WILSON v. GENERAL MOTORS CORPORATION
Case Details
- Citation
- 183 Mich. App. 21
- Judge(s)
- Before: McDonald, P.J., and Michael J. Kelly and Murphy, JJ.; McDonald P.J., concurred.
- Procedural Posture — the stage the case had reached
- jury verdict
- State
- Michigan
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Jury found race and gender discrimination and breach of implied employment contract. Court affirmed discrimination verdict and damages in part, but reduced pain-and-suffering award via remittitur from $750,000 to $375,000 and economic damages from $500,000 to $373,578.11. Attorney fees award was reversed for lack of jurisdiction but allowed to be renewed.
Excerpt
WILSON v GENERAL MOTORS CORPORATION Docket Nos. 106198, 109438. Submitted October 18, 1989, at Detroit. Decided April 2, 1990. Leave to appeal applied for. Gail L. Wilson was discharged from her employment with General Motors Corporation. Wilson brought an action for damages against General Motors in Wayne Circuit Court, alleging race and gender discrimination in violation of the provisions of the Civil Rights Act and wrongful discharge by breach of an implied contract of continued employment. The jury found that race or gender was a determining factor in defendant’s decision to discharge plaintiff, that an implied contract existed between plaintiff and defendant to the effect that defendant would only be discharged for good cause, and that plaintiff was not discharged for good cause. The jury awarded plaintiff $500,000 for lost wages and benefits and $750,000 for pain and suffering. Defendant moved for judgment notwithstanding the verdict, a new trial or remittitur. The trial court, Richard P. Hathaway, J., denied judgment notwithstanding the verdict, denied the motion for a new trial if plaintiff agreed to remittitur and reduced the award for pain and suffering to $375,000. Defendant appealed. Plaintiff cross appealed. Plaintiff moved for costs and attorney fees pursuant to the Civil Rights Act. The trial court entered an award for costs and attorney fees of $86,730.24. Defendant appealed from the award of costs and attorney fees. The Court of Appeals held: 1. The record fails to support defendant’s claim of prejudice arising out of the alleged misconduct of plaintiff’s counsel during the trial. 2. The trial court did not err in refusing to permit the testimony of a defense witness who had not been put on the witness list as required under a local court rule then in effect. References Am Jur 2d, Appeal and Error §§ 352, 355; Job Discrimination §§1985, 2502, 2503, 2511, 2515, 2520; New Trial §576; Trial §219. Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions. 85 ALR3d 351. 3. No error requiring reversal arose out of the trial court’s instructions to the jury. 4. The trial court properly allowed plaintiff and another employee of defendant to testify as to their perception of the racial overtones of statements made by a supervisor employed by defendant to plaintiff and other similarly situated employees. 5. Since there was sufficient evidence to support the jury’s determinations that there was both a civil rights violation and an implied contract of continued employment, the trial court properly denied the motion for judgment notwithstanding the verdict. 6. The trial court did not abuse its discretion by entering the award of remittitur on the pain and suffering award. 7. The jury’s award of economic damages clearly reflects inclusion of the sought, but unproved, damages for loss of life insurance and loss of cost of living. Accordingly, the $500,000 award for economic damages should be reduced to $373,578.11. 8. Since the question of entry of costs and attorney fees was not reserved in the order of judgment and the motion for such costs was made subsequent to the claim of appeal, the trial court lacked jurisdiction to amend its prior judgment by an award of costs and attorney fees. The award of costs and attorney fees is set aside without prejudice to plaintiff’s right to renew that motion in the trial court. Affirmed in part and reversed in part. Murphy, J., concurred in part with the majority, but would not have granted remittitur as to economic damages and would not have held that the use of a multiplier in the calculating of attorney fees is improper under the Civil Rights Act. 1. Appeal — Attorney Misconduct — Fair Trial. An attorney’s comments at trial will usually not be cause for reversal on appeal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial or where counsel’s comments were such as to deflect the jury’s attention from the issues involved and had a controlling influence upon the verdict. 2. Civil Rights — Employment Discrimination — Jury Instructions — Standard Jury Instructions. The standard jury instructions relative to employment discrimination are sufficient in themselves to inform the jury as to its duty; it is not error for a trial court to refuse to give supplemental instructions concerning employment discrimination (SJI2d 105.02-105.04). 