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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

HEATHER COOPER,

Plaintiff-Appellant,

UNPUBLISHED

May 31, 2018

v No. 338519

Eaton Circuit Court

BADER & SONS COMPANY, WILLIAM 

PRICE, and DOES 1-10,

LC No. 16-001007-CZ

Defendants-Appellees.

Before: MURRAY, C.J., and SERVITTO and BOONSTRA, JJ.

PER CURIAM.

In this employment discrimination case, plaintiff, Heather Cooper, appeals as of right an 

order granting summary disposition in favor of defendants Bader & Sons Company (Bader), 

William Price, and Does 1-101. Because the evidence relied upon by plaintiff was insufficient to 

establish her claims, we affirm.

This matter arises from plaintiff’s brief employment with Bader. Plaintiff was hired as a 

service writer at Bader’s Grand Ledge location on December 28, 2015, where her immediate 

supervisor was Price. On February 8, 2016, plaintiff contacted Bader’s human resources 

manager, Amie Stout, with complaints concerning Price. Plaintiff told Stout that she was 

uncomfortable with Price’s handling of warranty issues and with his crude comments. Stout was 

receptive to plaintiff’s complaints and promised to follow up with plaintiff after looking into the 

matter. Plaintiff testified that she conveyed Price’s comments to Stout in a general sense, 

describing only a few of his comments with specificity. On February 11, 2016, Stout spoke with 

Price and William Stegenga (the interim store manager for the Grand Ledge location) and 

verbally reprimanded Price, after which Price apologized to plaintiff and ceased engaging in 

further sexual harassment. Stout followed up with plaintiff the next day, warned that things 

might be awkward with Price for a time, and asked plaintiff to be patient.

 1 There is no indication that the Doe defendants were identified or served in this matter. All 

further references to “defendants” in this opinion refer to Bader and Price only.
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According to plaintiff, after the February 11, 2016 meeting, Price stripped her of most of 

her job duties and only allowed her to answer the phone. Price also began whispering to plaintiff 

whenever he communicated with her. On February 17, 2016, plaintiff sent an e-mail to Stout 

stating that she could no longer be patient and did not believe the position was a good fit for her 

because of the issues she had with Price. Stout suggested that plaintiff meet with her, Price, 

Stegenga, and Zac Francis (the regular Grand Ledge store manager) on February 22, 2016, so 

they could “talk through [the problem] and move forward.” Plaintiff declined, stating,

At this time, I feel there are too many issues that I do not agree with and am really 

not interested in continuing to work with him. I do not want to waste any[]ones 

time and feel there is nothing that can be done or said short of one of us leaving 

that would change my mind. I have no trust, no respect and have heard and 

observed enough unacceptable behavior that I really would prefer not to be 

involved in.

When Stout asked if plaintiff was resigning, plaintiff said she felt it was her only option. 

Plaintiff agreed to reconsider her decision over the course of her preplanned, two-week vacation 

that began February 22, 2016. Plaintiff formally resigned from her position the day she was 

scheduled to return to work.

Plaintiff filed a complaint on September 12, 2016, alleging violations of the ElliottLarsen Civil Rights Act (Civil Rights Act), MCL 37.2101 et seq., namely, sexual harassment and 

retaliation. Plaintiff also pleaded a count of constructive discharge and asserted three additional 

common-law tort claims.2 In the course of this litigation, plaintiff maintained that Price’s sexual 

comments were constant and pervasive, described five specific sexual comments Price made, and 

alleged that Price engaged in unwanted and intrusive physical contact. The comments plaintiff 

complains of focused on plaintiff’s sexual activities with her husband, the possibility that 

plaintiff’s 13-year-old daughter was sexually active and pregnant, and plaintiff’s use of sex toys 

on an exercise ball in lieu of an office chair at work. Plaintiff also alleges that Price touched her 

shoulders, touched her leg when he stood up, leaned into her when he answered questions, and 

leaned back in his chair when she walked behind him. The trial court determined that plaintiff 

was subjected to sexual harassment during her employment with Bader but granted defendants’

motion for summary disposition because plaintiff’s proofs were insufficient to establish other 

elements of her statutory claims.

