's ruling

regarding a motion for a directed verdict, viewing the

evidence and all legitimate inferences in the light most

favorable to the nonmoving party. Sniecinski v Blue Cross

& Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186

(2003); Meagher v Wayne State Univ, 222 Mich App 700, 707-

708; 565 NW2d 401 (1997).

Finally, the decision whether to admit or exclude

evidence is reviewed for an abuse of discretion. People v

Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).

III. Individual Agent Liability Under the CRA

The CRA prohibits an employer from discriminating on

account of sex, which includes sexual harassment. MCL

37.2202(1)(a); MCL 37.2103(i) (“Discrimination because of

12

sex includes sexual harassment.”). As previously set

forth, the statute expressly defines an “employer” as a

“person,” which is defined under MCL 37.2103(g) to include

a corporation, and also states that an “employer” includes

an “agent of that person.” MCL 37.2201(a).16

This statutory language uncontroversially means that

Ford Motor Company is an “employer” under the CRA. What is

contested is whether an agent of the corporation is also

subject to individual liability.

Bennett and Ford have argued that the statutory

definition of “employer,” which includes an “agent of that

person,” should not be read as providing individual

liability because (1) inclusion of the term “agent” in the

statutory definition of “employer” operates solely to

confer vicarious liability on the employer, (2) federal

courts of appeals have all held that Title VII—the

analogous federal sexual discrimination statute with its

similar definition of “employer”—does not allow individual

liability, and (3) the amendment history of our CRA

suggests a different intention on the part of the

Legislature.

16
These legislatively provided definitions are binding
on this Court. Tryc v Michigan Veterans’ Facility, 451
Mich 129, 136; 545 NW2d 642 (1996).

13

 Regarding the first of these arguments, that this

statute should not be read to expand the class of potential

defendants to include agents, defendants assert that

Chambers, supra at 310, supports this narrowing conclusion

because it held that the inclusion of an “agent” within the

definition of an “employer” in MCL 37.2201(a) served to

confer vicarious liability on the agent’s employer. We

disagree with this analysis. While Chambers held that this

language establishes vicarious liability, our discussion

did not limit it to that function. The reason is that,

when a statute says “employer” means “a person who has 1 or

more employees, and includes an agent of that person,” it

must, if the words are going to be read sensibly, mean that

the Legislature intended to make the agent tantamount to

the employer so that the agent unmistakably is also subject

to suit along with the employer. (Emphasis added.) Indeed,

when we said in Chambers, supra at 320, that categorizing a

given pattern of misconduct allows the Court “to determine

whether the sexual harasser's employer, in addition to the

sexual harasser himself, is to be held responsible for the

misconduct,” we believe we said as much. (Emphasis in

original.) Accordingly, we reject the argument that

including “agent” within the definition of “employer”

serves only to provide vicarious liability for the agent’s

14

employer and we conclude that it also serves to create

individual liability for an employer’s agent.17

With respect to defendants’ second argument, which is

effectively that we should piggyback on the rationale

federal courts have used with Title VII,18 defendants refer

17
Justice Weaver states in her dissent that we offer
“no clear reason for rejecting the conclusion that the
phrase ‘agent of the employer’ denotes respondeat superior
liability.” Post at 7. But, as our discussion above makes
clear, we do not reject this conclusion. Rather, we hold
that the Legislature’s use of the words “agent of the
employer” denotes respondeat superior liability and also
that individual liability may exist under the statute.

Justice Cavanagh argues in his dissent that

the statute means that an employer is a person
who has one or more employees and this includes
an agent of the employer. This means that an
employer still falls within the purview of the
statute even if its “employees” are mere agents,
such as family members who are helping with the
business. To determine employer liability,
agents are considered employees. [Post at 2-3.]

We believe Justice Cavanagh is misreading the statute.
The statute says an agent can be an employer—not an
employee. The reference in the statute to "agent" modifies
"employer." It does not expand the scope of "employee."
This is evident from the parallel verbs:

"Employer" means a person who has 1 or more
employees, and includes an agent of that person.
[MCL 37.2201(a) (emphasis added).]
18
Title VII defines “employer” to mean “a person
engaged in an industry affecting commerce who has fifteen
or more employees . . . and any agent of such a person . .
. ." 42 USC 2000e(b). (Emphasis added.) Thus, while the
definition of “employer” under Title VII is similar to that
of our CRA, as pointed out in Chambers, unlike the federal
(continued…)

15

us to numerous federal decisions that, on the basis of the

“policy” and “object” of Title VII rather than what the

statute actually says, have read Title VII to preclude

individual liability.19 This Court has been clear that the

policy behind a statute cannot prevail over what the text

actually says. The text must prevail. In fact, in

Chambers, when an invitation to follow “policy” over “text”

was presented with regard to the CRA, we said:

We are many times guided in our
interpretation of the Michigan Civil Rights Act
by federal court interpretations of its

(…continued)

law, the CRA expressly establishes a cause of action for

sexual harassment and employer liability based on

traditional agency principles. Chambers, supra at 311,

315-316, 326.

