On Remand
Defendant closed its automobile *767 parts casting plant at Grand Rapids and transferred its business to another plant in Toledo. Plaintiffs, former workers at the Grand Rapids plant, then brought this action alleging age discrimination under the Fair Employment Practices Act (FEPA), MCL 423.301 et seq.; MSA 17.458(1) et seq., since re-enacted in the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.
In the first phase of a bifurcated trial, defendant was found liable for violation of the age discrimination prohibition. In the second phase, the jury assessed damages which the court reduced to $1,442,207.09 by deducting the amount of workers’ compensation benefits plaintiffs received. The court also ordered defendant to reinstate plaintiffs to its pension system and awarded plaintiffs $600,-000 in attorney fees. Defendant appealed from the finding of liability and the award of attorney fees, and plaintiffs cross-appealed as to damages. This Court reversed the jury’s finding of liability.
Adama v Doehler-Jarvis, Division of N L Industries, Inc,
We first consider whether the trial court erred by not allowing plaintiffs to recover damages for
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mental distress. Plaintiffs’ claim was brought under the Fair Employment Practices Act which did, not specifically provide for mental distress damages. The Elliott-Larsen Civil Rights Act also does not specifically provide for mental distress damages. MCL 37.2801; MSA 3.548(801). Courts, however, have uniformly recognized that compensatory damages for emotional distress may be recovered under the Elliott-Larsen Civil Rights Act.
Slayton v Michigan Host, Inc,
Recently, the Michigan Supreme Court considered a related issue in
Boscaglia v Michigan Bell Telephone Co,
"The question whether physical, mental and emotional injuries are compensable under the FEPA or the civil rights act has not been briefed or argued, and hence we intimate no opinion in that regard. We think it self-evident, however, assuming the Legislature in enacting the civil rights acts intended to provide compensation for physical, mental or emotional injury resulting from discrimination, that it did not intend that objective would be defeated by the bar of the exclusive *769 remedy provision of the workers’ compensation act. Whatever may have been the intention of the Legislature in enacting the exclusive remedy provision of the workers’ compensation act, if it intended in enacting civil rights legislation that workers discharged in violation of such legislation could recover for resulting physical, mental or emotional injury that intention would necessarily supersede or modify the scope of other legislation that otherwise would defeat the intent to permit such recovery.”420 Mich 316 -317. (Footnote omitted.)
Plaintiffs claim that this Court, in
Pacheco v Clifton,
While the Supreme Court in Boscaglia did not decide this issue, it considered the language of the statute and cases from other jurisdictions which considered similar statutes.
"The FEPA provides:
" 'If * * * the [fair employment practices] commission shall determine that the respondent has engaged in or is engaging in any unfair employment practice, the commission shall * * * cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair employment practice and to take such further affirmative or other action as will effectuate the purposes of this act * * *.’ MCL 423.307(h); MSA 17.458(7)(h).
"Although this Court has not decisionally addressed the question, courts in other jurisdictions are divided over whether, under similar statutory language, an adminis *770 trative agency may award damages for physical, mental, or emotional injuries suffered as a result of employment discrimination. Compare Kansas Comm on Civil Rights v Service Envelope Co, Inc, 233 Kan 20;660 P2d 549 (1983), Bournewood Hospital, Inc v Massachusetts Comm Against Discrimination, 371 Mass 303;358 NE2d 235 (1976), Castellano v Linden Bd of Ed, 79 NJ 407;400 A2d 1182 (1979), School Dist No 1 v Nilsen,271 Or 461 ;534 P2d 1135 (1975), with Gutwein v Easton Publishing Co, 272 Md 563;325 A2d 740 (1974), E D Swett, Inc v New Hampshire Comm for Human Rights,470 A2d 921 (NH, 1983), School Dist of Twp of Millcreek v Commonwealth Human Relations Comm, 28 Pa Commw 255;368 A2d 901 (1977), vacated on other grounds 474 Pa 146;377 A2d 156 (1977), Murphy v Industrial Comm,37 Wis 2d 704 ;155 NW2d 545 (1968), on reh 37 Wis 2d 712;157 NW2d 568 (1968).”420 Mich 318 , fn 13.
None of these cases hold that mental distress damages can be awarded in every discrimination case. The cases which interpret the statute as allowing for mental distress damages require some special showing of humiliation or embarrassment as a result of the discrimination. In
Kansas Comm on Civil Rights v Service Envelope Co, Inc,
233 Kan 20;
These cases accurately summarize how other jurisdictions have interpreted statutes similar to our former FEPA. See Anno, 85 ALR3d 351. Under either line of authority, the plaintiffs in the instant case have failed to show that they are entitled to mental distress damages. Plaintiffs would have been eventually terminated from their jobs for nondiscriminatory reasons. Defendant also negotiated with plaintiffs regarding the plant’s closing. In light of these factors, we feel that the trial court properly denied plaintiffs the recovery of mental distress damages. We note that our analysis is based on cases interpreting statutes similar to our former FEPA and, therefore, it should not apply to actions brought under the Elliott-Larsen Civil Rights Act.
We next consider whether the trial court erred when it told the jury that damages may be assessed until July 1, 1980, or until an early date when the Grand Rapids plant would have legally closed. The trial court correctly recognized that the plaintiffs had a claim to future damages.
