Brewster v. Martin Marietta Aluminum Sales, Inc., Docket Nos. 70493

Decision Date26 December 1985
Docket Number70494,Docket Nos. 70493
Citation378 N.W.2d 558,145 Mich.App. 641
Parties, 47 Fair Empl.Prac.Cas. (BNA) 1276, 121 Lab.Cas. P 56,820, 3 IER Cases 1399 Joy BREWSTER, Plaintiff-Appellee Cross-Appellant, v. MARTIN MARIETTA ALUMINUM SALES, INC., A Corporation, Defendant-Appellant Cross-Appellee. Joy BREWSTER, Plaintiff-Appellee Cross-Appellant, v. MARTIN MARIETTA ALUMINUM SALES, INC., A Corporation, And Martin Marietta Aluminum, Inc., A Corporation, Jointly And Severally, Defendants-Appellants Cross-Appellees.
CourtCourt of Appeal of Michigan — District of US

Schaden & Heldman by Victoria C. Heldman, Detroit, for plaintiff-appellee.

Dickinson, Wright, Moon, Van Dusen & Freeman by John Corbett O'Meara, George R. Ashford, and Francis R. Ortiz, Detroit, for defendants-appellants.

Before V.J. BRENNAN, P.J., and CYNAR and SIMON, * JJ.

V.J. BRENNAN, Presiding Judge.

In 1957, plaintiff, Joy Brewster, was hired by Harvey Aluminum, Inc., as a secretary in its Detroit office. In 1968, Martin Marietta Aluminum, Inc., acquired Harvey Aluminum, and by 1971, plaintiff had become an industrial sales representative for Martin Marietta. On September 30, 1975, plaintiff's employment was terminated for unsatisfactory job performance and insubordination.

Plaintiff began as a secretary for Martin Marietta, but after a time, she was actually functioning much of the time as an inside sales representative. In 1970, plaintiff was working outside sales, part-time, and in 1971 she officially became an outside sales representative. She testified that she received virtually no sales training, despite repeated requests, although other new sales representatives (mainly men) received eight weeks of training.

In May, 1971, Francis X. Bradley, vice-president of Martin-Marietta Aluminum, visited the Detroit office and spoke to the plaintiff, asking her if she was still expected to do secretarial work. When she replied that she was, Bradley said that that was not his intention and that she should be a full-time salesperson.

The plaintiff was a successful sales representative and was in the top 25 percent in sales in the company in 1972 and 1973. She received numerous accolades from her superiors and from her customers. In 1973, Jerry Henry was hired as Midwest General Sales Manager and plaintiff's supervisor. In 1974, plaintiff was made an Account Executive II and was given a raise of $3,900 a year. She was told the raise was to bring her in line with others in her classification. That year plaintiff had her best year, selling 7.5 million dollars' worth of aluminum. In late 1974 and 1975, plaintiff testified that aluminum became difficult to sell particularly in the Detroit area with its numerous automotive accounts.

In February, 1975, plaintiff had a dinner meeting with Jerry Henry in Detroit. Plaintiff testified that Henry told her that he thought that the company was moving too quickly in respect to women in sales and that women were not really appropriate in the sales field. When he returned to his office in Chicago, he called and apologized for his statement.

A regional sales meeting was held in Pheasant Run, near Chicago, on April 2, 1975. A blizzard caused a number of sales representatives to be delayed, including the plaintiff, who arrived at dinnertime. Plaintiff testified that Jerry Henry was upset about the delays and that he abruptly told her, in front of the other sales representatives, that she was "skating on thin ice" and not doing a good job. The next day, she stated that he called her "love" several times.

On April 23, 1975, Henry called the plaintiff to Chicago and gave her a memorandum stating that her performance was creating concern, that she had made contacts out of the line of authority, that she had been insubordinate at the dinner meeting, and that she had a poor attitude toward working with the company's Aluminum Express System and with an inside sales representative at the Lewisport, Kentucky, mill. The memorandum stated that plaintiff was to be put on probation for 30 days.

Plaintiff answered Henry's memorandum, expressing her concern with the abrupt and drastic nature of the criticism, promising to make every effort to comply with Henry's directives, and noting a planned trip to Lewisport to iron out any difficulties.