3. Evidence — Opinion Testimony — Employment Discrimination — Race Discrimination. Minority employees testifying in an employment discrimination suit based on alleged race discrimination may give opinion testimony as to whether a supervisor’s comments to them during the course of their employment had a racial overtone since such testimony is rationally based upon the perception of the witness and would be helpful to a clear understanding of the fact at issue (MRE 701). 4. New Trial — Remittitur — Acceptance of Remittitur — Mail. Acceptance by a plaintiff of remittitur rather than a new trial, when the acceptance is done by mail, is complete at the time of mailing rather than on the date that it is received or processed by the court clerk (MCR 2.107[C][3]). 5. Appeal — Orders — Attorney Fees. A trial court is without jurisdiction to award attorney fees after a claim of appeal has been filed unless the trial court’s order granting judgment provided that the trial court would award such fees (MCR 7.208A). 6. Civil Rights — Attorney Fees — Contingency Fee Agreements. The existence of a contingent fee. arrangement does not preclude an award of attorney fees to a successful plaintiff under the Civil Rights Act; however, the existence of a contingent fee arrangement is one of the factors which a trial court should consider in determining what constitutes a reasonable fee award (MCL 37.2802; MSA 3.548[802]). 7. Civil Rights — Attorney Fees — Evidentiary Hearings. A trial court, when confronted with a challenge to the reasonableness of the attorney fees requested pursuant to the provisions of the Civil Rights Act, should conduct an evidentiary hearing at which an inquiry is made as to the actual services which were rendered and the reasonableness of the requested fees. 8. Civil Rights — Attorney Fees. It is improper for a trial court in awarding attorney fees pursuant to the Civil Rights Act to determine the award of attorney fees by multiplying the total of the actual hourly and daily rates incurred by a plaintiff’s counsel by a multiplier greater than unity without explaining why the case is so exceptional as to warrant application of a multiplier factor. Chambers, Steiner, Mazur, Ornstein & Amlin, P.C. (by Angela J. Nicita and Courtney Morgan, Jr.), for plaintiff. Bodman, Longley & Dahling (by Joseph A. Sullivan, Robert G. Brower and Martha B. Goodloe), for defendant. Before: McDonald, P.J., and Michael J. Kelly and Murphy, JJ. Michael J. Kelly, J. Defendant, General Motors Corporation, appeals from a jury verdict and award of attorney fees in favor of plaintiff, Gail Leslie Wilson. Plaintiff appeals from the circuit court’s grant of remittitur in favor of defendant. Plaintiff, a black woman, was employed by GM’s Assembly Division as a. data preparation operator from December of 1976 to October of 1981, when she was discharged. At the time of her discharge, plaintiff was on a performance improvement plan to increase her rate of production. This plan put her on six months employment probation. Plaintiff became pregnant in April or May of 1981, and this evidently caused her work quality to decline during this performance improvement period. Following her discharge, plaintiff filed suit against defendant for race and gender discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and for wrongful discharge under Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980). Plaintiff claimed that defendant discriminated against her on the basis of her race and gender by transferring and promoting other workers, who were white women, while refusing to transfer or promote plaintiff. Plaintiff claimed that she was fired because she confronted her supervisor regarding gm’s failure to transfer or promote black female employees and because of her pregnancy. Plaintiff’s Toussaint claim was based upon the verbal promise of one of defendant’s personnel employees at the time plaintiff was hired. Defendant denied discriminating against the plaintiff or otherwise wrongfully discharging her. It claimed that plaintiff was discharged due to her poor job performance. Following trial, the jury found that race or gender was a determining factor in defendant’s decision to discharge plaintiff. It found that a contract existed between plaintiff and defendant that defendant would fire plaintiff only for good cause and that plaintiff was not discharged for good cause. The jury awarded plaintiff $500,000 for lost wages and benefits, plus $750,000 for pain and suffering. Defendant moved for judgment notwithstanding the verdict, a new trial, and remittitur. The circuit court denied defendant’s motions for judgment notwithstanding the verdict or a new trial, but granted remittitur of the pain and suffering award to $375,000 for a total award of $875,000. Plaintiff moved for costs and attorney fees, which the court granted, in the amount of $86,730.24. i Defendant argues that the jury’s verdict must be reversed because improper conduct by plaintiff’s counsel denied defendant a fair and impartial trial. Gm claims that plaintiff’s counsel made improper inflammatory statements regarding unrelated incidents, made repeated references to matters outside the record, and