Goins
*772
v
Ford Motor Co,
We next consider whether the trial court created a proper remedy for plaintiffs’ claim for lost pensions. The trial court ordered defendant to reinstate plaintiffs to its pension system. Plaintiffs now argue that the trial court should have allowed the plaintiffs to seek to recover a lump sum damage award and submit this issue to the jury. We see no error in. the trial court’s remedy. Plaintiffs, in their complaint, sought lost pension benefits and requested the court to issue an order for further relief as may be reasonably deemed just and proper. We feel that this was a sufficiently broad request to allow the trial court to fashion equitable remedy. Ordering an employer to pay into a pension plan so as to vest the employee in the *773 plan is a proper remedy for the loss of the employee’s pension rights. Gibson v Mohawk Rubber Co, 695 F2d 1093 (CA 8, 1982). Plaintiffs argue that the trial court had no jurisdiction over the pension plan. The trial court, however, had jurisdiction over defendant and, therefore, could properly order defendant to make contributions so as to vest plaintiffs’ pensions. 2
We next consider whether the trial court erred by instructing the jury to deduct unemployment compensation benefits from any damages awarded for lost wages. We feel that
Pennington v Whiting Tubular Products, Inc,
*774 We next consider whether the trial court erred in reducing the awards received by three plaintiffs by an amount equal to workers’ compensation awards the plaintiffs received. Three plaintiffs received workers’ compensation benefits for disabling back injuries which were incurred before the plant was closed down for discriminatory reasons. The trial court ordered the jury to deduct the workers’ compensation benefits these plaintiffs received from their respective awards. When the jury returned with its verdict, the trial court determined that it had failed to deduct the workers’ compensation benefits. The trial court then deducted the benefits from the jury’s award. These plaintiffs’ back-related work injuries are totally unrelated to the injuries they suffered as a result of defendant’s discrimination. While the plaintiffs’ back injuries reduced their earning capacity, they still retained the ability to do light work. Therefore, they still suffered damages when the defendant closed its plant for discriminatory reasons. The effect of the trial court’s ruling deprives these three plaintiffs of their proper damages. Since the workers’ compensation act does not cover damages caused by discrimination, Boscaglia, supra, the trial court erred by instructing the jury to deduct the amount received in workers’ compensation benefits from the awards to these three plaintiffs. We also feel that the trial court erred by deducting the amount of the workers’ compensation awards from the jury’s award since the jury had already been instructed to make this deduction. The jury may have failed to deduct these benefits by finding that defendant had not met its burden to show that it mitigated its damages. The trial court erred in making this deduction since there was a proper basis for the jury’s award.
We finally consider whether the trial court erred
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in granting plaintiffs attorney fees. Plaintiffs acknowledge that their claim was brought under the Fair Employment Practices Act, but argue that they are entitled to attorney fees under the Elliott-Larsen Civil Rights Act. The trial court awarded plaintiffs $600,000 in attorney fees. We feel that the trial court erred. In
Dep’t of Civil Rights ex rel Starrla K Cornell v Edward A Sparrow Hospital Ass’n,
"In general, a party must bear the burden of his or her own attorney fees 'unless allowance of a fee is expressly authorized by statute or court rule’. State Farm Mutual Automobile Ins Co v Allen,50 Mich App 71 , 74;212 NW2d 821 (1973). Cornell argues that she is entitled to reasonable attorney fees in accordance with § 802 of the Elliott-Larsen Civil Rights Act, MCL 37.2802; MSA 3.548(802). That statute provides:
" 'A court, in rendering a judgment in an action brought pursuant to this article, may award all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, to the complainant in the action if the court determines that the award is appropriate.’
"Cornell’s case was not 'an action brought pursuant to’ the Elliott-Larsen Civil Rights Act. That act was not in effect at the time that Cornell was wrongfully discharged by respondent nor was it in effect at the time that Cornell filed her complaint with the Civil Rights Commission. The statute under which Cornell initiated this suit was the Michigan State Fair Employment Practices Act, MCL 423.301 et seq.; MSA 17.458(1) et seq. The Michigan State Fair Employment Practices Act does not provide for an award of attorney fees to a prevailing complainant. Therefore, because there is no statutory or court rule authority authorizing an award of attorney fees in this case, the trial court correctly declined to award them.”119 Mich App 392 -393.
Likewise, plaintiffs’ case was not an action *776 brought pursuant to the Elliott-Larsen Civil Rights Act. Therefore, the trial court erred in granting plaintiffs attorney fees pursuant to MCL 37.2802; MSA 3.548(802).
We reverse the trial court’s decision to deduct the amount of workers’ compensation benefits received by three plaintiffs from the jury’s award. Since we have determined that the award should not be reduced by these benefits, and the record shows that the jury did not deduct these benefits, we reinstate the jury’s verdict. The trial court also erred by instructing the jury to deduct the amount of unemployment compensation benefits received by the plaintiffs from the award. On remand, the court shall determine the amount that the jury deducted pursuant to this instruction and add that amount of the award. We also reverse the award of attorney fees to plaintiffs. In all other respects, the trial court is affirmed.
Reversed in part, affirmed in part and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Notes
Defendant maintains that our original opinion did not resolve all the issues relating to liability. While we did not respond to every innuendo raised in defendant’s brief, we fully discussed the five major issues regarding liability.
Defendant also raises an argument, claiming that the trial court erred by ordering defendant to pay into the plan until July 1, 1980. Defendant argues that the jury verdict conclusively established that the plant would remain open only through 1978. We decline defendant’s invitation to draw inferences from a reverse calculation of the jury’s general verdict award. Defendant failed to request a special verdict on the factual issue in accord with GCR 1963, 514. Rather, defendant specifically requested the trial court to fashion relief in regard to the pension dispute. Under these circumstances, defendant waived any right to have the jury decide the factual issue.