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Carroll v. City of Flint6/25/2002
ary disposition and the hearing was held on October 10, 2000. The sexual harassment and racial discrimination claims against defendant Newson were dismissed by stipulation. The trial court granted defendants' motions, finding that plaintiff failed to prove that there was a hostile work environment, failed to prove that she was treated differently than African-American employees, failed to prove that an adverse employment action was taken against her with regard to the retaliation claim, and failed to prove her stalking claim. The trial court dismissed plaintiff's complaint in its entirety. Plaintiff now appeals, challenging the dismissal of the sexual harassment claim against defendant city and the stalking claim against defendant Newson.
II.
A trial court's ruling on a motion for summary disposition under MCR 2.116(C)(10) tests the factual support of a claim and is reviewed de novo. DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 537; 620 NW2d 836 (2001). The court is to consider the pleadings, affidavits, admissions, depositions, and any other documentary evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the nonmoving party. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). Where the substantively admissible evidence proffered by the nonmoving party does not establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. Id. at 120-121.
III.
Plaintiff first argues that the trial court erred in granting summary disposition to defendant city regarding her sexual harassment claim. The trial court specifically found that plaintiff failed to establish that there was a hostile work environment.
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To establish a claim of hostile work environment sexual harassment, an employee must prove the following elements: (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. Chambers v Trettco, Inc, 463 Mich 297, 311; 614 NW2d 910 (2000), quoting Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993). The only element at issue here is the fourth element, that being the basis of the trial court's ruling. In Radtke, supra at 398, the Court held:
A hostile work environment claim is actionable only when, in the totality of the circumstances, the work environment is so tainted by harassment that a reasonable person would have understood that the defendant's conduct or communication had either the purpose or effect of substantially interfering with the plaintiff's employment, or subjecting the plaintiff to an intimidating, hostile, or offensive work environment.
Upon review of the record, we find that, contrary to the trial court's ruling, plaintiff has presented sufficient evidence to create a genuine issue of material fact regarding whether she was subjected to a hostile work environment. Taken in a light most favorable to plaintiff, the evidence establishes the following acts by defendant Newson that occurred before July 2, 1998: (1) Newson brushed up against plaintiff as she walked in the hallway on five to ten different occasions; (2) Newson called her a "bitch" on at least two occasions; (3) Newson commented on her telephone conversation with her boyfriend ("Are you in love, CC?). The major incident in this case then o
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