Brown v. Brown

¶1(concurring). I fully support the majority opinion and write separately only to elaborate upon its assertion that the dissent raises, but fails to answer, “many practical questions.” Ante at 564. The rule proposed by the dissent, and the unanswered questions arising from that rule, would create confusion and uncertainty among employers throughout this state and, as such decisions inevitably do, require employers to devote more time to consulting with lawyers and fending off and negotiating lawsuits, and less time to managing their businesses.

¶2The dissent would produce this result by making employers increasingly liable for the workplace crimes *567of their employees. Under what circumstances would this liability arise? Well, we really do not know, except that the dissent would leave it to jtíries to decide whether employers possessed sufficient information concerning an employee’s “habits, temperament, or nature” to justify holding them responsible for the crimes of that employee. Post at 570-571. In either hiring or failing to fire an employee who later committed a crime, “ [i]t is for the jury to determine whether [an employer] decided correctly.” Post at 572 n 1. In the instant case, the dissent opines, crude statements uttered by an employee are sufficient to require a jury trial for an employer that failed to recognize that such statements might be a prelude to a violent rape.1

¶3Scope of the Assessment — The dissent asserts that “[t]he obligation to assess its employee’s fitness for a job falls on the employer, not on the victims of that employee’s actions.” Post at 572 n 1. What exactly does this mean in the real world of employers and employees? What is an employer’s obligation of “assessment” such that it might avoid a lawsuit? What policies must be adopted by an employer to stave off a potentially destructive lawsuit when one of its employees commits a crime? Is it enough that an employer ascertains whether an employee or a job applicant has a criminal record? Is it enough that an employer also ascertains whether an employee or a job applicant has an arrest record? Apparently none of this is enough because the perpetrator here had no criminal record. What additional kind of “assessment” would the dissent require? Would a psychiatric examination be required? Would *568continuing psychological testing be necessary? Must an employee’s personal lifestyle be evaluated? To what extent must an employee’s interpersonal relationships at work be scrutinized? In short, what type of “assessment” is required to ensure that an employee is a person of the requisite “habits, temperament, or nature” such that an employer will not be held accountable for future criminal misconduct by that employee?

¶4Interpreting the Assessment — What meaning must an employer ascribe to the results of the “assessment” it must undertake? That is, what is an employer looking for in its “assessment”? Would an unorthodox personal lifestyle apprise an employer that an employee is not a person of requisite “habits, temperament, or nature”? What about unusual avocations, interests, politics, or reading and viewing preferences? What about off-color jokes, crude rhetoric, extreme opinions, odd insights, idiosyncratic body language, strange demeanor, or politically incorrect views reflected in the workplace? How extensively would an employee have to be questioned about such matters and with what specific purpose in mind? What if an employer’s “assessment” merely concluded that an employee’s crude statements were simply crude? What if the “assessment” merely concluded that an employee did not really intend to rape the person to whom such crude statements had been directed? What conceivably might be discovered by an “assessment” of an employee making crude statements that would lead the dissent to exonerate an employer from liability for a subsequent crime by that employee? What kind of information from the “assessment” would place an obligation upon an employer to undertake further inquiry and what kind of information would not, to avoid the risk of a lawsuit? In short, what is a prudent and responsible employer required to do with the information generated from the “assessment”?

¶5*569Consequences of the Assessment — Finally, what actions must be undertaken by an employer that has performed the required assessment? Is it enough that an employer instruct an employee to cease certain conduct or behavior? If an employee or an applicant does have a criminal or arrest record, or if he or she has engaged in speech or conduct that might later be viewed by some as a prelude to a crime, is it obligatory that such person either not be hired or be fired? What type of criminal or arrest record would impose this obligation? Would a previous misdemeanor conviction, for example, of making a lewd comment or cursing in public sufficiently apprise an employer that a person is likely to commit a violent rape? What behaviors in the workplace and what personal “habits, temperament, or nature” will sufficiently apprise an employer that a person “ ‘may eventually,’ ” post at 578 n 9 (emphasis and citation omitted), commit a violent criminal offense? If professionally trained psychologists and psychiatrists are unable to predict criminal behavior, is it reasonable to obligate an employer producing machine tools or automotive products to engage in this kind of speculation at the risk of a lawsuit? Is it ever relevant, as in this case, that the victim herself, working in close proximity with the criminal perpetrator, failed to recognize that he posed a threat to violently rape her? Why under these circumstances would a rational employer not simply fire any person whose “habits, temperament, or nature,” when viewed in retrospect, might someday constitute the basis for a lawsuit? Why would any rational employer expose itself to the vagaries of litigation-by-hindsight (“the employer should have recognized,” “the employer should have been aware,” “the employer should have connected the dots,” “the employer should have seen things as clearly as we do now”) where it fails to predict unpredictable behavior if this *570could all be avoided by simply firing every odd or rude or quirky employee?

