Haynie v. State

664 N.W.2d 129

468 Mich. 302

Carol HAYNIE, Personal Representative for the Estate of Virginia Rich, Deceased, Plaintiff-Appellee, v. The STATE of Michigan and The Michigan Department of State Police, Defendants-Appellants, and Daniel Kechak and Daniel Payne, Defendants.

Docket No. 120426, Calendar No. 4.

Supreme Court of Michigan.

Argued December 10, 2002.

Decided June 11, 2003.

Casey & Boog, P.L.C. (by Nan Elizabeth Casey and Patrick J. Boog), East Lansing, for the plaintiff-appellee.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Margaret A. Nelson, Assistant Attorney General, Lansing, for the defendants-appellants.

Opinion

MARKMAN, J.

We granted leave to appeal in this case to consider whether gender-based harassment that is not at all sexual in nature is sufficient to establish a claim of sexual harassment under the Civil Rights Act (CRA), M.C.L. § 37.2101 et seq. The circuit court granted summary disposition in favor of defendants, concluding that plaintiff had failed to establish a prima facie case of hostile work environment based on sexual harassment. The Court of Appeals reversed, concluding that gender-based harassment is sufficient to establish a claim of sexual harassment.¹ We disagree. The CRA prohibits sexual harassment, which is defined in that act as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature...." M.C.L. § 37.2103(i). Accordingly, conduct or communication that is gender-based, but is not sexual in nature, does not constitute sexual harassment as that term is clearly defined in the CRA.² Therefore, we reverse the judgment of the Court of Appeals and reinstate the circuit court's order granting summary disposition in favor of defendants.

I. FACTS AND PROCEDURAL HISTORY Two capitol security officers with the Michigan State Police, Virginia Rich and Canute Findsen, shot and killed each other, while on duty. After the incident, plaintiff, the personal representative of the estate of decedent Rich, brought suit under the CRA against the state of Michigan, the Michigan Department of State Police, and two state police supervisors. Plaintiff claimed that Findsen had sexually harassed Rich by making hostile and offensive comments about her gender, thus creating a hostile work environment that caused Rich to complain to her supervisors, who failed to take remedial action.³

Defendants filed a motion for summary disposition under MCR 2.116(C)(7) and (8), arguing that the alleged conduct was not sexual in nature and, thus, not sufficient to establish a claim of sexual harassment. Although plaintiff conceded that the alleged offensive conduct was not sexual in nature, she argued that the conduct was gender-based and that allegations of gender-based harassment are also sufficient to establish a claim of sexual harassment. The circuit court granted defendants summary disposition, concluding that plaintiff had failed to plead three of the five necessary elements to establish a prima facie case of hostile work environment based on sexual harassment.⁴ Specifically, it concluded that plaintiff had failed to plead that Rich was subjected to unwelcome sexual conduct or communication; that the unwelcome sexual conduct or communication was intended to, or, in fact, did, substantially interfere with Rich's employment or create an intimidating, hostile, or offensive work environment; and respondeat superior.⁵ The Court of Appeals reversed the circuit court's order granting summary disposition for defendants. The Court relied on Koester v. Novi, 458 Mich. 1, 580 N.W.2d 835 (1998), which held that allegations of gender-based harassment can establish a claim of sexual harassment under the CRA. Defendants, the state of Michigan and the Michigan Department of State Police, applied for leave to appeal to this Court, which we granted.⁶

II. STANDARD OF REVIEW

"The decision to grant or deny summary disposition is a question of law that is reviewed de novo." Veenstra v. Washtenaw Country Club, 466 Mich. 155, 159, 645 N.W.2d 643 (2002). Also reviewed de novo are questions of statutory interpretation, such as the question at issue here—whether harassment that is not sexual in nature, but is gender-based, is sufficient to establish a claim of sexual harassment under the CRA. Id.

III. ANALYSIS

The CRA, M.C.L. § 37.2202(1), provides in relevant part:

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.

Accordingly, it is unlawful for employers to discriminate against an individual with respect to a condition of employment because of sex. The CRA, M.C.L. § 37.2103(i), further provides:

Discrimination because of sex includes sexual harassment. 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.⁷

Plaintiff alleges that the conduct in this case violated subsection iii by creating a hostile work environment. To establish a prima facie case of hostile work environment based on sexual harassment, plaintiff must show the following:

(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. [Radtke v. Everett, 442 Mich. 368, 382-383, 501 N.W.2d 155 (1993); see also Chambers v. Trettco, Inc., 463 Mich. 297, 311, 614 N.W.2d 910 (2000).]

The first element is easily met because "all employees are inherently members of a protected class in hostile work environment cases because all persons may be discriminated against on the basis of sex." Radtke, supra at 383, 501 N.W.2d 155. In this case, plaintiff meets the first element because Rich was an employee who was allegedly discriminated against on the basis of sex.

This Court concluded that, in order to meet the second element, a plaintiff need not show that the conduct at issue was sexual in nature; rather, a plaintiff need only show that "`but for the fact of her sex, she would not have been the object of harassment.'" Id. (citation omitted). This second element is derived from the language of M.C.L. § 37.2202(1), which prohibits an employer from discriminating against an employee "because of" sex. Obviously, an employer cannot be said to have discriminated against an employee "because of" sex unless, but for the fact of the employee's sex, the employer would not have discriminated against the employee. In this case, plaintiff alleges that Findsen sexually harassed Rich by making hostile and offensive comments about her gender. Accordingly, plaintiff has sufficiently alleged that, but for the fact of Rich's sex, she would not have been the object of harassment, and thus plaintiff meets the second element.

However, in order to recover for sexual harassment, plaintiff must not only show that the employee was discriminated against because of sex, she must also show that the employee was "subjected to unwelcome sexual conduct or communication." Radtke, supra at 382, 501 N.W.2d 155. This third element is derived from M.C.L. § 37.2103(i), which provides that "[s]exual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature...." In this case, plaintiff concedes that there were no "unwelcome sexual advances, requests for sexual favors, [or] other verbal or physical conduct or communication of a sexual nature...." Plaintiff argues, instead, that the communication was gender-based and that this type of communication can also constitute sexual harassment, pursuant to Koester.

In Koester, supra at 10, 580 N.W.2d 835, this Court, in a four-to-three decision, concluded that "harassment on the basis of a woman's pregnancy is sexual harassment." Again, the CRA, M.C.L. § 37.2202(1), prohibits employers from discriminating against individuals on the basis of sex with respect to a condition of employment. The CRA, M.C.L. § 37.2201(d), further provides that "`[s]ex' includes, but is not limited to, pregnancy...." Accordingly, discrimination because of a woman's pregnancy is a form of discrimination because of sex. However, it is obviously not the only type of discrimination because of sex under the CRA. M.C.L. § 37.2103(i) also provides that "[d]iscrimination because of sex includes sexual harassment." Accordingly, sexual harassment is another type of discrimination because of sex.

Although Koester, supra at 11, 580 N.W.2d 835, correctly recognized that "discrimination on the basis of a woman's pregnancy and sexual harassment are `two subsets of sex discrimination,'" it incorrectly concluded,

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