19
For example, in Wathen, supra at 405, the Sixth
Circuit Court of Appeals determined there was no individual
liability under Title VII of the federal civil rights act,
even though a reading of the language contained in Title
VII would lead to the conclusion that an individual could,
in fact, be held liable for acts of discrimination. The
Sixth Circuit, however, citing the “object” and “policy”
behind Title VII instead of its language, ultimately
rendered a decision in conflict with that language.
Similarly, in Tomka v Seiler Corp, 66 F3d 1295, 1314 (CA 2,
1995), the Second Circuit ruled individual liability was
not available under Title VII even though what it
grudgingly referred to as “a narrow, literal reading of the
agent clause” in Title VII “does imply that an employer’s
agent is a statutory employer for purposes of [Title VII]
liability . . . .” As in Wathen, the Second Circuit went
on to read Title VII not on the basis of its language, but
on the basis of what it viewed as the real “intentions of
the legislators.”

16

 counterpart federal statute. However, we have
generally been careful to make it clear that we
are not compelled to follow those federal
interpretations. Instead, our primary obligation
when interpreting Michigan law is always “to
ascertain and give effect to the intent of the
Legislature, . . . ‘as gathered from the act
itself.’” . . . [W]e cannot defer to federal
interpretations if doing so would nullify a
portion of the Legislature's enactment.
[Chambers, supra at 313-314 (citations omitted).]

As in Chambers, we again decline to follow the

tendered “policy” over “text” federal court interpretations

of Title VII for the same reason: it would be contrary to

the very wording of our CRA. Because MCL 37.2201(a)

provides that an “employer” includes an “agent” of the

employer, an agent can be held individually liable under

the CRA.20

20
Justice Weaver states in her dissent that our
holding may be a “shallow victory” for plaintiffs because
sexual harassers may not be “agents” if they were acting
outside the scope of their authority. We neither agree nor
disagree with any aspect or premise of this proposition,
and do not address it here, because this issue has not been
raised or argued by the parties. Further, whether or not
some later holding by this Court may prove to be a “shallow
victory” is in sharp contrast with the “certain defeat”
that plaintiffs in sexual harassment cases against
individuals would suffer under Justice Weaver’s “common
sense” interpretation of the statute. Post at 7. Justice
Weaver further claims that under our opinion a supervisor,
but not a coemployee, may face individual liability. This
also is a proposition that has no basis in our opinion.
All we have said is, if the individual was an agent of the
employer, individual liability may exist. Whether a
distinction can be drawn under the statute between
(continued…)

17

 Moreover, several federal courts in Michigan have

anticipated our holding that, under our CRA, individual

agent liability exists even if it did not exist under Title

VII. This can be seen in Hall v State Farm Ins Co, 18 F

Supp 2d 751, 764 (ED Mich, 1998), in which the United

States District Court for the Eastern District of Michigan

explained:

ELCRA [Elliot-Larsen Civil Rights Act]
covers any employer “who has 1 or more
employees.” Mich. Comp. Laws § 37.2201(a). Thus,
ELCRA undeniably envisions placing liability on
individuals, such as two-member business entities
where one person is the principal and the other
person serves as the employee. Moreover, ELCRA's
remedy provision authorizes “person[s] alleging a
violation of this act [to] bring a civil action
for appropriate injunctive relief or damages, or
both,” with “damages” being awarded for an
“injury or loss caused by each violation of this
act, including reasonable attorney's fees.”
Mich. Comp. Laws §§ 37.2801(1), (3). These ELCRA
remedies further distinguish it from Title VII
because damages can be obtained from individuals
as well as employers.

Similarly, another judge of the same federal district

court also questioned the Jager Court’s conclusion that

individual liability did not exist under Michigan’s CRA,

stating that

(…continued)

supervisory and nonsupervisory employees has again not been

raised or argued in this case.

18

 the language “includes an agent of that
employer,” could, under principles of strict
statutory construction, well be read as extending
liability to individuals. Otherwise, this phrase
is merely surplusage, as it adds nothing to the
definitional scope of “employer,” which itself
defines the term “employer” as a person. [United
States v Wayne Co Comm College Dist, 242 F Supp
2d 497, 507 n 11 (ED Mich, 2003).][21]

We conclude, then, that while federal courts have the

power to construe Title VII as they will, that does not

compel us to follow them, especially if the language being

construed is at loggerheads with the purported policy.

With respect to the third argument regarding the

amendment history of our CRA, defendants assert that it

precludes a finding of individual liability. They advance

this by positing that when the CRA was first enacted in

1976, it defined “employer” to mean “a person who has 4 or

more employees, and includes an agent of that person.”

1976 PA 453. This meant, as defendants read it, that an

agent could not be individually liable because the CRA did
21
Millner v DTE Energy Co, 285 F Supp 2d 950, 964 n 16
(ED Mich, 2003), also expressed the same qualms as those
indicated in Wayne Comm College.

We also note that, in Poches v Electronic Data Systems
Corp, 266 F Supp 2d 623, 627 (ED Mich, 2003), and Rymal v
Baergen, 262 Mich App 274, 296-297; 686 NW2d 241 (2004),
the courts distinguished Jager and allowed retaliation
claims against individuals to go forward because the
antiretaliation provision of the CRA, MCL 37.2701, is
broader than the antidiscrimination provision of the CRA,
MCL 37.2202.

19

not apply at all unless there were at least four employees.

