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Rymal v. Baergen6/8/2004
xual harassment identified in Count I falls directly within MCL 37.2103:
(i) 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:
( 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 . . . .
(iii) The conduct or communication has the purpose or effect of substantially interfering with an individual's employment . . . .
While reference to a specific statutory provision is not required, Plaintiff did not reference MCL 37.2701 which could have put defendants on notice that retaliation was being pleaded. More importantly, however, plaintiff did not allege that she was engaged in a protected activity or that a causal connection existed between the protected activity and the adverse employment action. Instead, plaintiff simply alleged quid pro quo and hostile work environment sexual harassment, two types of sexual discrimination prohibited by the CRA. As such, the complaint was insufficient to put defendants on notice that a retaliation claim was also being pleaded.
III. Protected Activity
I also disagree that the two telephone calls to Fraser constituted protected activity. MCL 37.2701 prohibits retaliation or discrimination against a person "because the person has opposed a violation of this act , or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act" (emphasis added).
In assessing whether plaintiff has established a prima facie case, the first inquiry is whether she engaged in protected activity sufficient to satisfy the first element. Plaintiff testified that she told Fraser:
I felt that I was being harassed. I felt that I was being pushed out, and I wanted some help. I didn't think I could handle it.
I told him several instances with Herman where he had been out of line. He was disputing agreements that we had made.
I told him about the swearing. I told him about the -- what I felt was unfair treatment and the argumentative nature that I was being treated with.
The entire conversation lasted approximately two minutes and plaintiff never indicated that she was being sexually harassed. With regard to the second call, plaintiff testified that she asked Fraser how the conversation went with Baergen. When Fraser indicated that Baergen said there was no problem, plaintiff told Fraser he was misinformed. Again, plaintiff did not indicate that she was being sexually harassed. An employee "must do more than generally assert unfair treatment." Barrett, supra at 318-319. An employee "must clearly convey to an objective employer that the employee is raising the specter of a claim of unlawful discrimination pursuant to the CRA." Id. at 319. " eneric, non-sex-based" complaints are insufficient. Id. Therefore, plaintiff's two telephone conversations with Fraser were not protected activities under MCL 37.2701.
IV. Causal Connection
Even if plaintiff's telephone calls were protected activity, she failed to establish a genuine issue of fact with regard to a causal connection between the telephone calls to Fraser and the adverse employment action.
"To establish causation, the plaintiff must show that his participation in activity protected by the CRA was a 'significant factor' in the employer's adverse employment action, not just that there was a causal link be
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