Opinion
Case No. 1:99-CV-763
June 15, 2000
OPINION
This matter is before the Court on Defendant Wal-Mart Stores, Inc.'s Motion for Summary Judgment. Plaintiff Robin Eaves-Wymer ("Plaintiff" or "Eaves-Wymer") alleges that while she was employed at Sam's Club Store ("Sam's Club"), she was sexually harassed by her supervisor, John Libby. Sam's Club is a division of Wal-Mart Stores, Inc. ("Defendant" or "Wal-Mart"). Eaves-Wymer asserts that Wal-Mart is liable for Libby's harassment and that Wal-Mart violated the Elliott-Larson Civil Rights Act ("Michigan Civil Rights Act"), M.C.L.A. § 37.2101 et seq. Wal-Mart argues that Eaves-Wymer cannot establish that Libby's alleged sexual harassment resulted in any adverse employment action.
Additionally, Wal-Mart argues that it is shielded from liability by the affirmative defense set forth in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
Legal Standards
Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Lapointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir. 1993). A plaintiff may avoid summary judgment by presenting enough evidence to allow a reasonable jury to find in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge. Anderson, 477 U.S. at 255. In addition, when considering a summary judgment motion, the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Adickes v. Kress, 398 U.S. 144, 158-159 (1966).
FACTS
Eaves-Wymer was hired by Sam's Club on July 6, 1995. At all times relevant to this lawsuit, Eaves-Wymer was employed as either a check out supervisor or a cashier. John Libby was hired by Sam's Club in July 1997. At all times relevant to this lawsuit, Libby was employed as an Assistant Manager. Assistant Managers have supervisory authority over check out supervisors and cashiers.
Sometime after July 1997, Libby initiated conversations with Eaves-Wymer in which he indicated that his wife was pregnant and that he was not having sex as often as he would like. Libby also made frequent comments about Eaves-Wymer's body, including comments about her breasts.
Sometime thereafter, Eaves-Wymer and Libby had their first sexual encounter. Following that encounter, Libby instructed Eaves-Wymer not to tell anyone about their relationship. Within a few weeks, Eaves-Wymer and Libby had a second sexual encounter. At some point between the first and second sexual encounter, Libby informed Eaves-Wymer that "when raises come around, I will be the one to do your raise. We can't make it obvious by your raise. Otherwise somebody will find out."
Later, Eaves-Wymer informed Libby that she no longer wanted to have a sexual relationship with him. Libby responded, "I'm jealous by nature, I don't like it." Around this time, Eaves-Wymer sustained a foot-related work injury which caused her to miss several days of work.
In November 1997, within a few weeks of Eaves-Wymer informing Libby that she desired to end their sexual relationship, she was demoted by Libby from her position as a check out supervisor to a cashier. The cashier position entailed less supervisory responsibility and less pay. The stated reason for Eaves-Wymer's demotion was excessive absenteeism. After the demotion, Eaves-Wymer resigned her job at Sam's Club.
A few days after she resigned, Eaves-Wymer approached Mike Miller, Sam's Club's regional manager, and asked to be re-hired.
Eaves-Wymer explained that her absences were caused by a work-related injury.
According to Sam's Club's Personnel and Safety Director Steve Lilley, it is not the policy of Sam's Club to take disciplinary action against employees because of absences related to work-related injuries. Furthermore, there is nothing in Eaves-Wymer's personnel file which indicates that she had an attendance problem and her last evaluation, dated June 5, 1997, rated her dependability as above average. Miller called Chuck Grushka, the store manager, and told him to rehire Eaves-Wymer as a cashier.
In January 1998, while working as a cashier, Eaves-Wymer gave five dollars to a co-worker and asked the co-worker to purchase a soft drink for her. After a delay, the co-worker returned and indicated that Libby had prevented the co-worker from purchasing the drink.
Eaves-Wymer then stated, in a loud voice, "he can fuck me." This outburst led immediately to a meeting in which Eaves-Wymer, Libby, Grushka, and Christine Graham (the employee who reported the outburst) were present. At this meeting, Eaves-Wymer was terminated.