With that predicate of no agent liability under the 1976

act understood, they then turn to the amended statute,

which reflects the 1980 amendment22 that broadened the

protection of the CRA by sweeping under its aegis companies

with only one employee, but left unchanged the definition

of “employer” to include an “agent,” and argue that even

though the old theory of nonliability of agents cannot be

sustained under the new language, we should read it in

anyway. This we cannot do. The Legislature is held to

what it said. It is not for us to rework the statute. Our

duty is to interpret the statute as written. The binding

nature of this responsibility was reiterated by this Court

recently in Lansing Mayor v Pub Service Comm, 470 Mich 154,

161; 680 NW2d 840 (2004), in which we said:

Our task, under the Constitution, is the
important, but yet limited, duty to read and
interpret what the Legislature has actually made
the law. We have observed many times in the past
that our Legislature is free to make policy
choices that, especially in controversial
matters, some observers will inevitably think
unwise. This dispute over the wisdom of a law,
however, cannot give warrant to a court to
overrule the people's Legislature.

22
In 1980, the Legislature amended the statute to say
that an “employer” means “a person who has 1 or more
employees, and includes an agent of that person.” 1980 PA
202.

20

 Thus, what this comes down to is that perhaps the

Legislature’s policy choice can be debated, but the

judiciary is not the constitutional venue for such a

debate. The Legislature is the proper venue. It is to

that body that the defendants should make their argument.

Accordingly, we reject the claim that the amendment history

of our CRA precludes a finding of individual liability

where the actual wording of the statute as currently

written unambiguously provides that an agent may be

individually liable.23

Because we find that (1) inclusion of an “agent”

within the definition of the word “employer” is not limited

to establishing vicarious liability for the agent’s

employer, but in fact means agents are considered

employers, (2) federal decisions construing Title VII

23
Notwithstanding Justice Weaver's view that the
Legislature could have acted in a more "straightforward
manner" in communicating its intentions, we cannot think of
a more clearcut statement on its part concerning liability
under the statute. While Justice Weaver would prefer to
rely on her own "common sense," post at 7, in interpreting
"employer" to exclude from coverage individual employees,
the majority would prefer to rely on the statute itself,
which states that "[e]mployer . . . includes an agent of
that person." It is a caricature of the concept of
"judicial restraint" (which concept she invokes on her own
behalf, post at 7) for Justice Weaver to assert that her
"common sense" should be allowed to override the language
of the statute.

21

should not be followed because it would lead to a result

contrary to the text of our CRA, and (3) the amendment

history of the CRA does not preclude a finding of

individual liability, we conclude that liability under our

CRA applies to an agent who sexually harasses an employee

in the workplace.

IV. Plaintiff’s Claim Against Ford

It is the case in this area of the law that employer

responsibility for sexual harassment can be established

only if the employer had reasonable notice of the

harassment and failed to take appropriate corrective

action. Chambers, supra at 312. In Chambers, we also held

that "notice of sexual harassment is adequate if, by an

objective standard, the totality of the circumstances were

such that a reasonable employer would have been aware of a

substantial probability that sexual harassment was

occurring." Id. at 319. Thus, actual notice to the

employer is not required; rather, the test is whether the

employer knew or should have known of the harassment.

Radtke, supra at 396 n 46.24 As is apparent, the issue is

24
Justice Weaver agrees with the majority that an
employer must have notice before it can be liable. Post at
10. But, she later arguably undercuts this by citing
Meritor Savings Bank, FSB v Vinson, 477 US 57, 72; 106 S Ct
2399; 91 L Ed 2d 49 (1986) (a case construing Title VII),
(continued…)

22

whether Ford knew or reasonably should have known, under

the totality of the circumstances, of Bennett’s harassment

of plaintiff.

Plaintiff claims she made a prima facie showing of

notice when she told two low-level supervisors of Bennett’s

exposure, and that Ford was also put on notice by the

letters her psychologist and son-in-law sent to Ford. We

agree with the trial court and the Court of Appeals that

plaintiff’s notice evidence was insufficient to allow the

case to be submitted to the jury.

We first consider whether plaintiff’s telling two low-

level supervisors in confidence that Bennett had exposed

himself to her constituted notice to Ford. We find that it

did not. It must be recalled that, if an employee is

sexually harassed in the workplace, it is that employee’s

(…continued)
for the proposition that the “absence of notice to an
employer does not necessarily insulate that employer from
liability.” As for this language from Meritor, we note
that it has been interpreted to mean that "employers are
liable for failing to remedy or prevent a hostile or
offensive work environment of which management-level
employees knew, or in the exercise of reasonable care
should have known." Equal Employment Opportunity Comm v
Hacienda Hotel, 881 F2d 1504, 1515-1516 (CA 9,
1989)(emphasis added). Thus, the language from Meritor
should be understood to mean actual notice is not required.
This is consistent with Michigan law because the test is
whether the employer knew or should have known of the
harassment. Radtke, supra at 396 n 46.

23

choice whether to pursue the matter. In other words, the

victim of harassment “owns the right” whether to notify the

company and start the process of investigation. Until the

employee takes appropriate steps to start the process, it

is not started. As stated in Perry v Harris Chernin, Inc,

126 F3d 1010, 1014 (CA 7, 1997):

[T]he law against sexual harassment is not
self-enforcing. A plaintiff has no duty under
the law to complain about discriminatory
harassment, but the employer in a case like this
one will not be liable if it had no reason to
know about it.

Thus, when an employee requests confidentiality in

discussing workplace harassment, and the request for

confidentiality is honored, such a request is properly

considered a waiver of the right to give notice.25

Thus, we conclude that plaintiff’s telling two

supervisors in confidence about one instance of Bennett’s

improper conduct does not constitute notice,

notwithstanding Ford’s policy that required the supervisors

25
An employer, of course, remains free to discipline a
supervisor for failing to report a sexual harassment
complaint to the proper persons as required by the
employer’s policy. But, that is a different issue, and it
does not mean that a confidential report of sexual
harassment to a supervisor constitutes notice to the
employer.

