Michigan Civil Rights Com'n ex rel. Boyd v. Chrysler Corp.

• Decision Date: 27 December 1977
• Docket Number: Docket No. 30916
• Citation: 263 N.W.2d 376,80 Mich.App. 368,22 Fair Empl.Prac.Cas. (BNA) 1160
• Parties: MICHIGAN CIVIL RIGHTS COMMISSION ex rel. Elmer BOYD, Plaintiff-Appellant, and Elmer Boyd, (Individually), Plaintiff-Cross Appellant, v. CHRYSLER CORPORATION, MACK AVENUE STAMPING PLANT, Defendant-Appellee. 80 Mich.App. 368, 263 N.W.2d 376, 22 Fair Empl.Prac.Cas. (BNA) 1160
• Court: Court of Appeal of Michigan — District of US

Page 376

263 N.W.2d 376

MICHIGAN CIVIL RIGHTS COMMISSION ex rel. Elmer BOYD Plaintiff-Appellant and Elmer Boyd, (Individually), Plaintiff-Cross Appellant, v. CHRYSLER CORPORATION, MACK AVENUE STAMPING PLANT Defendant-Appellee.

Docket No. 30916.

80 Mich.App. 368, 263 N.W.2d 376,

22 Fair Empl.Prac.Cas. (BNA) 1160

Court of Appeals of Michigan.

Dec. 27, 1977.

Released for Publication March 14, 1978.

[80 MICHAPP 370] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Joseph Cusmano, Asst. Atty. Gen., Detroit, for plaintiff-appellant.

Nicholas J. Rine, Detroit, for Boyd.

Keith A. Jenkins and A. William Rolf, Chrysler Corp., Detroit, for defendant-appellee.

Before DANHOF, C. J., and T. M. BURNS and KEYES, ^* JJ.

T. M. BURNS, Judge.

In this case, the Civil Rights Commission and Elmer Boyd claim that Boyd was discharged from his employment at Chrysler Corporation, Mack Avenue Stamping Plant, because of his race. The procedural history of this case can be found in the report of a prior appeal in this matter, Civil Rights Commission v. Chrysler Corp., 64 Mich.App. 393, 235 N.W.2d 791 (1975). Pursuant to the remand ordered in that opinion, the circuit court has now passed on the merits of Boyd's claim and found that his discharge was not racially [80 MICHAPP 371] motivated, but rather the result of his poor work performance, as claimed by the employer.

Boyd was discharged from his job as a hi-lo driver on April 25, 1968. Boyd was originally hired by Chrysler in 1944 and, although his specific job inside the plant had varied, he had been a hi-lo driver since that time. Boyd's service with Chrysler was lengthy, but his last years were checkered with disciplinary proceedings, disciplinary layoffs and at least one previous discharge.

The discharge with which we must concern ourselves was precipitated by Boyd's transfer from a job inside the plant to an outside job at the salvage yard adjacent to the plant. This transfer was necessitated by Boyd's presentation of a doctor's certificate which, after evaluation by the Chrysler medical staff, prevented Boyd from working inside the plant near smoke, gas or other airborne debris. There were no jobs which would meet this medical classification inside the plant. The company was thus put to the choice of transferring Boyd to a different department or providing him with this outside job. Boyd replaced a white man on the job outside.

Boyd's primary duty at the yard was to load bins of scrap brought from inside the plant by others onto his hi-lo and dump them in trailers for later removal from the grounds. The yard supervisor, O. C. Buckner, also had certain duties in relation to the scrap and was to aid Boyd in the performance of his duties.

I

At the time of Boyd's discharge, § 3 of the Fair Employment Practices Act, 1955 P.A. 251, M.C.L.A. § 423.303; M.S.A. § 17.458(3), made it an unfair labor [80 MICHAPP 372] practice for an employer to discriminate in any matter related to employment because of race. ¹ Even though this statute has since been repealed, see footnote 1, our review proceeds as if under the prior act.

A panel of this Court recently noted that the Constitution provided for de novo review in the circuit court but made no provision for further review and concluded that Court of Appeals review was limited to whether the commission's decision was supported by competent, material and substantial evidence on the whole record. Civil Rights Commission ex rel. Dixon v. Ford Motor Co., 75 Mich.App. 59, 254 N.W.2d 652 (1977). We do not believe the Ford panel correctly decided this question. Review in the Court of Appeals must be of the circuit court's decision, not that of the commission. To hold otherwise would render the constitutionally required de novo review in the circuit court, Const.1963, art. 5, § 29, meaningless. Also, we measure the circuit court's findings not by the standard of the Administrative Procedures Act (APA), ² M.C.L.A. § 24.201 et seq.; M.S.A. § 3.560(101) et [80 MICHAPP 373] seq., but rather, by whether the findings are clearly erroneous under the standard of GCR 1963, 517.1. This was made clear by the Legislature for future cases in the 1976 act, M.C.L.A. § 37.2606(3); M.S.A. § 3.548(606)(3), which provides for review from the circuit court "in the same manner and form as other appeals from that court".

