Brocklehurst v. PPG Industries, Inc.

• Decision Date: 09 October 1997
• Docket Number: 95-1888 and 96-1096,Nos. 95-1835,s. 95-1835
• Citation: 123 F.3d 890
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 984, 72 Empl. Prac. Dec. P 45,149 Karl D. BROCKLEHURST, Plaintiff-Appellee/Cross-Appellant, v. PPG INDUSTRIES, INC., Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 890

123 F.3d 890

74 Fair Empl.Prac.Cas. (BNA) 984,

72 Empl. Prac. Dec. P 45,149

Karl D. BROCKLEHURST, Plaintiff-Appellee/Cross-Appellant, v. PPG INDUSTRIES, INC., Defendant-Appellant/Cross-Appellee.

Nos. 95-1835, 95-1888 and 96-1096.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 28, 1997.

Decided Aug. 18, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 9, 1997.

Jeannette A. Paskin (briefed), Daniel J. Seymour (argued and briefed), Paskin, Nagi & Baxter, Detroit, MI, Paul A. Callam, Cooper, Straub, Walinski & Cramer, Ann Arbor, MI, Jamil Akhtar, Jamil Akhtar, P.C., Birmingham, MI, for Plaintiff-Appellee/Cross-Appellant in Nos. 95-1835 and 95-1888.

Jeannette A. Paskin, Daniel J. Seymour (argued and briefed), Paskin, Nagi & Baxter, Detroit, MI, Paul A. Callam, Cooper, Straub, Walinski & Cramer, Ann Arbor, MI, for Plaintiff-Appellee/Cross-Appellant in No. 96-1096.

Ernest R. Bazzana (argued and briefed), James R. Kohl, Plunkett & Cooney, Detroit, MI, for Defendant-Appellant/Cross-Appellee.

Robert W. Powell (briefed), Dickinson, Wright, Moon, Van Dusen & Freeman, Detroit, MI, for Amicus Curiae.

Before: GUY, SUHRHEINRICH, and BATCHELDER, Circuit Judges.

BATCHELDER, Circuit Judge.

Defendant PPG Industries, Inc., appeals from a jury verdict in favor of plaintiff Karl D. Brocklehurst on plaintiff's claim that defendant terminated his employment because of his age, in violation of Michigan's Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS ANN. §§ 37.2101-.2804 (West 1985). Defendant contends that the district court erroneously denied its motion for judgment as a matter of law. Plaintiff cross-appeals the district court's order granting summary judgment to defendant on his wrongful-discharge claim. Plaintiff also appeals the denial of his motion for attorney fees. For the reasons that follow, we REVERSE the district court's ruling that defendant was not entitled to judgment as a matter of law on plaintiff's age discrimination claim, AFFIRM the grant of summary judgment in favor of defendant on plaintiff's wrongful-discharge claim, and AFFIRM the denial of plaintiff's motion for attorney fees.

I. STATEMENT OF FACTS

Defendant PPG Industries, Inc., is a major supplier of automobile products to both domestic and foreign automobile manufacturers. On June 18, 1984, PPG hired Brocklehurst, who was 40 years old at the time, as a technical service representative. A year and a half later, PPG promoted Brocklehurst to director of marketing for the Ford Motor Company account. Subsequently, Brocklehurst's responsibilities grew to include managing the marketing and sales efforts of the Mazda account. E.J. Horvath, director of marketing for North America, was Brocklehurst's immediate supervisor. E.K. Pollock, vice-president of automotive products, headed Brocklehurst's department.

Brocklehurst received satisfactory reviews while working as director of marketing. PPG's evaluations place employees in three categories: (1) "needs improvement"; (2) "fully meets job requirements"; and (3) "exceeds job requirements." Horvath evaluated Brocklehurst in January 1989 and March 1991. Each time he rated Brocklehurst's overall job performance as "fully meets job requirements." During the 1989 evaluation, however, Horvath noted that Brocklehurst needed to improve his client relationships and exercise more control over certain PPG programs. Moreover, in Brocklehurst's 1991 evaluation Horvath explained that although Brocklehurst and the Ford team had a successful year in 1990, Brocklehurst faced the difficult task of strengthening PPG's future at Ford. ¹ PPG also rates employees on a 0 to 15 scale for its Incentive Compensation Plan. Horvath rated Brocklehurst a 10, 9, and 7 for the years 1989, 1990, and 1991 respectively. ²

In 1990, PPG began experiencing a decline in profitability due to cost increases, slowing sales, and the general economic conditions of that time. PPG originally attempted to ameliorate this problem through cost-cutting measures that did not involve staff reductions. In 1991, however, Pollock received direct orders to reduce the number of employees in his department. Consequently, PPG's managerial staff began to discuss a reduction-in-force ("RIF") program. Pollock emphasized that the RIF should affect all levels of PPG personnel, not just lower-level employees. Moreover, performance was to be the sole criterion for determining which employees would be discharged as part of the RIF.