24

to report the information to human resources personnel.26

Our holding is consistent with other courts that have

considered this issue. For example in Hooker v Wentz, 77 F

Supp 2d 753, 757-758 (SD W Va, 1999), the court held there

was no notice to the employer where the plaintiff confided

in her immediate supervisor about sexual advances but asked

that he not report it to others. And, in Faragher v Boca

Raton, 111 F3d 1530 (CA 11, 1997), rev’d on other grounds

524 US 775 (1998), the court held that, for vicarious-

liability purposes, notice to a manager does not constitute

notice to management when the complainant asks the manager,

as a friend, to keep the information confidential.

With regard to the letters that were sent to Ford, we

concur with the Court of Appeals that where the evidence

showed that plaintiff had filed numerous grievances and

labor relations complaints over the years against Bennett

and others that were unrelated to sexual harassment,27 the

mentioning of the word “harassment” alone or the phrase

“hostile environment” in the letters was insufficient to

26
Accord Hooker v Wentz, 77 F Supp 2d 753, 757-758 (SD
W Va, 1999) (where the plaintiff confided in her immediate
supervisor about sexual advances, but asked that he not
report it to others, there was no notice to the employer).
27
There were several disputes regarding plaintiff’s
shift assignment.

25

give Ford notice that sexual harassment was being claimed.

This is especially true where plaintiff was aware, and the

employer was aware that she was aware, of the terminology

at issue because she had previously filed a written

complaint asserting that her UAW committeeman had sexually

harassed her.28 Accordingly, even viewing the evidence in a

light most favorable to plaintiff, we conclude that Ford

was entitled to a directed verdict because, under the

totality of the circumstances, a reasonable employer would

not have been on notice of a substantial probability that

sexual harassment was occurring.29

Plaintiff argues in the alternative that, even if her

evidence of notice to Ford was insufficient, it would have

been sufficient if the trial court had not erroneously

granted the motion in limine that precluded introduction of

evidence of Ford’s knowledge of Bennett’s indecent exposure

conviction. This conviction had been expunged before the

28
Justice Weaver’s dissent advocates what might be
characterized as a “near miss” theory of notice, i.e., if a
male employee had problems at work with female employees or
was accused of harassing someone in a nonsexual way, this
somehow constitutes notice that such an employee was a
sexual harasser. The perils of such an approach are
apparent and we decline to adopt it.
29
A directed verdict is proper where no prima facie
showing of liability is made. Locke v Pachtman, 446 Mich
216, 222-223; 521 NW2d 786 (1994).

26

trial in this matter. We conclude that the trial court’s

ruling was not an abuse of discretion.

First, we note that MCL 780.623(5) provides:

Except as provided in subsection (2)
[pertaining to certain law enforcement purposes],
a person, other than the applicant, who knows or
should have known that a conviction was set aside
under this section and who divulges, uses, or
publishes information concerning a conviction set
aside under this section is guilty of a
misdemeanor punishable by imprisonment for not
more than 90 days or a fine of not more than
$500.00, or both.

Pursuant to this statute, evidence of Bennett’s

expunged misdemeanor conviction was not admissible. While

this statute clearly made evidence of the conviction

inadmissible, that leaves the question whether the facts

that led to the conviction, which occurred while Bennett

was not at work and involved individuals with no connection

to Ford, were admissible to establish that Ford knew or

should have known that Bennett was sexually harassing

plaintiff. The trial court ruled that the evidence was

inadmissible because the prejudice to Ford would

substantially outweigh any probative value the evidence

might have. The trial court did not abuse its discretion.30

30
See, e.g., Tomson v Stephan, 705 F Supp 530, 536 (D
Kan, 1989) (excluding evidence that the defendant made
sexual advances outside the employment setting because the
advances were not made toward an employee); Longmire v
(continued…)

27

Indeed, we question how Ford’s knowledge of Bennett’s

improper off-site behavior involving nonemployees could

constitute notice to Ford that plaintiff’s work environment

was sexually hostile. Context is important; improper

behavior of a given type is not an inevitable predictor of

other types of improper behavior especially where, as here,

they occur at entirely different locales and under

different circumstances. Tomson v Stephan, 705 F Supp 530,

536 (D Kan, 1989).

And, as we stated in Chambers, supra at 315-316, an

employer can be vicariously liable for a hostile work

environment only if it “failed to take prompt and adequate

remedial action upon reasonable notice of the creation of a

hostile [work] environment . . . .” (Emphasis added.)

Here, the trial court and the Court of Appeals properly

held that plaintiff’s notice evidence was insufficient to

allow the case to be submitted to the jury.

V. Conclusion

Because employers can be held liable under the CRA,

and because agents are considered employers, agents can be

(…continued)
Alabama State Univ, 151 FRD 414, 417 (MD Ala, 1992) (the
defendant’s “activities outside the work place are
irrelevant” to determining the existence of a hostile work
environment).

28

held liable, as individuals, under the CRA. Thus, we

accept the invitation of the Court of Appeals and reverse

that part of the Court of Appeals opinion that relied on

Jager in holding that agents may not be held individually

liable under our CRA.