We review de novo a trial court’s rulings on dispositive motions. Robins v Garg (On 

Remand), 276 Mich App 351, 361; 741 NW2d 49 (2007). “Summary disposition is appropriate 

under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving 

 2 Plaintiff’s common-law tort claims are not at issue in this appeal. Although plaintiff presented 

arguments concerning the trial court’s dismissal of some of her common-law claims in her 

appellate reply brief, she failed to challenge the trial court’s dismissal of those claims in her 

primary appellate brief. An appellant may not raise an issue for the first time in a reply brief. 

Bronson Methodist Hosp v Mich Assigned Claims Facility, 298 Mich App 192, 199; 826 NW2d 

197 (2012). Accordingly, we decline to address the merits of these arguments.
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party is entitled to judgment as a matter of law.” Dancey v Travelers Prop Cas Co of America, 

288 Mich App 1, 7; 792 NW2d 372 (2010) (quotation marks and citation omitted). A court 

ruling on a motion under MCR 2.116(C)(10) must consider the “pleadings, affidavits, 

depositions, admissions, and other admissible evidence submitted by the parties in the light most 

favorable to the nonmoving party.” Robins, 276 Mich App at 361. When the nonmoving party 

has the ultimate burden of proof at trial, the moving party can satisfy its burden of production 

under MCR 2.116(C)(10) by “submit[ting] affirmative evidence that negates an essential element 

of the nonmoving party’s claim, or by demonstrat[ing] to the court that the nonmoving party’s 

evidence is insufficient to establish an essential element of the nonmoving party’s claim.” 

Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 7; 890 NW2d 344 (2016) (quotation marks and 

citation omitted; alterations in original). If the nonmoving party fails to produce evidence 

sufficient to demonstrate an essential element of its claim, the moving party is entitled to 

summary disposition. Id. at 9.

As an initial matter, the trial court correctly analyzed plaintiff’s constructive discharge 

claim as an aspect of plaintiff’s other theories of liability under the Civil Rights Act. Although 

constructive discharge is often raised as a separate count in actions involving employment 

disputes, it is not a separate cause of action in and of itself. Vagts v Perry Drugs Stores, Inc, 204 

Mich App 481, 487; 516 NW2d 102 (1994). “Thus, an underlying cause of action is needed 

where it is asserted that a plaintiff did not voluntarily resign but was instead constructively 

discharged.” Id.

Turning to plaintiff’s statutory claims, the protections afforded by the Civil Rights Act 

extend to employment discrimination on the basis of sex. Chambers v Trettco, Inc, 463 Mich 

297, 309; 614 NW2d 910 (2000). MCL 37.2103(i) expressly includes sexual harassment as a 

form of prohibited discrimination on the basis of sex, and defines sexual harassment as:

[U]nwelcome sexual advances, requests for sexual favors, and other verbal or 

physical conduct or communication of a sexual nature under the following 

conditions:

(i) Submission to the conduct or communication is made a term or 

condition either explicitly or implicitly to obtain employment . . . .

(ii) Submission to or rejection of the conduct or communication by an 

individual is used as a factor in decisions affecting the individual’s 

employment . . . .

(iii) The conduct or communication has the purpose or effect of 

substantially interfering with an individual’s employment . . . , or creating an 

intimidating, hostile, or offensive employment . . . environment.

“Sexual harassment that falls into one of the first two of these subsections is commonly labeled 

quid pro quo harassment,” while “[s]exual harassment that falls into the third subsection is 

commonly labeled hostile environment harassment.” Chambers, 463 Mich at 310.

