856 F.2d 741 (6th Cir. 1988), 87-1207, Anderson v. Sheppard

Docket Nº:87-1207.
Citation:856 F.2d 741
Party Name:Madison ANDERSON, Plaintiff-Appellant, v. Walter SHEPPARD, et al., Defendants, Ford Motor Company, Defendant-Appellee.
Case Date:September 07, 1988
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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856 F.2d 741 (6th Cir. 1988)

Madison ANDERSON, Plaintiff-Appellant,


Walter SHEPPARD, et al., Defendants,

Ford Motor Company, Defendant-Appellee.

No. 87-1207.

United States Court of Appeals, Sixth Circuit

September 7, 1988

Argued March 21, 1988.

Rehearing and Rehearing En Banc Denied Nov. 17, 1988.

Charles E. Fonville (argued), Detroit, Mich., for plaintiff-a pellant.

Kermit G. Bailer, Arnold Shulman (argued), Dearborn, Mich., Michael J. O'Reilly, for defendant-appellee.

Before JONES, MILBURN and BOGGS, Circuit Judges.

MILBURN, Circuit Judge.

Plaintiff-appellant Madison Anderson appeals from the judgment entered on a jury verdict in favor of defendants in this civil rights action. For the reasons that follow, we reverse and remand for a new trial.


Anderson, a black male, was first employed by defendant-appellee Ford Motor Company ("Ford") on October 27, 1952. In September 1975, he applied for the position of waste treatment operator, but this application was denied. Anderson claims that the job was later filled by a less qualified caucasian male. In 1976, Anderson filed a complaint with the Equal Employment Opportunity

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Commission ("EEOC"), claiming that his failure to obtain the position was the result of race discrimination. He also filed a grievance with his labor union, and pursuant to a grievance settlement, he was placed first on the seniority list for a position at the waste treatment plant.

In 1979, Ford enlarged its waste treatment plant and increased the number of operators from seven to ten. Anderson was hired for one of the new positions. Subsequently, however, Ford claims it determined that its initial assessment of the number of persons needed to operate the enlarged plant was erroneous. Thereafter, Ford reduced the number of operators from ten to seven. One caucasian operator was laid off in 1979, another caucasian operator was laid off in 1980, and Anderson was laid off in September of 1980.

Between December 1980 and June 1981, Anderson, Ford, and the EEOC worked toward resolving Anderson's still-pending 1976 complaint. In June of 1981, Anderson and Ford entered into a conciliation agreement providing that Anderson would receive One Thousand Five Hundred ($1500) Dollars and would return to work. Anderson was rehired as a waste treatment operator pursuant to the agreement, but was laid off again in September 1981. Anderson then brought the present action, claiming that the September 1981 layoff and Ford's failure to recall him were in retaliation for his filing of the 1976 EEOC complaint, alleging violations of 42 U.S.C. Sec. 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, and other causes of action.

On January 24, 1984, the district court granted summary judgment for Ford on most of Anderson's claims. The claims remaining for trial were the Title VII and section 1981 race claims concerning the September 1981 layoff and corresponding failure by Ford to recall Anderson to employment.

A jury trial commenced on June 11, 1984. At the end of all proof, the district court found for Ford on the Title VII allegations and, pursuant to Ford's motion, directed a verdict regarding the section 1981 claims. On appeal, this court reversed and remanded for a new trial, holding in an unpublished opinion that as there were factual disputes that should have been resolved by the jury and not by the district court, the district court erred in directing a verdict and entering a judgment thereon.

On remand, Anderson's former trial counsel, who was planning to change her residence from Michigan to California, withdrew from the case on August 26, 1986. Anderson then obtained new trial counsel, Lynn Shecter, on September 8, 1986. Thereafter, at the urging of both parties' counsel, the district judge mediated settlement negotiations between the parties. When attempts to settle failed, the case was rescheduled for trial on December 4, 1986.

On December 2, 1986, two days before the scheduled trial date, Anderson's second attorney, upon motion, was allowed to withdraw. The following colloquy between the court, counsel, and Anderson took place:

Ms. Shecter: May it please the Court, Lynn Shecter appearing on behalf of plaintiff. This is our motion to withdraw as counsel for Mr. Anderson.

