Rymal v. Baergen6/8/2004
on in violation of the CRA. The Jager panel stated that " he only count at issue on appeal is plaintiff's claim of 'sexual discrimination and harassment.'" Jager, supra at 469. The trial court granted NTB's and Wilkerson's motion for summary disposition pursuant to MCR 2.116(C)(10), finding that, in regard to the quid pro quo theory of sexual harassment, there was no evidence of any adverse job action, and in regard to hostile work environment sexual harassment, the evidence showed that NTB promptly responded to the accusations when provided notice of the situation. The trial court also ruled, as to Wilkerson, that there was "no authority for the proposition that an individual employee could be held liable for sexual harassment where the employer had been dismissed." Id. at 470.
The Jager panel affirmed the trial court's grant of summary disposition. With respect to individual liability under the CRA, the Court began its analysis by rejecting this Court's decision in Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785; 369 NW2d 223 (1985), wherein it was held that individual defendants could be held liable under the CRA. Jager, supra at 478, 482. The Court in Jager chose not to follow Jenkins , pursuant to MCR 7.215(I)(1), because Jenkins relied on federal case law that was not controlling and that was implicitly overruled, and because a majority of federal courts, interpreting title VII of the Federal Civil Rights Act of 1964, found that there is no individual liability under title VII. Jager, supra at 481-482. Accordingly, the Jager panel undertook its own examination of individual liability under the CRA.
To keep the ruling in Jager in context, we first note the relevant statutory provisions that were the subject of the Jager litigation. MCL 37.2202, which addresses discriminatory practices and forms the basis for sexual harassment claims, along with MCL 37.2103(i), Chambers, supra at 309, provides, in subsection 1, that " n employer shall not" engage in discrimination. (Emphasis added). MCL 37.2201(a) defines "employer" as "a person who has 1 or more employees, and includes an agent of that person." MCL 37.2103(g) defines a "person" as including, amongst other entities and designations, an individual, agent, or corporation.
The Jager panel stated and concluded:
ur Legislature used substantially similar language when including "agent" in the definition of employer under the CRA ("and includes an agent of that person"), MCL 37.2201(a), as is found in title VII ("and any agent of such a person"), 42 USC 2000e(b). We believe that, like title VII, the language in the definition of "employer" concerning an "agent" of the employer was meant merely to denote respondeat superior liability, rather than individual liability. In fact, our Supreme Court recently observed that the reference to "an agent" in the CRA's definition of employer "addresses an employer's vicarious liability for sexual harassment committed by its employees." Chambers, supra, 463 Mich 310. . . .
Read as a whole, the CRA envisions, in our opinion, employer liability for civil rights violations that result from the acts of its employees who have the authority to act on the employer's behalf rather than individual liability for those civil rights violations. Further, had our Legislature intended individual, rather than employer, liability under the CRA, it could have expressly stated so. Thus, we conclude that the CRA provides solely for employer liability, and a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiff's civil rights. [ Jager, supra at 484-485.]
We conclude that Jager directs us
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