Walker v. Consumers Power Co.

• Decision Date: 10 September 1987
• Docket Number: No. 84-1653,84-1653
• Citation: Walker v. Consumers Power Co., 824 F.2d 499 (6th Cir. 1987)
• Parties: 107 Lab.Cas. P 55,820, 2 Indiv.Empl.Rts.Cas. 1250 Walter A. WALKER, Jr., Plaintiff-Appellee, v. CONSUMERS POWER COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 499

824 F.2d 499

107 Lab.Cas. P 55,820, 2 Indiv.Empl.Rts.Cas. 1250

Walter A. WALKER, Jr., Plaintiff-Appellee, v. CONSUMERS POWER COMPANY, Defendant-Appellant.

No. 84-1653.

United States Court of Appeals Sixth Circuit.

Argued March 7, 1986.

Decided July 27, 1987.

Rehearing and Rehearing En Banc Denied Sept. 10, 1987.

John L. Collins, George M. Brookover, argued, Foster, Swift, Collins & Coey, P.C., Lansing, Mich., for defendant-appellant.

Walter A. Walker, pro se.

Before ENGEL, KENNEDY and MILBURN, Circuit Judges.

ENGEL, Circuit Judge.

Consumers Power Company appeals a judgment entered on a jury verdict finding it liable for damages in the amount of $1,194,000 upon the complaint of plaintiff Walter A. Walker that he had been discharged from his job as a senior engineer in the Nuclear Fuel Supply Department. Walker alleged that he was discharged without just cause contrary to his contractual rights as recognized by the Michigan Supreme Court in Toussaint v. Blue Cross and Blue Shield of Michigan, 408 Mich. 578, 292 N.W.2d 880 (1980). Although Walker had framed his original complaint on a number of different grounds, the parties finally proceeded to trial upon three separate counts. Count 1 charged the defendant with having discriminated against plaintiff Walker on account of his race in alleged violation of 42 U.S.C. Sec. 1981 by depriving him of the full and equal benefit of all laws and proceedings as enjoyed by white citizens. Counts 2 and 3 alleged pendent claims under Michigan law. Count 2 alleged that Consumers Power breached its employment contract with Walker, and Count 3 alleged a tort claim for fraudulent misrepresentation.

Prior to trial the court granted defendant's motion for a directed verdict on the claim for fraudulent misrepresentation, and at the close of trial the jury returned a verdict in favor of Consumers Power on the 1981 claim. No cross-appeal has been taken nor does this appeal reveal any errors in the rulings with respect to Counts 1 or 3, which would require us to disturb those results. We therefore confine ourselves to considering the propriety of the verdict and judgment on Count 2.

I.

Walker commenced employment with Consumers Power as an associate engineer in its Nuclear Fuel Supply Department on March 15, 1971. Walker had been previously employed in Columbus, Ohio as an aerospace engineer with Rockwell International Corporation, and he there married his wife. The two had met at Iowa State University where his wife obtained a degree in Nuclear Engineering. She thereafter obtained a job with Consumers Power. Walker developed contacts with certain officials at Consumers Power after attending a number of company social activities with his wife. Ultimately in the fall of 1970 conversations took place between Walker and Consumers Power officials, particularly Donald Heiks and Robert Atwater, which led to his accepting employment with Consumers Power.

The plaintiff's claim under Count 2 was twofold. He first alleged that part of his oral agreement upon entering into employment was that Consumers Power would not discharge him except for just cause and that Consumers Power thus breached its contract by terminating him. The great bulk of Walker's testimony and other proof went to the quality of his job performance and the nature of his relationships with other personnel with whom he worked or to whom he was responsible. Plainly most of this evidence was advanced in support of the second part of Walker's contract claim that he was unjustly treated not only because of his race but, even more importantly, because of management's failure to recognize and reward adequately his managerial and engineering talents. In describing plaintiff's position to the jury in the course of his closing instructions, the trial judge stated:

Plaintiff claims that when he took the position with defendant, he was assured that he would be fired only for just cause, and that he would receive promotions and salary increases commensurate with his performance. Plaintiff claims that he entered into a contract of employment with defendant, and that defendant's failure to promote him and provide him with salary increases, and defendant's termination of his employment, constituted breaches of that employment contract.

It is clear that the trial court submitted to the jury as a matter of Michigan law Walker's claim that he was entitled to a favorable verdict if it found that a two-pronged contract had been established. The court therefore permitted recovery and damages to be based upon losses from both alleged breaches.

