                           STATE OF MICHIGAN

                            COURT OF APPEALS



JUANITA CARR,                                                         UNPUBLISHED
                                                                      February 14, 2017
               Plaintiff-Appellant,

v                                                                     No. 329832
                                                                      Wayne Circuit Court
DETROIT BOARD OF EDUCATION,                                           LC No. 14-004525-CD

               Defendant-Appellee.


Before: WILDER, P.J., and CAVANAGH and K. F. KELLY, JJ.

PER CURIAM.

        Plaintiff appeals as of right an order denying her motion for reconsideration of an order
granting summary disposition in favor of defendant, dismissing her hostile work environment
age discrimination case under the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq. We
affirm.

        Plaintiff is a 78-year-old woman who was employed for 19 years as a school teacher by
Detroit Public Schools, until June 2011 when she claims she was constructively discharged
because of her age. Plaintiff brought this age discrimination case in 2014, alleging that during
the 2010/2011 school year she was subjected to recurring physical and verbal attacks by students
in her classroom but numerous requests to the school principal, Michelle Parker, for assistance
and protection were ignored or denied. In fact, plaintiff claimed, she was told by Principal
Parker that she was too old to teach and, ultimately, plaintiff was forced to retire.

        Eventually, defendant filed a motion for summary disposition under MCR 2.116(C)(10),
arguing that defendant did not engage in any conduct designed to force plaintiff to quit because
of her age and she was not discharged because of her age; rather, plaintiff retired. Thus, plaintiff
could not establish a prima facie case of hostile work environment age discrimination.

        Plaintiff responded to defendant’s motion for summary disposition, arguing that she was
“targeted, harassed, discriminated against and subjected to physical abuse on the basis of her age
by defendant” through the school principal who routinely told students, security guards, and
plaintiff’s coworkers that plaintiff was too old to teach and that she was going to get her to retire.
Consequently, students were effectively encouraged to taunt, harass, and physically assault
plaintiff because of her age and plaintiff was refused or denied assistance from coworkers and
security guards. In support of her claims, plaintiff provided the deposition testimony from a
student, coworker, and security guard. And, plaintiff argued, the respondeat superior element
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was satisfied because Principal Parker was a higher management employee of defendant who
carried out the harassing and discriminatory conduct in the course of her employment. Because
of this hostile work environment, plaintiff argued, she was forced to retire. Accordingly, she
established a prima facie case of hostile work environment age discrimination.

       Defendant filed a reply to plaintiff’s response to its motion for summary disposition,
arguing that it was never notified about the alleged age-based harassment. That is, respondent
superior liability did not exist because defendant did not fail to take prompt and adequate
remedial action after being notified about the alleged age discrimination; plaintiff never
complained to defendant about the alleged age discrimination.

        The trial court granted defendant’s motion for summary disposition following oral
arguments, holding that defendant was not reasonably put on notice of plaintiff’s age-based
hostile work environment claim. The only person plaintiff purportedly notified about the age-
based harassment was the alleged harasser, Principal Parker, which was not sufficient to impute
knowledge of age discrimination to her employer, defendant. Thereafter, plaintiff filed a motion
for reconsideration, arguing that notice to Principal Parker about her own age-based harassment
of plaintiff was sufficient notice to defendant. The trial court disagreed and denied plaintiff’s
motion for reconsideration. This appeal followed.

        Plaintiff argues that the trial court erred in dismissing her case because complaints to
Principal Parker, the alleged harasser, were sufficient to put defendant on notice of plaintiff’s
hostile work environment age discrimination claim. We disagree.

         We review de novo a trial court’s decision to grant a motion for summary disposition.
Sheridan v Forest Hills Pub Sch, 247 Mich App 611, 620; 637 NW2d 536 (2001). A motion
brought under MCR 2.116(C)(10) “tests the factual support of a plaintiff’s claim.” Spiek v Dept
of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). The moving party must identify the
matters that have no disputed factual issues, and has the initial burden of supporting its position
with documentary evidence. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314
(1996). The party opposing the motion must then establish by evidentiary materials that a
genuine issue of disputed fact exists. Id. After considering the documentary evidence submitted
in the light most favorable to the nonmoving party, the court determines whether a genuine issue
of material fact exists to warrant a trial. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d
506 (2004).

