Carden v. General Motors Corp.

• Decision Date: 27 April 1987
• Docket Number: Docket No. 81824
• Citation: Carden v. General Motors Corp., 401 N.W.2d 273, 156 Mich.App. 202 (Mich. App. 1987)
• Parties: Donald CARDEN, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant. 156 Mich.App. 202, 401 N.W.2d 273, 48 Fair Empl.Prac.Cas. (BNA) 216
• Court: Court of Appeal of Michigan

Page 273

401 N.W.2d 273

Donald CARDEN, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.

Docket No. 81824.

156 Mich.App. 202, 401 N.W.2d 273,

48 Fair Empl.Prac.Cas. (BNA) 216

Court of Appeals of Michigan.

Submitted Feb. 4, 1986.

Decided Sept. 5, 1986.

Released for Publication March 9, 1987.

Leave to Appeal Denied April 27, 1987.

[156 MICHAPP 203] Benjamin & Goldfine by Frederick B. Benjamin, Southfield, for plaintiff-appellee.

[156 MICHAPP 204] Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. by Ernest R. Bazzana and Theresa M. Smith, and Maurice Jenkins, Office of Gen. Counsel, Detroit, for defendant-appellant.

Before BEASLEY, P.J., and J.H. GILLIS and CHERRY, ^* JJ.

PER CURIAM.

Plaintiff brought suit in Wayne Circuit Court against defendant corporation, alleging breach of contract and race and handicap discrimination after not having been hired for two different positions. A jury returned a unanimous verdict of no cause of action in favor of the defendant, which now appeals by leave granted from the trial court's order granting plaintiff's motion for a new trial.

The plaintiff, who is black and stutters severely, applied for an apprenticeship with defendant on June 21, 1978, and asked to be considered for three trades; electrician, millwright and machine repair. He was given aptitude tests and had an interview on July 6, 1978, with a blind employee of defendant's personnel office. Plaintiff contends that no one else was present at the interview, while defendant insists that a representative of the UAW Apprentice Committee also was present and filled out the interview forms.

Plaintiff scored thirty-three points out of a possible sixty-seven on defendant's guide to apprentice selection procedure; however he would have received from thirty-five to forty points had he received credit for a pre-apprenticeship math course which he completed, but for which he failed to bring to the interview the required documentation. An applicant must score at least thirty-five to remain eligible and in the prior five years of the [156 MICHAPP 205] program the defendant had selected no applicant with a score of less than sixty.

After failing to qualify for the apprenticeship program, the plaintiff applied for an hourly job with the defendant on July 25, 1978. He attended the orientation I meeting, but arrived late for his first interview, due to highway flooding. He was granted a new interview, attended the orientation II meeting and was provided with a physical examination on March 26, 1979. The two orientations and the interview were conducted at defendant's Consolidated Employment Center.

At trial, plaintiff testified that he received a telephone call at about 8:00 a.m. on May 4, 1979, from a woman whose name sounded like "Berry." She asked him if he still was interested in a position and told him to appear for work on Monday, May 7, 1979, at 9:00 a.m. at the Pontiac Parts Plant. She also told him to bring several employment-related forms he had received at the orientation II meeting. When plaintiff received the call, he quit the job he had found in September, 1978, as a mailroom clerk with the Michigan Credit Union League. A female employee of the Consolidated Employment Center testified that she may have been the one who called the plaintiff.

The plaintiff arrived at the Pontiac Parts Plant about 8:50 a.m. on May 7, 1979, but due to the large size of the facility and because his speech problem made it difficult for a guard to provide him with directions, he arrived at the receptionist's desk at 9:03 a.m. He was told he was late and could not continue with his appointment. When he told the receptionist that he had quit his job, she informed him he would be rescheduled within two weeks, but no one from the defendant ever called.

In his suit, plaintiff alleged breach of contract, based upon defendant's failure to hire him after [156 MICHAPP 206] allegedly making an oral contract of employment over the phone. He also alleged race discrimination under the Civil Rights Act and handicap discrimination pursuant to the Michigan Handicappers' Civil Rights Act. Trial took place for eleven days in March, 1984, at the conclusion of which the jury returned a verdict of no cause of action on behalf of the defendant. The trial judge granted a new trial on May 4, 1984, because she found the verdict against the great weight of the evidence regarding plaintiff's race discrimination claim and because of allegedly erroneous jury instructions describing the plaintiff's burden of proof. This decision was affirmed at the hearing on defendant's motion for rehearing on May 13, 1984, and defendant was granted leave to appeal on April 5, 1985.

