King v. Michigan Consol. Gas Co.

• Decision Date: 27 July 1989
• Docket Number: Docket No. 105120
• Citation: 442 N.W.2d 714,177 Mich.App. 531
• Parties: Michael W. KING, Plaintiff-Appellant, v. MICHIGAN CONSOLIDATED GAS COMPANY, Defendant-Appellee. 177 Mich.App. 531, 442 N.W.2d 714, 50 Fair Empl.Prac.Cas. (BNA) 772, 123 Lab.Cas. P 57,133, 4 Indiv.Empl.Rts.Cas. (BNA) 1102
• Court: Court of Appeal of Michigan — District of US

Page 714

442 N.W.2d 714

Michael W. KING, Plaintiff-Appellant, v. MICHIGAN CONSOLIDATED GAS COMPANY, Defendant-Appellee.

Docket No. 105120.

177 Mich.App. 531, 442 N.W.2d 714,

50 Fair Empl.Prac.Cas. (BNA) 772,

123 Lab.Cas. P 57,133,

4 Indiv.Empl.Rts.Cas. (BNA) 1102

Court of Appeals of Michigan.

Submitted Feb. 8, 1989.

Decided June 7, 1989.

Released for Publication July 27, 1989.

[177 MICHAPP 532] Shrauger, Dunn & Aronson, P.C. by Gary A. Benjamin, Detroit, for plaintiff-appellant.

Dickinson, Wright, Moon, Van Dusen & Freeman by Lawrence G. Campbell and Noel D. Massie, Detroit, for defendant-appellee.

[177 MICHAPP 533] Before CYNAR, P.J., and SHEPHERD and MARILYN J. KELLY, JJ.

PER CURIAM.

Plaintiff appeals as of right from the trial court's November 13, 1987, order granting defendant's motion for summary disposition pursuant to MCR 2.116(C)(7) and (10). We reverse.

On January 25, 1983, plaintiff was terminated from his employment with defendant, Michigan Consolidated Gas Company. Plaintiff was one of five shift supervisors. Three of the shift supervisors were white. Plaintiff and the other supervisor are black. There is no dispute that plaintiff's termination was the result of a work force reduction. In January, 1983, defendant underwent a significant reduction of operations due to its economic position. As a result, two of the five supervisory positions were eliminated. Plaintiff and the other black supervisor were both laid off.

Before January, 1983, defendant formulated a policy establishing guidelines for the anticipated termination of several hundred nonunion employees due to the economically motivated work force reductions. Defendant's policy provided that, where a position had multiple incumbents and the number of slots were reduced, the selection of employees to be released was to be based on business-related criteria including performance ratings, presence or absence of skills critical to the organization, and dependability. Plaintiff and the other supervisors had equivalent performance ratings and were equally dependable.

Plaintiff claimed that he was improperly selected for release from employment since he possessed a third-class refrigeration license that defendant had stated was required for the job while one white supervisor was retained even though he did not have such a license. It is undisputed that [177 MICHAPP 534] the retained supervisors had substantially more seniority than plaintiff.

On November 19, 1985, plaintiff filed a complaint in Wayne Circuit Court, alleging racial discrimination in violation of the Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq., a 42 U.S.C. Sec. 1981 claim, and a breach of contract claim based on Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980), reh. den. 409 Mich. 1101 (1980).

On December 19, 1985, defendant had this action removed to federal court based on the 42 U.S.C. Sec. 1981 claim. On February 5, 1987, the federal district court declined to exercise pendent jurisdiction over plaintiff's state law claims and remanded the state Civil Rights Act claim and the Toussaint claim back to Wayne Circuit Court. The federal district court retained jurisdiction over the Sec. 1981 claim. Neither party appealed the federal court's order of remand.

The 42 U.S.C. Sec. 1981 claim was tried before a federal jury in February, 1987, and the jury returned a verdict of no cause of action. In reaching its verdict, the jury determined that defendant did not intentionally discriminate against plaintiff in deciding to terminate him.

On August 4, 1987, defendant moved for summary disposition on the remanded state claims in Wayne Circuit Court. Defendant argued that plaintiff's state Civil Rights Act claim was barred by res judicata and that the Toussaint claim failed as a matter of law.

On November 6, 1987, the trial court ruled that plaintiff's state Civil Rights Act claim was barred by res judicata since the federal jury had already found in its verdict form that defendant did not intentionally discriminate against plaintiff in terminating him. The trial court further granted [177 MICHAPP 535] defendant's motion on the Toussaint claim, based on Friske v. Jasinski Builders, Inc., 156 Mich.App. 468, 472, 402 N.W.2d 42 (1986), lv. den. 428 Mich. 880 (1987), indicating that termination of the employment of an otherwise competent employee due to an economically motivated business closing is not grounds for a wrongful discharge claim.

On appeal, plaintiff first argues that his state Civil Rights Act claim is not barred by the doctrine of res judicata. We agree.

Res judicata is the doctrine which bars a subsequent action between the same parties when the facts or evidence essential to the maintenance of the two actions are identical, and applies only when the issues and the parties or their privies in the prior action are identical. Roberts v. City of Troy, 170 Mich.App. 567, 577, 429 N.W.2d 206 (1988); Topps-Toeller, Inc. v. Lansing, 47 Mich.App. 720, 726-727, 209 N.W.2d 843 (1973), lv. den. 390 Mich. 788 (1973).

There are three prerequisites to the application of the doctrine of res judicata: (1) the prior action must have been decided on its merits; (2) the issues raised in the second case must have been resolved in the first; and (3) both actions must have involved the same parties or their privies. Roberts, supra. A summary judgment is a judgment on the merits which bars relitigation on the basis of res judicata. Id. A federal court dismissal without prejudice, however, does not comprise an adjudication on the claims made and res judicata will not bar the plaintiff from later bringing the claims in a state court. Annabel v. C.J. Link Lumber Co., 417 Mich. 950, 331 N.W.2d 900 (1983); Roberts, supra, 170 Mich.App. at pp. 577-578, 429 N.W.2d 206.

In the present case, plaintiff brought the 42 U.S.C. 1981 claim, the state Civil Rights Act claim, and the Toussaint claim in his complaint in Wayne [177 MICHAPP 536] Circuit Court. This...