Bouwman v. Chrysler Corp., Docket No. 52864

• Decision Date: 28 May 1982
• Docket Number: Docket No. 52864
• Parties: Mary BOUWMAN, Plaintiff-Appellant, v. CHRYSLER CORPORATION, Defendant-Appellee. 114 Mich.App. 670, 319 N.W.2d 621, 39 Fair Empl.Prac.Cas. (BNA) 1570, 29 Empl. Prac. Dec. P 32,884
• Court: Court of Appeal of Michigan — District of US

Page 621

319 N.W.2d 621

Mary BOUWMAN, Plaintiff-Appellant, v. CHRYSLER CORPORATION, Defendant-Appellee.

Docket No. 52864.

114 Mich.App. 670, 319 N.W.2d 621,

39 Fair Empl.Prac.Cas. (BNA) 1570,

29 Empl. Prac. Dec. P 32,884

Court of Appeals of Michigan.

Submitted Dec. 1, 1981.

Decided April 5, 1982.

Rehearing Denied May 14, 1982.

Released for Publication May 28, 1982.

[114 MICHAPP 671] Rothe, Mazey, Mazey & Hamburger, P. C., Southfield (Gagleard, Munro, Addis & Gagleard, Troy, of Counsel), for plaintiff-appellant.

Dickinson, Wright, McKean, Cudlip & Moon, by Thomas G. Keinbaum and Robert P. Young, Jr., Detroit, for defendant-appellee.

[114 MICHAPP 672] Before DANHOF, C. J., and J. H. GILLIS and BRONSON, JJ.

DANHOF, Chief Judge.

Plaintiff commenced this age discrimination suit in June of 1975. Her complaint alleged that she was 50 years old and that, after 30 years of employment, defendant laid her off and ultimately discharged her on the basis of her age, in violation of Michigan Const.1963, art. 1, Sec. 2 and the Michigan State Fair Employment Practices Act, M.C.L. Sec. 423.301 et seq.; M.S.A. Sec. 17.458(1) et seq. ¹ At the conclusion of plaintiff's proofs, and again at the conclusion of all proofs, defendant moved for directed verdict. These motions were held in abeyance. After the jury returned a verdict in plaintiff's favor, the trial court heard arguments and granted defendant's motion for a directed verdict. From this ruling, plaintiff appeals as of right.

I

There was extensive testimony given at trial. This opinion will not endeavor to summarize all of that testimony, but will only set out some of the more pertinent facts.

Plaintiff was born in March, 1925. She began working in defendant's DeSoto plant in April of 1944. After a short break in service, plaintiff began working for Detroit Universal Division (DUD) in May of 1945. DUD was subsequently acquired by defendant. From 1945 until 1957 plaintiff worked as a drill press operator. In 1957 plaintiff became a factory clerk. In 1967 plaintiff assumed the position of superintendent clerk. This was a [114 MICHAPP 673] salaried position which, unlike plaintiff's previous positions, was not represented by a union. As superintendent clerk, plaintiff's duties included, inter alia, some typing, computing figures such as the daily production count, consolidating various reports and general clerical work. Plaintiff was described as an excellent employee who had twice been offered the position of "foreman", which she declined. The last offer for this position was made in September of 1974.

In December of 1974 plaintiff was placed on temporary layoff. In February of 1975 plaintiff's layoff classification was changed to indefinite layoff. In April of 1975 plaintiff began to draw her pension.

In 1974 a downturn in the automobile industry affected defendant and required it to reduce its fixed costs. At the DUD plant a number of jobs were eliminated while other jobs were combined. Prior to the downturn, DUD had 1,100 hourly employees and 255 nonunion salaried employees. After the cutback, the staff was reduced to 400 hourly employees and 100 salaried employees.

With regard to plaintiff's particular department, prior to the cutbacks in personnel there had been 10 or 11 clerks and secretaries in plaintiff's unit. After the work force reduction, only three secretarial positions were ultimately retained. ² One of the secretaries worked for the plant manager. Of the three secretaries who remained after the cutbacks, two were born in 1925. At DUD, the difference between the classifications of clerk and secretary is that secretaries are required to be able to [114 MICHAPP 674] type with greater speed than clerks and secretaries are required to be able to take shorthand, while clerks are not.