Did the trial judge abuse her discretion in finding that the jury verdict was against the great weight of the evidence? We believe she did. GCR 1963, 527.1(5), now MCR 2.611(A)(1)(e), provides for a new trial if the verdict is against the great weight of the evidence. This Court has held:

"It is within the trial court's sound discretion to grant or deny a motion for new trial. The standard of review is whether the jury's verdict was against the overwhelming weight of evidence. A reviewing court affords deference to the trial judge's decision since the trial judge, having heard the witnesses, is uniquely qualified to judge the jury's assessment of their credibility. This Court will not substitute its judgment for that of the jury unless a review of the record reveals a miscarriage of justice." May v. Parke, Davis & Co., 142 Mich.App. 404, 410-411, 370 N.W.2d 371 (1985).

Despite this Court's usual deference to the trial court's decision, the trial court does not have an [156 MICHAPP 207] "... unlimited power to grant a new trial merely because it does not agree with the verdict. The court may not substitute its judgment for that of the finders of fact." Bell v. Merritt, 118 Mich.App. 414, 422, 325 N.W.2d 443 (1982), lv. den. 417 Mich. 954 (1983).

In granting plaintiff's motion for a new trial, the trial judge said only:

"There are a couple of things about this case which troubles us. First, the instruction on the burden of proof; and, secondly, it is this Court's opinion that as to the race question, the jury's decision was against the great weight of evidence, and we're going to grant a new trial."

No further explanation of the evidence she thought the jury had overlooked was provided, nor was anything more specific indicated at the hearing on the motion for rehearing. At that hearing, the trial judge concluded:

"As to changing the decision made earlier for a new trial. We do not grant a new trial lightly and, ah, have seen nothing that was said today that would change our mind on that, so that is that."

The determination that the jury verdict was against the great weight of the evidence was stated as applying only to the "race question." Plaintiff's race discrimination claim pertained only to his application for the apprenticeship program in June, 1978. Consequently, only the facts related to plaintiff's apprentice application need to be reviewed to determine whether the jury's verdict that there was no race discrimination was against the great weight of the evidence.

Under the administrator's guide to defendant's apprentice selection procedure, there are sixty-[156 MICHAPP 208] seven possible points which an applicant can earn. The plaintiff earned nine out of seventeen in category No. 1, based on his general education. For category No. 2, he earned no points, although it is undisputed that he had completed a pre-apprentice math program, which is significant and will be discussed below. For job experience, category No. 3, the plaintiff received no points out of a possible seven; however, he received nineteen out of twenty-two in category No. 4, based upon aptitude tests. For knowledge of trade, in category No. 5, he got no points out of two and for category No. 6, overall evaluation he earned five out of a possible ten points. His total, therefore, was thirty-three points out of the sixty-seven possible.

The pre-apprentice math program points, which might have totalled between two and seven points, could be seen as crucial. There is no dispute that defendant's plant supervisor of personnel development was aware that plaintiff had completed the math program, but testimony indicated that defendant had a strict policy requiring documentation prior to awarding points for academic courses. Plaintiff insisted that he was not told to bring such documentation and further asserted that the personnel supervisor should have called him to tell him to bring proper documentation, so that he could earn the points for the math program. Indeed, it would have been thoughtful to do so, but there is no requirement that such a step be taken and no evidence that the same ever had been done for other applicants.

The plaintiff also argued that had coursework and job experience which pertained to the applied-for trades for which he was not given credit. He had studied advertising and product design, but had not completed the coursework and the portfolio of artwork introduced at trial was not presented[156 MICHAPP 209] during the July 19, 1979, interview. And, while plaintiff had experience doing home repair work, such as painting, roofing and tiling, defendant countered that this experience was unrelated to the trades in question.

To have remained eligible for consideration as an apprentice, an applicant had to receive at least thirty-five points. Those with a score of thirty-five or higher were placed in a pool and ranked according to their points. Indeed, had plaintiff receive all seven math points and three of seven work experience points, his score might have been as high as forty-three points. This, however, would not have been sufficient for him to qualify as an apprentice. In the previous five years, all applicants chosen from the pool had scored sixty or more...