Between September and November 1991, PPG managers ranked their subordinates from best to worst in order to identify the lesser-performing employees. Each employee was ranked only against his or her peers. When Horvath completed his comparisons, Brocklehurst was at the bottom of the list. Horvath felt that Brocklehurst was not willing to make the necessary client contacts and had less potential than the other members of his peer group. Horvath therefore identified Brocklehurst as an employee whom PPG should eliminate as part of the RIF.

Pollock was the individual who had to make the ultimate decision regarding Brocklehurst's future at PPG. Pollock decided that Brocklehurst should be discharged as part of the RIF. Pollock explained that after seriously evaluating his managers, he concluded that Brocklehurst "enjoyed the status and the perks of being a boss more than he liked the responsibility of being a boss." Moreover, when things went wrong, Brocklehurst separated himself from the members of his team instead of working with them to improve themselves. When things were running smoothly, however, Brocklehurst "didn't wait a second to get out in front of the parade." Pollock explained that he did not think that Brocklehurst cared about becoming a better manager or achieving the same degree of success as his peers. It is undisputed that Pollock did not know Brocklehurst's age.

On January 3, 1992, Horvath advised Brocklehurst that he was being discharged as part of the RIF. Horvath explained that the Ford team needed new "vitality and direction." Brocklehurst was 48 years old.

Shortly thereafter, Pollock and Horvath decided to promote Phil Johnson, age 38, to director of marketing for the Ford account. Prior to the promotion, Johnson had been working as director of automotive marketing at Chemfil, a wholly-owned PPG subsidiary to which the RIF extended.

PPG discharged approximately 130 employees as part of its RIF, achieving cost savings near $7 million.

II. CASE HISTORY

Brocklehurst instituted this age discrimination and wrongful-discharge action against PPG in Michigan state court. Brocklehurst filed a two-count complaint alleging that: (1) PPG discharged him because of his age in violation of the Michigan Elliott-Larsen Civil Rights Act; and (2) PPG breached an implied "just cause" employment contract. PPG removed this action to the United States District Court for the Eastern District of Michigan on diversity grounds.

PPG moved for summary judgment on both counts. The district court, in a published opinion, granted PPG summary judgment on the wrongful-discharge claim but denied summary judgment on the age discrimination claim. See Brocklehurst v. PPG Indus., Inc., 836 F.Supp. 1354 (E.D.Mich.1993).

The case proceeded to trial and at the close of Brocklehurst's case in chief, PPG moved for judgment as a matter of law. The district court denied this motion. PPG renewed its motion for judgment as a matter of law at the close of all the proofs. The court denied the motion and sent the case to the jury.

The jury returned a verdict in favor of Brocklehurst for approximately $1.5 million. The court entered judgment on that amount, and PPG again renewed its motion for judgment as a matter of law and moved alternatively for a new trial. PPG also challenged the damage award. In another published opinion, the district court denied PPG's motion for judgment as a matter of law or for a new trial but remitted the damage award to $528,818. See Brocklehurst v. PPG Indus., Inc., 865 F.Supp. 1253 (E.D.Mich.1994).

Brocklehurst subsequently moved for attorney fees pursuant to § 802 of the Elliott-Larsen Civil Rights Act. MICH. COMP. LAWS ANN. § 37.2802 (West 1985). The district court denied this motion in a third published opinion. Brocklehurst v. PPG Indus., Inc., 907 F.Supp. 1106 (E.D.Mich.1995).

Both parties filed timely appeals. PPG appeals the denial of its renewed motion for judgment as a matter of law. Brocklehurst appeals the grant of summary judgment in favor of PPG on his wrongful-discharge claim. He also appeals the denial of his motion for attorney fees.

III. DISCUSSION

A.

PPG asserts that it was entitled to judgment as a matter of law on Brocklehurst's age discrimination claim because Brocklehurst wholly failed to prove that age was a determining factor in PPG's decision to terminate him. We agree.

1.

PPG's renewed motion for judgment as a matter of law challenges the sufficiency of the evidence supporting the jury's findings. Therefore, because this is a diversity case, we apply the standard of review used by the courts of the state whose substantive law governs the action. K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 176 (6th Cir.1996); Anchor v. O'Toole, 94 F.3d 1014, 1023 (6th Cir.1996) (citation omitted). In Matras v. Amoco Oil Co., the Michigan Supreme Court explained the applicable standard as follows:

In reviewing a trial court's failure to grant a defendant's motion for a directed verdict or judgment notwithstanding the verdict, we examine the testimony and all legitimate inferences that may be drawn in the light most favorable to the plaintiff. If reasonable jurors could honestly have reached different conclusions, the motion should have been denied. If reasonable jurors could disagree, neither the trial court nor this Court has the authority to substitute its judgment for that of the jury.

424 Mich. 675, 385 N.W.2d 586, 588 (1986) (footnotes omitted). A directed verdict or...