Lewis, In re
| Decision Date | 29 June 1988 |
| Docket Number | 86-1612,Nos. 86-1473,86-1498,s. 86-1473 |
| Citation | 845 F.2d 624 |
| Parties | 46 Fair Empl.Prac.Cas. 1776, 46 Empl. Prac. Dec. P 37,942 In re Inez Jeanette LEWIS. Inez Jeanette LEWIS, Plaintiff-Appellant, Cross-Appellee, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee, Cross-Appellant. , and 86-1613. |
| Court | U.S. Court of Appeals — Sixth Circuit |
George B. Washington (argued), Greenspon, Scheff & Washington, Detroit, Mich., for plaintiff-appellant, cross-appellee.
Charles C. DeWitt, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., William B. Balke (argued), for defendant-appellee, cross-appellant.
Before KEITH, MILBURN and NELSON, Circuit Judges.
Plaintiff Jeanette Lewis brought suit against Sears, Roebuck & Company on the grounds that Sears had racially discriminated against her in violation of Michigan's Elliott-Larsen Act, Mich.Comp.Laws Ann. Sec. 37.2202(1)(a) (West 1985), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. On November 25, 1985, Lewis prevailed at a jury trial on the Elliott-Larsen Act claim. The jury awarded her $30,597 in lost wages. In response to the jury verdict, Defendant Sears filed motions for judgment notwithstanding the verdict, new trial and remittitur, which were denied by the district court. On December 19, 1985, the court made separate findings of fact as to Lewis' Title VII claim 1--the judge disagreed with the jury and found no discrimination. On January 30, 1986, the court denied Lewis' motion to be reinstated to her former position at Sears, concluding that discrimination had not been conclusively shown. Lewis' motion for reconsideration on the denial of equitable relief was denied; she then filed a timely appeal from the order denying reinstatement. Sears filed a cross-appeal from the jury verdict itself.
After the filing of the appeals, the district court decided that plaintiff's attorney's fee award should be reduced by one-half. Plaintiff also filed a timely appeal from that determination, with Sears filing a cross-appeal as to the award of attorney's fees at all.
For the reasons set forth below, we AFFIRM in part and REVERSE in part, ordering reinstatement and full attorney's fees. Further, we REMAND the case back to the district court for additional consideration of counsel fees for work done pursuing this appeal.
Jeanette Lewis is a black woman. For twenty-three years she worked at Sears' Troy, Michigan store, the third largest Sears store in the United States. At the time of her termination, Lewis sold "big ticket" (i.e., high-priced) items. As a general rule, the big-ticket sales positions are highly coveted by employees because of the earnings potential in those departments.
Lewis began working at the Troy Sears store in 1963, even before the store opened. She was employed in various departments over the years, and garnered satisfactory work records in those areas. In 1976, Lewis' supervisor prodded Lewis into applying for a sales position in appliances, a big-ticket department. Lewis sought the position, and was soon promoted to that division.
Of the approximately ninety full-time big-ticket salespersons at the store during the relevant time period, there were no black men and four black women. The Troy store manager at the time of the events, Mr. Eugene White, was also black. Lewis' immediate supervisor was Tom Draper, a white male, who in turn was under the supervision of Steve Machovec, another white male.
The basis for Lewis' complaint is that, while she admittedly fell short of Sears' articulated sales goals for big-ticket items, unlike her similarly-situated white co-workers, she was not given the opportunity to transfer to another department. Instead, Lewis was terminated. In particular, at trial, evidence was presented that certain white big-ticket salespersons with sales deficiencies were transferred to different departments in the store instead of initially being faced with termination.
In August, September, October and December 1983, and on February 16, 1984, Lewis was given deficiency interviews for her poor sales performance. She was fired on February 29, 1984. Plaintiff's evidence disclosed that the following white employees also experienced sales performance problems or were given deficiency interviews, but were transferred instead of fired: 1) Earl Lock received eleven write-ups for poor sales and poor attendance, and was transferred from the refrigerator department to men's suits; 2) Daniel Kleczkowski received a deficiency interview for selling less than half of anyone else in his home-improvement division, and was transferred to vacuum cleaners, where he failed to carry sales as well--only then was he terminated; 3) Margaret Rock's ill health was responsible for her poor sales record, and she was transferred from home appliances to cameras; 4) Vaclav Kalivoda received a deficiency interview because he was far below goals in maintenance agreement performance (not sales), and was transferred to the garage; 5) Joanne Phillip was always last in the vacuum department in monthly sales, and was transferred to sporting goods; 6) Terry Sylvain was last in the appliances department for six of the first eight months of 1984, and was transferred to the jewelry department.