A plaintiff pressing a claim of quid pro quo harassment bears the burden of establishing 

two elements by a preponderance of the evidence: “(1) that she was subject to any of the types of 
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unwelcome sexual conduct or communication described in the statute, and (2) that her employer 

or the employer’s agent used her submission to or rejection of the proscribed conduct as a factor 

in a decision affecting her employment.” Id. (quotation marks and citation omitted). Vicarious 

liability on the part of the employer exists as a matter of law in cases involving quid pro quo 

harassment because the harasser necessarily uses the delegated power of the employer to “alter 

the terms and conditions of employment.” Id. at 311. The trial court correctly found, and the 

parties do not appear to dispute, that plaintiff presented sufficient evidence concerning the first 

element. Instead, plaintiff argues that the trial court erred by finding that plaintiff’s rejection of 

Price’s harassment was not used as a factor in a decision affecting her employment. Specifically, 

plaintiff maintains Price stripped her of job duties and began his “whispering treatment” because 

she reported his behavior to human resources.

With respect to her job duties, plaintiff asserted in her complaint that Price 

“progressive[ly] eliminate[ed] all of her job duties” after learning of her report to Stout. 

However, when asked about the duties that were purportedly taken away, plaintiff vaguely 

testified that “[t]he only thing that I didn’t get in trouble for was answering the phone.” She 

explained that she could no longer finish work orders or talk to warranty companies or call 

customers because Price now did that, but the balance of her job duties—filing, inputting 

warranty information, scheduling trucking, and assisting with payroll—were not discussed in the 

deposition excerpts that were provided to the lower court. There is no indication in the record 

that plaintiff’s other responsibilities changed following her report to human resources. 

Moreover, defendants presented computer logs showing that plaintiff did, in fact, continue to 

process work orders in the week following Price’s meeting with Stout and Stegenga. An 

accompanying affidavit explained that the reduced volume of work orders was attributable to an 

overall slowdown in business at the Grand Ledge store during the relevant time.

In the context of other employment discrimination prohibited by the Civil Rights Act, this 

Court has explained, 

Although there is no exhaustive list of adverse employment actions, 

typically it takes the form of an ultimate employment decision, such as a 

termination in employment, a demotion evidenced by a decrease in wage or 

salary, a less distinguished title, a material loss of benefits, significantly 

diminished material responsibilities, or other indices that might be unique to a 

particular situation. [Peña v Ingham Co Rd Comm, 255 Mich App 299, 312; 660 

NW2d 351 (2003) (quotation marks and citation omitted).]

The evidence presented to the trial court suggests that only one of plaintiff’s job duties was 

altered after her complaint, and even that duty was not completely “stripped” as plaintiff 

contends. In other words, there is no indication that Price used plaintiff’s complaint as a factor 

in any type of adverse employment decision, because plaintiff’s responsibilities were not 

significantly diminished. Nor can Price’s alleged “whisper treatment” be construed as a decision 

affecting plaintiff’s employment. Even if plaintiff had difficulty hearing Price’s instructions, 

quiet communication is simply not the type of employment decision contemplated by the Civil 

Rights Act. 
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Plaintiff also alleges that her rejection of Price’s behavior ultimately led to her 

constructive discharge. “A constructive discharge is established where an employer deliberately 

makes an employee’s working conditions so intolerable that the employee is forced into an 

involuntary resignation or, stated differently, when working conditions become so difficult or 

unpleasant that a reasonable person in the employee’s shoes would feel compelled to resign.”

Vagts, 204 Mich App at 487 (quotation marks and citation omitted). Plaintiff testified that after 

Price was verbally reprimanded on February 11, 2016, he stopped engaging in any sexually 

harassing behavior. Nonetheless, he reduced her job duties and began the “whispering piece of 

it[.]” As a result, she felt that resigning was her only option because she was “miserable,”

“[n]obody else had been talked to about it,” and she did not believe anything would change. 