made improper comments regarding defense witnesses. We find no error requiring reversal. When reviewing asserted improper conduct by a party’s lawyer, we must first determine whether the lawyer’s action was error and, if so, whether the error requires reversal. Reetz v Kinsman Marine Transit Co, 416 Mich 97, 103; 330 NW2d 638 (1982). A lawyer’s comments usually will not be cause for reversal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial. Guider v Smith, 157 Mich App 92, 101; 403 NW2d 505 (1987), aff'd 431 Mich 559 (1988). Reversal may also be required where counsel’s remarks were such as to deflect the jury’s attention from the issues involved and had a controlling influence upon the verdict. Id. Defendant complains about the following comments made by plaintiffs counsel during his opening statement: It [discrimination] can be a bunch of guys in white sheets standing on your front lawn burning a cross, or it could be ... . Discrimination can be brutally beating a black boy out in front of a pizza parlor in New York. It can be telling of racial jokes over a radio station, or [sic] one of the finest institutions in the country. ... It was just an analogy. Obviously it can, also, be telling someone who complains to you about why they are not being given an opportunity to advance that they are lucky to have a job, and there are plenty more where you came from. It can, also, be consistently transferring white women out of a department and leaving the black women behind. That’s in a racial situation. It can, also, be being insensitive to a woman’s needs as caused by her pregnancy, and this can be sexual discrimination. Defense counsel objected to these comments, but the circuit judge permitted them. The court did instruct the jury that the opening statements were not evidence and that anything that the attorney said was not evidence. What constitutes a fair and proper opening statement is left to the discretion of the trial court. Guider, supra, p 102. Here, plaintiffs lawyer was evidently pointing out that there are Obvious, overt forms of discrimination and subtle, less easily discerned forms of discrimination, such as in plaintiffs case. The examples cited in plaintiffs counsel’s opening statement were not related to gm and were not attacks on gm. The circuit court did not abuse its discretion by permitting these remarks. Defendant complains that plaintiffs counsel commented in closing on defendant’s failure to present the testimony of a Doctor Golusin and on defendant’s failure to present data entry operator logs which would verify defendant’s claims that plaintiff was a poor worker. In Reetz, supra, 416 Mich 109, our Supreme Court pointed out: [I]t is legitimate to point out that an opposing party failed to produce evidence that it might have, and consequently the jury may draw an inference against the opposing party. This is permissible even though the same witnesses could have been produced by both parties. These comments did not result in error. Defendant also argues that plaintiffs counsel improperly belittled defense witness Nina Shepard and James Rupkey. In closing arguments, counsel may discuss the character of a witness and characterize their testimony. DeVoe v C A Hull Inc, 169 Mich App 569, 581; 426 NW2d 709 (1988), lv den 431 Mich 862 (1988). Plaintiffs attorney’s comments did not deny defendant a fair trial and did not result in error. ii Defendant argues that the circuit court erred by excluding the testimony of a crucial defense witness. We find no error. Defendant attempted to present the testimony of Valerie Martin, a gm personnel representative, to rebut plaintiff’s evidence indicating that defendant made plaintiff, while pregnant, return to work against the advice of physicians. Defendant argued that Martin would testify that she received a report from an independent physician, Dr. Golusin, which indicated that plaintiff was free to return to work. Martin had been previously deposed by the parties but was not listed on defendant’s witness list in accordance with Wayne Circuit Court Rule 2.301. The court precluded Martin from testifying pursuant to LCR 2.301(4) on the ground that she was not listed as a witness. Wayne Circuit Court Rule 2.301(4), which was in effect at the time of the trial, provided in relevant part: An unlisted witness may not be called at the trial, except as the court orders for good cause shown or as permitted by paragraphs (5) and (6). [Emphasis added.] Under this local court rule, defendant could not present Martin as a witness unless it convinced the court of good cause. The record indicates that defendant did not show good cause for presenting Martin’s testimony regarding Dr. Golusin’s report. Martin’s deposition testimony indicated that she was not aware of the conclusions of Golusin’s report or the results of his examination of plaintiff and that Martin herself had not signed the report. Additionally, Martin’s testimony regarding the contents of Golusin’s report appears to be inadmissible hearsay under MRE 801. See Slayton v Michigan Host, Inc, 144 Mich App 535, 551; 376 NW2d 