Sears introduced evidence that some of those transfers were for reasons other than poor sales (i.e., seniority, illness, or help with Christmas sales), and plaintiff countered with evidence suggesting that the transfers were indeed related to sub-par sales performance. Witnesses for Sears also testified that the policy with respect to departmental transfers of poorly-performing salespersons changed in 1983: the alleged new policy permitted termination instead of transferral. Plaintiff impeached this testimony at trial, and offered her own evidence attacking the existence of such a policy, showing that the alleged change was never put in writing and, if it existed, was inconsistently applied in practice. Sears also presented evidence that Douglas Kern, a white male in the home improvements division, was terminated for unsatisfactory performance, not transferred. Plaintiff attempted to distinguish Kern by evidence that 1) his sales per hour were less than half the division average (Lewis' sales per hour for all of 1983 were just over seventy-six percent of the average in her division); 2) he failed to sell a single maintenance agreement in one month; and 3) he apparently "just gave up."
The jury evidently believed plaintiff's proofs, for after four and one-half hours of deliberations, it answered "yes" to the following special verdict question: "Did Sears discriminate against plaintiff because of her race in discharging her from her employment?" Plaintiff then moved for the equitable remedy of reinstatement and restoration of benefits, which the court denied.
After the jury's verdict, the plaintiff moved for an award of attorney's fees and costs under Sec. 37.2802 of the Elliott-Larsen Act. The district court referred this motion to a magistrate for recommendation. Both parties filed objections to the magistrate's report. While finding that the proper fee award here was $34,200, the district court ultimately cut that figure in half, awarding $17,100 in actual attorney's fees and $1,490.31 in costs. The court stated that it was decreasing the award "by one-half to account for the results achieved and the amounts in question ($30,597 in back pay and benefits awarded to plaintiff)," presumably referring to the plaintiff's inability to garner full relief--reinstatement--from the court.
Plaintiff appeals on two grounds: first, that the district court on the equitable motion for reinstatement was bound by the jury's finding of discrimination, and should We find that the district court erred in not granting the equitable relief consistent with the jury's verdict, and order that plaintiff be reinstated to the first available sales position in the Troy Sears store. Further, we believe that the district court erred in cutting the attorney's fees award in half. We therefore REVERSE the district court's order denying reinstatement, and order that the attorney's fee award be granted in full. We REMAND the case to the district court to consider the fee award in light of plaintiff's counsel's work on this appeal. We AFFIRM the district court on the separate cross-appeal issues.
have therefore ordered reinstatement; and second, that the district court improperly cut the award for attorney's fees in half. Boiled down, defendant's cross-appeal consists generally of four issues: that there was insufficient evidence to support the jury's verdict; that the district court erred in several of its instructions to the jury; that the district court abused its discretion in denying defendant's motion for remittitur; and that the district court erred in awarding attorney's fees at all.
The jury found that Lewis was a victim of race discrimination under Michigan's Elliott-Larsen Act. Thus, the question that is before us is whether the district court was bound by the jury's factual finding of discrimination when deciding Lewis' equitable claim for reinstatement.
The district court in this case applied Michigan law when it determined that a Michigan court sitting in equity is not bound by the findings of the jury. Citing Smith v. University of Detroit, 145 Mich.App. 468, 378 N.W.2d 511 (1985), and Abner A. Wolf, Inc. v. Walch, 385 Mich. 253, 188 N.W.2d 544 (1971), the district court held: "So, then, the Court finds that under Michigan law the findings of the jury [are] not binding on the judge in determining whether or not to award reinstatement." Joint Appendix ("J.A.") at 701-704. The court went on to make its own separate findings of fact under the Title VII claim, which were at odds with the jury's verdict and implied...
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