Setting aside the fact that Bader was still in the process of investigating plaintiff’s complaints,3

we do not believe that any reasonable factfinder could conclude that a reduction in one aspect of 

plaintiff’s workload, coupled with whispered instructions, created work conditions that were so 

difficult or unpleasant that a reasonable person would feel compelled to resign. Accordingly, the 

trial court correctly found that plaintiff was not constructively discharged. Furthermore, because 

plaintiff’s rejection of Price’s sexual harassment was not used as a factor in any other decision 

affecting her employment, the trial court correctly dismissed plaintiff’s quid pro quo harassment 

theory.

To establish a hostile environment claim, the plaintiff must prove five elements by a 

preponderance of the evidence:

(1) the employee belonged to a protected group;

(2) the employee was subjected to communication or conduct on the basis of sex;

(3) the employee was subjected to 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. [Chambers, 463 Mich at 311 (quotation marks and 

citation omitted).]

The trial court found that plaintiff satisfied her burden with respect to the first three 

elements and that a question of fact “may” exist regarding the fourth element. However, it 

determined that plaintiff’s hostile environment claim failed as a matter of law because her proofs 

were insufficient to establish respondeat superior. Plaintiff argues that the trial court erred 

 3 As noted earlier, Stout recommended a group meeting with herself, plaintiff, Price, and the 

interim and regular store managers. Although plaintiff later explained that she was too 

embarrassed to discuss the matter with a panel of men, including her alleged harasser, plaintiff

stated in her email that she declined to participate in the meeting because there were “too many 

issues that [she did] not agree with” and she was not interested in continuing to work with Price.
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because the evidence demonstrated that Bader failed to promptly and thoroughly investigate her 

complaint or implement an adequate remedy. Plaintiff contends that when she complained about 

Price’s behavior, Bader was on notice that Price was a “serial harasser” because her predecessor 

made a similar complaint during an exit interview. Thus, according to plaintiff, Bader had a 

heightened duty to prevent future harassment and failed in that regard. Defendants, on the other 

hand, argue that Price’s behavior was not severe enough to create a hostile work environment 

and that Bader’s prompt remedial action precludes liability under a hostile environment theory. 

With respect to the fourth element, the trial court did not articulate its reason for 

concluding that a question of fact existed (or “may” exist). This element is at the heart of a 

hostile environment claim, as it looks at whether “one or more supervisors or co-workers 

create[d] an atmosphere so infused with hostility toward members of one sex that they alter[ed] 

the conditions of employment for them.” Radtke v Everett, 442 Mich 368, 385; 501 NW2d 155 

(1993) (quotation marks and citation omitted). “[W]hether a hostile work environment existed 

[is] determined by whether a reasonable person, in the totality of circumstances, would have 

perceived the conduct at issue as substantially interfering with the plaintiff’s employment or 

having the purpose or effect of creating an intimidating, hostile, or offensive employment 

environment.” Id. at 394. Here, plaintiff described five comments made by Price and alleged 

that he engaged in inappropriate physical contact on several occasions. This conduct occurred 

over a period of approximately six weeks. Given the number of instances in which plaintiff was 

subjected to verbal or physical contact that could be viewed as sexual in nature in this short time 

frame, reasonable minds could differ as to whether Price’s conduct created an intimidating, 

hostile, or offensive employment environment. Therefore, the trial court correctly found that a 

question of fact existed regarding the fourth element.

The fifth element — respondeat superior — requires that the plaintiff show some level of 

fault on the part of the employer. Chambers, 463 Mich at 311. An employer is not liable for the 

acts of its agent “if it adequately investigated and took prompt and appropriate remedial action 

upon notice of the alleged hostile work environment.” Id., quoting Downer v Detroit Receiving 

Hosp, 191 Mich App 232, 234; 477 NW2d 146 (1991) (quotation marks omitted). In other 

words, the employee must show that “the employer knew or should have known of the 

harassment in question and failed to take prompt remedial action[.]” Sheridan v Forest Hills Pub 

Sch, 247 Mich App 611, 621; 637 NW2d 536 (2001) (quotation marks and citation omitted). 

“[N]otice of sexual harassment is adequate if, by an objective standard, the totality of the 

circumstances were such that a reasonable employer would have been aware of a substantial 

probability that sexual harassment was occurring.” Chambers, 463 Mich at 319.

