King v. General Motors Corp.

• Decision Date: 19 October 1984
• Docket Number: Docket No. 69544
• Citation: 356 N.W.2d 626,136 Mich.App. 301
• Parties: Cynthia KING, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant. 136 Mich.App. 301, 356 N.W.2d 626, 42 Fair Empl.Prac.Cas. (BNA) 1539
• Court: Court of Appeal of Michigan — District of US

Page 626

356 N.W.2d 626

Cynthia KING, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.

Docket No. 69544.

136 Mich.App. 301, 356 N.W.2d 626,

42 Fair Empl.Prac.Cas. (BNA) 1539

Court of Appeals of Michigan.

Submitted April 11, 1984.

Decided July 16, 1984.

Released for Publication Oct. 19, 1984.

[136 MICHAPP 303] Kelman, Loria, Downing, Schneider & Simpson by Michael L. Pitt, Detroit, for plaintiff-appellee.

Bodman, Longley & Dahling by Theodore Souris and Lloyd C. Fell, Detroit, for defendant-appellant.

Before HOOD, P.J., and KELLY and LIVO ^*, JJ.

KELLY, Judge.

Defendant appeals as of right from a jury verdict of $119,985 in favor of plaintiff. Plaintiff cross-appeals the trial court's denial of attorney fees. We remand for further proceedings consistent with this opinion.

Plaintiff filed this employment discrimination action in 1979 alleging breach of employment contract, 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., and retaliatory discharge. Plaintiff began her employment with defendant as a stenographer in September of 1974 but was laid off for economic reasons the following January. She returned as a probationary employee in February of 1976 but was terminated on May 17, 1976.

Defendant contends that plaintiff was let go at the end of her probationary period for unsatisfactory job performance. Plaintiff contends that she was released because of her objection and challenge to the company's practice of addressing male executive staff members by their surnames and [136 MICHAPP 304] female secretarial staff members by their first names. Plaintiff first challenged the practice in early April of 1976 by submitting a suggestion to management on a company-approved form. Her suggestion was rejected by letter dated April 12, 1976. Plaintiff resubmitted her proposal on April 30, 1976, complaining that defendant had failed to take her seriously and failed to satisfactorily respond to her suggestion that the company affirmatively pursue a plan or policy to change the practice as it had then evolved. Plaintiff was terminated approximately two weeks later. According to plaintiff, she had never received any disciplinary warnings and had, in fact, received "highly satisfactory" evaluations prior to her lay-off in January of 1975.

Plaintiff introduced evidence to establish economic damages caused by lost wages as well as damages for mental and emotional distress (aggravating a preexisting, stress-related condition of hypoglycemia) and humiliation and anguish at being fired. The jury returned a verdict for plaintiff on the discrimination and retaliatory discharge claims, awarding compensatory damages of $69,985 and exemplary damages of $50,000. A no cause of action verdict was returned on her breach of employment contract claim. The court then granted equitable relief and ordered defendant to reinstate plaintiff at the next available job opening at GMC. Plaintiff's motion for attorney fees was denied.

Two of the issues raised by the parties on appeal require remand.

In its instructions, the trial court informed the jury that the elements of compensatory damages included: "mental anguish, embarrassment and humiliation". Over defendant's objection to any [136 MICHAPP 305] instruction on exemplary damages, the trial court then instructed:

" * * * Furthermore, in respect to the retaliatory discharge claim only, if you find that the defendant acted in willful and reckless disregard of the plaintiff's rights, you may award exemplary damages. Such damages represent the amount by which you may increase your award of compensatory damage to Ms. King.

"The amount of such damages, if you find them, may be determined in accordance with the degree of maliciousness or oppressiveness of defendant's misconduct, and are to compensate the plaintiff for added injury to her feelings as a result of the nature of the defendant's misconduct.

"These damages are assessed to compensate outrage, loss of dignity, insult and mental depression caused by defendant's actions. This increase in damages caused by defendant's company is for you to determine as jurors acting in consideration of all the circumstances. It cannot be an amount beyond that which would fairly compensate plaintiff."

The jury rendered its verdict in August of 1982. In December of that same year, the Michigan Supreme Court decided Veselenak v. Smith, 414 Mich. 567, 327 N.W.2d 261 (1982), holding that, where actual compensatory damages are allowable for emotional or mental distress and anguish, an instruction on exemplary damages for the same elements is redundant; therefore an award of money damages based on such redundant instruction constitutes impermissible double recovery for the same injury. See also Pauley v. Hall, 124 Mich.App. 255, 268, 335 N.W.2d 197 (1983), lv. den. 418 Mich. 870 (1983). Defendant seeks retroactive application of Veselenak v. Smith, arguing that reversal is required on the ground that the jury was improperly instructed in a manner that allowed for double recovery.

[136 MICHAPP 306] We agree that the rule announced in Veselenak v. Smith applies to this case. The general rule is that decisions of Michigan appellate courts are to be given full retroactivity unless limited retroactivity is preferred where justified by (1) the purpose of the new rule, (2) the general reliance upon the old rule, and (3) the effect of full retroactive application of the new rule on the administration of justice. Tebo v. Havlik, 418 Mich. 350, 360-361, 343 N.W.2d 181 (1984); People v. Longwish, 109 Mich.App. 15, 18-19, 310 N.W.2d 893 (1981), lv. den. 413 Mich. 887 (1982). See also the late Justice Moody's article entitled Retroactive Application of Law-Changing Decisions in Michigan, 28 Wayne L Rev 439 (1982). In keeping with the practice of limited retroactivity, we hold that Veselenak v. Smith should be applied to all those cases pending at the time the decision was released. Inasmuch as this (King ) case was pending on appeal before this Court when Veselenak v. Smith was released, we find error in the instructions to the jury allowing both compensatory and exemplary damages for plaintiff's mental and emotional distress and anguish. We thus vacate the exemplary damages award and allow plaintiff the option of moving for a new trial limited to the damages issue only or of filing a written consent to a judgment in the amount of the compensatory damages awarded by the jury at trial in the amount of $69,985. See Zmija v. Baron, 119 Mich.App. 524, 543, 326 N.W.2d 908 (1982) (Judge Walsh's partial concurrence).

We also find it necessary to remand this case on the question of attorney fees. In post-trial proceedings, plaintiff moved for attorney fees under Sec. 802 of the Elliott-Larsen Civil Rights Act, M.C.L. Sec. 37.2802; M.S.A. Sec. 3.548(802). The trial court denied the motion on the ground that attorney fees [136 MICHAPP 307] should be awarded only where plaintiff could not otherwise have obtained competent counsel. Since plaintiff's attorney accepted this case on a contingent fee contract, the court reasoned that plaintiff did not need an attorney fee award under Sec. 802.

As in all cases where attorney fees are recoverable pursuant to statute or court rule, the decision to grant or deny an award of attorney...