664 (1985); Carlisle v General Motors Corp, 126 Mich App 127, 129; 337 NW2d 4 (1983). The circuit court properly excluded Martin’s testimony. hi Defendant claims that reversal is required because the circuit court refused to instruct the jury regarding the authority of defendant’s employees to bind defendant to statements or promises made to plaintiff. We disagree. Plaintiff testified at trial that, at the time she was hired by gm, an employee of gm in its personnel department, Leona Zyber, told plaintiff that she would remain employed so long as she did her work and followed the rules. One of plaintiff’s witnesses also testified about similar statements made to her by employees in gm’s personnel department. These statements served as the basis for plaintiff’s Toussaint claim for breach of employment contract. Defendant did not call Zyber as a witness or present evidence regarding whether Zyber or other gm employees had actual or apparent authority to bind it with a verbal Toussainttype contract. Defendant requested the following jury instructions regarding the authority of employees to bind the employer: Plaintiff claims that one or more employees of General Motors Corporation made statements or promises to her that she would only be terminated for good cause. If you find that statements or promises were actually made by the defendants, you must then determine whether the person who made the statement or promise had the authority to bind General Motors to that statement or promise. Authority of an employee to make statements or promises which bind General Motors can be of two types: 1. Actual Authority. This type of authority exists when the employee has been expressly authorized by General Motors to make such statements or promises. 2. Apparent Authority. This type of authority exists only if the plaintiff reasonably believed that the person who made promises or statements to her was authorized by General Motors to make those statements or promises. If you find that one or more persons actually made statements or promises to the plaintiff, those statements or promises are not binding on General Motors unless you also find that the person who made the statement or promise had the actual or apparent authority to make the statement or promise. The court declined to give this instruction and instead gave the following instruction: Members of the jury, I instruct you that a corporation such as the Defendant, General Motors, in this case is operated through its employees. If you find that there was wrongdoing on the part of any employee which caused injury to Gail Wilson, then such wrongdoing would be chargeable to General Motors. Defendant argues that the court, through this instruction, improperly took from the jury the factual issue of whether its personnel employees had actual or implied authority to make contracts with plaintiff. We agree that the instruction as given was incomplete and should have applied only to plaintiff’s discrimination claims. However, any error due to this instruction is harmless and does not require reversal. An instructional error does not require reversal where it did not result in a jury verdict inconsistent with substantial justice. MCR 2.613(A); Johnson v Corbet, 423 Mich 304, 327; 377 NW2d 713 (1985); Caliesen v Grand Trunk W R Co, 175 Mich App 252, 263; 437 NW2d 372 (1989). The jury found in favor of plaintiff on bbth her claims. The jury’s verdict of liability for .race and gender discrimination alone supports the damages awarded under both claims. Additionally, we note that defendant offered no evidence to rebut plaintiff’s testimony or to establish that Leona Zyber had no authority to enter into á Toussaint-type contract with plaintiff. Our Suprerhe Court in Renda v International Union, UAW, 366 Mich 58, 94; 114 NW2d 343 (1962), stated: Where the facts are either admitted or undisputed as to the existence of the principal agent’s relationship and as to the scope of the agent’s authority, the lower court may properly instruct the jury that the principal, as a matter of law, is responsible for the acts of the agent. Gm did not present evidence disputing Zyber’s apparent authority. The circuit court’s instruction does not require reversal; IV Defendant argues that reversal is required because the circuit court refused to instruct the jury that plaintiff bore the burden of proving that she reasonably relied upon Leona Zyber’s statements. We find no error. At trial, defendant argued that, because the only basis for plaintiff’s Toussaint claim was the statements of Leona Zyber, the trial court must instruct the jury that, in order to find a valid Toussaint claim, the jury would have to find either that plaintiff was not provided with gm’s employee handbook or that the statements contained in the handbook were not inconsistent with Zyber’s statements to plaintiff. Defendant requested the following jury instruction, which the court refused to give: Statements or promises made by employees to the plaintiff can only become a part of the plaintiffs emplo
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