In early May, the plaintiff went to the Lewisport mill to meet with Mr. John Ullrich, plaintiff's Aluminum Express representative, and Harold Long, Ullrich's supervisor. Following the meeting, the plaintiff received a note from Harold Long which intimated that the meeting had been a success and that any problems between plaintiff and Ullrich had been substantially solved.

On May 23, 1975, plaintiff met with Henry as scheduled. She testified that Henry told her that she was doing well and had improved in all areas, but that he had to find additional things to "protect his files". He then gave her a memorandum in which it was stated that she had improved in some areas, but a number of other areas were of "continuing concern", including unspecified "insubordination". He also stated that he had taken Ullrich off of her accounts in Lewisport and was substituting Thelma Cecil. The memorandum stated that another review would be done in 90 days.

Plaintiff testified that the market for aluminum in the summer of 1975 was very soft. Nevertheless, she received a congratulatory memorandum from Henry after selling a difficult account. Plaintiff testified that in July, Henry told her that she was doing a great job and was off of probation. In a subsequent meeting, she stated that he told her that William Sullenberger, the General Manager of Sales, would not let him take her off of probation, so another meeting would be required. In July, Thelma Cecil came to Detroit from Lewisport to make sales calls with the plaintiff. Plaintiff testified that the visit had gone well.

In August, 1975, plaintiff testified that she was second or third out of 22 or 23 sales representatives in a national sales contest. On August 20, plaintiff was again called to Chicago and Jerry Henry gave her a third negative memorandum regarding her performance. Plaintiff testified that at this meeting Henry also mentioned that the company had just hired two women in sales and that he thought the company was moving too fast in respect to women in sales.

On September 23, 1975, plaintiff met with Robert McCallum, the company's Director of Industrial Relations, and was abruptly offered the option of resigning, being terminated, or taking an inside sales job at the mill in Torrance, California. Plaintiff considered the Torrance job a demotion and refused it. Her employment was terminated on September 30, 1975.

On April 23, 1976, Brewster filed a complaint in Wayne County Circuit Court against Martin Marietta Aluminum, Inc., alleging that she was subjected to sex discrimination and age discrimination in violation of Michigan statutes. Plaintiff amended her complaint on August 25, 1976, to name as a defendant Martin Marietta Aluminum Sales, Inc., a wholly owned subsidiary of Martin Marietta Aluminum, Inc. On September 28, 1978, plaintiff commenced a second action against Martin Marietta Aluminum, Inc. and Martin Marietta Aluminum Sales, Inc., (jointly and severally) alleging as causes of action intentional infliction of emotional distress, breach of an implied contract of employment and negligent breach of that implied contract. On October 29, 1979, the cases were consolidated for trial by stipulation and order of the Wayne County Circuit Court.

The matter was tried before a jury beginning on September 7 and continuing through October 1, 1982. Prior to submission of the case to the jury, the trial court granted defendants' motion for a directed verdict on the intentional infliction of emotional distress claim and plaintiff withdrew her age discrimination claim. (Plaintiff does not appeal from the directed verdict on the emotional distress tort claim.)

The jury was instructed on the theories of: breach of an implied employment contract (damages for economic loss); negligent breach of the implied employment contract (damages for mental distress, suffering and humiliation), and sex discrimination as a result of the wrongful termination (damages for unequal pay). The jury found in favor of plaintiff on all theories of recovery and awarded her $740,000 for economic loss as a result of the breached employment contract, mental distress damages of $500,000 as a result of the "negligent" breach, and $30,000 for unequal pay because of sex discrimination.

The defendants moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial on all counts. It appears from the record that in plaintiff's supplemental answer to defendants' motion for judgment notwithstanding the verdict, plaintiff set forth a "conditional motion to modify" the judgment in the event that the trial court ruled in favor of defendants on the "negligent" breach claim, whereby plaintiff requested that the court either reassign the mental distress damages to the sex discrimination claim or "correct" the legal theory of negligence to allow plaintiff her damages under the theory of pure negligence in "undertaking to investigate good cause for plaintiff's termination". It also appears from the record that plaintiff agreed with defendants that the $30,000 award for unequal pay should be set aside because calculations were apparently made from 1968 and there may have been statute of limitation problems relating to the years prior to 1973.

On March 11, 1983, the trial court denied defendants' motions on the economic loss award which related to the breach of an implied employment contract and evidence supporting the sex discrimination claim and granted defendants' motion for a judgment notwithstanding the verdict on the mental distress award for plaintiff's "negligent" breach of contract...

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