Wilson v. General Motors Corp., Docket Nos. 106198

• Decision Date: 09 May 1990
• Docket Number: Docket Nos. 106198,109438
• Citation: 454 N.W.2d 405,183 Mich.App. 21,54 Fair Empl.Prac.Cas. (BNA) 680
• Parties: Gail Leslie WILSON, Plaintiff-Appellee, Cross-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellant, Cross-Appellee. 183 Mich.App. 21, 454 N.W.2d 405, 54 Fair Empl.Prac.Cas. (BNA) 680
• Court: Court of Appeal of Michigan — District of US

Page 405

454 N.W.2d 405

Gail Leslie WILSON, Plaintiff-Appellee, Cross-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellant Cross-Appellee.

Docket Nos. 106198, 109438.

183 Mich.App. 21, 454 N.W.2d 405,

54 Fair Empl.Prac.Cas. (BNA) 680

Court of Appeals of Michigan.

Submitted Oct. 18, 1989.

Decided April 2, 1990.

Released for Publication May 9, 1990.

[183 MICHAPP 24] Chambers, Steiner, Mazur, Ornstein & Amlin, P.C. by Angela J. Nicita and Courtney Morgan, Jr., Detroit, for plaintiff-appellee, cross-appellant.

Bodman, Longley & Dahling by Joseph A. Sullivan, Robert G. Brower and Martha B. Goodloe, Detroit, for defendant-appellant, cross-appellee.

Before McDONALD, P.J., and MICHAEL J. KELLY and MURPHY, JJ.

MICHAEL J. KELLY, Judge.

Defendant, General Motors Corporation, appeals from a jury verdict and award of attorney fees in favor of plaintiff, Gail Leslie Wilson. Plaintiff appeals from the circuit court's grant of remittitur in favor of defendant.

Plaintiff, a black woman, was employed by GM's Assembly Division as a data preparation operator from December of 1976 to October of 1981, when she was discharged. At the time of her discharge, plaintiff was on a performance improvement plan to increase her rate of production. This plan put her on six months employment probation. Plaintiff became pregnant in April or May of 1981, and this evidently caused her work quality to decline during this performance improvement period.

Following her discharge, plaintiff filed suit against defendant for race and gender 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., and for wrongful discharge under Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980), reh. den. 409 Mich. 1101 (1980). Plaintiff claimed that defendant discriminated against her based on her race and gender by transferring and promoting other workers, who [183 MICHAPP 25] were white women, while refusing to transfer or promote plaintiff. Plaintiff claimed that she was fired because she confronted her supervisor regarding GM's failure to transfer or promote black female employees and because of her pregnancy. Plaintiff's Toussaint claim was based upon the verbal promise of one of defendant's personnel employees at the time plaintiff was hired. Defendant denied discriminating against the plaintiff or otherwise wrongfully discharging her. It claimed that plaintiff was discharged due to her poor job performance.

Following trial, the jury found that race or gender was a determining factor in defendant's decision to discharge plaintiff. It found that a contract existed between plaintiff and defendant that defendant would fire plaintiff only for good cause, and that plaintiff was not discharged for good cause. The jury awarded plaintiff $500,000 for lost wages and benefits, plus $750,000 for pain and suffering. Defendant moved for judgment notwithstanding the verdict, a new trial, and remittitur. The circuit court denied defendant's motions for judgment notwithstanding the verdict or a new trial, but granted remittitur of the pain and suffering award to $375,000 for a total award of $875,000. Plaintiff moved for costs and attorney fees, which the court granted, in the amount of $86,730.24.

I

Defendant argues that the jury's verdict must be reversed because improper conduct by plaintiff's counsel denied defendant a fair and impartial trial. GM claims that plaintiff's counsel made improper inflammatory statements regarding unrelated incidents, made repeated references to matters[183 MICHAPP 26] outside the record, and made improper comments regarding defense witnesses. We find no error requiring reversal.

When reviewing asserted improper conduct by a party's lawyer, we must first determine whether the lawyer's action was error, and, if so, whether the error requires reversal. Reetz v. Kinsman Marine Transit Co., 416 Mich. 97, 103, 330 N.W.2d 638 (1982). A lawyer's comments usually will not be cause for reversal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial. Guider v. Smith, 157 Mich.App. 92, 101, 403 N.W.2d 505 (1987), aff'd 431 Mich. 559, 431 N.W.2d 810 (1988). Reversal may also be required where counsel's remarks were such as to deflect the jury's attention from the issues involved and had a controlling influence upon the verdict. Id.

Defendant complains about the following comments made by plaintiff's counsel during his opening statement:

It [discrimination] can be a bunch of guys in white sheets standing on your front lawn burning a cross, or it could be ...