¶6If employers are required to play by the dissent’s rules, then the dissent owes them the courtesy of apprising them how they might comply. The dissent asserts that not “ ‘every inappropriate workplace comment’ . . . [or] ‘inappropriate workplace speech... is sufficient to create a jury-submissible question,’ ” post at 575 n 5, but never endeavors to explain why this is so or where the line would be drawn between comments and conduct that place an employer in the courtroom and those that do not. That is, the dissent never endeavors to explain what an employer can do to avoid tomorrow’s crippling lawsuit when one of its employees acts in pursuit of his or her own personal demons and commits a crime.2

¶9(dissenting). I dissent from the majority’s conclusion that plaintiffs claim against defendant Samuel-Whittar Steel, Inc. (hereafter defendant), for negligent retention of defendant Michael Brown (hereafter Brown) was correctly dismissed as a matter of law. At the very least, plaintiff raised a genuine issue of *571material fact regarding whether information about Brown’s “ ‘habits, temperament, or nature,’ ” which was reported to his employer, gave the employer sufficient notice of Brown’s acts of “ ‘impropriety, violence, or disorder,’ ” see Hersh v Kentfield Builders, Inc, 385 Mich 410, 413; 189 NW2d 286 (1971), quoting 34 ALR2d 390, § 9 , so as to make the employer liable for negligently retaining him.

¶10Plaintiff, a then-23-year-old night security guard who was assigned by her employer to work at defendant’s plant, was raped by Brown after he forced plaintiff into a women’s restroom while she was checking to make sure a block of offices was secure. Brown was a midnight foreman employed by defendant.

¶11In the months leading up to this rape, Brown had made sexually aggressive comments to plaintiff on a daily or near-daily basis. In fact, plaintiffs coworker testified that plaintiff frequently locked the door to her guard shack and pretended that she was asleep to prevent Brown from entering and to discourage him from speaking to her.

¶12Plaintiff reported Brown’s conduct not once, not twice, but at least three times to Brown’s supervisor, defendant Harlan Gardner. Plaintiff told Gardner, the plant manager, that Brown continually made crude sexual comments to her, and she asked Gardner to make Brown stop. Three other security guards informed plaintiff that they, too, had complained to their superiors regarding Brown’s conduct. Plaintiff also asked Brown to stop making the comments on numerous occasions. Despite these multiple complaints, and despite Gardner’s telling plaintiff each time that he would “take care of it,” Brown continued to bombard plaintiff with his sexually aggressive comments until he eventually raped her.1

¶13*572Nothing in Hersh, the case on which the majority relies, compels a conclusion that repeated, sexually aggressive comments duly reported to an employer can never put the employer on notice that the offending employee “ ‘may eventually commit an assault...”* 2Hersh, supra at 413, quoting 34 ALR2d 390, § 9. In *573Hersh, this Court quoted these pertinent words from the ALR to describe an employer’s duty in relation to hiring or retaining employees:

“[A]n employer must use due care to avoid the selection or retention of an employee whom he knows or should know is a person unworthy, by habits, temperament, or nature, to deal with the persons invited to the premises by the employer. The employer’s knowledge of past acts of impropriety, violence, or disorder on the part of the employee is generally considered sufficient to forewarn the employer who selects or retains such employee in his service that he may eventually commit an assault, although not every infirmity of character, such, for example, as dishonesty or querulousness, will lead to such a result.” [Hersh, supra at 412-413, quoting 34 ALR2d 390, § 9 (emphasis added).]

¶14Critically, the duty of an employer is set forth in the first sentence of the quoted passage: an employer has the duty to use “due care” in selecting or retaining employees. The balance of the passage simply provides guidance on what will generally be considered forewarning of a potentially dangerous employee. But when there are no known “past acts of impropriety, violence, or disorder,” the duty of the employer is not changed or lessened because knowledge of “past acts of impropriety, violence, or disorder” is not the only mechanism by which an employer can be forewarned of potentially assaultive behavior. Further, the ALR passage does not restrict the term “impropriety, violence, or disorder” in any way, although the majority appears to restrict the phrase to mean only violent acts or, at best, specific words it has arbitrarily decided would suffice. See ante at 555 and n 24.

¶15Under a proper understanding of the principles of negligent retention, it is clear that plaintiff presented a genuine issue of material fact with respect to whether *574defendant breached its duty to use due care in retaining Brown in light of defendant’s knowledge of how Brown was conducting himself in the workplace. Given plaintiffs allegations, it is for a jury to decide whether defendant’s knowledge of Brown’s actions sufficiently alerted defendant that there was a potential for assault and, if so, whether defendant should have investigated the situation or taken any corrective action.

¶16And the majority errs in concluding that Hershprecludes plaintiffs claim as matter of law. First, although our state’s published cases addressing negligent-retention claims involve facts such as a past history of violence or records of fear expressed by employees, this in no way precludes a case in which a past history of violent behavior is lacking from reaching a jury. An employer has a duty to use due care in retaining an employee, and any number of things can suffice to provide notice to the employer that its retention of a particular employee may need a second look. Here, certainly Brown’s conduct, which consisted of repeatedly telling his subordinate3 that he wanted to commit a violent sexual act involving her, can be considered “ ‘habits, temperament, or nature’ ” suggesting that he was “ ‘unworthy... to deal with the persons invited to the premises by the employer’ ” because of a potential for assaultive behavior. Hersh, supra at 413, quoting 34 ALR2d 390, § 9. Indeed, the multiple reports of this conduct to the plant manager should have provided some indication to defendant that Brown was unfit to be a supervisor, much less an *575employee, and that he may have the potential for assault given his unambiguous indications that he wanted to “fuck” plaintiff and pull her hair.4 Moreover, certainly Brown’s past conduct toward plaintiff would fall into the category of “impropriety” and perhaps “disorder,” which disorder may signal to a reasonable employer that Brown had the capacity to commit an assault on plaintiff.5 Because a reasonable jury could reach that same conclusion, whether the employer was on notice is a factual matter, as the Court of Appeals correctly found. And this is all the more true given that the person Brown was harassing on the night shift was a subordinate female who worked, to a large extent, alone.

