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Woolner v. Allegan County9/27/2005
UNPUBLISHED
Before: Smolenski, P.J., and Murphy and Davis, JJ.
Plaintiff appeals as of right, challenging the trial court's orders granting defendants' motions for summary disposition pursuant to MCR 2.116(C)(10). We affirm.
This case arose out of plaintiff's employment with the Allegan County human resources department. Plaintiff alleges that defendant Deetz, the director of the department, sexually harassed her through a course of conduct that included sending her sexually explicit jokes by email, making sexual comments, and touching her thighs and buttocks. In May 2002, plaintiff, through her attorney, submitted an internal complaint pursuant to the county's sexual harassment policy, accusing Deetz of sexual harassment. Deetz was placed on administrative leave pending investigation of the complaint, and defendant Campbell oversaw the department in Deetz's absence. At the conclusion of the investigation, Deetz resigned his position and received a $50,000 severance payment. After Deetz's departure, the county reorganized the human resources department. A new director was hired from outside the department. In July 2003, an outside consultant recommended that plaintiff's position be eliminated as part of a budget reduction plan. Plaintiff was terminated from her position effective August 22, 2003. Plaintiff subsequently commenced this action, alleging claims for hostile work environment sexual harassment and unlawful retaliation under the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq., and a common-law claim for intentional infliction of emotional distress.
The trial court found that defendants Deetz and Campbell were not individually liable under the CRA. It also found that the county was not liable for sexual harassment under a respondeat superior theory because it did not have notice of any sexual harassment before plaintiff filed her internal complaint in May 2002, and it promptly took appropriate remedial action upon receiving that complaint. The court also dismissed plaintiff's claim for intentional infliction of emotional distress against defendant Deetz. We review summary disposition under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, is reviewed de novo on the basis of the entire record in the light most favorable to the non-moving party to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118-120; 597 NW2d 817 (1999).
To establish a claim for hostile work environment sexual harassment, a plaintiff must demonstrate that: (1) the employee belonged to a protected group; (2) the employee was subjected to conduct or communication on the basis of sex; (3) it was 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. Rymal v Baergen, 262 Mich App 274, 312; 686 NW2d 241 (2004). Under the final element, the employer may only be liable for hostile work environment claims on a showing of fault, meaning "the employer failed to take prompt and adequate remedial action after having been reasonably put on notice of the harassment." Chambers v Trettco, Inc, 463 Mich 297, 312-313; 614 NW2d 910 (2000). Notice of the harassment need not be actual, but in the absence of actual knowledge the standard is objective and requires a totality of the circumstances such that the employer reasonably should have known. Elezovic v Ford Motor Co, 472 Mich 408, 426; 697 NW2d 851 (2005).
Plaintiff contends that the county knew or should have known about the har
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