We affirm the judgment of the Court of Appeals that

Ford was entitled to a directed verdict and that the trial

court’s pretrial ruling on the motion in limine was not an

abuse of discretion.

Reversed in part, affirmed in part, and remanded to

the circuit court for further proceedings regarding Bennett

and consistent with this opinion.

Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

29

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

SUPREME COURT

LULA ELEZOVIC,

Plaintiff-Appellant,

and

JOSEPH ELEZOVIC,

Plaintiff,

v No. 125166

FORD MOTOR COMPANY AND DANIEL P.
BENNETT,

Defendants-Appellees.

_______________________________

CAVANAGH, J. (concurring in part and dissenting in part).

I believe that the Civil Rights Act (CRA), MCL 37.2101

et seq., does not provide for individual liability against

an agent of an employer; therefore, I respectfully dissent

from the majority on this issue. I also dissent from the

majority on the issue of notice. As discussed by Justice

Weaver in her partial dissent, I likewise believe that

plaintiff provided evidence of notice to defendant Ford

Motor Company (Ford) that was sufficient to allow the issue

to be decided by a jury. Finally, I concur with the result

reached by the majority regarding the trial court’s
decision to grant defendants’ motion in limine to preclude

evidence of Ford’s knowledge of the alleged sexual

harasser’s expunged indecent exposure conviction.

I. INDIVIDUAL LIABILITY UNDER THE CIVIL RIGHTS ACT

This issue involves the proper interpretation of the

CRA. The primary goal of statutory interpretation is to

give effect to the intent of the Legislature. In re MCI

Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).

The first step is to review the language of the statute.

If the statutory language is unambiguous, the Legislature

is presumed to have intended the meaning expressed in the

statute and judicial construction is not permissible.

MCL 37.2201(a) states the following: “‘Employer’

means a person who has 1 or more employees, and includes an

agent of that person.” According to the statute, “that

person” refers to the employer.1 Simply, the statute means

that an employer is a person who has one or more employees

and this includes an agent of the employer. This means

1
MCL 37.2103(g) states the following:

“Person” means an individual, agent,
association, corporation, joint apprenticeship
committee, joint stock company, labor
organization, legal representative, mutual
company, partnership, receiver, trust, trustee in
bankruptcy, unincorporated organization, the
state or a political subdivision of the state or
an agency of the state, or any other legal or
commercial entity.

2

that an employer still falls within the purview of the

statute even if its “employees” are mere agents, such as

family members who are helping with the business. To

determine employer liability, agents are considered

employees. Thus, an employer cannot escape liability

because the alleged sexual harasser is not officially an

employee, but is instead, for example, a family member who

is “helping out” with the business. If the sexual harasser

is an employee or agent of the employer, the employer is

liable if it had notice and failed to act reasonably. See

Radtke v Everett, 442 Mich 368, 396; 501 NW2d 155 (1993).

According to the unambiguous language selected by the

Legislature, the plain text of the statute provides for

employer liability for the acts of its employees and

agents, but it does not provide for individual liability.

Because policy considerations cannot be taken into account

in this case, I offer no position on whether it would be

best for plaintiffs in sexual harassment cases to also hold

an alleged sexual harasser individually liable under the

CRA. That decision is solely for the Legislature to

determine.

II. NOTICE TO FORD OF SEXUAL HARASSMENT

I concur with part II of Justice Weaver’s partial

dissent. I believe Justice Weaver outlines sufficient

evidence to support plaintiff’s claim that Ford had notice
3
of plaintiff’s allegations of sexual harassment. While

plaintiff requested confidentiality from two supervisors

whom she told about the alleged sexual harassment, it is

critical to note that the supervisor of labor relations had

notice of plaintiff’s allegations of sexual harassment from

one of plaintiff’s coworkers and from the alleged sexual

harasser himself. In addition to the other facts presented

by plaintiff, because the supervisor of labor relations had

notice of plaintiff’s allegations of sexual harassment, I

believe that this issue should be determined by a jury.

III. EXCLUDING EVIDENCE OF THE ALLEGED SEXUAL HARASSER’S
EXPUNGED CONVICTION FOR INDECENT EXPOSURE

I concur with the result reached by the majority that

the trial court did not abuse its discretion when it

granted defendants’ motion in limine to preclude evidence

of Ford’s knowledge of the alleged sexual harasser’s

expunged indecent exposure conviction. I also concur with

the majority’s conclusion that, in this case, the facts

that led to the conviction were not sufficient to put Ford

on notice of sexual harassment. However, I note that there

certainly may be instances where the facts of a conviction,

even one that occurs off-site and involves nonemployees,

may lead to notice because of the context in which the

incident occurred and the totality of the circumstances.

4

 IV. CONCLUSION

Because the CRA does not provide for individual

liability against an agent of an employer, I respectfully

dissent from the majority on this issue. I also dissent

from the majority on the issue of notice and, accordingly,

I concur with Justice Weaver because I believe that

plaintiff provided evidence of notice to Ford that was

sufficient to allow the issue to be decided by a jury.

Finally, I concur with the result reached by the majority

regarding the trial court’s decision to grant defendants’

motion in limine to preclude evidence of Ford’s knowledge

of the alleged sexual harasser’s expunged indecent exposure

conviction.

Michael F. Cavanagh
Marilyn Kelly

5

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

SUPREME COURT

LULA ELEZOVIC,

Plaintiff-Appellant,

and

JOSEPH ELEZOVIC,

Plaintiff,

v No. 125166

FORD MOTOR COMPANY AND DANIEL P.
BENNETT,

Defendants-Appellees.

