McLemore v. Detroit Receiving Hosp. and University Medical Center

• Decision Date: 19 October 1992
• Docket Number: Docket No. 134930
• Citation: 493 N.W.2d 441,196 Mich.App. 391
• Parties: , 60 Fair Empl.Prac.Cas. 1220, 79 Ed. Law Rep. 1006 Orrie C. McLEMORE, Plaintiff-Appellee, v. DETROIT RECEIVING HOSPITAL AND UNIVERSITY MEDICAL CENTER, Thomas J. Gallagher, Gail Alexander, and Donald Stokes, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 441

493 N.W.2d 441

196 Mich.App. 391, 60 Fair Empl.Prac.Cas.

1220,

79 Ed. Law Rep. 1006

Orrie C. McLEMORE, Plaintiff-Appellee, v. DETROIT RECEIVING HOSPITAL AND UNIVERSITY MEDICAL CENTER, Thomas J. Gallagher, Gail Alexander, and Donald

Stokes, Defendants-Appellants.

Docket No. 134930.

Court of Appeals of Michigan.

Submitted Aug. 13, 1992, at Detroit.

Decided Oct. 19, 1992, at 10:10 a.m.

Released for Publication Jan. 19, 1993.

Clayton C. Jones, Livonia, for plaintiff-appellee.

Honigman Miller Schwartz & Cohn by Thomas E. Marshall and Ingrid K. Brey, Detroit, for defendants-appellants.

Before NEFF, P.J., and GRIBBS and SHEPHERD, JJ.

SHEPHERD, Judge.

A jury found that defendants terminated plaintiff's employment in retaliation for her filing a sex discrimination charge with the Equal Employment Opportunity Commission. ¹ Pursuant to the jury's verdict, the trial court entered judgment for plaintiff for $465,445.72. Defendants appeal as of right. We affirm and remand for further proceedings.

Plaintiff was a clinical instructor at defendant hospital's school of radiologic technology. In February of 1982, defendant Thomas Gallagher, director of radiology, appraised plaintiff's performance as "effective." In March of 1983, the educational coordinator, defendant Gail Alexander, also evaluated plaintiff's performance as "effective."

When Alexander became associate director of radiology, plaintiff applied for the vacant educational coordinator's position. Her interview in September of 1983 did not go well. Gallagher focused his attention on what he felt were inaccuracies in plaintiff's resume.

Gallagher, Alexander, and Dr. Kenneth Krabbenhoft, the chief director of radiology, ultimately chose a man for the position. Plaintiff filed a complaint with the hospital expressing concern that the hiring decision may have been the result of "bias," and requesting an explanation for the decision in order to avoid "litigation." Plaintiff was told the man was selected because of his superior qualifications. As part of their response to plaintiff's complaint, Alexander and Gallagher sent plaintiff memoranda criticizing her job performance.

The man did not work out and resigned. In January 1984, plaintiff once again applied for the position. Gallagher, Alexander, and Dr. Krabbenhoft selected defendant Donald Stokes to be the new educational coordinator.

Almost immediately, Stokes too began criticizing plaintiff's job performance. At the end of March 1984, he appraised plaintiff's performance as "unsatisfactory."

On April 2, 1984, plaintiff filed a complaint with the EEOC, charging defendants with sex discrimination.

For years the hospital had been having financial difficulties. In the spring of 1984, Gallagher and Alexander were asked to identify positions in the radiology department that could be eliminated as part of a hospital-wide staff reduction. They recommended eliminating plaintiff's position. At the time, Gallagher knew plaintiff had filed a complaint with the EEOC. Plaintiff was laid off on May 31, 1984.

Plaintiff filed this action, charging sex discrimination, breach of contract, and retaliatory discharge. The trial court directed a verdict for defendants with regard to the sex discrimination charge, a ruling plaintiff has not appealed. The jury returned a verdict for plaintiff, finding that retaliation was a significant factor in defendants' decision to lay her off, and that defendants violated the hospital's policies by laying her off and subsequently failing to rehire her. The jury awarded plaintiff $13,500 for economic damages and $250,000 for emotional distress. The trial court entered judgment on the verdict for plaintiff for $465,445.72, including prejudgment interest.

I

Defendants first contend there was insufficient evidence to support the retaliation claim. We disagree.

