Weiss v. Ford Motor Co.

• Decision Date: 23 September 1975
• Docket Number: Docket No. 21180
• Citation: 236 N.W.2d 124,64 Mich.App. 519
• Parties: Richard WEISS, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant. 64 Mich.App. 519, 236 N.W.2d 124, 16 Fair Empl.Prac.Cas. (BNA) 1583, 11 Empl. Prac. Dec. P 10,606
• Court: Court of Appeal of Michigan — District of US

Page 124

236 N.W.2d 124

Richard WEISS, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.

Docket No. 21180.

64 Mich.App. 519, 236 N.W.2d 124,

16 Fair Empl.Prac.Cas. (BNA) 1583,

11 Empl. Prac. Dec. P 10,606

Court of Appeals of Michigan.

Sept. 23, 1975.

Released for Publication Dec. 18, 1975.

Leave to Appeal Granted Jan. 9, 1976.

[64 MICHAPP 520] Richard J. Molloy, James R. Jackson, Dearborn, for defendant-appellant.

Philo, Maki, Cockrel, Robb, Spearman & Cooper by Nicholas J. Rine, Detroit, for plaintiff-appellee.

Before DANHOF, P.J., and R. B. BURNS and R. M. MAHER, JJ.

R. B. BURNS, Judge.

Defendant appeals from a Wayne County Circuit Court jury verdict of $50,000 in favor of plaintiff. We affirm.

Plaintiff's action results from the circumstances of his employment at defendant's Rouge Complex Frame Plant. Plaintiff, a white man, began working as a welder in department 5266 of the plant on October 23, 1970. His seniority dated from 1966, and, excepting two years of Army service, he had been continuously employed with defendant until the events precipitating this action.

On December 10, 1970, an altercation developed between plaintiff and his foreman over the quality [64 MICHAPP 521] of plaintiff's work. The foreman escorted him to the Labor Relations Office where Mr. Perczak, a Ford labor representative, and Mr. Walter Rosser, a union representative, were present. The foreman stated that he wanted plaintiff 'disqualified', and left without saying why. Plaintiff admitted to Perczak that he had 'gotten a little hot under the collar', explaining that he was being treated at the VA Hospital for periodic bouts of nervous anger derived from his harrowing experiences in Vietnam.

Perczak referred plaintiff to Ford's medical department, where he was examined by a Dr. Harris who recommended that plaintiff's physical and emotional problems were such that he be 'remove(d) from arc welding and place(d) in major assembly'. Perczak and Rosser discussed the situation, with Rosser suggesting that plaintiff be assigned to less strenuous work in departments 5262 or 5264. On December 14, 1970, plaintiff was transferred to 5264. On January 1, 1971, plaintiff began a four to six week stay in the hospital, suffering from glomerulonephritis, a degenerative kidney disease. He returned to work in mid-February and was placed under a medical restriction prohibiting heavy lifting or excessive bending.

During his employment in 5264, plaintiff decided to run for the union office of building guide and became a candidate therefor on the slate of the Democratic Action Team, a caucus headed by Walter Rosser. This slate was made up of all black candidates with the exception of plaintiff and one other man. It was opposed by an all-black Frame Plant Aggressive slate headed by Mr. Grady Glenn, UAW Local 600 Unit Chairman. Over 90 per cent of the employees of the plant were black.

Rosser and Glenn discussed plaintiff's transfer to [64 MICHAPP 522] 5264 two times during the campaign. Glenn accused Rosser and Perczak of giving plaintiff preferential treatment in that transfer, and stated, as testified to at trial, that he, Glenn, 'would have that Goddamned honky transferred back to 5266 if it was the last thing that he did'. Pursuant to this promise, Glenn approached Mr. Harold Ball, Ford's Labor Relations Supervisor for the plant's hourly personnel, and registered a complaint. He claimed that plaintiff's transfer was motivated by racial considerations and was an attempt to defeat him (Glenn) in his bid for reelection as unit chairman. He also claimed that the transfer failed to comply with union contracted nonpromotional bid procedure. No grievance by any worker had ever been filed regarding plaintiff's job assignment.

In the latter part of April, Mr. Ball transferred plaintiff back to 5266 without informing him of the reason for this transfer. It was apparently immediately subsequent to this retransfer that a campaign leaflet authored by Grady Glenn appeared in the shop. This leaflet, introduced in evidence as plaintiff's exhibit 8, reads in relevant part:

'Let's take Walter Rosser, a candidate for president and present bargaining committeeman. Brother Walter, who politicked throughout unit negotiations, saw fit to have an employee transferred to Department 5264 from 5266 because of 'nervousness.' This employee just happened to be a 'white' employee. This employee just happens to be running for building guide on Walter Rosser's slate, presumably to pull the white vote. We have had brothers in department 5266 with worse problems than nervousness. Why couldn't any of them come out.'

Shortly after his retransfer to 5266, plaintiff was assigned to work on the carousel, a job involving [64 MICHAPP 523] the type of lifting and bending that he was prohibited from doing. He was then laid off for inability to perform assigned duties. While on lay-off he survived the primary election but was defeated in the run-off election in late May, 1971.

On April 26, 1971, plaintiff filed a grievance challenging his retransfer and subsequent lay-off. On May 6, 1971, plaintiff filed a complaint with the Michigan Civil Rights Commission (CRC) alleging racial discrimination. On August 9, 1971, plaintiff's grievance was settled in his favor. He was reinstated with partial payment of lost wages in the amount of $934. Mr. Ball testified that the grievance was settled because he had not been aware of plaintiff's physical restriction at the time of retransfer, and because there were at that time employees in 5264 with less seniority than plaintiff.

On October 23, 1971, plaintiff filed suit in Wayne County Circuit Court alleging racial discrimination in employment based on the same incident. On December 21, 1971, the CRC issued a notice of disposition of plaintiff's complaint, responding to the August reinstatement as a 'satisfactory resolution' of the matter. The CRC terminated its investigatory process without determining the question of racial discrimination.

On August 17, 1973, Ford made a pretrial motion for summary judgment on the ground that the disposition of plaintiff's CRC complaint barred the circuit court action. This motion was denied. After the jury verdict in favor of plaintiff, defendant filed alternative motions for judgment notwithstanding the verdict and for a new trial. These motions were denied. Defendant appeals asking that the trial court judgment be vacated and entered for defendant, or that a new trial be granted.

[64 MICHAPP 524] Defendant's contention that this action is barred by the CRC 'disposition' is largely without merit. The language of Pompey v. General Motors Corp., 385 Mich. 537, 560, 189 N.W.2d 243, 255 (1971), is clear:

'We hold that plaintiff can maintain a civil damage action for redress of his statutorily created civil right to be free from discrimination in private employment, and that this remedy may be pursued in addition to the remedial machinery provided by statute.'

The Supreme Court intended Pompey to be read broadly for the general proposition that a 'plaintiff may avail himself of a cumulative judicial remedy in vindication of this specific civil right.' 385 Mich. at 551, 189 N.W.2d at 250. Thus was the CRC found not to have exclusive jurisdiction over claims of racial discrimination. The same concern for cumulative remedies is inherent in Michigan Civil Rights Commission v. Clark, 390 Mich. 717, 212 N.W.2d 912 (1973), where the Court struck down a statute enabling a respondent to divest a complainant of his access to CRC jurisdiction by providing for preemptive removal to the courts.

Similar in thrust is the recent opinion of the United States Supreme Court in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). The Court held...