_______________________________

WEAVER, J. (concurring in part and dissenting in part).

I concur in the majority’s conclusions that the trial

court’s ruling on the defendants’ motion in limine was not

an abuse of discretion and that its decision to exclude the

evidence of defendant Daniel Bennett’s expunged conviction

should therefore be affirmed. But I write separately

because I respectfully dissent both from the majority’s

conclusion that Michigan’s Civil Rights Act (CRA), MCL

37.2101 et seq., provides for individual liability against

an agent of an employer and from its conclusion that

defendant Ford Motor Company was entitled to a directed
verdict because plaintiff failed to establish that Ford had

notice of the sexual harassment.

Instead, I would conclude that the Legislature

included the word “agent” in the definition of “employer”

in MCL 37.2201(a) to denote respondeat superior liability,

not individual liability. Accordingly, I would not

overrule Jager v Nationwide Truck Brokers, Inc, 252 Mich

App 464; 652 NW2d 503 (2002), and I would affirm the Court

of Appeals conclusion in this case that there is no

individual liability under the statute. Further, I would

conclude that plaintiff offered sufficient evidence during

trial to allow the question of notice to go to the jury.

Therefore, I would reverse the Court of Appeals decision

that the trial court properly granted a directed verdict in

Ford’s favor because plaintiff failed to show that she

provided notice of her sexual harassment claim.

I

The CRA provides, in pertinent part, that “[a]n

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
2
 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. [MCL 37.2202.]

The CRA defines discrimination because of sex to include

sexual harassment. MCL 37.2103(i). It defines “sexual

harassment” to mean “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).]

3

The term “employer” is defined as “a person who has 1 or

more employees, and includes an agent of that person.” MCL

37.2201(a).

The majority concludes that because the definition of

the word “employer” includes an “agent” of the employer,

“an agent can be held individually liable under the CRA.”

Ante at 17. I disagree and, instead, agree with the

conclusion reached by the Court of Appeals in Jager, supra

at 484, that by defining “employer” to include an “agent”

of the employer, the Legislature “meant merely to denote

respondeat superior liability[1] rather than individual

liability.”2 Thus, I would not overrule the Jager

decision.

Had the Legislature intended the CRA to impose

liability on the individuals who commit harassment, it

would likely have done so in a more straightforward manner

than by defining “employer” to include an “agent” of the

1
Respondeat superior “means that a master is liable in
certain cases for the wrongful acts of his servant, and a
principal for those of his agent.” Black’s Law Dictionary
(6th ed). It is an element of a prima facie case of sexual
harassment based on hostile work environment. Radtke v
Everett, 442 Mich 368, 383; 501 NW2d 155 (1993). For all
five elements, see p 10 of this opinion.
2
See also Miller v Maxwell’s Int’l Inc, 991 F2d 583
(CA 9, 1993), and Wathen v Gen Electric Co, 115 F3d 400 (CA
6, 1997), which interpret the phrase as used in Title VII.

4

employer.3 Relying on the word “agent” to impose individual

liability would, under the majority’s interpretation, only

allow individual liability against supervisors and others

in similar positions who, under agency law, might be

considered “agents” of the employer.4 But it would not

permit coemployees who harass a victim to be held

individually liable. If the Legislature truly intended to

impose individual liability under the CRA on those who

commit sexual harassment, one would expect that it would

choose language that would allow all individuals who commit

the harassment to be held liable, regardless of their

status as a supervisor or coemployee.

Further, the “round-aboutness” of the majority’s

approach becomes more evident when one realizes that

recognizing individual liability under the CRA may be a

very shallow “victory” for plaintiff and may actually

result in very few individuals being held liable. In this

3
For example, the Legislature could have said in MCL
37.2202 that an “employer or employee of the employer shall
not . . .,” or it could have included a separate section in
the statute addressing individual liability.
4
An agent has been defined as a “person authorized by
another (principal) to act for or in place of him; one
intrusted with another’s business” or “[o]ne who deals not
only with things, as does a servant, but with persons,
using his own discretion as to means, and frequently
establishing contractual relations between his principal
and third persons.” Black’s Law Dictionary (6th ed).

5

case, the majority assumes that Mr. Bennett was an “agent”

of Ford without analyzing the issue. But if the issue

whether the perpetrator of the harassment was an agent of

the employer were analyzed under strict agency principles,

in many cases, it may be concluded that the perpetrator of

the harassment cannot be held individually liable as an

agent because the perpetrator did not have actual or

apparent authority from the employer to harass employees of

the employer; therefore he cannot be considered an “agent”

of the employer because he was acting outside the scope of

his authority.5 It does not seem reasonable that the

Legislature would create individual liability using

language that might, in actuality, foreclose most

5
See, e.g., AMCO Builders & Developers, Inc v Team Ace
Joint Venture, 469 Mich 90, 103-104; 666 NW2d 623 (2003)
(Young, J. concurring)(stating that agency principles are
applicable to the attorney-client relationship and that a
client may be bound by the acts of his agent when the agent
is acting within the scope of his authority); James v
Alberts, 464 Mich 12, 15; 626 NW2d 158 (2001)(noting that
“a principal is bound by an agent’s actions within the
agent’s actual or apparent authority”).