Plaintiff testified that she was laid off because of age discrimination. She stated that shortly after she was first laid off she saw her name on a list of employees who were to go back into the factory. When plaintiff questioned this, she was informed that she might have to opt to return to the factory in order to have 30 years employment with defendant and be eligible for her pension. Plaintiff informed defendant's representative that she already had 30 years employment with defendant. This fact was verified and plaintiff then opted for a temporary lay off rather than returning to the factory as an hourly worker. ³ Subsequently, plaintiff was told that her job had been eliminated. Plaintiff had to return to the office where she formerly worked in order to pick up a check. There she saw a secretary, Mary Reynolds, age 29, sitting at plaintiff's old desk and doing much of the work plaintiff had formerly performed. When plaintiff inquired about the fact that Reynolds was doing much of her work, she was informed that her job no longer existed, that Reynolds could take shorthand, and that defendant could not use plaintiff any more. Plaintiff admitted that at her deposition she had stated that she could not do the work of a secretary. She stated that if defendant needed shorthand for a particular job, she would not be able to perform that task.

Mary Reynolds became a secretary at DUD in [114 MICHAPP 675] 1964. After the reduction in staff, she spent 75 to 80% of her time doing plaintiff's duties for a 30-day period. During this 30-day period she was filling in for another secretary who was on sick leave. ⁴

The personnel manager at DUD testified that some of the job functions performed by plaintiff had been eliminated and some had not. However, because of the cutbacks, the position of superintendent's clerk had been abolished. After the work force reduction only three secretarial positions remained in plaintiff's unit. One of the secretaries worked for the plant manager. The two remaining secretaries were picked on the basis of the highest corporate service as secretaries. One of the two secretaries with the highest corporate service was on sick leave in January of 1975, so Reynolds was picked to temporarily do her job. Reynolds remained at that job approximately one month until the secretary on sick leave returned.

The personnel manager asserted that plaintiff was not selected for one of the remaining secretarial positions because she did not have the proper qualifications. He asserted that age was not a consideration in determining who would remain after the work force reduction. The personnel manager also stated that age was never a factor used in determining promotions; however, he did admit that one of defendant's standard forms did list age as a personal characteristic affecting one's potential and performance. The standard form [114 MICHAPP 676] which listed age and health was used for evaluating management personnel for raises. ⁵

Defendant's plant manager testified that, after receiving a corporate directive to reduce fixed costs by 50%, the management staff of DUD held meetings and tried to cut costs by eliminating some jobs and combining other job functions. One of the goals was to have as much flexibility as possible. The plant manager testified that at these meetings only job functions were discussed, not the individuals who would ultimately fill the remaining positions. The plant manager also asserted that age was not a factor in determining who would remain in the jobs not eliminated.

There was also testimony that plaintiff had an early retirement program and that qualified employees were offered this option at the time cutbacks were being made. ⁶

II

The parties agree that the sole issue before us is whether the trial court erred in ruling, as a matter of law, that plaintiff failed to present sufficient evidence to establish a prima facie case of age discrimination. ⁷

[114 MICHAPP 677] It is well established that a motion for directed verdict tests whether or not the plaintiff had made a prima facie case. Caldwell v. Fox, 394 Mich. 401, 407, 231 N.W.2d 46 (1975). In reviewing the trial court's decision on a motion for directed verdict, this Court will consider the plaintiff's proofs and any reasonable inferences therefrom in the light most favorable to the plaintiff. Silisky v. Midland-Ross Corp., 97 Mich.App. 470, 296 N.W.2d 576 (1980). If the evidence establishes a prima facie case, the motion must be denied. Hayes v. General Motors Corp., 106 Mich.App. 188, 192, 308 N.W.2d 452 (1981). A motion for directed verdict should be denied where the facts, viewed in a light most favorable to the nonmoving party, are such that reasonable minds could honestly reach different conclusions. Tiffany v. The Christman Co., 93 Mich.App. 267, 287 N.W.2d 199 (1979).

Our determination of whether a directed verdict was properly granted in the instant case is complicated by the absence of Michigan authority addressing what is required to establish a prima facie case of age discrimination sufficient to withstand a motion for directed verdict. Indeed, there are only two Michigan cases addressing the burden of proof in an age discrimination suit.

One case, Schipani v. Ford Motor Co., 102 Mich.App. 606; 302 N.W.2d 307 (1981), addressed the issue [114 MICHAPP 678] of whether summary judgment was appropriate. Schipani analogized to Michigan cases dealing with racial discrimination and held that a complaint establishes a prima facie case of age discrimination where the allegations established that the defendant was predisposed against plaintiff because of his age and acted on that predisposition. The other Michigan case addressing the burden of proof in an age discrimination suit is Gallaway v. Chrysler Corp., 105 Mich.App. 1, 306 N.W.2d 368 (1981). Gallaway addressed the adequacy of jury instructions. Stating that there was no Michigan authority addressing the burden of proof in an age discrimination suit, Gallaway looked to federal case law and said that plaintiff is entitled to recovery if age discrimination was a determining factor in plaintiff's discharge. Neither...