The Court: I understand, Ms. Shecter. Mr. Anderson had one lawyer, now he has another lawyer, and he wants to get a third lawyer.

Ms. Shecter: I can't speak for others but Mr. Anderson has a right to have someone represent him, but we seem to have a difference of opinion and a difference of opinion as to how to approach this case.

The Court: Mr. Anderson, perhaps you will remember that Francis McIntyre spent a whole afternoon in which she encouraged you to resolve this matter with Ford. You didn't like her advise [sic] and she withdrew. You got Ms. Shecter, who is a very competent lawyer, who does a lot of work in this area, you can't agree with her advice so she has to get out. What makes you think you are ever going to find a lawyer that will carry this case forward the way you want it? If two competent lawyers, one of whom even got a victory for

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you in the Court of Appeals, after I threw the case out, put egg on my face--I'm not made [sic] about it. You're going to have to end up trying this case yourself with no help from anyone. You know what they say about a plaintiff that has himself for a client? Do you think you can try this case in front of a jury by yourself?

Mr. Anderson: I don't know.

The Court: Do you think I could get out and run a sewage treatment plant? I wouldn't know which way the sewage was coming in and going out.

Mr. Anderson: I can show you.

The Court: You can show me but I'm not going to show you how to try a case. I can't do that. You're going to be sitting here by yourself in front of a jury, is that what you want?

Mr. Anderson: I don't want that.

The Court: What do you want then? What do you want? Do you think Ms. Shecter is taking a dive, saying she doesn't like this case, or Mr. Schulman [Ford's attorney] has sweet-talked her or something, is that what you think?

Mr. Anderson: Your Honor, I'm not saying that I think that.

The Court: What are you saying?

Mr. Anderson: I'm saying that I believe that I can get somebody to try it.

The Court: What makes you think that you can do any better than her? You've already gotten two lawyers. I'm not going to give you--if she wants to withdraw I'm going to let her. I don't force lawyers to stay in a case. There are some judges that would. I'm not going to give you anymore indulgence. If I had my druthers I would start the trial of this case tomorrow morning, but I can't because I have another case I'm trying.

Mr. Anderson: Well, I would like at least twenty-five days.

The Court: If I let her go I'm going to tell Ms. Cassady [clerk] to put this case on the call, and whenever she finds a date in time to set it for trial we will bring you in, bring Mr. Schulman in, we will bring jurors in and we will go ahead and retry the case like the Court of Appeals told me to. You may win. You may not. The odds are against you, you know that, don't you?

Mr. Anderson: It seems that way.

The Court: I Just [sic] got done trying a criminal case where a fellow represented himself. He's in jail today. He didn't even know how to defend himself against my revoking his bond. This is a tough place down here--it's not tough, it's complicated. But what really bothers me, Mr. Anderson, is a competent lawyer has given you some advise [sic]. Apparently when you hired her you figure she could do you some good.

Mr. Anderson: I think the advice she gave me the other day about Ford Motor to make a settlement on this case I went along with, and then later on I come back because, I guess, Ford didn't want to make a settlement on it.



* * *

The Court: ... The lawyers are telling you something that you don't want to hear and you shoot the messenger. Instead of keeping your ears open and listen you get rid of the lawyer. If a lawyer has a case, and if in the lawyers [sic] best judgment the case has reached the point where it should be resolved on certain terms; the lawyer, in good faith, can't go forward.



* * *

I have to assume she wants to make money like everybody else. There is nothing wrong with that. She wouldn't withdraw from the case if she thought she could do better for you. The problem is she is afraid she will do a lot worse, in her judgment, as a lawyer.



* * *

The Court: I'm going to tell you something candidly. I made only one mistake in this case--I should have let it go to the jury. Mr. Schulman sweet talked me. He knows he made a mistake. If it had gone to the jury, the jury would have sent you down the tube. You got a second chance in this case, in my judgment, on a technicality. But this whole case is now an open book. There is a complete transcript of everything, and there is no new evidence

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that is going to come out to a second jury that wasn't there for the first jury. She can read the whole case, and all she has to do in her head is make an assessment of how six people, she doesn't know from a bale of hay, are going to decide this case. She has made a judgment that the jury that comes in here, wherever they come from, that she is going to do better with that settlement than the other odds. Now, maybe you're a big gambler. You once talk [sic]...

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