Defendants moved for judgment notwithstanding the verdict, contesting the sufficiency of the evidence. The trial court denied the motion. When deciding a motion for judgment notwithstanding the verdict, a trial court must examine the testimony and all legitimate inferences that may be drawn therefrom in a light most favorable to the plaintiff. Reisman v. Regents of Wayne State Univ., 188 Mich.App. 526, 538, 470 N.W.2d 678 (1991). If the evidence is such that reasonable jurors could have found for the plaintiff, neither the trial court nor this Court may substitute its judgment for that of the jury. Id.

Defendants contend there was no evidence that the decision to eliminate plaintiff's position was motivated by anything other than economic considerations. They argue that because plaintiff did not file her charge with the EEOC until April 2, 1984, what went on before that date cannot support her claim of retaliation. We disagree.

The Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq., prohibits employers from retaliating against an employee for making a charge, filing a complaint, testifying, assisting, or participating in an investigation, proceeding, or hearing under the act. M.C.L. Sec. 37.2701; M.S.A. Sec. 3.548(701). In Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1312-1314 (CA 6, 1989), the federal court of appeals decided that the Civil Rights Act did not protect from retaliation an employee who had merely expressed concern to his employer about possible discrimination. We strongly disagree with this interpretation of the act. Regardless of the vagueness of the charge or the lack of formal invocation of the protection of the act, if an employer's decision to terminate or otherwise adversely effect an employee is a result of that employee raising the spectre of a discrimination complaint, retaliation prohibited by the act occurs. We will not interpret the act to allow employers to peremptorily retaliate against employees with impunity. Doing so would be contrary to our state's policy of protecting employees who are about to report a suspected violation of law. See M.C.L. Sec. 15.362; M.S.A. Sec. 17.428(2).

The core issue in this case was defendants' motivation for eliminating plaintiff's job. Plaintiff did not dispute that defendant hospital's financial distress was genuine, and that some jobs would have to be eliminated. Plaintiff contended her job was selected because defendants wanted to get rid of her for making a discrimination charge.

Plaintiff produced no direct evidence that defendants' motives were less than pure. The question therefore is whether the circumstantial evidence plaintiff did produce, when viewed in the light most favorable to plaintiff, was sufficient for the jury to legitimately infer that defendants were motivated by a desire to retaliate.

Plaintiff presented evidence that defendants had begun to compile a paper record that would support her discharge long before the layoff. This evidence supports the inference that in eliminating her position, defendants merely took advantage of an opportunity to do what they had been preparing to do, and that the economic necessity was a pretext.

Plaintiff presented evidence that defendants, who previously judged her job performance as effective, suddenly viewed it as unsatisfactory after she raised the issue of bias. In fact, the barrage of criticism of plaintiff's job performance actually began as defendants' official response to plaintiff's internal complaint. This supports the inference that it was the internal complaint with its implied threat of a formal discrimination complaint and not-so-implied threat of litigation that caused the sudden change in how defendants viewed plaintiff's worth.

Defendants point out that neither in the internal complaint nor in the meeting that followed did plaintiff expressly discuss sex discrimination. While this is relevant, we believe a rational trier of fact could still conclude that defendants' reaction to the complaint was motivated by a fear that plaintiff, a black female, would eventually file a complaint charging some type of prohibited bias, either race or sex discrimination.

From the moment they learned plaintiff was concerned about bias, defendants began doing things that could make a case for terminating her employment. They sent numerous memoranda to her criticizing her job performance. Yet she was being criticized for problems with the school outside her control, and for not completing tasks she had not been given. These memoranda and plaintiff's performance evaluations express a level of overall dissatisfaction with her work that is difficult to reconcile with the praise she had received before her complaint. A rational trier of fact could infer that all this was motivated by a fear of an EEOC charge and litigation to follow. When plaintiff filed her complaint with the EEOC, defendants' fears were realized, and they responded by using the first available opportunity to rid themselves of her. Furthermore, there was evidence of a hospital policy to offer laid-off employees other positions to the extent such positions were available. Plaintiff presented evidence that the policy was deliberately ignored in her case.

Therefore, the evidence, viewed in a light most favorable to plaintiff, supports the inference that she was laid off in retaliation for charging defendants with sex discrimination. The trial court did not err in denying the motion for judgment notwithstanding the verdict.

II

Defendants also contend that the trial court erred in denying their motion for a new trial. We disagree.

Defendants argued below that they were entitled to a new trial because the verdict was against the great weight of the evidence. See MCR 2.611(A)(1)(e). The trial court disagreed. A trial court's decision on such a motion is discretionary, and will not be disturbed unless an abuse of that discretion is shown. Bosak v. Hutchinson, 422 Mich. 712, 737, 375 N.W.2d 333 (1985).

The jury, with sufficient evidence before it, found that the evidence established plaintiff...