In light of this, I now question the correctness of
our decision in Chambers v Trettco, Inc, 463 Mich 297, 312,
316; 614 NW2d 910 (2000), which concluded that the CRA is
firmly “rooted in traditional agency principles.” While
agency principles may be a helpful guide in applying the
CRA, I question whether they should be rigidly applied in
this setting.

6

individuals from being held individually liable under the

CRA.

The majority offers no clear reason for rejecting the

conclusion that the phrase “agent of the employer” denotes

respondeat superior liability. Rather, it simply concludes

that the phrase “includes an agent of that person” must

mean “if the words are going to be read sensibly” that

agents are subject to individual liability under the

statute. Ante at 14. Thus, the majority’s reasoning

amounts to little more than it must mean this because we

say it does. But, as suggested above, rather than a

“sensible” reading of the statute, this seems a very round-

about way to create individual liability.

I also disagree with the majority’s suggestion that

concluding that the word “agent” denotes respondeat

superior liability and not individual liability places

“policy” over the “text” of the statute. Ante at 15—17.

Interpreting the text of the statute does not mean that we

read a phrase in the statute in isolation from the act as a

whole or from the purpose of the act. Interpreting a

statute with judicial restraint and common sense may, in

fact, require us to consider the act as a whole and its

purpose while we endeavor to understand what the

Legislature intended by including a particular phrase.

7

 In this case, a purpose of MCL 37.2202 is to prohibit

employers from sexually discriminating against employees.

By imposing liability on employers for sexual harassment,

employers will be encouraged to take steps to prevent

sexual harassment from occurring in the workplace. But

often in a large company or corporation, there is not one

“person” that could be considered the “employer” for

purposes of determining whether an “employer” discriminated

against an employee. The employer is an entity. Thus, it

is reasonable for the Legislature to include in the

definition that an “employer” includes an “agent.”

Including this respondeat superior aspect in the statute

ensures that employees can hold employers liable for

harassment while still balancing the interests of the

employer by limiting employer liability to those who can be

considered the employer’s “agents” and incorporating

respondeat superior principles that require notice to the

employer of the alleged harassment.6 Considering this

“policy” behind the provision does not place policy over

“text.” Rather, it is another way a judge exercises common

6
As noted in footnote 3 of this opinion, I question
whether agency principles should be rigidly applied to the
CRA rather than used as a general guideline for
interpreting the CRA, and I do not mean to suggest that by
using the word “agent” to denote respondeat superior
liability, the Legislature clearly intended to incorporate
any and all principles of agency law into the CRA.

8

sense and judicial restraint while attempting to reach a

reasonable interpretation of what the Legislature intended

the words to mean.

Therefore, until the Legislature clearly creates

individual liability under the statute, I would conclude

that plaintiff does not have a cause of action against Mr.

Bennett under the CRA.7

II

The majority also concludes that the trial court

properly granted a directed verdict in favor of defendant

Ford Motor Company because plaintiff failed to establish

that Ford had notice of the harassment. I disagree and

would allow the jury to determine, under the totality of

the circumstances, whether Ford had notice of the alleged

sexual harassment.

The elements required to establish a prima facie case

of sexual harassment based on hostile work environment are:

(1) the employee belonged to a protected
group;

(2) the employee was subjected to
communication or conduct on the basis of sex;

(3) the employee was subjected to unwelcome
sexual conduct or communication;

7
I note that although I would conclude that plaintiff
does not have a claim against Mr. Bennett under the CRA,
she can pursue any traditional tort claims that she may
have against him.

9

 (4) the unwelcome sexual conduct or
communication was intended to or in fact did
substantially interfere with the employee’s
employment or created an intimidating, hostile,
or offensive work environment; and

(5) respondeat superior. [Radtke v Everett,
442 Mich 368, 382-383; 501 NW2d 155 (1993).]

As further explained, under the fifth element, an employer

may avoid liability if, upon notice of the hostile work

environment, it adequately investigated and took prompt

remedial action. Id. at 396 (quoting Downer v Detroit

Receiving Hosp, 191 Mich App 232, 234; 477 NW2d 146

[1991]). An employer must have notice of the alleged

harassment before it can be held liable, and it does not

have a duty to investigate and take prompt remedial action

until it has actual or constructive notice. Radtke, supra

at 396-397 and n 44.

In this case, the trial court granted a directed

verdict in Ford’s favor on plaintiff’s hostile work

environment claim on the basis that there was no notice to

Ford.8 The trial court stated:

The fact of the matter is that there was no
notice to Ford. This 1998 letter to Mr. Rush, if
it went to him, from the son-in-law, the
defendant never made mention of any sexual
harassment. And again, the only people she told
were supervisors. Under normal circumstances I

8
Defendant Ford moved for summary disposition of
plaintiff’s hostile work environment claim only on the
issue of notice.

10

 would agree that that would be enough. But in
this case it was told to them in confidence. She
asked them not to repeat it. And again, she
complained that she couldn’t come forward because
of her culture.

The Court of Appeals affirmed the trial court’s ruling.

