Gallaway v. Chrysler Corp., Docket No. 43141

• Decision Date: 07 April 1981
• Docket Number: Docket No. 43141
• Citation: 306 N.W.2d 368,105 Mich.App. 1
• Parties: Edward GALLAWAY, Plaintiff-Appellant, v. CHRYSLER CORPORATION, Defendant-Appellee. 105 Mich.App. 1, 306 N.W.2d 368, 33 Fair Empl.Prac.Cas. (BNA) 500, 26 Empl. Prac. Dec. P 32,054
• Court: Court of Appeal of Michigan — District of US

Page 368

306 N.W.2d 368

Edward GALLAWAY, Plaintiff-Appellant, v. CHRYSLER CORPORATION, Defendant-Appellee.

Docket No. 43141.

105 Mich.App. 1, 306 N.W.2d 368,

33 Fair Empl.Prac.Cas. (BNA) 500,

26 Empl. Prac. Dec. P 32,054

Court of Appeals of Michigan.

April 7, 1981.

Rehearing Denied May 17, 1981.

Released for Publication June 16, 1981.

[105 MICHAPP 3] Gerald D. Wahl, Detroit, for plaintiff-appellant.

Thomas G. Kienbaum, Detroit, for defendant-appellee.

Before BRONSON, P. J., and V. J. BRENNAN and T. M. BURNS, JJ.

T. M. BURNS, Judge.

Plaintiff, Edward Gallaway, appeals as of right a November 8, 1979, jury verdict of no cause of action in the instant age-discrimination suit. We reverse.

Plaintiff first argues that the trial judge did not properly instruct the jury with regard to the burden of proof in an age-discrimination suit. Specifically, the record indicates that the judge charged the jury that they were to return a verdict in [105 MICHAPP 4] favor of defendant if a determining factor in plaintiff's desire to retire was something other than age discrimination. ¹

Although no Michigan appellate court has been [105 MICHAPP 5] called upon to address the question of a plaintiff's burden of proof in an age-discrimination suit, we are persuaded that the proper statement of that burden was enunciated by the United States Sixth Circuit Court of Appeals in Laugesen v. Anaconda Co., 510 F.2d 307, 317 (CA 6, 1975). In Laugesen, the Sixth Circuit concluded that even though the burden of proof never shifts from the plaintiff in an age-discrimination suit, in order to recover, a plaintiff need not prove that age discrimination was the sole, critical factor in the termination of his or her employment:

"While the instructions make it manifestly clear that the jury should find for the defendant if termination 'is for bona fide business or economic reasons in which age is not a factor,' the converse is not stated. Rather, the instructions concerning the right of plaintiff to recover state that it is unlawful to discharge an individual 'merely because of his age,' and that he has the burden of showing by a preponderance of the evidence 'that he was discharged from his job because of his age' without making it clear that it need not have been the sole or exclusive cause.

"However expressed, we believe it was essential for the jury to understand from the instructions that there could be more than one factor in the decision to discharge him and that he was nevertheless entitled to recover if one such factor was his age and if in fact it made a difference in determining whether he was to be retained or discharged. This is so even though the need to reduce the employee force generally was also a strong, and perhaps even more compelling reason. It is because the instructions did not convey this necessary concept of the law to the jury that we are compelled to reverse and remand for a new trial." (Emphasis supplied).

The instructions given to the jury in the case at bar suffer from the same defect as those in the [105 MICHAPP 6] Laugesen case. Discrimination, whether based on race, religion, sex, or age, cannot be tolerated in a free society regardless of whether the objective sought thereby could be partially justified for other, legitimate reasons. Just as the law recognizes no such concept as partial or limited free speech, it will give no sufferance to partial or limited discrimination. To the extent that the jury in the case at bar was instructed that plaintiff could not recover if a consideration other than age discrimination was a determining factor in the termination of his employment, error was committed. The jury should have been instructed that they were to return a verdict in favor of plaintiff if they found that age discrimination played a significant role in the reason for his retirement notwithstanding the presence of other, lawful considerations that also may have contributed to the cause of his retirement.

We reject defendant's argument that plaintiff, having failed to object to the jury instructions regarding the burden of proof, has waived this issue and may not raise it on appeal. As a general rule, appellate arguments may not be predicated upon a purported error in jury instructions to which no objection was raised. Moskalik v. Dunn, 392 Mich. 583, 592, 221 N.W.2d 313 (1974); GCR 1963, 516.2. Nonetheless, where the defect in instruction is of such a magnitude as to constitute plain error requiring a new trial, Id., or where it pertains to a basic and controlling issue in the case, Hunt v. Deming, 375 Mich. 581, 134 N.W.2d 662 (1965), this Court may conclude that in order to avoid manifest injustice in a case it must consider and address error arising from jury instructions to which no objection was raised. The instructional error before us concerns a controlling [105 MICHAPP 7] issue in a case that arises out of a developing area in the law. In order to prevent the occurrence of manifest injustice, we will consider and correct that error.

Having resolved what we deem is the critical issue in this case, we turn to other issues raised by plaintiff that concern matters likely to recur on retrial.

Plaintiff argues that the lower court erred in permitting the introduction at trial of evidence indicating that plaintiff received social security disability and workers' compensation benefits. We find no error in the admission of this evidence. Evidence of plaintiff's receipt of these benefits was admitted at trial as bearing on the critical issue of the reason for his retirement. Under MRE 403 relevant evidence may be excluded if, within the discretion of the trial judge, "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury * * * ". Carreras v. Honeggers & Co., Inc., 68 Mich.App. 716, 244 N.W.2d 10 (1976). We do not agree with plaintiff's argument that the judge abused his discretion in this matter, nor can we say that the introduction of plaintiff's social security and workers' compensation files violated the collateral-source doctrine. Where the introduction of evidence concerning collateral benefits has bearing on some purpose other than the question of mitigating damages, it is admissible. Blacha v. Gagnon, 47 Mich.App. 168, 209 N.W.2d 292 (1973); Jackson v. Sabuco, 21 Mich.App. 430, 175 N.W.2d 532 (1970), lv. den. 383 Mich.App. 784 (1970).

Nor do we find error in plaintiff's third issue, that is, that the judge erred in limiting the scope of plaintiff's redirect examination as to certain matters regarding his receipt of collateral source [105 MICHAPP 8] benefits. The scope of redirect examination is within the sound discretion of the trial judge. Parkdale Homes, Inc. v. Twp. of Clinton, 23 Mich.App. 682, 685, 179 N.W.2d 232 (1970). In general, redirect examination must focus on matters raised during cross-examination. Carreras, supra. On redirect examination, plaintiff sought to explore certain psychological difficulties that limited his employability. Because this matter was not raised on cross-examination of the same witness, we cannot say that the trial judge abused his discretion by limiting this line of questioning.

With respect to plaintiff's argument that the trial judge erred in permitting defendant to use plaintiff's...