II

"The crux of a civil rights suit is that similarly situated people have been treated differently because of their race." Franklin v. Crosby Typesetting Co. and International Typographical Union, 411 F.Supp. 1167, 1172 (N.D.Tex.1976).

The allegation that Boyd's discharge was racially motivated is based on the premise that Boyd's job as a hi-lo driver and Buckner's job as yard supervisor were so intertwined that Boyd's performance was necessarily tied to Buckner's. Boyd was fired for his failure to adequately perform his job, and yet no disciplinary action was taken against Buckner.

The type of discrimination alleged here has been labeled "disparate treatment". To make a prima facie showing of discrimination, the one claiming disparate treatment must show that he was a member of the class entitled to protection under the act and that, for the same or similar conduct, he was treated differently than one who was a member of a different race. Pompey v. General Motors Corp., 385 Mich. 537, 542, 549, 189 N.W.2d 243 (1971). ³ Cf. McDonald v. Sante Fe Trail Transportation[80 MICHAPP 374] Co., 427 U.S. 273, 282-283, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976).

In this case, the hearing examiner heard all the testimony and concluded that Boyd had failed to carry his burden of showing that race was the reason for his discharge. The Commission, based on this same evidence, found that Boyd's performance was directly related to Buckner's and that Chrysler's failure to provide adequate training, plus its failure to discipline Buckner, raised an inference that Boyd's discharge was racially motivated.

The circuit court also made its decision on the basis of the record made before the administrative law judge. This was proper. Burrell v. Annapolis Hospital, 36 Mich.App. 537, 193 N.W.2d 900 (1971). Although the circuit court's opinion is not as concise as it could have been, it concluded that Boyd failed to show, by a preponderance of the evidence, that his discharge was racially motivated. We review that conclusion to determine if it is clearly erroneous.

III

In deciding whether Boyd has made a prima facie showing of disparate treatment, several principles must be kept in mind. First, the prima facie [80 MICHAPP 375] showing of discrimination which Boyd is responsible for making is not merely presentation of enough evidence to avoid a directed verdict as if this were a jury trial, but rather, presentation of enough evidence to entitle him to a judgment if a nondiscriminatory reason for the discharge is not shown. Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1283, n. 4 (C.A.7, 1977); Woods v. North American Rockwell Corp., 480 F.2d 644, 647 n. 3 (C.A.10, 1973). ⁴

Second, all the evidence presented must be considered, there is no need to ignore opposing evidence to determine if Boyd has made a prima facie case. If the company can refute a claim of disparate treatment, it need not shoulder the burden of proving a valid nondiscriminatory reason for the discharge. Henry v. Ford Motor Co., 553 F.2d 46 (C.A.8, 1977).

With these principles in mind, we examine the evidence which plaintiffs claim raises the inference of discrimination.

IV

The Attorney General states that the sole claim of discrimination here is based on the theory of disparate treatment. A necessary part of determining whether similarly situated persons were treated differently is to determine whether, in fact, they were similarly situated. Chrysler contends [80 MICHAPP 376] that the jobs were not so interrelated as to cause performance at one to equal performance of the other.

Boyd had been a hi-lo driver since he was hired by Chrysler in 1944. Buckner's duties did not include driving a hi-lo. Boyd claims that although he was a competent hi-lo operator, he needed instruction and assistance from Buckner in order to perform this particular job.

No evidence was presented which would indicate that Buckner, or anyone else, gave more instruction or more assistance to white drivers who held this job before Boyd. The employer cannot be held liable for failure to train an employee to perform a particular task absent a showing that this failure constituted dissimilar treatment. Long v. Ford Motor Co., 496 F.2d 500 (C.A.6, 1974).

Nor can we conclude that Buckner's cooperation was essential to Boyd's job performance. Boyd's job was to pick up the bins of scrap on the prongs of his hi-lo and dump them into trailers. A part of Buckner's job was to make sure that the scrap in these bins was properly sorted before being dumped into the appropriate trailer and to remove usable material which had erroneously been scrapped. ⁵ The only testimony on the point shows that 80% Of the bins brought from inside the plant required no sorting by Buckner. ⁶

[80 MICHAPP 377] Boyd argues that he could not dump even these bins because he needed Buckner to identify the type of scraps, see note 5, and point to the proper trailer. The record contains photographs of the various types of scrap involved in this operation. They seem easy enough to distinguish from one another. Indeed, Boyd's own testimony establishes that he could distinguish one type of scrap from another even though he could not name them. The testimony indicated that a new driver may need help in identifying the types of scrap for the first few days, but not thereafter. Boyd had been on the job a sufficiently long period to be able to identify these types of scrap.

Even if his theory concerning the lack of cooperation by Buckner is given full credit, Boyd's testimony at the hearing before the commission included a different reason for his...