Department of Civil Rights v. Horizon Tube Fabricating, Inc.

• Decision Date: 03 February 1986
• Docket Number: No. 80852,80852
• Citation: 385 N.W.2d 685,148 Mich.App. 633
• Court: Court of Appeal of Michigan — District of US
• Parties: , 42 Empl. Prac. Dec. P 36,968 Michigan DEPARTMENT OF CIVIL RIGHTS, ex rel. Marian Caskey, Claimant-Appellee, Cross-Appellant, v. HORIZON TUBE FABRICATING, INC., Respondent-Appellant, Cross-Appellee.

Page 685

385 N.W.2d 685

148 Mich.App. 633, 42 Empl. Prac. Dec. P 36,968

Michigan DEPARTMENT OF CIVIL RIGHTS, ex rel. Marian Caskey Claimant-Appellee, Cross-Appellant, v. HORIZON TUBE FABRICATING, INC., Respondent-Appellant, Cross-Appellee.

No. 80852.

Court of Appeals of Michigan.

Feb. 3, 1986.

Charlene Snow, Detroit, for claimant-appellee, cross-appellant.

Hongiman, Miller, Schwartz & Cohn, by Michael A. Heck, Detroit, for respondent-appellant, cross-appellee.

Before WAHLS, P.J., and R.B. BURNS and DODGE ^*, JJ.

R.B. BURNS, Judge.

This appeal arises out of claimant's claim of employment discrimination in violation of the Elliott-Larsen Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq. Claimant, Marian Caskey, was hired by respondent in July, 1977. She was 5 feet 4 1/2 inches tall and weighed approximately 250 pounds at the time she was hired. In May, 1980, several employees, including claimant, were laid off. After learning that employees with less seniority were being recalled, claimant called respondent and was informed that she had to undergo a physical examination as a condition to recall. Accordingly, she was examined at Metro Industrial Clinic on July 18, 1980. After claimant brought the written results of the examination to respondent, she was informed by respondent that she would not be recalled unless she lost 125 pounds. She then went to her family physician who also examined claimant and found that she was physically able to resume her employment.

Claimant filed charges with the Civil Rights Commission and hearings were held before a referee in July and August, 1982. At the July hearing, claimant testified that she had made efforts to find new employment but that she had been unable to find full time, regular work. As a result, her only employment had been caring for an elderly woman on an irregular basis, for which she was compensated $91 a month. Claimant testified that she had filled out applications "up and down Northline", but that her efforts had been unsuccessful. Upon cross-examination, claimant admitted that the last time she had reported to the unemployment office was one to two years previously. However, she stated that she had been to the office within the prior two months to examine the microfilms of job listings. She recalled specifically applying for a position at the Kelsey-Hayes plant in Pontiac in September, 1981, the winter of 1981 or 1982 and summer of 1982.

In its decision, the Commission found that respondent had unlawfully failed and refused to recall claimant because of her weight and that respondent had not shown that claimant failed to mitigate her damages. The Commission also awarded claimant's attorney, Charlene Snow, fees in the amount of $8,437, calculated at a rate of $70 per hour.

The Commission's decision was appealed to the Wayne County circuit court and the circuit judge upheld the decision of the Commission, but increased the attorney fees awarded to Snow to a rate of $90 per hour. The court declined to rule on whether claimant was entitled to interest on the award.

The first issue we consider is whether the circuit court applied the correct standard in determining whether claimant mitigated her damages. The circuit court looked to federal cases under Title VII, 42 U.S.C. 2000e et seq., and concluded that claimant was required to use reasonable care and diligence in seeking suitable employment in order to mitigate her damages.

In Michigan, the defendant has the burden to prove that the plaintiff failed to employ every reasonable effort to mitigate damages. Williams v. American Title Ins. Co., 83 Mich.App. 686, 269 N.W.2d 481 (1978). This rule is applicable to both contract and tort actions. Williams, supra. The question of the appropriate standard for determining a plaintiff's obligation to mitigate damages under Elliott-Larsen appears to present a question of first impression. However, like the circuit judge, we look to federal decisions under Title VII for guidance.