¶17The majority justifies its holding by opining that “[mjodern workplace speech is, at times, boorish and undesirable ....” Ante at 557.6 But a function of the majority’s rejection of a blanket rule that would “treat *576every employee who makes inappropriate workplace comments as a potentially violent criminal,” ante at 557-558 is an equally dangerous rule that no workplace speech can form the basis for a negligent-retention claim. Although the majority points to the principle that “ ‘ “not every infirmity of character’ ” is sufficient to forewarn the employer of its employee’s violent propensities,” ante at 557, quoting Hersh, supra at 413, quoting 34 ALR2d 390, § 9, the majority allows for no infirmity of character, shown by speech, to be sufficient to allow a jury to decide whether, in light of the employee’s conduct, the employer had a duty to act. See ante at 547-548, 555. Thus, the majority creates its own new rule, inconsistent with Hershand the ALR passage, that as a matter of law, employers who are notified that an employee is verbally harassing another in a sexually aggressive way can never be held liable for retaining that employee if that employee undertakes to carry out the sick sexual fantasies that employee has been verbalizing. Id.This in turn means that employers need not respond to complaints about such matters, thus eliminating another workplace protection for innocent employees.7

¶18The majority also predicts that “[a]n employer diligently seeking to avoid such broad tort liability would inevitably err on the side of over-inclusiveness and cast a wide net scrutinizing all employee speech that could be remotely construed as threatening.” Ante at 557 *577(emphasis in original). First, I disagree that the status quo of allowing a jury to determine whether, under the totality of the circumstances, an employer should have been on notice is “broad tort liability.”8 Moreover, I fail to see why it would not be more desirable to have employers scrutinize threatening speech than to ignore it when reported and have an innocent employee raped. The majority’s preferred lower level of employer responsibility will ensure that to the extent that “[m]odern workplace speech is, at times, boorish and undesirable,” ante at 557, it will remain that way. Last, the same exercise of reviewing an employee’s fitness is necessary when the employee has a criminal history or violent past, and just as the presence of a criminal history or violent past will not always be sufficient notice for a negligent-retention claim, neither will every instance of questionable employee speech.9

¶19*578The particular facts of this case refute the majority’s statement, ante at 556, that Brown’s comments “[stood] alone” and further illuminate why the question in this case is one for a jury. Brown’s comments did not “stand alone.” Rather, Brown’s comments must be assessed in light of the circumstances that existed when he made the comments: Brown was the nightshift plant manager; plaintiff had to comply with Brown’s supervisory requests; plaintiff worked alone; few, if any, other people were around or accessible; Brown’s comments were relentless over a period of months; plaintiff complained about Brown’s behavior to coworkers and Brown’s employer; and plaintiff would lock herself in her guard shack to avoid contact with Brown. Brown’s behavior cannot be viewed in a vacuum. Perhaps it might be more tempting to characterize Brown’s comments as typical “modern workplace speech” were this a typical “modern workplace” environment. In that context, perhaps comments like these might be made when an audience is present — to impress one’s buddies or get a laugh from onlookers. But Brown did not make the vast majority of his comments in that type of setting.10 Rather, he made them to plaintiff late at night *579when he was acting as her supervisor and no one else was around. He made them for no one to hear but her. These unique circumstances should prevent the majority from chalking up Brown’s comments to “modern workplace speech” and, consequently, removing from the jury the question whether the comments were potentially harbingers of dangerous behavior.

¶20And, unlike the majority, I do not believe that the Court of Appeals “expanded” an employer’s duty at all. See ante at 566. As discussed, “[A]n employer must use due care to avoid the selection or retention of an employee whom he knows or should know is a person unworthy, by habits, temperament, or nature, to deal with the persons invited to the premises by the employer.” 34 ALR2d 390, § 9 (emphasis added). Whether this employer knew or should have known that Brown’s “habits, temperament, or nature” made him unfit to supervise plaintiff on a sparsely populated nightshift because of the potential for assault (as opposed to the certainty of an assault) was a question for the jury. Also for the jury to decide was whether defendant breached its duty to keep plaintiff safe by failing to take any corrective action once it had knowledge of Brown’s relentless harassment.* 11 As such, the Court of Appeals *580properly found that a genuine issue of material fact existed regarding whether defendant, having been informed multiple times about Brown’s conduct, should be held liable for negligently retaining Brown. Rather than usurp the role of the jury in this matter, I would remand the case for trial.