Plaintiff gave actual notice of Price’s harassment to Bader by alerting its human 

resources manager on the evening of February 8, 2016. Stout was receptive to plaintiff’s 

complaint and plaintiff admitted to disclosing everything she wanted to during their first phone 

conversation. However, plaintiff did not provide the details she later disclosed in the course of 

litigation. As plaintiff explained, 

I don’t recall the exact details or how many things I reported to her. It was 

a general conversation, “This is what’s going on. This is what I have issues with. 

He makes me uncomfortable. He has a lot of crude remarks.” I told her about the 
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sex toy things, I told her about my daughter and, again, a general conversation. I 

didn’t go into details on everything.

Thus, although plaintiff placed Bader on notice of the harassment, she did not convey the extent 

of the harassment she later alleged in her lawsuit.

On February 11, 2016, Stout and Stegenga discussed plaintiff’s complaint with Price, 

verbally reprimanded him, and advised Price that the matter would be investigated further. Stout 

followed up with plaintiff the next day, warned that things might be awkward with Price for a 

time, and asked plaintiff to be patient; plaintiff agreed. When asked if she was satisfied with 

Stout’s action at that point, plaintiff said: “From what [Stout] told me, yeah, I guess. I didn’t 

know what else to expect at that point.” Plaintiff admitted that Price’s sexual harassment ceased 

after the February 11, 2016 meeting.

The trial court did not err by concluding that plaintiff failed to prove her hostile 

environment claim because the evidence showed that Bader took prompt and effective remedial 

action. Plaintiff makes much of the fact that her predecessor complained of similar treatment 

during an exit interview. However, Price was reprimanded following that incident and Bader did 

not have reason to know that sexual harassment continued to occur until plaintiff contacted Stout 

on February 8, 2016. Although plaintiff presented some evidence suggesting that other 

employees may have observed some of Price’s offensive behavior, there is no indication that 

those employees reported Price’s behavior to Bader’s managers or that Price’s harassment was 

so pervasive that Bader should have been aware of it. In any event, when Bader learned that 

plaintiff was experiencing sexual harassment, it promptly intervened and took action that caused 

the sexual harassment to cease. Price’s conduct after February 11, 2016, cannot be construed as 

unwelcome sexual conduct or communication that substantially interfered with plaintiff’s 

employment or created an intimidating, hostile, or offensive work environment. Even if it could 

be viewed as such, Bader continued its efforts to resolve the problem by proposing a group 

meeting, which plaintiff declined to participate in without explaining the basis for her 

discomfort. Plaintiff then resigned before any alternative remedies could be explored. As such, 

plaintiff cannot demonstrate fault on the part of Bader based on its response to her complaint. 

Lastly, plaintiff asserted a retaliation claim as an additional or alternative ground for 

liability under the Civil Rights Act. “To establish a prima facie case of retaliation, a plaintiff 

must show: (1) that he [or she] engaged in a protected activity; (2) that this was known by the 

defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that 

there was a causal connection between the protected activity and the adverse employment 

action.” Major v Village of Newberry, 316 Mich App 527, 552-553; 892 NW2d 402 (2016)

(quotation marks and citation omitted). Plaintiff alleges that she engaged in a protected activity 

by opposing Price’s sexual harassment and that when he learned of her complaint, Price 

retaliated against her. According to plaintiff, Price stripped her of job duties, began his 

“whispering treatment,” and caused her constructive discharge. We disagree. For the reasons 

already explained, the evidence presented to the trial court did not demonstrate that plaintiff was 
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subjected to an adverse employment action or that she was constructively discharged as a result 

of her complaint. Accordingly, plaintiff failed to satisfy her burden with respect to the third 

element and the trial court properly dismissed her retaliation claim.

Affirmed.

/s/ Christopher M. Murray 

/s/ Deborah A. Servitto 

/s/ Mark T. Boonstra