        It is well-established that the CRA permits a lawsuit against an employer for age
discrimination as a result of a hostile work environment. MCL 37.2202. Our Supreme Court
explained in Radtke v Everett, 442 Mich 368, 372; 501 NW2d 155 (1993), “a hostile work
environment claim is actionable when the work environment is so tainted that, in the totality of
the circumstances, a reasonable person in the plaintiff’s position would have perceived the
conduct at issue as substantially interfering with employment or having the purpose or effect of
creating an intimidating, hostile, or offensive employment environment.”

        There are five elements that must be established to set forth a prima facie case of a
hostile work environment, but only one of those elements is at issue in this case: the respondeat
superior element. See id. at 382-383; see also Chambers v Trettco, Inc, 463 Mich 297, 311; 614

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NW2d 910 (2000). That is, an employer may be held vicariously liable for an employee’s
unlawful actions when the employer had—or under the circumstances should have had—notice
of those actions. Gilbert v DaimlerChrysler Corp, 470 Mich 749, 791-792; 685 NW2d 391
(2004); Chambers, 463 Mich at 315-316. But “an employer may avoid liability [under the CRA]
‘if it adequately investigated and took prompt and appropriate remedial action upon notice of the
alleged hostile work environment.’” Radtke, 442 Mich at 396, quoting Downer v Detroit
Receiving Hosp, 191 Mich App 232, 234; 477 NW2d 146 (1991). Thus, an employer cannot be
held liable for failing to take action with regard to the alleged harassment by a coworker or
supervisor if the employer did not have notice of the harassment. See Radtke, 442 Mich at 396-
397.

        In this case, the issue is whether plaintiff gave her employer, defendant, notice of her
hostile work environment age discrimination claim. Plaintiff argues that she placed defendant on
notice of her age-based harassment claim because she complained about it to her direct
supervisor, Principal Parker, who was the alleged harasser. In support of her argument, plaintiff
relies on our holding in Sheridan, 247 Mich App at 622-623, which clarified that an employer is
considered on notice of the alleged harassment if a complaint about it was made to “higher
management.” Plaintiff argues that Principal Parker was “higher management” because she had
the ability to hire, fire, and discipline plaintiff. But plaintiff fails to consider our entire definition
of “higher management.” In Sheridan, “higher management” was defined “to mean someone in
the employer’s chain of command who possesses the ability to exercise significant influence in
the decision-making process of hiring, firing, and disciplining the offensive employee.” Id. at
622 (emphasis supplied).

        Here, the allegedly “offensive employee” was plaintiff’s direct supervisor, Principal
Parker; thus, plaintiff was required to notify someone who had “significant influence” over
Principal Parker about Parker’s alleged age discrimination. That is, plaintiff was required to
notify a higher management employee who had “actual authority to effectuate change in the
workplace” by, for example, firing or disciplining “the offensive employee,” Principal Parker.
Id. at 622-623. However, before she retired, plaintiff only purportedly complained to Principal
Parker, an employee whose knowledge about her own alleged age discrimination may not fairly
be imputed to defendant, their employer. See id. at 622.

         As case law makes clear, supervisors who violate the CRA may be subject to individual
liability for their own actions. Elezovic v Ford Motor Co, 472 Mich 408, 411, 420; 697 NW2d
851 (2005). However, for an employer of the alleged harasser to be vicariously liable for those
actions, the employer must have had reasonable notice of the harassment and yet failed to take
appropriate corrective action. Id. at 426. “Courts must apply an objective standard of review
when considering whether the employer was provided adequate notice.” Sheridan, 247 Mich
App at 621. Notice is deemed adequate if, by an objective standard and considering the totality
of the circumstances, a reasonable employer would have been aware of the substantial
probability that age-based harassment was occurring. See id. at 622 (citation omitted).

        In this case, applying an objective standard, and as the trial court held, complaints to the
alleged harasser, Principal Parker, did not constitute adequate or reasonable notice to defendant
about Principal Parker’s alleged age-based harassment. Thus, as the trial court concluded,
plaintiff failed to show that a genuine issue of material fact existed with regard to the respondeat

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superior element of her claim under the CRA and, therefore, plaintiff could not establish a prima
facie case of hostile work environment age discrimination against defendant. Accordingly,
defendant’s motion for summary disposition was properly granted.

       Affirmed.



                                                           /s/ Kurtis T. Wilder
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Kirsten Frank Kelly




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