This Court reviews de novo the grant of a motion for a

directed verdict. Cacevic v Simplimatic Engineering Co (On

Remand), 248 Mich App 670, 679; 645 NW2d 287 (2001); see

also Craig v Oakwood Hosp, 471 Mich 67, 77; 684 NW2d 296

(2004) (stating that a decision on a motion for judgment

notwithstanding the verdict is reviewed de novo). In

reviewing the trial court’s decision on the motion, “we

examine the evidence and all reasonable inferences that may

be drawn from it in the light most favorable to the

nonmoving party.” Hord v Environmental Research Institute

of Michigan (After Remand), 463 Mich 399, 410; 617 NW2d 543

(2000). “A directed verdict is appropriately granted only

when no factual questions exist on which reasonable jurors

could differ.” Cacevic, supra at 679-680; see also

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

(stating that a directed verdict is appropriate only if the

evidence, when considered in the light most favorable to

the nonmoving party, fails to establish a claim as a matter

of law). Thus, while not insurmountable, the threshold for

obtaining a directed verdict is high. Hord, supra at 410.

11

 In my opinion, considering all the evidence and the

reasonable inferences that may be drawn from it, there are

factual questions about which reasonable jurors could

differ regarding whether Ford had notice. Therefore, the

issue of notice is not one that the trial court can

properly decide as a matter of law; instead, it is a

question of fact to be decided by the jury. Consequently,

I would reverse the Court of Appeals affirmance of the

trial court’s grant of a directed verdict in Ford’s favor

and remand this case to the trial court.

Plaintiff testified that in 1995, she told her

supervisor, Gary Zuback, that Mr. Bennett had been sexually

harassing her. She also testified that around the same

time, she told another supervisor, Butch Vaubel, who said

that he would talk to Mr. Bennett, and that on different

occasions, she told her coworkers Dan Welch, Dave Perry,

and Brad Goatee. She admitted that when she told Mr.

Zuback and Mr. Vaubel, she told them confidentially. Dan

Welch testified that he did not tell anyone about the first

incident of harassment that plaintiff described to him, but

that he later spoke to Jerome Rush, the supervisor of labor

relations, in October 1998, as well as Ron Mester and

perhaps Richard Greenfield about the situation. Mr. Goatee

testified that he was called down to labor relations in

1996 or 1997 to discuss Mr. Bennett. Mr. Rush testified
12

that before plaintiff’s lawsuit was filed, Mr. Bennett told

him that plaintiff was trying to set Mr. Bennett up on a

sexual harassment claim and that Ford, therefore, knew

about the lawsuit before it was filed.

Labor relations notes written by Pete Foley to Jerome

Rush on August 25, 1998, indicate that plaintiff was very

upset and felt that Mr. Bennett and another worker, Tammy

Holcomb, were looking at her and laughing. Notes dated

August 28, 1998, state the plaintiff told Pete Foley that

Mr. Bennett came near her when no one was around and that

she was scared. Notes from Jerome Rush dated September 30,

1998, stated that plaintiff told him that Mr. Bennett was

“harassing” her.

Letters from plaintiff’s treating psychologist, Fran

Parker, on September 19, 1997, and November 10, 1997,

reference plaintiff’s discomfort with Mr. Bennett, A

letter sent by plaintiff’s son-in-law, Paul Lulgjuraj, who

is an attorney, on April 9, 1998, to Mr. Rush states that

his office was investigating “ongoing acts of

discrimination and retaliation,” references threats made by

Tammy Holcomb, and advises that his office may be taking

actions “to insure that our client is not subjected to

working in a hostile environment.” On December 17, 1998,

Dr. Parker wrote to Mr. Rush to explain that Rush had

misunderstood Parker’s phone call on October 6, 1998, to
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Rush to tell Rush that plaintiff had homicidal and suicidal

thoughts. Parker’s letter stated that Parker did not tell

Mr. Rush that plaintiff intended to kill Dan Bennett, but

that the call was meant to ask Mr. Rush to intervene on

plaintiff’s behalf because the stress of plaintiff’s job

was “breaking her down.”

The majority, in affirming the trial court’s grant of

a directed verdict in Ford’s favor, improperly creates a

rule of automatic waiver. Under the majority’s analysis,

any time an employee requests confidentiality when

reporting sexual harassment, the employee will have waived

notice. Ante at 23-24. While a request of confidentiality

is certainly something that the jury should consider in

determining whether the employer had notice, such a request

should not constitute an automatic waiver of notice.

Rather, all the evidence presented and the totality of the

circumstances must be considered when determining whether

the employer had actual or constructive notice. See, e.g.,

Meritor Savings Bank, FSB v Vinson, 477 US 57, 72; 106 S Ct

2399; 91 L Ed 2d 49 (1986), where in rejecting a rule of

automatic liability for employers for sexual harassment by

supervisors, the United States Supreme Court also stated

that the “absence of notice to an employer does not

necessarily insulate that employer from liability.”

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 Considering all the evidence presented in this case in

the light most favorable to the plaintiff, there are issues

of fact to be decided by the jury about whether defendant

Ford Motor Company had notice that plaintiff was being

sexually harassed. While it is true that plaintiff may

have requested confidentiality from her supervisors and

that many of the letters and documents mentioning

“harassment” generally do not detail the specific instances

of sexual harassment on which plaintiff’s lawsuit is based,

evidence was also presented that she told coworkers of the

harassment and that the coworkers in turn spoke with

employees in the labor relations department. Further,

considering all the documentation in the light most

favorable to plaintiff, there is certainly evidence that

plaintiff complained to Ford that Mr. Bennett was

“harassing” her and doing something to make her job very

stressful.

Therefore, I would conclude that the question of

notice is not one that can be decided as a matter of law by

the trial court, but one that must be decided by the jury

after it considers the entire record and weighs the

conflicting evidence.

Elizabeth A. Weaver

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