ANALYSIS
In a sexual harassment claim brought pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1), the United States Supreme Court explained that:
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. . . . The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly and sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. . . . No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.Ellerth, 524 U.S. at 765. While the Michigan Supreme Court has not had the opportunity to consider whether this liability scheme applies to sexual harassment claims brought pursuant to the Michigan Civil Rights Act, the Michigan Court of Appeals explicitly adopted this analytical framework in Chambers v. Trettco, Inc., 591 N.W.2d 413, 416 (Mich.Ct.App. 1998). See also Koester v. Novi, 580 N.W.2d 835 (Mich. 1998) (noting that Michigan Courts have relied upon federal case law to interpret Michigan Civil Rights Act). Therefore, because the parties agree that the liability scheme articulated in Ellerth should apply to this case, and because the highest Michigan court to consider this issue has concluded the same, the Court will apply the principles and legal standards announced in Ellerth to the state claims presented here.
Eaves-Wymer offers two theories of liability. First, Eaves-Wymer argues that she was demoted and eventually terminated in retaliation for her refusal to continue a sexual relationship with Libby. This is generally known as a "quid-pro-quo" theory of sexual harassment. Second, Eaves-Wymer argues that Libby subjected her to a hostile work environment by repeatedly commenting on her breasts and his desire to have sex with her. This is generally known as a "hostile work environment" theory of sexual harassment.
As to the first theory of liability, the United States Supreme Court has explained that an employer is vicariously liable when one of its supervisors makes an adverse employment decision in retaliation for a subordinate employee's refusal to accede to the supervisors sexual advances. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 70-71 (1986) ("[T]he courts have consistently held employers liable for the discriminatory discharges of employees by supervisory personnel, whether or not the employer knew, or should have known, or approved of the supervisor's actions"). In a case where tangible employment actions are taken, the affirmative defense articulated in Ellerth is not available. Ellerth, 524 U.S. at 765. The United States Supreme Court explained the basis for this vicarious liability as follows:
When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation. A tangible employment action in most cases inflicts economic harm. As a general proposition, only a supervisor, or other persons acting with the authority of the company, can cause this sort of injury . . . The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control.Ellerth, 524 at 761-62.
Here, there are disputed issues of material fact concerning the reason for Eaves-Wymer's demotion in November 1997. The record is clear that Eaves-Wymer and Libby engaged in sexual relations on at least two occasions. Then, in November 1997, shortly after Eaves-Wymer informed Libby that she did not want to continue a sexual relationship, he demoted her. Additionally, the record indicates that Libby made statements implying that Eaves-Wymer's pay was connected to the existence of their sexual relationship.
Wal-Mart asserts that Eaves-Wymer was demoted because of excessive absenteeism. The record indicates, however, that Eaves-Wymer sustained a work-related foot injury in November 1997, and that according to Sam's Club's policy, this injury should not have served as the basis of a demotion. Furthermore, Eaves-Wymer's personnel file indicates that she was dependable and that her attendance was above average.
Eaves-Wymer has presented sufficient evidence to enable a reasonable jury to conclude that she was demoted because she refused to continue a sexual relationship with Libby and that Wal-Mart is vicariously liable for that demotion. The record is clear that Libby was unhappy when Eaves-Wymer ended their sexual relationship and that he demoted her shortly thereafter. Furthermore, although Wal-Mart contends that Eaves-Wymer was demoted because of excessive absenteeism, the credibility of this explanation is suspect. Therefore, because there are issues of material fact which are in dispute, summary judgment is inappropriate. See Farrell v. Planters Lifesavers Comp., 206 F.3d 271, 284-86 (3rd Cir. 2000) (holding that evidence that defendant was unhappy that plaintiff had rejected his romantic or sexual overtures, coupled with close timing between plaintiff's rejection and the adverse employment decision, was sufficient to enable plaintiff to avoid summary judgment).
Having concluded that Eaves-Wymer has presented sufficient evidence to proceed on the "quid-pro-quo" theory of liability, the Court must deny Wal-Mart's Motion for Summary Judgment. As a result, the Court need not analyze the alternate theory of liability presented by Eaves-Wymer.
In order to ensure that the trial in this case proceeds efficiently, the Court instructs the parties as follows. In the event that Eaves-Wymer presents evidence at trial which supports her theory that Libby created a hostile work environment for which Wal-Mart is vicariously liable, Wal-Mart will be allowed to present evidence to establish the affirmative defense articulated in Ellerth. In particular, Wal-Mart will be allowed to present evidence that: (a) Sam's Club exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) Eaves-Wymer unreasonably failed to take advantage of any preventive or corrective opportunities provided by Sam's Club or to avoid harm. However, if Eaves-Wymer does not pursue this hostile work environment theory of liability, Wal-Mart will not be allowed to present evidence of this affirmative defense.
Conclusion
For the reasons stated, an order shall issue denying Defendant's Motion for Summary Judgment.