Starnes v. JLQ Automotive Services Co.12/8/2005
UNPUBLISHED
Before: Hoekstra, P.J., and Gage and Wilder, JJ.
Plaintiff appeals as of right the trial court's order granting defendant's motion for summary disposition of plaintiff's claims for hostile work environment based on sexual harassment by her supervisor, Tom Nanney, and retaliatory action by defendant when plaintiff voiced her complaint, contrary to the Civil Rights Act (CRA), MCL 37.2101 et seq. We affirm in part, reverse in part, and remand.
We review a trial court's decision on a motion for summary disposition de novo. Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). The trial court granted summary disposition pursuant to MCR 2.116(C)(10). "A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint." Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted by the parties in the light most favorable to the nonmoving party to determine whether there is a genuine issue of material fact. Corley, supra at 278. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v General Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
I. Hostile Work Environment
To establish a prima facie case of sexually hostile work environment, plaintiff was required to demonstrate: (1) that she belonged to a protected group; (2) that she was subjected to communication or conduct on the basis of sex; (3) that she was subjected to unwelcome sexual conduct or communication; (4) that the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with her employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior. See Radke v Everett, 442 Mich 368, 382; 501 NW2d 155 (1993). Plaintiff argues that the trial court erred in determining that she failed to meet her burden regarding the third requirement, i.e., that she was subjected to "unwelcome" sexual conduct or communication. We agree.
In its opinion, the trial court acknowledged that Nanney's alleged comments were "rude, offensive, and intolerable in a civilized society." Yet, the trial court granted summary disposition because it found that plaintiff failed to meet her burden of showing that she did not solicit or incite Nanney's comments, presumably relying on plaintiff's deposition testimony that she regularly used vulgar language and engaged in sexual conversations with some co-workers. However, while plaintiff's conduct in this regard was relevant, this Court has stated that a "plaintiff's participation in sexual behavior or comments, standing alone, does not necessarily defeat a claim of hostile work environment. To the contrary, it is merely a factor to consider when determining whether the conduct or comments at issue were 'unwelcome.'" Grow v W A Thomas Co, 236 Mich App 696, 706; 601 NW2d 426 (1999); see also Peña v Ingham Co Rd Comm,255 Mich App 299, 305; 660 NW2d 351 (2003). Indeed, whether a work environment is illegally hostile must be gauged by a reasonable person standard viewing the "totality of circumstances." Radke, supra at 394. Thus, as this Court observed in Peña, supra at 307-308, the relevancy of evidence of a plaintiff's vulgar and profane language in the workplace depends on the language's content, context, and frequency.
Utilizing these guidelines, we conclude that reasonable minds could differ regarding whether plaintiff welcomed Nanney's comments and conduct. Plaintiff admits that she used profanit
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