Like Elliott-Larsen, a primary purpose of Title VII is to prohibit discriminatory practices in employment. See Ford Motor Co. v. EEOC, 458 U.S. 219, 102 S.Ct 3057, 73 L.Ed.2d 721 (1982). Because of the similarities in the statutes, Michigan courts have frequently relied on federal decisions under Title VII when deciding state employment discrimination claims. ¹

Section 706(g) of Title VII ² imposes a duty to mitigate damages. However, once a claimant has presented a prima facie case of discrimination and damages, the burden of demonstrating that he failed to mitigate his damages shifts to the respondent. Rasimas v. Michigan Dep't. of Mental Health, 714 F.2d 614 (CA6, 1983); Kaplan v. International Alliance of Theatrical & Stage Employees & Motion Picture Machine Operators, 525 F.2d 1354 (CA9, 1975). In order to meet this burden, respondent must provide evidence to satisfy the following two-pronged test:

"The burden of proving a failure to mitigate damages in an employment discrimination suit is on defendant. Kaplan [supra, p. 1363]. To satisfy this burden, defendant must establish (1) that the damage suffered by plaintiff could have been avoided, i.e. that there were suitable positions available which plaintiff could have discovered and for which he was qualified; and (2) that plaintiff failed to use reasonable care and diligence in seeking such a position." Sias v. City Demonstration Agency, 588 F.2d 692, 696 (C.A.9, 1978).

This test appears to be almost uniformly accepted. ³

We disagree with respondent's interpretation of "reasonable care and diligence" as meaning that the discharged employee is required to make every effort to find employment. A claimant is only required to make every reasonable effort to mitigate damages and is not held to the highest standard of diligence. Rasimas, supra; United States v. Lee Way Motor Freight, Inc., 625 F.2d 918 (CA10, 1979); Thurber, supra.

Moreover, a finding of diligence is not a condition precedent to an award of back pay. It is a respondent, not a claimant, who bears the burden of establishing that the claimant willfully failed to mitigate damages and this burden is not met merely by showing that further actions could have been taken in the pursuit of employment. "Rather, the defendant must show that the course of conduct plaintiff actually followed was so deficient as to constitute an unreasonable failure to seek employment." Thurber, supra, p. 242.

In summary, diligence in mitigating damages within the employment discrimination context does not require every effort, but only a reasonable effort and it is a respondent, not a claimant, who has the burden of establishing that the claimant failed to make an honest, good faith effort to secure employment.

Having concluded that the circuit judge applied the correct standard, we must now determine whether he was correct in finding that claimant mitigated her damages. This Court's review of the circuit court's findings in the present case is governed by the clearly erroneous standard of MCR 2.613(C), formerly GCR 1963, 517.1. Dixon v. Ford Motor Co., 402 Mich. 315, 262 N.W.2d 666 (1978); Civil Rights Comm. v. Chrysler Corp., 80 Mich.App. 368, 263 N.W.2d 376 (1977).

After reviewing the testimony of claimant and the complete lack of any contradictory testimony by respondent, the circuit court found that respondent had failed to meet its burden of proof. A review of the whole record does not leave us with the "definite and firm conviction that a mistake has been committed". Tuttle v. Dep't of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244 (1976).

Respondent next argues that the circuit court abused its discretion in awarding claimant attorney fees at the rate of $90 per hour. The controlling criterion for evaluating a court's award of attorney fees is reasonableness. In Wood v. DAIIE, 413 Mich. 573, 321 N.W.2d 653 (1982), the Court set forth the guidelines to be employed in computing reasonable attorney fees:

" '(1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client.' " Wood, supra, p. 588, quoting Crawley v. Schick, 48 Mich.App. 728, 737, 211 N.W.2d 217 (1973).

This Court will uphold the circuit court's finding of reasonableness absent an abuse of discretion. Wood, supra; Nelson v. DAIIE, 137 Mich.App. 226, 359 N.W.2d 536 (1984).

Our review of the record indicates that the circuit judge took into account the appropriate factors, examined those factors in light of the facts of this case, and reached a reasonable conclusion as to the number of hours to be compensated and the rate for that compensation. We find no abuse of discretion on this issue.

Finally, we turn our attention to the question of whether the circuit court erred in denying claimant's request for interest on the award. Interest on a judgment is purely a creature of statute and if it is to be allowed at all, some statutory authority must authorize it. Motyka v. Detroit, G.J. & M.R. Co., 260 Mich. 396, 244 N.W. 897 (1932); Osinski v. DAIIE, 69 Mich.App. 426, 245 N.W.2d 76 (1976). ⁴

M.C.L. Sec. 600.6013; M.S.A. Sec. 27A.6013 provides that interest "shall be allowed on any money judgment recovered in a civil action". This Court noted the limited applicability of this section in Osinski, supra, p. 428, 245 N.W.2d 76:

"By its express terms Sec. 6013 applies only to a money judgment recovered in a 'civil action' and permits interest to accrue from the date of filing the complaint. A civil action is commenced only 'by filing a complaint with the court'. GCR 1963, 101, MCLA 600.1901; MSA 27A.1901."

Because Sec. 6013 is in derogation of the common law, which does not generally allow interest on judgments, it must be strictly construed. Motyka, supra; ...