So far as we are aware, Michigan law has not as yet firmly extended the principles of Toussaint to include implied promises to promote or grant salary increases. See Dzierwa v. Michigan Oil Co., 152 Mich.App. 281, 393 N.W.2d 610 (1986). Upon a theory that at least part of the claim based on such promises to promote was in all events barred by the applicable Michigan statute of limitations, the trial judge does appear to have cautioned the jury that it could not consider defendant's actions prior to August 12, 1974, which would have limited the plaintiff to recovery for breaches occurring within six years of his having commenced suit. Although Michigan courts have discussed the possibility of a breach of contract claim for failure to grant a promisee a particular position or salary, Sepanske v. Bendix Corp., 147 Mich.App. 819, 384 N.W.2d 54 (1985) appeal granted sub nom. Teper v. Park West Galleries, Inc., 402 N.W.2d 469 (1987); Bullock v. Automobile Club of Michigan, 146 Mich.App. 711, 381 N.W.2d 793 (1985), appeal pending, we do not decide whether under proper facts such a cause of action may or may not exist.

After a careful review of the entire record, which included a thorough reading of the transcript, we conclude that while plaintiff made out a sufficient case for submission to the jury upon his claim that Consumers Power breached the employment contract by discharging him without just cause, he presented insufficient evidence concerning a breach of contract for failure to promote. Because objections were carefully preserved, and because we are unable to say that the jury verdict on the Toussaint claim was unaffected by the improper instruction concerning failure to promote, we vacate the judgment of the district court and remand for a new trial on the narrow question of unlawful discharge. ¹

Mr. Walker represented himself at the trial, his retained counsel having withdrawn. While he represented himself most ably, this circumstance posed difficulty not only for Walker but also for the trial court and for us. The great bulk of trial testimony consisted of Walker's own statements given in extreme detail. The difficulty confronting the trial court and us was in distinguishing between the statements made by Mr. Walker to the court and jury in his capacity as his own advocate and those statements made under oath in his capacity as a witness. Thus, in evaluating the claim of Consumers Power that Walker failed to make out a sufficient case as a matter of law for submission to the jury, it has been necessary not only to view the evidence in the light most favorable to him as the prevailing party, but also to consider only the evidence that was under oath and thus properly before the jury. We must therefore separate for evaluation the statements given under oath from the unsworn additional assertions made by Walker in his opening and closing statements and interjected freely during the course of trial.

We conclude that the uncontradicted testimony of Walker himself concerning statements made by Consumers Power employees shows that such statements would be insufficient as a matter of law to give rise to an enforceable promise for a specific position or salary. Disregarding whether Walker's statements concerning such promises were under oath, none of the statements would reasonably have led Walker to believe that he was entitled to a specific position or salary. The statements offered by Walker in support of his claim simply constituted general assurances that he would receive rewards commensurate with his contributions. Such statements indicate no more than what any employee may hope for if that employee remains with a company. ² See Vandendries v. General Motors Corp., 130 Mich.App. 195, 343 N.W.2d 4 (1983), in which the Michigan Court of Appeals refused to recognize an employee's claim for a particular salary commensurate with added responsibilities; it found such a claim too speculative to be submitted to a jury. Walker also introduced evidence about company policy, but the policy only covered promotion procedures and not whether a person could expect promotion. Testimony of Walker at pp. 199-200, 229, May 11, 1984. Such procedures are an inadequate basis for a breach of contract claim. Dabrowski v. Warner-Lambert Co., 815 F.2d 1076 (6th Cir.1987).

In addition to the lack of evidence to support an enforceable promise of promotion or salary, we think that the uncontradicted evidence shows that by August 12, 1974, Walker himself clearly understood that Consumers Power did not intend to honor any such promises, even assuming they had been made. Defense counsel went to great lengths to show that in 1973 Walker should have been aware that he no longer had any right to expect promotions even if such a right had previously existed:

Q: And didn't you have discussion at that point with regard to promotions for you?

A: That's correct.

Q: And as a matter of fact, did Mr. Atwater indicate to you he couldn't say anything to you about what the future would hold with regard to promotions for 1973?

A: That's correct.

Q: Mr. Mosley tell you the same thing?

A: That's correct--well, more or less the same thing, yes.

* * *

* * *

Q: But do you recall him telling you that there was no guarantee for promotions for you at that point?

A: That's correct.

Cross-examination of Walker at pp. 94-95, May...