* * * * * *

Discrimination can be brutally beating a black boy out in front of a pizza parlor in New York. It can be telling of racial jokes over a radio station, or [sic] one of the finest institutions in the country.

... It was just an analogy. Obviously it can, also, be telling someone who complains to you about why they are not being given an opportunity to advance that they are lucky to have a job, and there are plenty more where you came from. It can, also, be consistently transferring white women out of a department and leaving the black women behind. That's in a racial situation. It can, also, be being insensitive to a woman's needs as caused by her pregnancy, and this can be sexual discrimination.

[183 MICHAPP 27] Defense counsel objected to these comments, but the circuit judge permitted them. The court did instruct the jury that the opening statements were not evidence and that anything that the attorney said was not evidence.

What constitutes a fair and proper opening statement is left to the discretion of the trial court. Guider, supra, 157 Mich.App. at p. 102, 403 N.W.2d 505. Here, plaintiff's lawyer was evidently pointing out that there are obvious, overt forms of discrimination and subtle, less easily discerned forms of discrimination such as plaintiff's case. The examples cited in plaintiff's counsel's opening statement were not related to GM and were not attacks on GM. The circuit court did not abuse its discretion by permitting these remarks.

Defendant complains that plaintiff's counsel commented in closing on defendant's failure to present the testimony of a Doctor Golusin and on defendant's failure to present data entry operator logs which would verify defendant's claims that plaintiff was a poor worker. In Reetz, supra, 416 Mich. at 109, 330 N.W.2d 638, our Supreme Court pointed out that:

[I]t is legitimate to point out that an opposing party failed to produce evidence that it might have, and consequently the jury may draw an inference against the opposing party. This is permissible even though the same witnesses could have been produced by both parties.

These comments did not result in error.

Defendant also argues that plaintiff's counsel improperly belittled defense witness Nina Shepard and James Rupkey. In closing arguments, counsel may discuss the character of a witness and characterize their testimony. DeVoe v. C.A. Hull Inc., 169 Mich.App. 569, 581, 426 N.W.2d 709 (1988), lv. den. [183 MICHAPP 28] 431 Mich. 862 (1988). Plaintiff's attorney's comments did not deny defendant a fair trial and did not result in error.

II

Defendant argues that the circuit court reversibly erred by excluding the testimony of a crucial defense witness. We find no error.

Defendant attempted to present the testimony of Valerie Martin, a GM personnel representative, to rebut plaintiff's evidence indicating that defendant made plaintiff, while pregnant, return to work against the advice of physicians. Defendant argued that Martin would testify that she received a report from an independent physician, Dr. Golusin, which indicated that plaintiff was free to return to work. Martin had been previously deposed by the parties but was not listed on defendant's witness list in accordance with Wayne Circuit Court Rule 2.301. The court precluded Martin from testifying pursuant to LCR 2.301(4), on the ground that she was not listed as a witness.

Wayne Circuit Court Rule 2.301(4), which was in effect at the time of the trial, provided in relevant part:

An unlisted witness may not be called at the trial, except as the court orders for good cause shown or as permitted by paragraphs (5) and (6). [Emphasis added.]

Under this local court rule, defendant could not present Martin as a witness unless it convinced the court of good cause. The record indicates that defendant did not show good cause for presenting Martin's testimony regarding Dr. Golusin's report. Martin's deposition testimony indicated that she [183 MICHAPP 29] was not aware of the conclusions of Golusin's report or the results of his examination of plaintiff, and that Martin herself had not signed the report. Additionally, Martin's testimony regarding the contents of Golusin's report appears to be inadmissible hearsay under MRE 801. See Slayton v. Michigan Host, Inc., 144 Mich.App. 535, 551, 376 N.W.2d 664 (1985); Carlisle v. General Motors Corp., 126 Mich.App. 127, 129, 337 N.W.2d 4 (1983). The circuit court properly excluded Martin's testimony.

III

Defendant claims that reversal is required because the circuit court refused to instruct the jury regarding the authority of defendant's employees to bind defendant to statements or promises made to plaintiff. We disagree.

Plaintiff testified at trial that, at the time she was hired by GM, an employee of GM in its personnel department, Leona Zyber, told plaintiff that she would remain employed so long as she did her work and followed the rules. One of plaintiff's witnesses also testified about similar statements made to her by employees in GM's personnel department. These statements served as the basis for plaintiff's Toussaint claim for breach of employment contract. Defendant did not call Zyber as a witness or present evidence regarding whether Zyber or other GM employees had actual or apparent authority to bind it with a...